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EPICEDGE, INC.
(f/k/a DESIGN AUTOMATION SYSTEMS, INC.)
SHAREHOLDERS' AGREEMENT
DATED SEPTEMBER 29, 2000
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TABLE OF CONTENTS
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ARTICLE I VOTING, MANAGEMENT, ETC.........................................................................2
1.1 Voting..........................................................................................2
1.2 Control Agreements..............................................................................2
(a) Directors..............................................................................2
(ii) Expenses. ....................................................................3
(iii) Meetings. ....................................................................3
(b) Compensation Committee. ..............................................................3
1.3 Stock Option Plan...............................................................................3
ARTICLE II RESTRICTIONS ON STOCK TRANSFERS.................................................................4
2.1 Applicable Definitions..........................................................................4
2.2 Restrictions on Sale of Shares by a Principal Shareholder.......................................4
ARTICLE III REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
SHAREHOLDERS....................................................................................5
3.1 Authorization...................................................................................5
3.2 Sophistication, Financial Strength, Access, Etc.................................................5
3.3 No Broker or Finder.............................................................................5
3.4 Reiteration and Survival of Representations and Warranties......................................6
ARTICLE IV TRANSFER........................................................................................6
4.1 Legend on Share Certificates....................................................................6
4.2 Private Offer; Transfer.........................................................................6
4.3 Notice of Proposed Transfer.....................................................................7
4.4 Termination of Restrictions.....................................................................7
4.5 Compliance with Rule 144 and Rule 144A..........................................................7
4.6 Non-Applicability of Restrictions on Transfer...................................................8
ARTICLE V MISCELLANEOUS...................................................................................8
5.1 Amendments; Waiver..............................................................................8
5.2 Notices.........................................................................................8
5.3 General.........................................................................................8
(a) Binding Effect.........................................................................8
(b) Governing Law..........................................................................9
(c) Reserved...............................................................................9
(d) Counterparts and Gender References.....................................................9
(e) Severability...........................................................................9
(f) Further Assurances.....................................................................9
(g) No Waiver, Remedies Cumulative.........................................................9
(h) Headings; Exhibits.....................................................................9
(i) Specific Performance...................................................................9
5.4 Termination....................................................................................10
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EPICEDGE, INC.
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT (this "Agreement"), is entered into as of
September 29, 2000, by and among EPICEDGE, INC. (f/k/a DESIGN AUTOMATION
SYSTEMS, INC.), a Texas corporation (the "Company"); Carl Rose, Charles Leaver
and Jeff Sexton (together, the "Principal Shareholders"); Edgewater Private
Equity Fund III, L.P., a Delaware limited partnership ("Edgewater"), Aspen
Finance Investors I, LLC, a Colorado limited liability company ("Aspen"), Fleck
T.I.M.E. Fund, LP, a Connecticut limited partnership ("TIME"), and Fleck Family
Partnership II, LP, a Florida limited partnership ("Fleck Family"); together
with Edgewater, Aspen, TIME and Fleck Family are sometimes collectively referred
to herein as the "Investors" and individually as an "Investor"; Edgewater and
TIME are sometimes collectively referred to herein as the "Lenders" and
individually as a "Lender"; and the Principal Shareholders, the Investors and
each person who assumes the obligations of a Shareholder pursuant to Section 2.2
hereof are each individually referred to herein as a "Shareholder" and are
collectively referred to herein as the "Shareholders").
W I T N E S S E T H:
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WHEREAS, immediately prior to the execution of this Agreement, the
Investors together own of record or beneficially 3,592,000 of the issued and
outstanding shares of common stock, $.01 par value, of the Company (the "Common
Stock"), which shares the Investors purchased pursuant to a Stock Purchase
Agreement dated February 18, 2000 (the "First Purchase Agreement") among the
Company and the Investors;
WHEREAS, the Principal Shareholders in the aggregate own of record or
beneficially 11,046,960 shares of Common Stock as follows: Carl Rose, 7,314,650
shares; Charles Leaver, 2,432,310 shares; and Jeff Sexton, 1,300,000 shares;
WHEREAS, pursuant to the terms of that certain Convertible Bridge Loan
Agreement dated July 21, 2000 among the Company and the Lenders (the "July
Agreement"), the Lenders have loaned the Company the aggregate principal amount
of $5,000,000 which amount is convertible into Common Stock pursuant to the
terms of the July Agreement; and
WHEREAS, the Company has agreed to sell to Edgewater and TIME, and
Edgewater and TIME have agreed to purchase from the Company, an aggregate of
2,000,000 shares of Common Stock pursuant to that certain Stock Purchase
Agreement dated the date hereof among the Company, Edgewater and TIME (the
"Second Purchase Agreement" and, together with the First Purchase Agreement, the
"Purchase Agreements"); and
WHEREAS, the parties hereto consider it to be in the best interests of
the Company, its business and of the Shareholders that the provisions of this
Agreement will determine various matters relating to the Common Stock owned by
the Shareholders.
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NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
covenant and agree as follows:
ARTICLE I
VOTING, MANAGEMENT, ETC.
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1.1 Voting. The Company's Articles of Incorporation provide that the
Common Stock shall entitle the holders thereof to one (1) vote per share on each
proposition submitted to shareholders of the Company for their vote thereon.
1.2 Control Agreements. It is agreed that the Principal Shareholders
shall (i) vote their shares of Common Stock and take all actions within their
authority necessary for the Company to comply with the provisions of Section
1.2(a)(i) hereof, Section 6.3 of the First Purchase Agreement and Section 5.2 of
the July Agreement and take all necessary action to effectuate such provisions,
including without limitation, the increase in the size of and the election of
certain new members to the Board (as hereinafter defined) as required by Section
1.2(a)(i) hereof, Section 6.3 of the First Purchase Agreement and Section 5.2 of
the July Agreement; and (ii) collectively and severally vote the respective
shares held by each for the election of the Majority Holders' Representative or
the Majority Holders' Representatives, the Lender Representative or the Lender
Representatives and the Edgewater Representatives (as such terms are defined
herein), as Board members of the Company and shall undertake or cause to be
undertaken any and all of the actions within their authority necessary in
whatever capacity, including, without limitation, an amendment to the Articles
of Incorporation and By-Laws of the Company, if such action is required, whether
as a director, shareholder, officer or employee, so as to provide for all the
events described in Section 1.2(a)(i) hereof, Section 6.3 of the First Purchase
Agreement and Section 5.2 of the July Agreement and for the following
provisions:
(a) Directors.
(i) Designation of Directors. As soon as practicable but in
no event later than September 30, 2000, the Board of Directors of
the Company (the "Board") shall consist of ten (10) directors,
(A) one (1) of whom shall be designated by the Majority
Holders (as such term is defined in the First Purchase
Agreement) (the "Majority Holders' Representative"),
(B) two (2) of whom shall be designated by Edgewater in
respect of its investment made pursuant to the Second
Purchase Agreement (the "Edgewater Investor
Representatives") and
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(C) one (1) of whom shall be designated by the Lenders (the
"Lender Representative");
provided, however, that in the event the Investors own of record or
beneficially less than 500,000 shares in the aggregate of Investor
Common Stock, the Majority Holders' Investor Representative slot shall
no longer be designated by the Investors; and, provided further, that,
in the event that Edgewater owns less than 500,000 shares in the
aggregate of the Investor Common Stock, the Edgewater Investor
Representatives slots shall no longer be designated by Edgewater; and,
provided further, that, in the event the Lenders own less than 500,000
shares in the aggregate of Investor Common Stock and any Common Stock
acquired upon conversion under the July Agreement, the Lender
Representative slot shall no longer be designated by the Lenders.
Upon the occurrence of an Event of Default (as defined in the Purchase
Agreements) or a default (as defined in the July Agreement), the number
of directors shall be increased to twelve (12) and (X) two (2)
directors shall be designated by the Majority Holders (as defined in
the First Purchase Agreement) (the "Majority Holders' Investor
Representatives") and (Y) two (2) directors shall be designated by the
Lenders (the "Lender Representatives").
Any representative designated pursuant to this Section 1.2(a)(i) shall
be a person reasonably satisfactory to the Company. The Company hereby
acknowledges and agrees that Aaron Fleck, James Gordon, Bob Allison,
Uri Landesman, Brian Thompson and/or Robert Allison are acceptable
representatives of the Investors and the Lenders. For purposes of this
Agreement, the Majority Holders' Investor Representative(s), the
Edgewater Investor Representatives and the Lender Representative(s)
shall be referred to herein as "Representative(s)".
(ii) Expenses. Each director will be reimbursed at
each meeting of the Board for his reasonable out-of-pocket expenses in
attending such meeting including a reasonable mileage allowance.
(iii) Meetings. The Board shall meet no less
frequently than quarterly.
(iv) Indemnification. The Company shall at all times
maintain directors and officers insurance coverage covering the
Representative(s) and provide for indemnification of all of the
directors and officers under its Bylaws and by agreement satisfactory
to the Investors and the Subsequent Investors.
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(b) Compensation Committee. The Board shall have a
compensation committee authorized and elected pursuant to applicable Bylaws and
resolutions. Such committee shall vote on, and approve by majority vote, the
compensation of all officers and key employees, except that the Chief Executive
Officer shall not vote on his compensation.
1.3 Stock Option Plan. It is understood and agreed among the parties
hereto that (i) the Board will continue to maintain a Stock Option Plan (the
"Stock Option Plan") pursuant to which the Board may from time to time grant
stock options to purchase Common Stock to employees, directors and consultants
of the Company, (ii) such issuances under the Stock Option Plan may constitute
up to twenty-five percent (25%) of the issued and outstanding shares of Common
Stock on a fully diluted basis (and such shares of Common Stock have been
reserved for issuance under the Stock Option Plan), and (iii) such issuances
will have a dilutive impact on all shareholders of the Company. Any issuance of
options under the Stock Option Plan to any employees, directors and consultants
of the Company shall require the approval of the aforesaid Board or compensation
committee thereof.
ARTICLE II
RESTRICTIONS ON STOCK TRANSFERS
2.1 Applicable Definitions. For purposes of the provisions of this
Agreement, the following definitions shall be applicable:
(a) "Investor Common Stock" means the 3,592,000 shares of
Common Stock owned by the Investors.
(b) "Permitted Transferee" means a Transferee of Principal
Common Stock in a Permitted Transfer.
(c) "Permitted Transfers" means (i) the sale of up to
3,000,000 shares Principal Common Stock in the aggregate owned by Carl Rose as
follows: (A) 1,000,000 shares of Principal Common Stock to Jeff Sexton (and the
pledge of such shares as collateral in support of his obligation to pay amounts
due in respect of the note issued to Carl Rose in satisfaction of the purchase
price of such shares); (B) 1,000,000 shares of Principal Common Stock to Charles
Leaver (and the pledge of such shares as collateral in support of his obligation
to pay amounts due in respect of the note issued to Carl Rose in satisfaction of
the purchase price of such shares); and (C) 1,000,000 shares of Principal Common
Stock to Growth Stocks, Inc., (ii) the sale of up to 50,000 shares of Principal
Common Stock owned by Jeff Sexton, and (iii) the sale of up to 100,000 shares of
Principal Common Stock owned by Charles Leaver.
(d) "Principal Common Stock" means the Common Stock owned by
the Principal Shareholders.
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(e) "Shares" shall include and refer to all Common Stock owned
by the Shareholders, individually and collectively.
(f) "Transfer" shall include a sale, transfer, or any other
act whereby a Shareholder's rights of ownership are sold, transferred, disposed
of, pledged, hypothecated, encumbered, or in any way impaired or affected.
(g) "Transferee" shall mean a person to whom a Shareholder
proposes to Transfer Shares or to whom Shares have been transferred.
2.2 Restrictions on Sale of Shares by a Principal Shareholder. Except
for Permitted Transfers, no Principal Shareholder shall Transfer any Shares
until thirty (30) days after a registration statement with respect to the resale
of all of the Investor Common Stock, upon such terms and provisions as set forth
in that certain Registration Agreement dated as of February 18, 2000, between
the Company and the Investors (the "Registration Agreement"), becomes effective.
Upon a Permitted Transfer, the Company shall cause to be executed and delivered
to the Permitted Transferee a certificate or certificates representing the
aggregate number of Shares transferred to such Permitted Transferee, which such
certificates shall have imprinted thereon a legend as set forth in Section 4.1
hereof. Notwithstanding the foregoing, however, a Transfer shall not be deemed
to be a Permitted Transfer unless the Transferee of the Shares expressly
assumes, in writing, all of the obligations of a Shareholder under this
Agreement pursuant to the form of Shareholder Assent attached hereto as Exhibit
A. Furthermore, in the event a Permitted Transferee is already a party to this
Agreement, the Shares transferred to such Permitted Transferee shall remain
subject to the terms and conditions set forth herein.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SHAREHOLDERS
This Agreement is being entered into by the Company and each
Shareholder in reliance upon the following representations, covenants and
warranties respectively made by the Shareholders in favor of the Company and the
Shareholders.
3.1 Authorization. Each Shareholder represents and warrants that (a)
this Agreement, when executed and delivered by him, her or it, will constitute a
valid, legally binding and enforceable obligation of such Shareholder; and (b)
such Shareholder is not prevented by any legal requirement or agreement from
entering into this Agreement and performing such Shareholder's obligations
hereunder. The fulfillment of and compliance with the terms of this Agreement by
such Shareholder will not (i) conflict with or result in a breach of the terms,
conditions or provisions of, (ii) constitute a default under, or (iii) result in
a violation of, breach of or default under (a) any Shareholders' partnership
agreement (as applicable) or (b) any law, statute, rule or regulation to which
you are
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subject, or (c) any agreement, instrument, order, judgment or decree to which
such Shareholder is a party, bound or subject.
3.2 Sophistication, Financial Strength, Access, Etc. Each Shareholder
represents, warrants and acknowledges that, with respect to the Company, he, she
or it is an Accredited Investor (as that term is defined in Rule 501 promulgated
by the Securities and Exchange Commission under the Act), that he, she or it has
such knowledge and experience in business and financial matters as to be capable
of evaluating the merits and risks of the investment contemplated to be made
hereunder; that such investment bears a high degree of risk and could result in
a total loss of his, her or its investment; and that he, she or it have
sufficient financial strength to hold the same as an investment and to bear the
economic risks of such investment (including possible loss of such investment)
for an indefinite period of time.
3.3 No Broker or Finder. Each Shareholder represents and warrants that
he, she or it has not engaged any broker or finder in connection with this
Agreement or the transactions contemplated hereby, except as set forth in the
Purchase Agreement.
3.4 Reiteration and Survival of Representations and Warranties. The
representations and warranties of each Shareholder contained in this Article III
shall be true on and as of the date of this Agreement and shall survive the
completion of the transactions contemplated hereby.
ARTICLE IV
TRANSFER
4.1 Legend on Share Certificates. All Share certificates issued to the
Principal Shareholders shall have imprinted thereon a legend (in addition to any
applicable securities law legend to be contained on the Share certificates
issued to the Investors and the Principal Shareholders) substantially to the
following effect:
"The sale, transfer or other disposition or pledge or other
encumbrance of shares represented by this Certificate is
subject to an Amended and Restated Shareholders Agreement
dated July __, 2000 (the "Agreement"), among EpicEdge, Inc., a
Texas corporation (the "Company"), the Shareholder named on
this Certificate and certain other parties named in the
Agreement, which Agreement includes certain restrictions on
transfer and certain options to purchase or sell the shares
represented by this Certificate. A copy of the Agreement is on
file in the office of the Secretary of the Company and may be
reviewed by application thereto. Each holder hereof shall be
bound by all provisions of the Agreement."
All Shares in the hands of persons or entities who are parties to this
Agreement and all Shares acquired by the Company or by anyone else from parties
to this Agreement or from the heirs, executors, administrators, legal or
personal representatives, successors or assigns of parties to this Agreement by
direct or indirect conveyance pursuant to the terms hereof, shall be subject to
all of the
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provisions contained in this Agreement and to all of the restrictions on, and
provisions relating to, voluntary or involuntary sale, transfer or other
dispositions of, and options to purchase or sell, such Shares.
4.2 Private Offer; Transfer. Each Investor understands and agrees
that:
(a) the Investor Common Stock may not be sold, transferred or
otherwise disposed of without registration under the Act or an exemption
therefrom and that in the absence of an effective registration statement
covering the Investor Common Stock or an available exemption from registration
under the Act, the Investor Common Stock must be held indefinitely. In
particular, each Shareholder is aware that the Investor Common Stock may not be
sold pursuant to Rule 144 promulgated under the Act unless all of the conditions
of that Rule 144 are met. Each Investor represents that, in the absence of an
effective registration statement covering the Investor Common Stock, such
Investor will sell, transfer or otherwise dispose of the Investor Common Stock
only (a) in accordance with Section 2.3 hereof and (b) in a manner consistent
with its representations and warranties set forth herein and then only in
accordance with the provisions of Section 4.3 hereof; and
(b) in no event will such Investor make a transfer or
disposition of any of the Investor Common Stock other than pursuant to an
effective registration statement under the Act, unless and until (i) the
Investor shall have notified the Company and shall have furnished the Company
with a statement of the circumstances surrounding the disposition, and (ii) if
applicable, the Investor shall have complied with the provisions of Article II
hereof.
4.3 Notice of Proposed Transfer. If, prior to any transfer or sale of
any Investor Common Stock, the Investor desiring to effect such transfer or sale
shall deliver a written notice to the Company describing briefly the manner of
such transfer or sale and a written opinion of counsel for such Investor
(provided that such counsel, and the form and substance of such opinion, are
reasonably satisfactory to the Company) to the effect that such transfer or sale
may be effected without the registration of such Investor Common Stock under the
Securities Act, the Company shall thereupon permit or cause its transfer agent
(if any) to permit such transfer or sale to be effected.
4.4 Termination of Restrictions.
(a) Notwithstanding the foregoing provisions of this Article
IV, the restrictions imposed by this Article IV upon the transferability of
Investor Common Stock shall terminate as to any particular share of Investor
Common Stock when (1) such Investor Common Stock shall have been effectively
registered under the Act and sold by the Investor thereof in accordance with
such registration, or (2) a written opinion to the effect that such restrictions
are no longer required or necessary under any federal or state securities law or
regulation have been received from counsel for the Investor thereof (provided
that such counsel, and the form and substance of such opinion, are reasonably
satisfactory to the Company) or counsel for the Company, or (3) such Investor
Common Stock shall have been sold without registration under the Act in
compliance with Rule 144, or (4) the Company is reasonably satisfied that the
Investor shall, in accordance with the terms of Subsection (k) of Rule 144, be
entitled to sell such Investor Common Stock pursuant to such Subsection, or (5)
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a letter or an order shall have been issued to the Investor thereof by the staff
of the Securities and Exchange Commission or such Commission stating that no
enforcement action shall be recommended by such staff or taken by such
Commission, as the case may be, if such Investor Common Stock is transferred
without registration under the Securities Act in accordance with the conditions
set forth in such letter or order and such letter or order specifies that no
subsequent restrictions on transfer are required.
(b) Whenever the restrictions imposed by this Article IV shall
terminate, as hereinabove provided, the Investor of any particular share of
Investor Common Stock then outstanding as to which such restrictions shall have
terminated shall be entitled to receive from the Company, without expense to
such Investor, one or more new certificates for such Investor Common Stock not
bearing the restrictive legend set forth in Section 4.1 hereof.
4.5 Compliance with Rule 144 and Rule 144A. At the written request of
any Investor who proposes to sell any of such Common Stock in compliance with
Rule 144, the Company shall furnish to such Investor, within ten (10) days after
receipt of request, a written statement as to whether or not the Company is in
compliance with the filing requirements of the Securities and Exchange
Commission as set forth in such Rule. For purposes of effecting compliance with
Rule 144A, in connection with any resales of any shares of Common Stock that
hereafter may be effected pursuant to the provisions of Rule 144A, any Investor
desiring to effect such resale and each prospective institutional purchaser of
such shares designated by such Investor shall have the right, at any time the
Company is not subject to Section 13 or 15(d) of the Securities and Exchange
Act, as amended, to obtain from the Company, upon the written request of such
holder and at the Company's expense the documents specified in Section (d)(4)(i)
of Rule 144A, as such rule may be amended from time to time.
4.6 Non-Applicability of Restrictions on Transfer. Notwithstanding the
provisions of Section 4.3 hereof, any record owner of Investor Common Stock may
from time to time transfer or recertificate all or a part of such record owner's
Investor Common Stock (i) to a nominee identified in writing to the Company as
being the nominee of or for such record owner, and any nominee of or for a
beneficial owner of Investor Common Stock identified in writing to the Company
as being the nominee of or for such beneficial owner may from time to time
transfer all or a part of the Investor Common Stock registered in the name of
such nominee but held as nominee on behalf of such beneficial owner, to such
beneficial owner, (ii) to an Affiliate of such record owner, or (iii) if such
record owner is a partnership or the nominee of a partnership, to a partner,
retired partner, or estate of a partner or retired partner, of such partnership,
so long as such transfer is in accordance with the transferee's interest in such
partnership and is without consideration; provided, however, that each such
transferee shall remain subject to all restrictions on the transfer of Investor
Common Stock herein contained.
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ARTICLE V
MISCELLANEOUS
5.1 Amendments; Waiver. This Agreement may be amended only in a writing
which is executed by the Company, and all of the Shareholders.
5.2 Notices. Any and all notices or other communications required or
permitted to be delivered hereunder shall be deemed properly delivered if (a)
delivered personally, (b) mailed by first class, registered or certified mail,
return receipt requested, postage prepaid, (c) sent by next-day or overnight
mail or delivery or (d) sent by telecopy or telegram, to the parties listed on
Annex 1, or to such other address or to the attention of such other Person as
the recipient party has specified by prior written notice to the sending party.
5.3 General.
(a) Binding Effect. It is expressly agreed and understood that
this Agreement is not to be deemed strictly personal to the parties hereunder,
but this Agreement shall also inure to the benefit of and be binding not only
upon the said parties hereto but also upon their respective heirs, executors,
administrators, personal and legal representatives, successors and assigns, and
all parties hereto agree for themselves and for their said heirs, executors,
administrators, personal and legal representatives, successors and assigns to be
bound by all of the provisions hereof and to execute at any time any documents
or instruments which may be necessary or proper to carry out the purpose and
intent of this Agreement. Notwithstanding the foregoing, the rights of the
Investors set forth herein shall inure only to the benefit of the Investors and
their "Permitted Transferees" (as such term is defined in the Registration
Agreement).
(b) Governing Law. The internal law of the State of Illinois
will govern all questions concerning the construction, validity and
interpretation of this Agreement, notwithstanding the fact that one or more of
the parties now is or may become a resident of or domiciled in a different
state.
(c) Reserved.
(d) Counterparts and Gender References. This Agreement may be
executed in several counterparts (including by means of separate signature
pages, which may be attached hereto) by one or more of the parties, each of
which shall be deemed an original, and all of said counterparts (and signature
pages) shall be deemed to constitute or be part of one and the same instrument.
One or more counterparts of this Agreement may be delivered by facsimile, with
the intention that delivery by such means shall have the same effect as delivery
of an original counterpart thereof. All gender references shall be deemed
modified to fit the context.
(e) Severability. Should any particular provision of this
Agreement be adjudicated to be invalid or unenforceable such provision shall be
deemed deleted and the remainder of the
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Agreement, nevertheless, remain unaffected and fully enforceable; further, to
the extent any provision herewith is deemed unenforceable by virtue of its scope
but may be made enforceable by limitation thereof, the parties hereto agree the
same shall, nevertheless, be enforceable to the fullest extent permissible under
the laws and public policies applied in the jurisdiction in which enforcement or
interpretation is sought.
(f) Further Assurances. Upon request of the Company or any
party hereto, all parties hereto agree to promptly execute and deliver all such
other instruments and take all such other actions or any party hereto may
reasonably request from time to time in order to effectuate and carry out the
purposes, privileges, restrictions, rights and duties of the parties and other
provisions of this Agreement.
(g) No Waiver, Remedies Cumulative. No delay on the part of
any party in exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude other or further exercise thereof,
or the exercise of any other right, power or privilege. Without limiting the
generality of the foregoing, nothing in this Agreement shall be deemed to
preclude or be in lieu of any right or remedy that any party may have at law or
in equity or by statute or otherwise against the Company or any other person
based upon any fraud (whether or not the matter to which the fraud related also
constitutes a default hereunder).
(h) Headings; Exhibits. The headings or other subdivisions in
this Agreement are intended solely for convenience or reference and shall be
given no effect in the construction or interpretation of this Agreement. All
Exhibits attached hereto are deemed incorporated herein by reference.
(i) Specific Performance. The parties hereby declare that it
is impossible to measure in money the damages which will accrue to a party
hereto by reason of a failure to perform any of the obligations under this
Agreement and that a breach hereof shall cause irreparable injury and, in
addition to any other right or remedy available to the parties hereto at law or
in equity, any injured party hereunder shall be entitled to enforcement by court
injunction or specific performance of the obligations of the Shareholders
hereunder, without the necessity for posting a bond. Notwithstanding the
foregoing sentence, nothing herein shall be construed as prohibiting any injured
party hereunder from also pursuing any other rights or remedies for such breach
or threatened breach, including receiving damages and attorneys' fees. The
election of any remedy shall not be construed as a waiver on the part of any
injured party hereunder of any rights such party might otherwise have at law or
in equity, which rights and remedies shall be cumulative.
5.4 Termination. This Agreement shall terminate and be of no further
force and effect upon the thirtieth (30th) day after a registration statement
with respect to the resale of all of the Investor Common Stock, upon such terms
and provisions as set forth in the Registration Agreement, becomes effective.
* * *
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[SIGNATURE PAGES FOLLOW]
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Shareholders' Agreement Signature Page
IN WITNESS WHEREOF, the Company and each of the Shareholders have
signed this Agreement, all on the day and year first above written.
EPICEDGE, INC., a Texas corporation
By: ________________________
Its: ________________________
___________________________________
Carl Rose
EDGEWATER PRIVATE EQUITY FUND
III, L.P.
___________________________________
By: Edgewater III Management, L.P. Charles Leaver
Its: General Partner
By: Gordon Management, Inc. ___________________________________
Its: General Partner Jeff Sexton
By: ________________________
Its: ________________________
ASPEN FINANCE INVESTORS I, LLC, a
Colorado limited liability company
By: ____________________________
Its: Manager
FLECK T.I.M.E. FUND, LP, a Connecticut
limited partnership
By: ___________________________
Its: Managing Partner
FLECK FAMILY PARTNERSHIP II, LP, a
Florida limited partnership
By: ___________________________
Its: Managing Partner
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ANNEX 1
Names, Addresses and Telecopy Numbers of Shareholders and Company
EpicEdge
3200 Wilcrest Drive
Suite 370
Houston, Texas 77042-6018
Telecopy: (713) 784-2486
Attn: Charles Leaver, President
With Copy to:
Philip M. Shiekman, Esq.
Fox, Rothschild, O'Brien & Frankel, L.L.P.
2000 Market Street, Tenth Floor
Philadelphia, Pennsylvania 19103-3291
Telecopy: (215) 299-2150
Edgewater Private Equity Fund III, L.P.
900 N. Michigan Avenue
14th Floor
Chicago, Illinois 60611
Telecopy No.: 312-649-8649
Attn: Brian Thompson, Partner
With Copy to:
Michael A. Nemeroff, Esq.
Vedder, Price, Kaufman & Kammholz
222 North LaSalle Street, Suite 2600
Chicago, Illinois 60601-1003
Telecopy: (312) 609-5005
Aspen Finance Investors I, LLC
100 Elk Run Drive, Suite 228
Basalt, CO 81621
Attn: Howard Cohen
Telecopy: (970) 927-4362
Fleck T.I.M.E. Fund, LP
289 Greenwich Avenue
Greenwich, CT 06830
Attn: Kathryn Fleck
Telecopy: (203) 422-2170
Fleck Family Partnership II, LP
1800 Second Avenue, Suite 799
Sarasota, FL 34230
Attn: Barry Fleck
Telecopy: (203) 422-2170
Carl Rose
3200 Wilcrest Drive
Suite 370
Houston, Texas 77042-6018
Telecopy: (713) 784-2486
Charles Leaver
3200 Wilcrest Drive
Suite 370
Houston, Texas 77042-6018
Telecopy: (713) 784-2486
Jeff Sexton
3200 Wilcrest Drive
Suite 370
Houston, Texas 77042-6018
Telecopy: (713) 784-2486
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EXHIBIT A
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Shareholder Assent
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The undersigned hereby assents to the Shareholders' Agreement dated
September ___, 2000 (the "Agreement"), by and among EpicEdge, Inc., a Texas
corporation, and certain other parties named therein, as such Agreement may be
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 Principal Shareholder in such Agreement.
Executed as of ____________________.
[Transferee's Signature]
Print Name and Address:
