AMENDMENT TO SECURITIES PURCHASE AGREEMENT
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
This Amendment to Securities Purchase Agreement (this “Amendment”), dated April 1, 2016, by and between Epic Stores Corp. (the “Company”), and Old Main Capital, LLC (the “Purchaser”), hereby amends, effective as of the date hereof, that certain Securities Purchase Agreement, dated as of January 27, 2016, by and among the Company and the Purchaser (the “Securities Purchase Agreement”). Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to such terms in the Securities Purchase Agreement.
RECITALS
A. Pursuant to Section 5.5 of the Securities Purchase Agreement, the Securities Purchase Agreement may be amended by a written agreement signed by the Company and the Purchasers holding at least 67% in interest of the Securities then outstanding.
B. Purchaser holds at least 67% of the Securities outstanding as of the date hereof.
C. The parties hereto desire to amend the Securities Purchase Agreement, as set forth in this Amendment.
AGREEMENT
The parties hereto, intending to be legally bound, agree as follows:
1. Amendments.
(a) Section 2.1 of the Securities Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“Purchase. The Purchasers will purchase an aggregate of up to $750,000 in Subscription Amount corresponding to an aggregate of up to $815,217 in Principal Amount of Notes. The purchase will occur in up to four (4) tranches (each a “Tranche,” and collectively the “Tranches”), with the first Tranche of $250,000 being closed upon execution of this Agreement (the “First Closing”). The second Tranche will be for $250,000 and will occur within three (3) Trading Days after the filing of the Company’s Annual Report on Form 10-K. The third Tranche will be for $125,000 and will occur the Friday after three (3) Trading Days after the Filing Date. The fourth Tranche will be for $125,000 and will occur the Friday after three (3) Trading Days after the SEC Effective Date. The Purchasers shall not be required to fund any of the second through fourth Tranches if clauses (a), (b) and (d) of the Equity Conditions (as defined in the Notes) are not met on each of the applicable Closing Dates.”
(b) Section 4.13 of the Securities Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“Variable Rate Transactions. From the date hereof until such time as no Purchaser holds any Notes or Underlying Shares, the Company shall be prohibited from
| 1 |
effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with, the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters into an equity line of credit or similar agreement. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.”
2. Effect of this Amendment. Except as expressly provided in this Amendment, the Securities Purchase Agreement shall not be amended or otherwise modified. In the event there is a conflict between the terms of the Securities Purchase Agreement and the terms of this Amendment, the terms provided in this Amendment shall control. On and after the date hereof, each reference in the Securities Purchase Agreement to “this Agreement,” “hereunder,” “hereof,” “hereto,” “herein,” or words of like import referring to the Securities Purchase Agreement shall mean and be a reference to the Securities Purchase Agreement as amended by this Amendment.
3. Acknowledgment and Agreement. Each party hereto hereby acknowledges and agrees that except as expressly provided in this Amendment, nothing in this Amendment shall be construed as a waiver of any provision of the Securities Purchase Agreement by any party hereto, nor shall it in any way affect the validity of, or the right of any party hereto to enforce the provisions of the Securities Purchase Agreement.
4. Full Force and Effect. This Amendment is expressly made subject to the terms and conditions of the Securities Purchase Agreement as modified herein, and, except as expressly modified herein, the Securities Purchase Agreement shall continue in full force and effect without change.
5. Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Amendment shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Amendment (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or
| 2 |
with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of this Amendment), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Amendment and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Amendment, then the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
6. Severability. If any term, provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
7. No Interpretation Against Drafter. This Amendment is the product of negotiations between the parties hereto represented by counsel and any rules of construction relating to interpretation against the drafter of an agreement shall not apply to this Amendment and are expressly waived.
8. Counterparts. This Amendment may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
[Signatures on the Following Page]
| 3 |
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the date first written above.
Company:
Epic Stores Corp.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: President
Purchaser:
OLD MAIN Capital,
LLC
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: President
| 4 |
