TRANSACTIONS AGREEMENT









Exhibit 4.35




 




TRANSACTION AGREEMENT




 




This Agreement

(this “Agreement”) dated March         ,

2002 is by and between EpicEdge, Inc. (the “Company”) and Carl Rose (“Rose”).




 




RECITALS:




WHEREAS, the

Company anticipates closing a debt and equity financing concurrent with or soon

after the date hereof (the “Financing”); and




 




WHEREAS, as a

condition precedent to the Financing, the Company and Rose must reach

resolution regarding and amend certain terms of historical transactions between

Rose and the Company.




 




AGREEMENT:




 




NOW THEREFORE,

BE IT RESOLVED, for good and valuable consideration, the parties agree as

follows:




 




1.             Contribution of Shares.  In order to induce the investors to undertake the Financing, Rose

hereby confirms and agrees that effective November 27, 2001, he contributed

9,085,101 shares of Common Stock of the Company (the “Contributed Shares”) to

the Company for no other consideration. 

Rose hereby agrees that he has fully, forever, irrevocably and

unconditionally waived any right, title and interest to the Contributed

Shares.  The Company and Rose agree that

Rose shall not, without the prior written consent of the Lenders (as defined in

the Note and Preferred Stock Purchase Agreement dated as of March       , 2002 by and among the Company,

Edgewater Private Equity Find III, L.P. and the other parties thereto), at any

time after the date hereof beneficially own more than 10% of the Company on a

fully diluted basis, excluding any shares beneficially owned by Jenta Rose.




 




2.             Cancellation of Warrant.  Rose hereby confirms and agrees that

effective as of the date hereof, that Warrant to purchase 2,000,000 shares of

Common Stock of the Company issued by the Company on December 1, 2000 (the

“Warrant”) to Rose is hereby cancelled. 

Rose hereby fully, forever, irrevocably and unconditionally waives any

right, title and interest in the Warrant and the shares he could have received

upon exercise of the Warrant.  Rose and

the Company hereby represent and warrant that Rose never exercised any portion

of the Warrant and the Company never issued any shares of Common Stock

thereunder.  On the date hereof, Rose

agrees to deliver to the Company the original Warrant for cancellation, or, in

the event the Warrant is lost, stolen or destroyed, Rose shall deliver to the

Company a lost warrant affidavit in a form reasonably acceptable to the

Company, which copy of the original cancelled warrant or lost warrant affidavit

is attached hereto as Exhibit A. 

Rose further acknowledges and agrees that as of the date hereof he does

not hold any other warrants to purchase any stock of the Company.




 




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3.             Cancellation of Promissory Note.  Rose hereby confirms and agrees that the

Convertible Promissory Note dated November 17, 2000 in the original principal

amount of $100,000 issued by the Company to Rose (the “Note”) was issued in

error and further, the Company never received any loan amount from Rose

pursuant to the Note and, as such, the Note was issued without valid

consideration. On the date hereof, Rose agrees to deliver to the Company the

original Note for cancellation, or, in the event the Note is lost, stolen or

destroyed, Rose shall deliver to the Company a lost note affidavit in a form

reasonably acceptable to the Company, which original cancelled Note or lost

note affidavit is attached hereto as Exhibit B.  Rose and the Company hereby agree to mark

such Note cancelled and further that the Company does not now owe, nor has it

ever owed, Rose any monies in connection with the Note.




 




4.             Waiver of Default.  Rose hereby irrevocably and unconditionally waives any event of

default or breach of contract that has occurred on or prior to the date hereof

under any agreement or instrument between Rose and the Company, including but

not limited to, that certain Convertible Promissory Note dated November 7, 2000

in the principal amount of $400,000 and that certain Convertible Promissory

Note dated November 11, 2000 in the principal amount of $500,000.




 




5.             Termination of Security Interest.  Rose hereby agrees and acknowledges he does

not hold any security interest in any assets of the Company, either tangible or

intangible; provided, however, if such security interest does exist, Rose

hereby irrevocably and unconditionally releases such security interest.  Rose further agrees to sign and execute,

alone or with the Company, any financing statement or other document necessary

to terminate any currently existing security interest he erroneously holds in

any assets of the Company, including the execution of UCC-3 or similar forms.




 




6.             Release and Complete Defense.  Rose in acknowledging the transactions

effected hereunder, hereby agrees and by this Agreement does irrevocably and

unconditionally release the Company, as well as its agents, officers,

directors, successors, assigns, agents, advisors, attorneys and other

representatives, from or concerning any and all losses, claims, charges, causes

of action or other liabilities, whether in contract or tort, known or unknown,

arising out of or relating in any way to the surrender, cancellation or waiver

of the Contributed Shares, the Warrant, the Note or any security interest, any

event of default or any other matters related thereto.  This release is for any and all relief to

the fullest extent permitted by law, no matter how denominated, including, but

not limited to, compensatory damages, punitive damages, attorneys’ fees and

costs actually incurred, or any other losses or damages, arising from any

undertakings by the Company.  Rose

expressly acknowledges that the benefits being offered to Rose in this

Agreement and in connection with the Financing constitute consideration for the

foregoing release that is in addition to anything of value to which Rose is

already entitled from the Company and its affiliates.




 




7.             Waivers and Amendments.  Any provision of this Agreement may be amended, waived or

modified upon the written consent of the Company, as approved by the Board of

Directors, and Rose.




 




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8.             Successors and Assigns.  The provisions hereof shall inure to the benefit of, and be

binding upon, the successors, heirs and assigns, of the parties hereto.




 




9.             Governing Law. 

This Agreement and all actions arising out of or in connection with this

Agreement shall be governed by and construed in accordance with the laws of the

State of Texas, without regard to the conflict laws provisions of the State of

Texas or of any other state.  




 




10.           Entire Agreement. 

This agreement constitutes the entire understanding and agreement between

the parties with regard to the subjects hereof.  




 




11.           Counterparts. 

This Agreement may be executed in any number of counterparts, each of

which shall be an original, but all of which together shall be deemed to

constitute one instrument.




 




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this page is intentionally left blank.]




 




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IN WITNESS

WHEREOF, the parties have caused this Agreement to be duly executed and

delivered as of the date and year first written above.




 




	

   


  	

  EPICEDGE, INC.


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  
	

   


  	

  Name:


  	

   


  
	

   


  	

   


  
	

   


  	

  Title:


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  Carl Rose


  
					





 





























 




Exhibit A




 





























 




Exhibit B