Edgewater/Epic - Amendment to Registration Agreement (2/02)









EXHIBIT 4.32




 




AMENDMENT TO

REGISTRATION AGREEMENT




 




THIS AMENDMENT

TO REGISTRATION AGREEMENT (this “Amendment”) is made as of April       , 2002, by and among EpicEdge, Inc., a

Texas corporation (the “Company”), Edgewater Private Equity Fund III,

L.P., a Delaware limited partnership (“Edgewater”), Fleck T.I.M.E. Fund,

LP, a Connecticut limited partnership (“TIME”), all of the parties that

shall become the holders of the Series B Preferred Stock (as defined

herein) in accordance with the terms and conditions set forth in the Preferred

Purchase Agreement (as defined herein) (the “Series B Holders”), and all

of the parties that shall become the holders of the Series A Preferred

Stock (as defined herein) in accordance with the terms and conditions set forth

in the Preferred Purchase Agreement (as defined herein) (the “Series A

Holders” and, together with Edgewater, TIME and the Series B Holders

are sometimes collectively referred to herein as the “Investors” and

individually as an “Investor”). 

Any person or entity that is not already a party to the Prior

Registration Agreements (as defined herein) on the date hereof that purchases a

Note (as defined in the Preferred Purchase Agreement) or shares of Series B

Preferred Stock (as defined herein) upon the terms and conditions set forth in

the Preferred Purchase Agreement at a Subsequent Closing (as defined in the

Preferred Purchase Agreement) shall become a party hereto by executing an

Investor’s Assent, in the form and substance attached hereto as Exhibit A,

and shall have the rights and obligations of a Series B Holder hereunder.




 




WHEREAS,

pursuant to a Stock Purchase Agreement dated as of February 18, 2000 (the

“February Purchase Agreement”), as the same may be amended, modified or

restated from time to time, by and among the Company, certain of the Investors

and certain other parties named therein (collectively, the “February

Investors”), the February Investors purchased shares of the Company’s

Common Stock, $0.01 par value per share (the “Common Stock”);




 




WHEREAS, pursuant

to a Stock Purchase Agreement dated as of September 29, 2000 (the “September

Purchase Agreement”), as the same may be amended, modified or restated from

time to time, by and among the Company, certain of the Investors and certain

other parties named therein (collectively, the “September Investors”),

the September Investors purchased shares of Common Stock;




 




WHEREAS,

pursuant to a Note and Preferred Stock Purchase Agreement of even date herewith

(the “Preferred Purchase Agreement”), as the same may be amended,

modified or restated from time to time, by and among the Company, the

Series A Holders and the Series B Holders, and subject to the terms

and conditions contained therein, the Series A Holders will cancel the

Convertible Debt (as defined in the Preferred Purchase Agreement) in exchange

for shares of Series A Convertible Preferred Stock, $0.01 par value per

share (the “Series A Preferred Stock”) and the Series B Holders

will convert the Notes purchased thereunder into shares of Series B

Convertible Preferred Stock, $0.01 par value per share (the “Series B

Preferred Stock”);




 




WHEREAS, in

order to induce the February Investors to enter into the February Purchase

Agreement, the Company agreed to provide certain registration rights to such

February Investors




 





























 




pursuant to that certain

Registration Rights Agreement dated as of February 18, 2000 (the “February

Registration Agreement”), by and among the Company and the February

Investors;




 




WHEREAS, in

order to induce the September Investors to enter into the September Purchase

Agreement, the Company agreed to provide certain registration rights to such

September Investors pursuant to that certain Registration Rights Agreement

dated as of September 29, 2000 (the “September Registration Agreement”;

and, together with the February Registration Agreement, the “Prior

Registration Agreements”), by and among the Company and the September

Investors;




 




WHEREAS, in

order to induce the Series B Holders and the Series A Holders to

enter into the Preferred Purchase Agreement, the Company has agreed to provide

certain registration rights to such Series B Holders and Series A

Holders on the terms set forth in this Amendment;




 




WHEREAS,

pursuant to Section 10(d) of the February Registration Agreement and the

operative paragraph in the September Registration Agreement which incorporates

all of the terms of the February Registration Agreement therein, the Prior

Registration Agreements may be amended by the Company and the holders of a

majority of the Registrable Securities (as defined therein); and




 




WHEREAS, in

order to provide the Series B Holders and the Series A Holders with

certain registration rights, the Company and the holders of a majority of the

Registrable Securities wish to amend the Prior Registration Agreements pursuant

to the terms set forth herein.




 




NOW,

THEREFORE, for and in consideration of the premises and mutual agreements

herein contained and for the purposes of setting forth the terms and conditions

of this Amendment, the parties, intending to be bound, hereby agree as follows:




 




1.             Incorporation of the Agreement.  All capitalized terms which are not defined

hereunder shall have the same meanings as set forth in the Prior Registration

Agreements.  To the extent any terms and

provisions of the Prior Registration Agreements are inconsistent with the

amendments set forth in Paragraph 2 below, such terms and provisions shall

be deemed superseded hereby.  Except as

specifically set forth herein, the Prior Registration Agreements shall remain

in full force and effect and their provisions shall be binding on the parties

hereto.




 




2.             Amendments to the Prior

Registration Agreements.




 




(a)           The introductory paragraph to the

February Registration Agreement is hereby amended to include the Series A

Holders and the Series B Holders as if they had originally signed

thereunder as Investors.




 




(b)           Section 1 of the February

Registration Agreement is hereby amended and restated in its entirety as

follows:




 




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1.             Demand Registrations.




 




(a)           Requests for Registration.  Upon written request by the holders of a

majority of the Series A Preferred Stock or the holders of a majority of the

Series B Preferred Stock (the “Notice”), the Company shall (i) file

as soon as practicable after receipt of such Notice, but in no event later than

thirty (30) days after the receipt therefor with respect to a Short-Form

Registration (as defined below) or forty-five (45) days after the receipt

therefor with respect to a Long-Form Registration (as defined below), a

Registration Statement (the “Demand Registration”) covering all of the

Registrable Securities, and (ii) take all necessary actions to cause such

registration statement to become effective within thirty (30) days of

filing or as soon thereafter as is permissible by the Securities and Exchange

Commission.  Each request for a Demand

Registration shall specify the approximate number of Registrable Securities

requested to be registered and the anticipated per share price range for such

offering.  Within ten (10) days

after receipt of any request for a Demand Registration, the Company will give

written notice of such requested registration to all other holders of

Registrable Securities and, subject to paragraph 1(b) below, will include

in such registration all Registrable Securities with respect to which the

Company has received written requests for inclusion therein within

fifteen (15) days after receipt of the Company’s notice.  The holders of Registrable Securities shall

be entitled to request (x) one (1) Demand Registration annually on Form S-1 or

any similar long-form registration (a “Long-Form Registration”), and

(y)  two (2) Demand Registration on Form

S-3 (or any successor form) (a “Short-Form Registration”) annually, if

available, in each case in which the Company will pay all Registration

Expenses.




 




(b)           Priority on Demand Registrations.  The Company will not include in any Demand

Registration any securities which are not Registrable Securities without the

prior written consent of the holders of a majority of the Registrable

Securities.  If a Demand Registration is

an underwritten offering and the managing underwriters advise the Company in

writing (with a copy to each party hereto requesting registration of Registrable

Securities) that in their opinion the number of Registrable Securities and, if

permitted hereunder, other securities requested to be included in such offering

exceeds the number of Registrable Securities and other securities, if any,

which can be sold therein without adversely affecting the marketability of the

offering, the Company will include in such registration, prior to the inclusion

of any securities which are not Registrable Securities, (i) first, the

Conversion Securities requested to be included therein by the Series A

Holders and the Series B Holders, pro rata among such holders on the basis

of the number of shares that each holder has requested to be included in such

registration, and (ii) second, the number of Registrable Securities

requested to be included by the other Investors, pro rata among the respective

holders thereof on the basis of the number of shares of Registrable Securities

that each such holder has requested to be included in such registration.




 




(c)           Selection of Underwriters.  The holders of a majority of the Registrable

Securities who request or elect to be included in the Demand Registration and

the Company shall jointly select the investment banker(s) and managing

underwriter(s) to administer an offering initiated as a Demand Registration.  It is understood and agreed that the Company

may delay the registration of Registrable Securities hereunder if such delay is

requested in writing by such managing underwriter(s) or by any managing

underwriter(s) jointly selected by such holders of a majority of the Registrable

Securities and the Company with respect to any offering of equity securities by

the Company.




 




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(d)           Other Registration Rights.  The Company will not grant to any Person the

right to request the Company to register any equity securities of the Company,

or any securities convertible or exchangeable into or exercisable for such

securities, which would be superior to or otherwise interfere with the

Investors’ registration rights hereunder; provided, however, the granting by

the Company of registration rights to any other Person which would in any way

limit the Investors’ registration rights hereunder shall be subject to the

approval of the Purchaser Representatives (as defined in the Preferred Purchase

Agreement).  The Company represents and

warrants to the Investors that no Person has the right to register any equity

securities of the Company which are superior to or would otherwise interfere

with the Investors’ registration rights hereunder except for the Persons and

corresponding number of shares of Common Stock identified on Schedule A

attached hereto and made a part hereof, whose registration rights are pari

passu (but not superior) to those of the Investors (the registrable equity

securities held by such Persons are referred to herein as the “Equal

Securities”).




 




(c)           Section 2(c) of the February

Registration Agreement is hereby amended and restated in its entirety as

follows:




 




(c)           Priority on Primary Registrations.  If a Piggyback Registration is an underwritten

primary registration on behalf of the Company, and the managing underwriters

advise the Company in writing (with a copy to each party hereto requesting

registration of Registrable Securities) that in their opinion the number of

securities requested to be included in such registration exceeds the number

which can be sold in such offering without adversely affecting the

marketability of such offering, the Company will include in such registration

(i) first, the securities the Company proposes to sell, (ii) second,

the Conversion Securities requested to be included in such registration by the

Series A Holders and the Series B Holders, pro rata among the holders

of such Registrable Securities on the basis of the number of shares that each such

holder has requested to be included in such registration and (iii) third,

the other Registrable Securities requested to be included in such registration

and the Equal Securities requested to be included in such registration, pro

rata among the holders of such Registrable Securities and such Equal Securities

on the basis of the number of shares that each such holder has requested to be

included in such registration.  If,

after giving effect to the inclusion in the applicable registration of the

equity securities referred to in clauses (i), (ii) and (iii) above,

there are additional equity securities of the Company available to be included

in such registration, the Company shall be entitled to designate the Persons,

if any, it would submit to the managing underwriter(s) for participation in

such registration; provided, however, that in no event shall the Conversion

Securities included in such offering be reduced below thirty percent (30%) of

the total securities included in such registration.




 




(d)           Section 2(d) of the February

Registration Agreement is hereby amended and restated in its entirety as

follows:




 




(d)           Priority on Secondary

Registrations.  If a Piggyback

Registration is an underwritten secondary registration on behalf of the Company

or on behalf of holders of the Company’s securities other than holders of

Registrable Securities, and the managing underwriters advise the Company in

writing that in their opinion the number of securities requested to be included

in such registration exceeds the number which can be sold in such offering

without adversely affecting the marketability of the offering, subject to

paragraph 2(e)




 




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below, the Company will include

in such registration (i) first, the securities requested to be included

therein by the holders requesting such registration and the Conversion

Securities requested to be included in such registration by the Series A

Holders and the Series B Holders, pro rata among the holders thereof on

the basis of the number of shares that each such holder has requested to be

included in such registration, and (ii) second, the other Registrable

Securities requested to be included in such registration, pro rata among the

holders thereof on the basis of the number of shares that each such holder

requested to be included in such registration; provided, however, that in no

event shall the Conversion Securities included in such offering be reduced

below thirty percent (30%) of the total securities included in such

registration.




 




(e)           The parenthetical set forth in

Section 2(e) of the February Registration Agreement is hereby deleted in

its entirety.




 




(f)            Section 5 of the February

Registration Agreement is hereby amended and restated in its entirety as

follows:




 




5.             Registration Expenses.




 




(a)           All expenses incident to the

Company’s performance of or compliance with this Agreement, including, without

limitation, all registration and filing fees, fees and expenses of compliance

with securities or blue sky laws, printing expenses, messenger and delivery

expenses, and fees and disbursements of counsel for the Company and all

independent certified public accountants, underwriters (excluding underwriting

discounts and commissions) and other Persons retained by the Company (all such

expenses being herein called “Registration Expenses”), will be borne by

the Company, exclusive of underwriting discounts and commissions or fees of

counsel of the sellers of Registrable Securities.




 




(b)           In connection with each Demand

Registration and each Piggyback Registration, the Company will reimburse the

holders of Registrable Securities covered by such registration for the

reasonable fees and disbursements of one (1) counsel chosen by the holders

of a majority of the Registrable Securities.




 




(g)           Section 9 of the February Registration

Agreement is hereby amended to include the following definitions:




 




“Conversion

Securities” means the Common Stock issued upon the conversion of the

Series A Preferred Stock and the Series B Preferred Stock.




 




“Person”

means any individual, corporation, partnership, company, limited liability

company, joint venture, association, bank, business trust or other entity,

whether or not legal entities, or any governmental entity or agency or

political subdivision thereof.




 




“Rule 144”

means Rule 144 adopted by the Securities and Exchange Commission under the

Securities Act.




 




“Series A

Preferred Stock” means the Series A Convertible Preferred Stock, $0.01 par

value per share, of the Company.




 




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“Series B

Preferred Stock” means the Series B Convertible Preferred Stock, $0.01 par

value per share, of the Company.




 




(h)           The definition of “Registrable

Securities” set forth in Section 9 of the February Registration Agreement

is hereby amended and restated in its entirety as follows:




 




“Registrable

Securities” means (i) any Common Stock or Conversion Securities owned

by the Investors or by any of their respective transferees and (ii) any

Common Stock issued or issuable directly or indirectly with respect to the

securities referred to in clause (i) by way of stock dividend, stock

conversion or stock split or in connection with a combination of shares,

recapitalization, merger, consolidation or other reorganization.  As to any particular shares constituting

Registrable Securities, such shares will cease to be Registrable Securities

when they have been (x) effectively registered under the Securities Act

and disposed of in accordance with the registration statement covering them, or

(y) sold to the public through a broker, dealer or market maker pursuant

to Rule 144 (or any similar provision then in force) under the Securities

Act.  For purposes of this Agreement, a

Person will be deemed to be the holder of Registrable Securities whenever such

Person has the right to acquire directly or indirectly such Registrable

Securities (upon conversion or exercise in connection with a transfer of

securities or otherwise, but disregarding any restrictions or limitations upon

the exercise of such right), whether or not such acquisition has actually been

effected.




 




(i)            Section 10(d) of the February

Registration Agreement is hereby amended and restated in its entirety as

follows:




 




(d)           Amendments and Waivers.   Except as otherwise provided herein, the

provisions of this Agreement may be amended, restated, modified or waived only

upon the prior written consent of the Company, the holders of a majority of the

Series A Preferred Stock and the holders of a majority of the Series B

Preferred Stock.




 




(j)            Section 10(j) of the February

Registration Agreement is hereby amended to delete the notice information for

Philip Shiekman and to add the following notice information:




 




With a copy

to:




 




Paul E.

Hurdlow


Gray Cary Ware & Freidenrich, L.L.P.


1221 S. Mopac Expressway, Suite 400


Austin, Texas 78746


Telecopy: (512) 457-7001




 




(k)           Schedule A to the February

Registration Agreement is hereby amended and restated in its entirety by Schedule A

attached hereto.




 




3.             Effectuation.  The amendments to the Prior Registration

Agreements contemplated by this Amendment shall be deemed effective immediately

upon the full execution of this Amendment and without any further action

required by the parties hereto.  There

are no conditions precedent or subsequent to the effectiveness of this

Amendment.




 




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FOLLOWS]




 




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IN WITNESS

WHEREOF, the parties have executed this Amendment to Registration Agreement as

of the date first written above.




 




EpicEdge, Inc.


(d/b/a EpicEdge), a Texas corporation




 




	

   


  	

   


  
	

  By:


  	

   


  	

   


  	

  John Paul

  DeJoria


  
	

  Its:  President


  	

   


  
	

   


  	

   


  
	

  Edgewater

  Private Equity Fund III, L.P.


  	

   


  
	

   


  	

   


  
	

  By:


  	

  Edgewater

  III Management, L.P.


  	

   


  
	

  Its:


  	

  General

  Partner


  	

   


  
	

   


  	

   


  	

  Arne Ray, as

  Trustee for Patrick Loche


  
	

  By:


  	

  Gordon

  Management, Inc.


  	

   


  
	

  Its:


  	

  General

  Partner


  	

   


  
	

   


  	

   


  
	

  By:


  	

   


  	

   


  	

   


  
	

  Its:


  	

   


  	

   


  	

   


  
	

   


  	

   


  
	

  FLECK

  T.I.M.E. FUND, LP, a Connecticut


  limited partnership


  	

   


  
	

   


  	

   


  
	

  By:


  	

   


  	

   


  	

   


  
	

  Its:


  	

  Managing

  Partner


  	

   


  
						





 




 





























 




EXHIBIT A




 




Investor’s Assent




 




The

undersigned hereby assents to the Registration Rights Agreement dated as of

February 18, 2000, as amended (the “Agreement”), by and among EpicEdge,

Inc., a Texas corporation, and certain other parties named therein, as such

Agreement may be further amended from time to time, and hereby agrees to become

a party to such Agreement and be bound by all of the applicable terms and

provisions thereof as fully as if the undersigned had been named as a Series B

Holder in such Agreement.




 




Executed as

of                              .




 




	

   


  	

   


  
	

   


  	

  [Signature]


  
	

   


  	

   


  
	

  Print Name

  and Address:


  	

   


  
	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  





 





























 




Schedule A




 




Other Registration Rights




 




 




See Attached.