EXHIBIT 4.60
November 11, 2002
Epic Edge, Inc.
0000 Xxxxxxx 000 Xxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Re: Agreement and Waiver Letter
Dear Xxxxxxx:
Reference is hereby made to (a) that certain Note and Preferred Stock Purchase
Agreement dated as of April 16, 2002, by and among EpicEdge, Inc. (the
"Company"), Edgewater Private Equity Fund III, L.P. ("Edgewater") and certain
other parties named therein, as amended (the "Purchase Agreement"), and (b) that
certain Substitute Convertible Secured Promissory Note dated as of November 1,
2002 in the principal amount of $3,100,000 (the "Substitute Note"). Capitalized
terms not otherwise defined herein shall have the meanings set forth in the
Purchase Agreement.
Pursuant to Section 2.7 of the Purchase Agreement, at the Equity Closing,
Edgewater shall convert the Outstanding Balance of the Substitute Note plus
accrued interest thereon, not including the Edgewater Special Debt. Edgewater
hereby agrees to convert a total of $1,217,011, which represents the $1,000,000
which must be converted, all accrued interest on the Substitute Note to the date
of the Equity Closing ($117,011) and $100,000 of the Edgewater Special Debt. The
remaining Edgewater Special Debt, plus interest that accrues thereon from the
date of the Equity Closing, shall continue to be outstanding under the
Substitute Note after the Equity Closing until the earlier of (a) repayment
thereof in accordance with the terms of the Substitute Note, (b) conversion
thereof into shares of preferred stock in accordance with the terms of the
Purchase Agreement, or (c) as otherwise agreed between the parties.
Notwithstanding anything to the contrary contained in the Transaction Documents,
Edgewater, as the Purchaser Majority, and the Company hereby acknowledge and
agree as follows that the Investors and Purchasers:
1. Waive the requirement of Section 5.2(c)(iv) for the delivery of
certificates of good standing for each of the following
jurisdictions in which the Company is or has previously been
qualified to do business: Massachusetts, Missouri, Tennessee and
Kentucky.
2. Waive the requirement of Section 5.2(c)(v) for the delivery of the
cancelled documents and instruments which are being terminated
pursuant to the terms of Section 5.2(b) of the Purchase Agreement,
with respect to the following persons: Xxxxx T.I.M.E. Fund, L.P. and
Xxxxxxx Xxxxx.
3. Waive the requirement of Section 6.7 of the Purchase Agreement that
the Company cause the approval of the listing on the AMEX of the
shares of Investor Common Stock issued
to Edgewater and TIME pursuant to the September Purchase Agreement
and the shares of Conversion Stock issuable to the Purchasers
pursuant to the Purchase Agreement.
4. Waive the requirement of Section 5.2(d) of the Purchase Agreement
with regard to the SEC Investigation.
This Side Letter may be executed in multiple counterparts, each of which shall
be deemed an original and all of which taken together shall constitute a single
instrument. One or more counterparts may be delivered by facsimile, with the
intention that delivery by such means shall have the same effect as delivery of
an original counterpart thereof.
This Side Letter shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of Illinois, applicable to contracts made
and performed in such State, without giving effect to the principles of
conflicts of law.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
If the foregoing satisfactorily reflects your understanding of the subject
matter contained herein, please confirm by dating and executing this Side Letter
in the space provided below.
Very truly yours,
Edgewater Private Equity Fund III, L.P.
By: Edgewater III Management, L.P.
Its: General Partner
By: Xxxxxx Management, Inc.
Its: General Partner
By: /s/ Xxxx XxXxxxxxx
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Name: Xxxx XxXxxxxxx
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Its: Vice President
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AGREED AND ACCEPTED AS OF THIS 11TH DAY OF NOVEMBER, 2002
EpicEdge, Inc.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Its: Chief Executive Officer
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