EXHIBIT 10.4
OMNIBUS AMENDMENT AND WAIVER
This OMNIBUS AMENDMENT AND WAIVER (this "AMENDMENT"), dated as of
February __, 2008, is entered into by and between RETAIL PRO, INC. (formerly
known as ISLAND PACIFIC, INC., a Delaware corporation) (the "COMPANY"), LV
Administrative Services, Inc., as Administrative and Collateral Agent ("AGENT")
for and on behalf of LAURUS MASTER FUND, LTD., a Cayman Islands company
("LAURUS"), for the purpose of amending, amending and restating, and waiving
certain terms of (i) 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, (ii) the Securities Purchase Agreement by and between the Company and
Laurus dated as of July 12, 2004 (as amended, modified or supplemented from time
to time, the "JULY 2004 PURCHASE AGREEMENT"), (iii) the Registration Rights
Agreement by and between the Company and Laurus dated July 12, 2004 (as amended,
modified and/or supplemented from time to time, the "JULY 2004 REG. RIGHTS
AGREEMENT"), (iv) the Secured Convertible Term Note issued by the Company to
Laurus, 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"), (v) the Securities Purchase Agreement by and between
the Company and Laurus dated as of June 15, 2005 (as amended, modified or
supplemented from time to time, the "JUNE 2005 PURCHASE AGREEMENT"), (vi) 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"), (vii) the Securities Purchase Agreement by and
between the Company and Laurus dated November 17, 2005 (as amended, modified or
supplemented from time to time, the "NOVEMBER 2005 PURCHASE AGREEMENT" and
together with the July 2004 Purchase Agreement and the June 2005 Purchase
Agreement, the "PURCHASE AGREEMENTS"), and (viii) 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" and together with the July 2004 Reg. Rights Agreement and the
June 2005 Reg. Rights Agreement, the "REG. RIGHTS AGREEMENTS"). Capitalized
terms used herein without definition shall have the meanings ascribed to such
terms in the applicable Term Notes, Purchase Agreements or Reg. Rights
Agreements.
WHEREAS, Island Pacific, Inc. has changed its name to Retail Pro, Inc.;
and
WHEREAS, the Company and Agent have agreed to make certain changes to
each of 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:
1. Each of the Company and Agent hereby acknowledge that (i) the
aggregate principal amount outstanding on the date hereof pursuant to the July
2004 Term Note is $2,066,866.48, and (ii) the aggregate principal amount
outstanding on the date hereof pursuant to the June 2005 Term Note is
$3,200,000.
2. The last sentence of Section 2.1 of the July 2004 Term Note is
hereby deleted and the following inserted in its stead:
"The 'FIXED CONVERSION PRICE' applicable to this Note means $0.08 for
the first $688,955 converted hereunder, and $2.00 thereafter."
3. The last sentence of Section 2.1(a) of the June 2005 Term Note is
hereby deleted and the following inserted in its stead:
"The `FIXED CONVERSION PRICE' applicable to this Note means $0.08 for
the first $1,066,666 converted hereunder and $2.00 thereafter."
MISCELLANEOUS
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4. Agent 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.
5. 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 Agent shall have executed and the Company shall have
delivered to Agent its respective counterpart to this Amendment.
6. Except as specifically set forth in this Amendment, there are no
other amendments, modifications or waivers to the Term Notes, the Purchase
Agreements or the Reg. Rights Agreements, and all of the other forms, terms and
provisions of each of the foregoing remain in full force and effect.
7. The Company hereby represents and warrants to Agent that after
giving effect to this Amendment: (i) on the date hereof, all representations,
warranties and covenants made by the Company in connection with the Term Notes
are true, correct and complete except as qualified or limited in any manner by
the information set forth in the Company's Form 10-K for the year ended March
31, 2007, other reports filed with the Securities Exchange Commission (SEC)
under the Securities Act of 1933, as amended, and the Exchange Act, including
pursuant to Section 13(a) or 15(d) thereof, and the Supplemental Schedules
delivered by the Company to Agent as contemplated by the Securities Purchase
Agreement dated as of February 29, 2008 by and among the Company, Agent and the
Purchasers (as defined therein); and (ii) on the date hereof, all of the
Company's covenant requirements set forth in the each of the Term Notes, the
Purchase Agreements, and Related Agreements (as defined in the respective Term
Notes) have been met except as qualified, limited or waived in any manner by
this Amendment or any prior amendments.
8. From and after the Amendment Effective Date, all references to the
June 2004 Term Note and the July 2005 Term Note shall be deemed to be references
to each of the respective June 2004 Term Note and the July 2005 Term Note as
modified hereby.
9. 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 Agent has caused this
Amendment to be signed in its name effective as of this __ day of February,
2008.
RETAIL PRO, INC. (FORMERLY KNOWN AS
ISLAND PACIFIC, INC.)
By:________________________________
Name: Xxxxx Xxxxxxxxx
Title: Chief Executive Officer
LV ADMINISTRATIVE SERVICES, INC.
By:______________________________
Name:
Title:
AGREED AND ACKNOWLEDGED:
LAURUS MASTER FUND, LTD.
BY: LAURUS CAPITAL MANAGEMENT, LLC
ITS: INVESTMENT MANAGER
By:______________________________
Name:
Title:
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