EXHIBIT 10.54
EPICEDGE, INC.
AMENDMENT NO. 2 TO THE
NOTE AND PREFERRED STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO THE NOTE AND PREFERRED STOCK PURCHASE
AGREEMENT (this "Amendment") is made as of June 14, 2002, among EpicEdge, Inc.,
a Texas corporation ("Company") and Edgewater Private Equity Fund III, L.P., a
Delaware limited partnership ("Edgewater"). Terms not otherwise defined herein
shall have the meanings as set forth in the Purchase Agreement (as defined
below).
WHEREAS, the Company entered into the Note and Preferred Stock
Purchase Agreement as of April 16, 2002 among the Company, Edgewater, Xxxxx
T.I.M.E. Fund, L.P., a Connecticut limited partnership, Xxxx Xxxx XxXxxxx, an
individual, Xxxxxxx Xxxxx, an individual and certain other Persons that may
become a party to the Note and Preferred Stock Purchase Agreement from time to
time in accordance with Section 2.4 thereof, if any, and entered into Amendment
No. 1 to the Note and Preferred Stock Purchase Agreement on April 29, 2002 (as
amended, the "Purchase Agreement"), in connection with the issuance by the
Company of notes convertible into preferred stock of the Company;
WHEREAS, in Section 6.8 of the Purchase Agreement the Company made
the affirmative covenant that it would call the Annual Meeting on or prior to
June 30, 2002;
WHEREAS, Section 7.1(k) of the Purchase Agreement made it an Event
of Default if the approval was not obtained at the Annual Meeting by June 30,
2002;
WHEREAS, due to delays beyond the control of the Company, the
Company has been substantially delayed in filing its definitive proxy statement
with the Securities and Exchange Commission (the "SEC"), which definitive proxy
statement must be printed and mailed to the Company's shareholders at least ten
(10) days prior to the date of the Annual Meeting pursuant to the provisions of
the Texas Business Corporation Act (the "TBCA");
WHEREAS, due to the time that is necessary for the definitive proxy
materials to be printed and mailed, the Company believes that there is
inadequate time remaining in order for it to hold the Annual Meeting on or prior
to June 30, 2002 in compliance with the TBCA and the Purchase Agreement;
WHEREAS, the Company wishes to postpone the date of the Annual
Meeting until a later date which would allow the Company sufficient time to hold
the meeting in compliance with the TBCA and which would allow the Company
sufficient time to solicit a sufficient number of proxies;
WHEREAS, the Company and Edgewater desire to amend the Purchase
Agreement in order to extend the date on which the Annual Meeting may be held.
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 6.8 of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"6.8 Increase of Authorized Shares of Common Stock and Preferred
Stock. The Company shall call to order the Annual Meeting on or prior to July
12, 2002, for the purpose, among other things, of approving an amendment or
amendment and restatement of the Articles providing for (a) an increase of the
number of shares of Common Stock authorized to be issued from 50,000,000 shares
to 100,000,000, (b) the authorization of 10,000,000 shares of Series A Stock and
10,000,000 of Series B Stock, (c) the rights, preferences and privileges of the
Series A Stock and Series B Stock as set forth in the Certificates, and (d) all
other matters related to the transactions contemplated hereby for which
shareholder approval is required. On the next business day after the approval of
such amendment or amendment and restatement of the Articles by the shareholders,
the Company shall immediately file such amendment or amendment and restatement
of the Articles, which shall contain the Certificates or the terms thereof, with
the Secretary of State of Texas."
2. Section 7.1(k) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"(k) all of the conditions set forth in Section 5.2 hereof
have not occurred and the Equity Closing has not been completed on or prior to
July 16, 2002."
3. Miscellaneous.
(a) Except as expressly amended as provided above, the
Purchase Agreement remains unmodified and in full force and effect and is hereby
renewed, ratified and affirmed by the Company and Edgewater.
(b) Pursuant to Section 9.5 of the Purchase Agreement, once
endorsed in writing and fully signed by the Company and the Purchaser Majority,
this Amendment shall be binding upon each of the parties to the Purchase
Agreement, whether or not all of such parties have executed a counterpart of
this Amendment.
(c) This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original. Any party may execute
this Amendment by facsimile signature, which shall be deemed to constitute an
original for all purposes.
[SIGNATURE PAGE FOLLOWS]
FIRST AMENDMENT TO THE NOTE AND PREFERRED STOCK
PURCHASE AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to the Note and Preferred Stock Purchase Agreement on the date first
written above.
EPICEDGE, INC.,
a Texas corporation d/b/a EpicEdge
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
President and Chief Executive Officer
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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Xxxx XxXxxxxxx
Its: Partner
