FOURTH AMENDMENT TO SHARE PURCHASE AGREEMENT
EXHIBIT
10,1
FOURTH
AMENDMENT TO
This
Fourth Amendment (“Fourth Amendment”) is made as of this 15th
day of
January, 2008, by and between ICC WORLDWIDE, INC. (formerly, Torbay Holdings,
Inc.), a Delaware corporation (the “Issuer” or the “Company”) and THE BLACK
DIAMOND FUND, LLLP, a Minnesota limited liability limited partnership (the
“Buyer”).
WITNESSETH:
WHEREAS,
the Issuer and the Buyer entered into a Share Purchase Agreement (the “Original
Agreement”) dated June 29, 2007 in which the Issuer sold preferred stock and
common stock to the Buyer; and
WHEREAS,
the Original Agreement was amended by a First Amendment dated July 24, 2007
(the
“First Amendment”) to clarify certain representations and terms of that
Agreement following the signing of the Original Agreement, and
WHEREAS,
the Original Agreement was further amended by a Second Amendment dated September
28, 2007 (the “Second Amendment”) to change the Put Option held by Black Diamond
under the Original Agreement and to swap the Company’s Series B preferred stock
held by Black Diamond for the Company’s Series C preferred stock which had more
favorable preferences to Black Diamond than the Series B stock, and
WHEREAS,
the Original Agreement was further amended by a Third Amendment dated December
17, 2007 (“the Third Amendment”) to increase the amount of stock purchased under
the agreement and to further change the Put Option held by Black Diamond (the
Original Agreement, as amended by the First Amendment, the Second Amendment,
and
the Third Amendment is hereinafter referred to as the “Existing Agreement”); and
WHEREAS,
the Issuer and Buyer now seek to further amend the Existing Agreement to further
change the Put Option in consideration for the issuance to Black Diamond of
warrants to purchase the Issuer’s common stock.
NOW,
THEREFORE, the Issuer and the Buyer hereby amend the Existing Agreement as
follows:
1.
Paragraph 3.4.1 is deleted in its entirety and replace as follows:
3.4.1. During
each quarter set forth in the table below,, the Company will set aside for
the
purchase from the Buyer of shares of Series C Preferred Stock pursuant to
Paragraph 3.4.2, the following percentage of its positive net income before
income taxes for the preceding quarter as reported in the Company’s Quarterly
Report on Form 10-QSB or as determined in connection with the preparation of
the
Company’s Form 10-KSB for the period ended on the last day of the preceding
quarter..
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Calendar
Quarter
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Percentage of
Pretax Income
|
|||
|
3rd
and 4th
2008 and 1st
and 2nd 2009
|
10.0
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%
|
||
|
3rd
and 4th
2009 and 1st
and 2nd 2010
|
20.0
|
%
|
||
|
3rd
and 4th
2010 and 1st
and 2nd 2011
|
25.0
|
%
|
||
|
3rd
and 4th
2011 and 1st
and 2nd 2012
|
30.0
|
%
|
||
3.4.1.1
Buyer
agrees to waive, defer or subordinate Issuer’s requirement to set aside all or a
portion of the amount of Issuer’s positive net income before income taxes that
Issuer is required to set aside pursuant to Paragraph 3.4.1 to the extent
reasonably necessary to enable the Issuer to obtain from any bona fide lender
loans or lines of credit. Buyer will at its expense promptly and reasonably
cooperate with Issuer and any bona fide lender to effect such waiver, deferment
or subordination including executing such documents and instruments as shall
reasonably be necessary therefor.
| 2. |
Paragraph
3.1.3 is added as follows:
|
3.1.3 Issuer
shall promptly issue to Buyer warrants to purchase fifteen million (15,000,000)
shares of the Issuer’s common stock of Issuer for $.01 per share which warrants
shall be immediately exercisable upon issuance and continue to be exercisable
for a period of 5 years after issuance. Such warrants will be in the form
attached.
IN
WITNESS WHEREOF, this Fourth Amendment has been executed by the parties hereto
the day and year first above written.
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Issuer:
|
|
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/s/
Xxxxxxx Xxxxxxxx
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/s/
Xxxxxxx X Xxxxx
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Xxxxxxx
Xxxxxxxx, Investment Advisor
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Xxxxxxx
X Xxxxx, President
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