Exhibit 12
EPICEDGE, INC.
AMENDMENT NO. 4 TO THE
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NOTE AND PREFERRED STOCK PURCHASE AGREEMENT
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THIS AMENDMENT NO. 4 TO THE NOTE AND PREFERRED STOCK PURCHASE AGREEMENT
(this "Amendment") is made effective as of July 31, 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, ▇▇▇▇▇ T.I.M.E.
Fund, L.P., a Connecticut limited partnership, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, an individual,
▇▇▇▇▇▇▇ ▇▇▇▇▇, 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, and entered into Amendment No. 3 to the Note and Preferred Stock
Purchase Agreement on July 18, 2002 (as amended, the "Purchase Agreement"), in
connection with the issuance by the Company of notes convertible into preferred
stock of the Company;
WHEREAS, due to delays beyond the control of the Company, including the
SEC's investigation of certain individuals and the Company regarding possibly
questionable trading activities in the Company's stock (the "SEC
Investigation"), the Company and Edgewater wish to postpone the date of the
Equity Closing until a later date which would allow the Company and Edgewater
sufficient time to obtain a better understanding of the potential effects, if
any, of the SEC Investigation on the Company; and
WHEREAS, the Company and Edgewater desire to amend the Purchase
Agreement in order to extend the date of the Equity Closing and to add a
condition precedent to the Equity Closing regarding the SEC Investigation.
NOW, THEREFORE, the parties hereto agree as follows:
1. That a new Subsection (d) be added to Section 5.2 of the Purchase
Agreement (the remainder of Section 5.2 to remain unchanged) which reads in its
entirety as follows:
"(d) the Company and Edgewater shall have mutually agreed that
either (i) the SEC Investigation has been satisfactorily resolved in a manner
that does not have a Material Adverse Effect on the Company, or (ii) the SEC
Investigation has progressed or is progressing such that its likely outcome and
its effects on the Company are not likely to have a Material Adverse Effect on
the Company and should no longer delay the Equity Closing."
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 later 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) the second business day following the day on which the
Company and Edgewater mutually agree that (a) the SEC Investigation has been
satisfactorily resolved in a manner that does not have a Material Adverse Effect
on the Company, or (b) the SEC Investigation has progressed or is progressing
such that its likely outcome and its effects on the Company are not likely to
have a Material Adverse Effect on the Company and should no longer delay the
Equity Closing."
3. Miscellaneous.
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(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]
AMENDMENT NO. 4 TO THE NOTE AND PREFERRED STOCK PURCHASE AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
4 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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President and Chief Executive Officer
EDGEWATER PRIVATE EQUITY FUND III, L.P.
By: Edgewater III Management, L.P.
Its: General Partner
By: ▇▇▇▇▇▇ Management, Inc.
Its: General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Its: Vice President
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