Exhibit 10.2
FIRST AMENDMENT
to that certain
LOAN AGREEMENT
by and between
VPGI Corp. and Trident Growth Fund, L.P. (November 10, 2004)
This First Amendment to that certain Loan Agreement by and between VPGI
Corp. and Trident Growth Fund, L.P. dated November 10, 2004 (this
"Agreement") is made and entered into this 10th day of August 2005, by and
between VPGI Corp., a Texas corporation (the "Borrower") and Trident Growth
Fund, LP, a Delaware limited partnership (the "Lender").
W I T N E S S E T H:
WHEREAS, on November 10, 2004, the parties entered into a Loan
Agreement (so called herein) wherein Lender agreed to loan to Borrower up to
$700,000 (the "Loan"); and
WHEREAS, Borrower has requested and Lender has agreed to loan to
Borrower an additional $50,000 pursuant to and on the same terms as the
Loan; and
NOW, THEREFORE, the parties have agreed to amend the Loan as follows:
1. Defined Terms. All capitalized terms set forth but not defined herein
shall have the meaning ascribed to them in the Loan Agreement.
2. Increase in Loan Amount. The Loan Agreement shall be amended by
increasing the Loan Amount from $700,000 to 750,000, and everywhere in
the Loan Agreement where reference is made to the Loan Amount, directly
or indirectly, such term or reference shall be amended and modified
accordingly. Accordingly, a Convertible Note in the form of Exhibit A shall
be executed and delivered by Borrower to Lender contemporaneously herewith.
The Origination and Commitment Fees described in Section 2.1 of the Loan
Agreement shall apply to the additional amount to be loaned hereunder.
3. Additional Warrant Coverage. Borrower shall issue an additional
Warrant to Lender in the form of Exhibit B hereto giving Lender the right to
purchase an additional 36,000 shares of Common Stock at an exercise price of
$.10 per share. As set forth in the Loan Agreement, Borrower and Lender
agree that the aggregate value of the Warrant to be issued in accordance
with this Agreement together with the Warrants previously issued in
connection with the Loan Agreement is less than $1,000.
4. Amendment of Convertible Notes, Warrants, and Series 2004-L Class A
Preference Shares Certificate of Designations. Such Convertible Notes and
Warrants as listed on Exhibit C as well as Section 4.4 of the Certificate of
Designations for the Series 2004-L Class A Preference Shares hereto
previously issued to Lender in connection with the Loan Agreement or
otherwise are hereby amended to include the provisions and respective
amendments (modified accordingly) set forth on Exhibit D, such amendments to
be made effective retroactively to the date of issuance of each such
Convertible Note, Warrant, or Series 2004-L Class A Preference Stock, as the
case may be.
5. Representations and Warranties. Except as otherwise set forth on
Exhibit E hereto, all of the representations and warranties contained in the
Loan Agreement are true and correct as of the date hereof, and the
Disclosure Schedules attached thereto have not changed in any material
manner.
6. Terms of Loan Agreement Unchanged. Except as set forth or contemplated
herein, the remaining terms of the Loan Agreement shall remain in effect as
set forth therein.
7. Execution of Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument.
8. Further Assurances. Each party hereto agrees to perform any further
acts and to execute and deliver any further documents that may be reasonably
necessary to carry out the provisions of this Agreement.
9. Governing Law. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the
laws of the State of Texas without regard to its conflicts of law doctrine.
Each of the parties hereto irrevocably consents to the jurisdiction of the
federal and state courts located in Dallas County, the State of Texas.
IN WITNESS WHEREOF, the Borrower and the Lender have caused this
Agreement to be duly executed by their duly authorized officers, all as of
the day and year first above written.
VPGI CORP. TRIDENT GROWTH FUND, LP
By: TRIDENT MANAGEMENT, LLC, its
GENERAL PARTNER
By: /s/ Xxx Xxxxxx By: /s/ Xxxxx Xxxx
-------------------------------------- -----------------------------
Xxx X. Xxxxxx, Chief Executive Officer Xxxxx Xxxx, Authorized Member
EXHIBIT A
---------
[FORM OF CONVERTIBLE NOTE]
EXHIBIT B
---------
[FORM OF WARRANT]
EXHIBIT C
---------
[CONVERTIBLE NOTES AND WARRANTS TO BE AMENDED]
Warrants
--------
2000-G-01.3 (date of issue: 12/2/00)
2001-G-02.3 (date of issue: 3/16/01)
2001-5-03.3 (date of issue: 7/25/01)
2002-G-04.2 (date of issue: 5/10/02)
2002-G-05.2 (date of issue: 11/13/02)
2004-J-02 (date of issue: 11/10/04)
Convertible Notes
-----------------
14% Secured Convertible Note No. 1 (date of issue: November 10, 2004) in the
Principal Amount of $125,000.
14% Secured Convertible Note No. 2 (date of issue: November 15, 2004) in the
Principal Amount of $575,000.
EXHIBIT D
---------
[CONVERTIBLE NOTE/WARRANTS AMENDMENT LANGUAGE]
Exercise Limitations. At any time after the Common Stock is registered
under Section 12 of the Exchange Act, the Holder shall not have the right to
exercise any portion of this Warrant [Convertible Note], pursuant to Section
II(1) [4] or otherwise, to the extent that after giving effect to such
issuance after exercise, the Holder (together with the Holder's affiliates),
as set forth on the applicable Subscription [Conversion] Notice, would
beneficially own in excess of 4.99% or 9.99% of the number of shares of the
Common Stock outstanding immediately after giving effect to such issuance.
For purposes of the foregoing sentence, the number of shares of Common
Stock beneficially owned by the Holder and its affiliates shall include the
number of shares of Common Stock issuable upon exercise of this Warrant
[Convertible Note] with respect to which the determination of such sentence
is being made, but shall exclude the number of shares of Common Stock which
would be issuable upon (A) exercise of the remaining, nonexercised portion
of this Warrant [Convertible Note] beneficially owned by the Holder or any
of its affiliates and (B) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including,
without limitation, any other Debentures, Convertible Notes, or Warrants)
subject to a limitation on conversion or exercise analogous to the
limitation contained herein beneficially owned by the Holder or any of its
affiliates. Except as set forth in the preceding sentence, for purposes of
this provision, beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act. To the extent that the limitation
contained in this Section applies, the determination of whether this Warrant
[Convertible Note] is exercisable (in relation to other securities owned by
the Holder) and of which a portion of this Warrant [Convertible Note] is
exercisable shall be in the sole discretion of such Holder, and the
submission of a Subscription [Conversion] Notice shall be deemed to be such
Holder's determination of whether this Warrant [Convertible Note] is
exercisable (in relation to other securities owned by such Holder) and of
which portion of this Warrant [Convertible Note] is exercisable, in each
case subject to such aggregate percentage limitation, the Company shall
verify or confirm the accuracy of such determination. For purposes of this
Section, in determining the number of outstanding shares of Common Stock,
the Holder may rely on the number of outstanding shares of Common Stock as
reflected in (x) Section 3.3 of the Loan Agreement, (y) a more recent public
announcement by the Company, or (z) any other notice by the Company or the
Company's Transfer Agent setting forth the number of shares of Common Stock
outstanding. Upon the written or oral request of the Holder, the Company
shall within two days confirm orally and in writing to the Holder the number
of shares of Common Stock then outstanding. In any case, the number of
outstanding shares of Common Stock shall be determined after giving effect
to the conversion or exercise of securities of the Company, including this
Warrant [Convertible Note], by the Holder or its affiliates since the date
as of which such number of outstanding shares of Common Stock was reported.
The provisions of this Section may be waived by the Holder upon, at the
election of the Holder, not less than 61 days' prior notice to the Company,
and the provisions of this Section shall continue to apply until such 61st
day (or such later date, as determined by the Holder, as may be specified in
such notice of waiver).
[SERIES 2004-L CLASS A PREFERENCE SHARES CERTIFICATE
OF DESIGNATIONS AMENDMENT]
4.4 Notwithstanding the provisions hereof, in no event shall the holder be
entitled to convert any Series 2004-L Class A Preferred Stock in excess of
that number of shares upon conversion of which the sum of (1) the number of
Common Shares beneficially owned by such holder and its affiliates (other
than Common Shares which may be deemed beneficially owned through the
ownership of the unconverted portion of the Preferred Stock), and (2) the
number of shares of Common Stock issuable upon the conversion of the
Preferred Stock with respect to which the determination of this proviso is
being made, would result in beneficial ownership by the Eligible Holder and
its affiliates of more than 4.9% or 9.9% (as the case may be) of the
outstanding shares of Common Stock. For purposes of the proviso to the
immediately preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Regulation 13 D-G thereunder, except as otherwise provided in
clause (1) of such proviso. The provisions of this Section may be waived by
the holder upon, at the election of the holder, not less than 61 days' prior
notice to the Corporation, and the provisions of this Section 4.4 shall
continue to apply until such 61st day (or such later date, as determined by
the holder, as may be specified in such notice of waiver).
