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EXHIBIT 10.27
AMENDMENT AGREEMENT
This Amendment Agreement is made as of December 10, 1999 by and among EPS
Solutions Corporation (the "COMPANY") and Michael G. Goldstein ("EMPLOYEE").
A. Effective as of March 18, 1999, Employee and the Company entered
into that certain Restricted Stock Purchase Agreement (the "FIRST RSPA")
pursuant to which Employee purchased from the Company 100,000 shares of Series A
Common Stock of the Company (the "TIME VESTING SHARES").
B. In payment of the purchase price for the Time Vesting Shares
Employee made a promissory note payable to the Company dated March 18, 1999 in
the principal amount of $119,900 (the "FIRST NOTE").
C. The Company and Employee desire to amend the First RSPA and the
First Note in certain respects as set forth herein.
Therefore, in consideration of the mutual covenants set forth herein and
other consideration, the value and sufficiency of which is hereby acknowledged,
the Company and Employee hereby agree as follows:
1. Schedule 1.1 to the First RSPA is hereby amended to change the
reference to "Five-Year Time Vesting Shares" to "Time Vesting Shares."
2. Schedule 4 to the First RSPA is hereby amended to read in its
entirety as set forth on Schedule 4 attached hereto.
3. There is hereby added to the First RSPA a new Section 4.11, which
reads as follows:
4.11 Change in Control. Notwithstanding anything in this Agreement
or other agreements to the contrary, any unvested Shares shall vest
and the Restrictions shall lapse as of immediately before the
closing of a transaction that constitutes a Change in Control (as
defined in the Employment Agreement), or upon a Change in Control
other than a transaction, in any case that occurs during Purchaser's
employment by the Company or any of its affiliates or within 90 days
thereafter. Accordingly, the Company will defer its repurchase
rights hereunder for at least such 90 day period.
4. The Employment Agreement referenced in the First RSPA, as amended,
shall be the Employment Agreement between Employee and First Financial Resources
Holding Co., Inc. dated as of December 10, 1999.
5. Effective as of immediately before the closing of the initial public
offering of shares of the Company or its successor or affiliate, all
Restrictions will lapse, and vesting will occur, with respect to (i) the portion
of the Time Vesting Shares and that would otherwise be scheduled
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to vest for the final "Measurement Period" under the First RSPA; and (ii) the
portion of the shares of restricted common stock of the Company that are being
purchased by Employee as of the date hereof and that vest solely based upon
Employee's continued employment (and not based upon any performance criteria)
that would otherwise be scheduled to vest for the final Measurement Period
applicable to those shares.
6. Employee will be permitted, in his discretion, to (a) defer any
payment of interest accrued on the First Note, the promissory note made by
Employee to the Company in connection with the purchase of shares on the date
hereof, and any other indebtedness of Employee incurred in connection with
purchase of any shares from the Company or any successor or affiliate
(collectively, the "PURCHASE DEBT") until the last principal of the Purchase
Debt is paid; (b) extend the maturity of the Purchase Debt by ten years if
Employee's employment with all affiliates of the Company and their successors
terminates for any reason (and for this purpose, an affiliate of the Company is
an entity controlling, controlled by, or under common control with the Company);
and (c) pay any principal or interest on the Purchase Debt at any time or from
time to time by surrendering to the Company or its successor or affiliate any
vested shares of capital stock of the Company or any successor or affiliate, in
which case the principal or interest, as specified by Employee, will be reduced
by the aggregate fair market value of such shares surrendered, and for this
purpose the fair market value of such shares will be the average closing price
of such type of shares on the principal exchange or market system upon which
they trade for the previous 20 trading days (or such shorter period of time as
the stock has been so traded), and if not so traded, the value determined and
documented to Employee in writing by the Company's board of directors in good
faith by reference, if applicable, to the Purchase Price under the Company's
Stockholder Agreement and any other relevant factors, but without any discount
for minority interest or lack of liquidity.
7. Sections 6.1 through 6.13 inclusive of the Restricted Stock Purchase
Agreement are included herein by reference and will govern this Agreement as
though set forth herein.
In Witness Whereof, the Company and Employee have entered into this
Agreement as of the date first above set forth.
EPS SOLUTIONS CORPORATION
By: /s/ DAVID H. HOFFMAN /s/ MICHAEL G. GOLDSTEIN
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Name: David H. Hoffman Michael G. Goldstein
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Title: CEO
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SCHEDULE 4
TO AMENDMENT AGREEMENT
BASIC TERMS.
VESTING. The Shares consist of 100,000 Time Vesting Shares (as
identified on Schedule 1.1). Subject to the terms and conditions set forth in
this Agreement, the Restrictions applicable to the Shares will lapse, and the
Shares will vest, if and when the conditions to vesting of the Shares, as set
forth in this Schedule 4, are met. However, except as set forth in this Schedule
4, in order for any Shares eligible for vesting for any Measurement Period to
vest, the Purchaser must have remained an employee of the Company, or an entity
controlling, controlled by, or under common control with the Company (an
"AFFILIATE"), from the date hereof through the last day of that Measurement
Period. In addition, as a condition to each and every vesting of Shares, the
Purchaser must execute and deliver to the Company a release, in form and
substance satisfactory to the Company, releasing the Company and all of its
Affiliates and their employees, officers and directors, and the successors and
assigns of each of them, from any claims or liabilities arising from or in
connection with the employment of the Purchaser by the Company or any of its
Affiliates.
Any vesting for a Measurement Period will be effective as of the close
of business on the last day of that Measurement Period. Fractional vested Shares
will be carried forward and combined to constitute whole vested Shares that can
be issued, or cashed out by the Company at fair market value following
determination of whether any performance requirements associated with the last
Measurement Period have been met.
TIME VESTING SHARES
On the last day of each Measurement Period set forth in the table below,
subject to the other provisions of this Agreement, the Restrictions will lapse
with respect to the number of Time Vesting Shares (as set forth in Schedule 1.1)
set forth opposite that Measurement Period below.
NUMBER OF SHARES
MEASUREMENT PERIOD VESTING
January 1, 1999 - December 31, 1999 25,000
January 1, 2000 - December 31, 2000 42,857
January 1, 2001 - December 31, 2001 32,143
VESTING UPON CERTAIN TERMINATION OF EMPLOYMENT:
If employment of the Purchaser with the Employer is terminated by the
Employer without "Cause" or by the Purchaser with "Good Reason" (each as defined
in the Employment Agreement), the Restrictions will immediately lapse and
vesting will immediately occur with respect to all of the Shares not already
vested. If employment of the Purchaser with the
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Employee terminates as a result of the Purchaser's death or Disability (as
defined in the Employment Agreement), the Restrictions will immediately lapse
with respect to half of the Shares not then already vested.