FIFTH AMENDMENT TO SHARE PURCHASE AGREEMENT
EXHIBIT
10.1
FIFTH
AMENDMENT TO
This
Fifth Amendment (“Fourth Amendment”) is made as of this 9th
day of
July, 2008, by and between ICC WORLDWIDE, INC. (formerly, Torbay Holdings,
Inc.), a Delaware corporation (the “Issuer” or the “Company”) and THE ADAMAS
FUND, LLLP (formerly 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 Buyer; and
WHEREAS,
the Original Agreement was further amended by a Fourth Amendment dated January
15, 2008 (“the Fourth Amendment”) which further changed the Put Option held by
Buyer and granted certain warrants to the Buyer, (the Original Agreement, as
amended by the First Amendment, the Second Amendment, the Third Amendment,
and
the Fourth 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 as part of the consideration for a loan being made to
the
Company by two other investors which are requiring preference in the
availability of cash to pay back the loan.
NOW,
THEREFORE, the Issuer and the Buyer hereby amend the Existing Agreement as
follows:
1.
Paragraphs 3.4.1 and Paragraph 3.4.1.1 are deleted in their entirety and
replaced 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 in excess of $50,000 per calendar quarter 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..
|
Calendar
Quarter
|
Percentage
of
Pretax
Income
|
|
3rd
and 4th
2008 and 1st
and 2nd 2009
|
10.0%
|
|
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 therefore.
2.
Paragraph 5.17 is added:
5.17
Call
Option.
At any
time and from time to time, the Company may buy back up to 50% of the total
Series C stock held by the Buyer on the date of the signing of this amendment
at
the liquidation price as stated in the designation of the Series C stock. Upon
tender of the cash to purchase the Series C stock, Buyer may not convert the
Series C stock which is the subject of the tender, to common stock
IN
WITNESS WHEREOF, this Fifth Amendment has been executed by the parties hereto
the day and year first above written.
|
Buyer:
|
Issuer:
|
|
/s/
Xxxxxxx Xxxxxxxx
|
/s/
Xxxxxxx X Xxxxx
|
|
Xxxxxxx
Xxxxxxxx, Investment Advisor
|
Xxxxxxx
X Xxxxx, President
|
|
The
Adamas Fund, LLLP
|
