EXHIBIT 10.55
EPICEDGE, INC.
AMENDMENT NO. 3 TO THE
NOTE AND PREFERRED STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 3 TO THE NOTE AND PREFERRED STOCK PURCHASE
AGREEMENT (this "Amendment") is made as of July 18, 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, and
entered into Amendment No. 2 to the Note and Preferred Stock Purchase Agreement
on June 14, 2002 (as amended, the "Purchase Agreement"), in connection with the
issuance by the Company of notes convertible into preferred stock of the
Company;
WHEREAS, as amended, in Section 6.8 of the Purchase Agreement the
Company made the affirmative covenant that, on the next business day after the
approval by the shareholders of an amendment or amendment and restatement of the
Articles providing for (a) an increase of the number of share 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, it would immediately file such
amendment or amendment and restatement of the Articles, which shall contain the
Certificates or the terms thereof (the "Amendment and Restatement"), with the
Secretary of State of Texas;
WHEREAS, due to the delays noted below, the Company has not yet
filed the Amendment Restatement and wishes to extend the date by which it must
file the Amendment and Restatement;
WHEREAS, due to delays beyond the control of the Company, the
Company has been substantially delayed in receiving final approval from the AMEX
of the additional listing application it filed, pursuant to Section 6.7 of the
Purchase Agreement, with the AMEX for the purposes of listing on the AMEX the
shares of Investor Common Stock (as defined in the September Purchase Agreement)
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 (the "Additional Listing Application");
WHEREAS, the Company wishes to postpone the date of the Equity
Closing until a later date which would allow the Company sufficient time to
receive final approval from the AMEX of the Additional Listing Application; and
WHEREAS, the Company and Edgewater desire to amend the Purchase
Agreement in order to extend the date by which the Amendment and Restatement
must be filed and to extent the date of the Equity Closing.
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 or before July 18, 2002, 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 the
earliest to occur of (i) the second business day following the day on which the
Company receives final approval from the AMEX of the additional listing
application filed with the AMEX for the purpose of the listing on the AMEX of
the shares of Investor Common Stock (as defined in the September Purchase
Agreement) issued to Edgewater and TIME pursuant to the September Purchase
Agreement and the shares of Conversion Stock issuable to the Purchasers pursuant
to this Agreement or (ii) July 31, 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.
AMENDMENT NO. 3 TO THE NOTE AND PREFERRED STOCK
PURCHASE AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
3 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
-------------------------------------
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
-------------------------------------
Xxxx XxXxxxxxx
Its: Partner
