AMENDMENT TO SERIES D CONVERTIBLE STOCK PURCHASE AGREEMENT
EXHIBIT 10.65
AMENDMENT TO SERIES D
CONVERTIBLE STOCK PURCHASE AGREEMENT
This
Amendment, dated as of August 29, 2008 (the “Amendment”), is to that
certain Series D Convertible Stock Purchase Agreement, which was dated as of
June 13, 2007, by and among BPO Management Services, Inc. (the “Company”), and the purchasers
listed on Exhibit A thereto (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,
subsequent to the Closing (as that term is defined in the Stock Purchase
Agreement), certain of the Warrants (as that term is defined in the Stock
Purchase Agreement) were exercised by certain of the Purchasers;
WHEREAS,
subsequent to the Closing, certain of the provisions of the Warrants were
amended in the manners provided therein, certain of which amendments included an
approval of the Warrant Exchange (as that term is defined
hereinbelow);
WHEREAS,
subsequent to the Closing, certain provisions of the Company’s Certificate of
Designation of the Relative Rights and Preferences of the Series D Convertible
Preferred Stock and Certificate of Designation of the Relative Rights and
Preferences of the Series D-2 Convertible Preferred Stock (collectively, the
“D and D-2 Preferred Stock
Designations”) were amended in the manner provided therein and in the
Stock Purchase Agreement;
WHEREAS,
the Company has requested that certain provisions of the Stock Purchase
Agreement be amended in the manner set forth hereinbelow and those Purchasers
executing this Amendment have been willing so to amend the Stock Purchase
Agreement;
WHEREAS,
in order to simplify its capital structure, the Company previously decided to
offer the Purchasers the opportunity to exchange all of their then-outstanding
Series A Warrants to Purchase Shares of Common Stock of the Company, Series B
Warrants to Purchase Shares of Common Stock of the Company, and of the Series D
Warrants to Purchase Shares of Common Stock of the Company if such Series D
Warrants have a warrant price of $1.10 per share for shares of a
to-be-designated series of the Company’s preferred stock (the “Warrant Exchange”), which
shares of such series of preferred stock will be convertible into shares of the
Company’s common stock and have such other rights as will be agreed upon among
the Company and the Purchasers and specified in the certificate of designation
of rights for such series;
WHEREAS,
the Warrant Exchange was previously approved by the Purchasers;
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WHEREAS,
in furtherance of the Warrant Exchange, the Company has decided to offer the
Purchasers and their permitted assigns the opportunity (the form of which is
attached hereto as Exhibit
WE) to exchange all of their outstanding Series A Warrants to Purchase
Shares of Common Stock of the Company, Series B Warrants to Purchase Shares of
Common Stock of the Company, and Series D Warrants to Purchase Shares of Common
Stock of the Company (if such Series D Warrants have a warrant price of $1.10
per share) for shares of its Series F Convertible Preferred Stock (the form of
which Certificate of Designation of the Relative Rights and Preferences of the
Series F Convertible Preferred Stock is attached hereto as Exhibit F) and those
Purchasers (including their permitted assigns) who have executed this Amendment
have agreed to participate in the Warrant Exchange;
WHEREAS,
this Amendment shall be deemed to have been executed by the Company and those
Purchasers (including their permitted assigns) whose signatures appear
hereinbelow immediately prior to the closing of the Warrant
Exchange;
WHEREAS,
this Amendment shall be deemed to incorporate by reference any requisite
amendments to the Warrants and consents to the D and D-2 Preferred Stock
Designations, such that no rights of any of the Purchasers herein or therein and
no obligations of the Company herein or therein shall be deemed to have been
triggered, or to have been given rise to such triggering, by the transactions
contemplated hereby or by the Warrant Exchange;
WHEREAS,
the Company and the Purchasers and their permitted assigns whose signatures
appear hereinbelow desire to amend Section 9.15 of the Stock Purchase Agreement
to increase the number of shares of the Company’s common stock underlying
permitted options;
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:
ARTICLE
1
AMENDMENT
1. Amendment to Section9.15 of
the Stock Purchase Agreement.
1.1 Section 9.15 – 2007 Stock
Incentive Plan. Certain changes shall be made to Section 9.15,
as follows:
“Remove
‘Four Million Six Hundred Thousand [sic] (4,666,667)’ and in its stead insert
‘Twelve Million Three Hundred Sixty-six Thousand Six Hundred Sixty-seven
(12,366,667)’; remove ‘Two Million Three Hundred Thousand [sic] (2,333,334)’ and
in its stead insert ‘Eight Million Three Hundred Thirty-three Thousand Three
Hundred Thirty-four (8,333,334).’”
1.2 Broad
Interpretation. In addition to the specific amendments made to
the text of the Stock Purchase Agreement set as forth herein, it is the
intention of the Company and those Purchasers (including their permitted
assigns) whose signatures appear hereinbelow that this Amendment be broadly
interpreted and construed so that in no event shall any actions taken by the
Company in connection herewith or the Warrant Exchange be deemed to trigger, or
give rise to the triggering of, any rights of any of the Purchasers or any
obligations of the Company in the Stock Purchaser Agreement or herein or in any
of the Warrants or in the D and D-2 Preferred Stock Designations.
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1.3 Effectiveness of
Amendment. The foregoing amendments shall be effective and
binding upon the Purchasers and their respective successors and assigns
independently of whether the Purchasers (and their permitted assigns) execute
and deliver this Amendment to the Company in the event that this document amends
the Stock Purchase Agreement in the manner provided for therein.
ARTICLE
2
MISCELLANEOUS
PROVISIONS
2. Miscellaneous
Provisions.
2.1 No Further
Amendments. Except as amended by this Amendment and as
required for conformity to the previous amendments to the Warrants and to the
previous consents of the Purchasers, the Stock Purchase Agreement remains
unmodified and in full force and effect. In the event of any
inconsistency between the provisions of the Stock Purchase Agreement, the
Warrants (as previously amended), and the provisions of this Amendment, the
provisions of this Amendment shall prevail. This Amendment may only
be modified or amended by a written agreement in the manner set provided by the
Stock Purchase Agreement.
2.2 Counterparts. This
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 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, the Warrants, as previously amended, the D and D-2
Preferred Stock Designations, as previously amended, the Certificate of
Designation of the Relative Rights and Preferences of the Series F Convertible
Preferred Stock, and the Warrant Exchange Agreement collectively contain the
entire understanding among the Parties and supersede 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 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 Amendment all effective as of the day and
year first above written.
THE
COMPANY:
BPO
MANAGEMENT SERVICES, INC.,
a
Delaware corporation
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Its: |
Chief Executive Officer
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THE
PURCHASERS:
The
undersigned hereby consents to the amendment set forth herein.
| VISION OPPORTUNITY MASTER FUND, LTD. | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Its: | Director | |
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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
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
President
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US
SPECIAL OPPORTUNITIES TRUST PLC
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| By: | /s/ Xxxxxxx Xxxxxxxxx | |
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Xxxxxxx
Xxxxxxxxx
President
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PREMIER
XXXX US EMERGING GROWTH FUND LTD.
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| By: | /s/ Xxxxxxx Xxxxxxxxx | |
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Xxxxxxx
Xxxxxxxxx
President
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BRIDGEPOINTE
MASTER FUND LTD.
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| By: | ||
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Name:
Title:
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XXXXXX
CAPITAL INVESTMENTS LLC
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By:
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/s/ Xxxxxxx Xxxxxxxxx | |
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Name:
Title:
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