EXHIBIT 10.1
AMENDMENT AND WAIVER
This AMENDMENT AND WAIVER (this "AMENDMENT"), dated as of March 21,
2006, is entered into by and between ISLAND PACIFIC, INC., a Delaware
corporation (the "COMPANY"), and LAURUS MASTER FUND, LTD., a Cayman Islands
company ("LAURUS"), for the purpose of amending and amending and restating and
waiving certain terms of (i) the Secured Convertible Term Note, dated as of
November 17, 2005 (as amended and restated, amended, modified and/or
supplemented from time to time, the "NOVEMBER 2005 BRIDGE NOTE") issued by the
Company to Laurus, (ii) the Registration Rights Agreement by and between the
Company and Laurus dated November 17, 2005 (as amended, modified or supplemented
from time to time, the "NOVEMBER 2005 REG. RIGHTS AGREEMENT"), (iii) the
Securities Purchase Agreement, dated as of November 17, 2005 (as amended,
modified or supplemented from time to time, the "NOVEMBER 2005 PURCHASE
AGREEMENT") by and between the Company and Laurus, (iv) the Amended and Restated
Secured Convertible Term Note, dated as of July 12, 2004 (as amended and
restated, amended, modified and/or supplemented from time to time, the "JULY
2004 TERM NOTE") issued by the Company to Laurus, (v) the Securities Purchase
Agreement, dated as of July 12, 2004 (as amended, modified or supplemented from
time to time, the "JULY 2004 PURCHASE AGREEMENT") by and between the Company and
Laurus, (vi) the Registration Rights Agreement by and between the Company and
Laurus dated July 12, 2004 (as amended, modified or supplemented from time to
time, the "JULY 2004 REG. RIGHTS AGREEMENT"), (vii) 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 July 2004 Term
Note, the "TERM NOTES" and each, a "TERM NOTE") issued by the Company to Laurus,
(viii) 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 November 2005 Purchase Agreement and the July 2004
Purchase Agreement, the "PURCHASE AGREEMENTS" and each, a "PURCHASE AGREEMENT")
by and between the Company and Laurus and (ix) the Registration Rights Agreement
by and between the Company and Laurus dated June 15, 2005 (as amended, modified
and/or supplemented from time to time, the "JUNE 2005 REG. RIGHTS AGREEMENT" and
together with the November 2005 Reg. Rights Agreement and the July 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 November 2005 Bridge Note,
Term Note, Purchase Agreement or Reg. Rights Agreement.
WHEREAS, the Company and Laurus have agreed to make certain changes to
the November 2005 Bridge Note, the Term Notes, the Purchase Agreements and the
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:
WAIVERS
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1. Laurus 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
July 2004 Term Note) due on the first business day of March 2006, April 2006,
May 2006, June 2006, July 2006 and August 2006 on such dates (collectively, the
"JULY 2004 POSTPONED PRINCIPAL"); PROVIDED THAT, the July 2004 Postponed
Principal shall each be paid in full on the Maturity Date (as defined in the
July 2004 Term Note), together with all other amounts due and payable on such
date under the July 2004 Purchase Agreement and the Related Agreements referred
to in the July 2004 Purchase Agreement.
2. Laurus 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 March 2006, April 2006,
May 2006, June 2006, July 2006 and August 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.
AMENDMENTS
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3. The November 2005 Bridge Note is hereby amended and restated in the
form attached hereto as EXHIBIT A (the "AMENDED AND RESTATED BRIDGE NOTE"). For
the avoidance of doubt, the amendment and restatement of the November 2005
Bridge Note as set forth in this Section 1 shall be in substitution for and not
in satisfaction of the November 2005 Bridge Note. Upon the execution of this
Amendment and Waiver and prior to Company delivering an originally executed copy
of the Amended and Restated Bridge Note to Laurus, Laurus will return the
originally executed November 2005 Bridge Note to the Company.
4. The definition of Maturity Date appearing in each of the Term Notes
is hereby amended to extend such Maturity Date to "August 31, 2006" in each
case.
5. Laurus 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 five (5) business days
of the date hereof.
6. Section 6.4 in each of the Purchase Agreements is hereby deleted in
its entirety and, the following new Section 6.4 is hereby inserted in lieu
thereof:
"The Company shall timely file with the SEC all reports
required to be filed pursuant to the Exchange Act (other than
in respect of its Form 10-K for the year ended March 31, 2005
and the Forms 10-Q for quarters ended June 30, 2005, September
30, 2005 and December 31, 2005 (the "Late Reports"), which
Late Reports shall be filed by April 20, 2006) 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."
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7. The first sentence of Section 6.2 of the Purchase Agreements shall
be amended to state:
"By May 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."
8. Each of the Purchase Agreements and the Related Agreements referred
to therein are hereby amended to delete the text "NASDAQ SmallCap Market" in
each instance appearing therein and inserting the text "NASDAQ Capital Market"
in lieu thereof in each case.
9. Effective as of the Amendment Effective Date, Laurus consents to the
Company (a) increasing the amount of the Secured Term Note issued to Midsummer
Investments, Ltd. ("MIDSUMMER") on or around November 17, 2005 (the "MIDSUMMER
TERM NOTE"), and issuing an Option to Midsummer, in each case on or around the
date hereof and on terms no more favorable to Midsummer than the terms of the
Amended and Restated Bridge Note and the Additional Option (as defined below)
are to Laurus and (b) amending the Securities Purchase Agreement dated March 15,
2004 between the Company and Midsummer and the 9% Convertible Debenture (the
"Debenture") issued thereby to extend the maturity date of the Debenture to
September 30, 2006, provide for the payment of monthly interest payments in the
amount of $35,613 for each such payment and issue Midsummer an option to
purchase 1,610,005 shares of the Company's common stock at $0.20 per share, in
substantially the form of the Additional Option.
10. Effective as of the Amendment Effective Date and subject to the
full compliance by the Company with the terms hereof (including, without
limitation, Section 8 above), Laurus waives any and all rights to an adjustment
of the conversion price under the July 2004 Term Note or June 2005 Term Note
triggered by the increase in the principal amount of the Midsummer Term Note
and/or issuance of the Option to Midsummer dated as of the date hereof.
11. The definition of Filing Date in Section 1 of the November 2005
Reg. Rights Agreement is deleted in its entirety and replaced as follows:
"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 the exercise of the Option, a date no later than
May 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 the terms of the Option or otherwise, thirty (30)
days after the occurrence of such event or the date of the such
adjustment but in no event before May 15, 2006."
12. The definition of Filing Date in Section 1 of the July 2004 Reg.
Rights Agreement is deleted in its entirety and replaced as follows:
"FILING DATE" means, with respect to (i) the Registration Statement
required to be filed hereunder, a date no later than May 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 or Section 4 of the
Warrant or otherwise, thirty (30) days after the occurrence of such
event or the date of the such adjustment but in no event before May
15, 2006."
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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:
"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, May 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 May 15, 2006."
MISCELLANEOUS
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14. The Company agrees that is shall issue on the date hereof an Option
(the "Additional Option") to Laurus to purchase up to 1,125,000 shares of the
Common Stock of the Company with an exercise price of $0.01 per share, such
Additional Option to be in the form attached hereto as EXHIBIT B. The Company
further agrees to file a Registration Statement (as defined in each of the Reg.
Rights Agreements), to register the shares of Common Stock that may be issued
upon exercise of the Additional Option no later than May 15, 2006 (the "FILING
DATE"). The Filing Date shall be deemed to be a "Filing Date" under, and as
defined in, each of the Reg. Rights Agreement. The Additional Option shall be
deemed to be an "Option" under, and as defined in, the November 2005 Reg. Rights
Agreement.
15. 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
(i) each of the Company and Laurus shall have executed and the Company shall
have delivered to Laurus its respective counterpart to this Amendment, (ii) the
Company shall have executed and delivered to Laurus each of the Additional
Option and the Amended and Restated Bridge Note, and (iii) Laurus shall have
received from the Company and its Subsidiaries a duly executed Reaffirmation
Agreement in the form attached hereto as EXHIBIT C.
16. Except as specifically set forth in this Amendment, there are no
other amendments, modifications or waivers to the Term Notes, Purchase
Agreements or Reg. Rights Agreements, and all of the other forms, terms and
provisions of the Term Notes and the Purchase Agreements remain in full force
and effect.
17. The Company hereby represents and warrants to Laurus that after
giving effect to this Amendment and the Amendment and Waiver between the Company
and Midsummer dated on or around the date hereof: (i) on the date hereof, all
representations, warranties and covenants made by the Company in connection with
the Amended and Restated Bridge Note, the Term 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
Laurus pursuant to Section 4 of the November 2005 Purchase Agreement or in the
SEC Reports and except that the Company did not file its reports on Form 10-Q
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for the quarters ended September 30, 2005 and December 31, 2005; and (ii) on the
date hereof, all of the Company's and its Subsidiaries' covenant requirements
set forth in the Amended and Restated Bridge Note, the Term Notes, the Purchase
Agreements, the Reg. Rights Agreements and Related Agreements (as defined in the
respective Purchase Agreements) have been met.
18. From and after the Amendment Effective Date, all references to the
Amended and Restated Bridge Note, the Term Notes, the Purchase Agreements and
the Reg. Rights Agreements shall be deemed to be references to the Amended and
Restated Bridge Note, the Term Notes, Purchase Agreements and Reg. Rights
Agreements as modified hereby.
19. 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.
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IN WITNESS WHEREOF, each of the Company and Laurus has caused this
Amendment to be signed in its name effective as of this 21st day of March 2006.
ISLAND PACIFIC, INC.
By:________________________________
Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
LAURUS MASTER FUND, LTD.
By:________________________________
Name:
Title:
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EXHIBIT A
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AMENDED AND RESTATED BRIDGE NOTE
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EXHIBIT B
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ADDITIONAL OPTION
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EXHIBIT C
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REAFFIRMATION AGREEMENT
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