SECOND THIRD AMENDMENT TO SERIES D CONVERTIBLE STOCK PURCHASE AGREEMENT
EXHIBIT 10.73
SECOND THIRD AMENDMENT
TO
NOTE: Scrivener’s
error in the title to, and references in, this document. Document no.
373488.1 is the correct, properly entitled Second Amendment to that certain
Series D Convertible Preferred Stock Purchase Agreement, which was dated as of
June 13, 2007, and previously amended. This document is the Third
Amendment to such Agreement and all references to the “Second Amendment” herein
shall be deemed corrected to read “Third Amendment.”
SECOND AMENDMENT TO SERIES D
CONVERTIBLE STOCK PURCHASE AGREEMENT
This
Second Amendment, dated as of August 29, 2008
(the “Second
Amendment”), is to that certain Series D Convertible Preferred Stock
Purchase Agreement, which was dated as of June 13, 2007, and amended on August
29, 2008, by and among BPO Management Services, Inc. (the “Company”), and the purchasers
listed on the signature pages hereto (the “Purchasers”). The
Company and the Purchasers are, together, the “Parties.”
RECITALS
WHEREAS,
the Parties entered into that certain Series D Convertible Preferred Stock
Purchase Agreement, dated June 13, 2007 (the “Stock Purchase Agreement”),
pursuant to which the Purchasers purchased shares of the Company’s Series D
Convertible Preferred Stock and warrants to purchase shares of the Company’s
Series D-2 Convertible Preferred Stock and Common Stock;
WHEREAS,
the Parties entered into that certain Amendment to Series D Convertible Stock
Purchase Agreement , dated August 29,
2008 (the “First
Amendment”), pursuant to which Section 9.15 of the Stock Purchase
Agreement was amended to increase the number of shares of the Company’s common
stock underlying permitted options;
WHEREAS,
the Company anticipates that it will enter into a business combination
transaction with Healthaxis Inc., a Pennsylvania corporation (“Healthaxis”), as a result of
which the Company will become a wholly-owned subsidiary of Healthaxis and which
transaction will be accounted as a reverse takeover (the “Potential Healthaxis
Transaction”);
WHEREAS,
one of the conditions to the closing of the Potential Healthaxis Transaction is
the elimination of any and all duties or obligations of the Company under the
Stock Purchase Agreement;
WHEREAS,
the Company and the Purchasers and their permitted assigns whose signatures
appear hereinbelow are not opposed to the closing of the Potential Healthaxis
Transaction and, accordingly, desire to amend the Stock Purchase Agreement in
such a manner as to eliminate any and all of the Company’s duties or obligations
thereunder and to eliminate any and all rights of the other parties
thereto;
WHEREAS,
to effectuate such elimination, the Parties desire to delete in its entirety
each and every provision of the Stock Purchase Agreement and the First Amendment
such that (i) it shall be of no further force or effect, (ii) the Company shall
no longer have any duties or obligations thereunder, (iii) the other parties
thereto shall no longer have any rights thereunder, and (iv) thereafter, none of
the Parties shall be deemed to be bound thereby; and
WHEREAS, the Company and certain of the Purchasers are
parties to that certain Amended and Restated Warrant Acknowledgement dated
August __, 2008 (the “Warrant Acknowledgement”), pursuant to which the parties thereto amended the
“Original Warrants” referenced therein (as previously amended, the “Original Warrants”), and the Parties to this Second Amendment desire to
clarify that it was their intent in the Warrant Acknowledgment to amend all of
the Original Warrants.
NOW,
THEREFORE, in consideration of the promises and covenants made herein, and for
such other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereby agree as follows:
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ARTICLE
1
AMENDMENT
1. Amendment.
1.1 Subject
to the provisions of Section 1.2, below, each and every provision of the Stock
Purchase Agreement and the First Amendment is hereby deleted in its entirety
such that (i) the Stock Purchase Agreement and the First Amendment shall have no
further force or effect, (ii) the Company shall no longer have any duties or
obligations thereunder, (iii) the other parties thereto shall no longer have any
rights thereunder, and, henceforth, none of the Parties shall be deemed to be
bound thereby.
1.2 Effectiveness. If,
as of the date hereof, the undersigned Purchasers hold at least 75% of the
“Preferred Shares” referenced in the Stock Purchase Agreement and hold at least
a majority of the shares issuable under the currently outstanding Original
Warrants, (a) the foregoing amendment shall be effective and binding upon all of
the Purchasers and their respective successors and assigns independently of
whether all of the Purchasers (and their permitted assigns) have executed and
delivered this Second Amendment to the Company and (b) it is hereby expressly
stipulated and agreed by the undersigned Purchasers that the terms of the
Warrant Acknowledgement shall be deemed to apply to, and therefore amend, all of
the Original Warrants, including those Original Warrants held by any Purchaser
who did not execute the Warrant Acknowledgment. Notwithstanding the
foregoing, this Second Amendment shall not become effective or deemed to become
effective other than upon the closing of the Potential Healthaxis Transaction,
upon which closing this Second Amendment, if executed and delivered by the
Parties required to amend the Stock Purchase Agreement and the Original
Warrants, shall become effective.
ARTICLE
2
MISCELLANEOUS
PROVISIONS
2. Miscellaneous
Provisions.
2.1 No Further
Amendments. In the event of any inconsistency between the
provisions of the Stock Purchase Agreement, the Original Warrants, the Warrant
Acknowledgment, and the provisions of this Second Amendment, the provisions of
this Second Amendment shall prevail.
2.2 Counterparts. This
Second Amendment may be executed in one or more counterparts, each of which
shall be deemed an original but all of which when taken together shall
constitute one and the same instrument. Facsimiles or portable
document files transmitted by e-mail containing original signatures shall be
deemed for all purposes to be originally signed copies of the documents which
are the subject of such facsimiles or files.
2.3 Binding on
Successors. This Second Amendment
shall be binding upon and shall inure to the benefit of the successors and
permitted assigns of the Parties.
2.4 Entire Agreement.
The Stock Purchase
Agreement, as amended hereby, contains the entire understanding among the
Parties and supersedes any prior written or oral agreements among them
respecting the subject matter contained herein. There are no
representations, agreements, arrangements or understandings, oral or written,
among the Parties relating to the subject matter hereof that are not fully
expressed or otherwise referenced herein and therein.
[SIGNATURE
PAGES TO FOLLOW]
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IN
WITNESS WHEREOF, the Parties hereto have executed or have caused a duly
authorized officer to execute this Second Amendment all effective as of the day
and year first above written.
THE
COMPANY:
BPO
MANAGEMENT SERVICES, INC.,
a
Delaware corporation
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By:
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/s/ Xxxxxxx X. Xxxxx | |
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Name:
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Xxxxxxx
X. Xxxxx
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Its:
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Chief
Executive Officer
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THE
PURCHASERS:
The
undersigned hereby consents to the second amendment set forth
herein.
VISION
OPPORTUNITY MASTER FUND, LTD.
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By:
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/s/ Xxxx Xxxxxxxx | |
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Name:
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Xxxx Xxxxxxxx | |
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Its:
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Director |
RENAISSANCE
CAPITAL GROWTH & INCOME FUND III, INC.
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By:
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/s/ Xxxxxxx Xxxxxxxxx | |
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Xxxxxxx
Xxxxxxxxx
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President
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RENAISSANCE
US GROWTH INVESTMENT TRUST PLC
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By:
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/s/ Xxxxxxx Xxxxxxxxx | |
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Xxxxxxx
Xxxxxxxxx
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President
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US
SPECIAL OPPORTUNITIES TRUST PLC
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By:
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/s/ Xxxxxxx Xxxxxxxxx | |
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Xxxxxxx
Xxxxxxxxx
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President
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PREMIER
XXXX US EMERGING GROWTH FUND LTD.
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By:
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/s/ Xxxxxxx Xxxxxxxxx | |
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Xxxxxxx
Xxxxxxxxx
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President
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BRIDGEPOINTE
MASTER FUND LTD.
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By:
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Name:
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Title:
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XXXXXX
CAPITAL INVESTMENTS LLC
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By:
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/s/ Xxxxxx X. Xxxxxx | |
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Name:
Xxxxxx X. Xxxxxx
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Title:
Chief Executive Officer
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