EXHIBIT 4
AMENDMENT AGREEMENT
This Amendment Agreement (the "AMENDMENT AGREEMENT") is entered into as of
August 19, 2005 by and between ACT Teleconferencing, Inc, a Colorado corporation
(the "COMPANY"), and Dolphin Direct Equity Partners, LP, a Delaware limited
partnership ("DOLPHIN"). All capitalized terms used and not defined herein shall
have the meanings ascribed to them in the SPA (as defined below).
WHEREAS, the Company, Dolphin and the Other Buyers entered into the
Securities Purchase Agreement (the "SPA") dated as of June 30, 2005 and the
other Transaction Documents;
WHEREAS, the Initial Closing is scheduled for the date hereof;
WHEREAS, the Company has been notified by the Nasdaq Stock Market
("Nasdaq") that the Company is subject to deficiency and/or delisting from the
Nasdaq National Market (the "PRINCIPAL MARKET");
WHEREAS, such deficiency and/or delisting would violate certain provisions
of the SPA and the other Transaction Documents; and
WHEREAS, the Company and Dolphin seek to reach agreement in order to
induce Dolphin to waive such violations;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and Dolphin agree as follows:
ARTICLE 1. PRESERVATION OF LISTING. The Company agrees to use its best
efforts to preserve, and if lost regain, its listing with the Principal Market.
ARTICLE 2. DELISTING. Notwithstanding the foregoing, in the event that the
quotation of any of the Company's common stock (the "SHARES") on the Principal
Market is discontinued (for whatever reason, voluntarily or involuntarily), then
immediately thereupon the Stated Value Increase Rate (as defined in the
Certificate) shall be increased by fifty (50) basis points, which increase shall
continue so long as any such Shares are not so quoted; provided, however, that
in the event that the Shares (including without limitation all outstanding
shares and shares reserved for issuance) are subsequently quoted on the Nasdaq
SmallCap Market or listed on the American Stock Exchange, then such increase in
the Stated Value Increase Rate shall be twenty-five (25) basis points rather
than fifty (50) basis points and shall be eliminated altogether upon the
re-quotation of all Shares on the Principal Market. The foregoing shall apply
from time to time in the event that the Shares are not so quoted or listed and
then re-quoted or re-listed, regardless of the number of times thereof.
ARTICLE 3. LISTING APPLICATION COSTS; DELISTING CLAIMS. In the event of
either (i) the incurrence of costs by the Company in relation to any application
for listing of the Shares on the Principal Market or any other market,
including, without limitation, listing fees, expenses of counsel or consultants,
and any out-of-pocket expenses, or (ii) any claim or alleged claim of any kind,
at law or in equity, direct or indirect, derivative or otherwise, against the
Company or any of its affiliates, relating to, arising out of or in connection
with, any de-quotation or de-listing of the Shares as aforesaid, then on each
anniversary of the date hereof, the Company shall pay in cash to and as
instructed by Dolphin an amount equal to one-half of the total of all amounts
(whether out of pocket or otherwise) incurred or paid (whether in cash, other
assets or other value delivered or expensed, the value of such non-cash assets
or value being determined in the reasonable judgment of Dolphin) by the Company
or any of its affiliates or its insurance carriers in connection with such
claim(s) during the preceding year. Dolphin shall determine such amount as
aforesaid with the cooperation of the Company and its affiliates reasonably in
advance of such anniversary sufficient to allow such payment, although any delay
by Dolphin in such determination shall only result in the necessary delay in
payment and shall not prejudice any entitlement thereto. The Company shall
certify such amount to Dolphin at least one week prior to each anniversary of
the date hereof.
ARTICLE 4. WAIVER. In consideration of the foregoing, Dolphin hereby
waives in full, and will proceed with the Initial Closing notwithstanding, any
claim it may have against the Company under the Transaction Documents solely as
a result of any such deficiency under or de-listing from the Principal Market.
ARTICLE 5. MISCELLANEOUS.
(a) REPRESENTATIONS. The Company represents that the terms of this
Agreement have been expressly authorized by the Company's Board of Directors or
an authorized committee of the Company's Board of Directors. The Company
represents that this Amendment Agreement constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
(b) AMENDMENT TO SPA AND CERTIFICATE. This Amendment Agreement shall
constitute an amendment of the SPA as between the Company and Dolphin and, in
the event of any conflict between the terms thereof and the terms hereof, the
terms of this Amendment Agreement shall prevail. In addition, the Company shall
cause the Certificate to be amended to give effect to the terms hereof.
(c) GOVERNING LAW; JURISDICTION; JURY TRIAL. All questions
concerning the construction, validity, enforcement and interpretation of this
Amendment Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of
New York. Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts sitting in The City of New York, Borough of
Manhattan, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Amendment Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES
NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AMENDMENT AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(d) COUNTERPARTS. This Amendment Agreement may be executed in two or
more identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original, not
a facsimile signature.
(e) HEADINGS. The headings of this Amendment Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Amendment Agreement.
(f) SEVERABILITY. If any provision of this Amendment Agreement shall
be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Amendment Agreement in that jurisdiction or the validity or
enforceability of any provision of this Amendment Agreement in any other
jurisdiction.
(g) NO THIRD PARTY BENEFICIARIES. This Amendment Agreement is
intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person.
(h) FURTHER ASSURANCES. Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
any other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Amendment Agreement and the consummation of the
transactions contemplated hereby. The Company further agrees, at the request and
option of Dolphin, to promptly take any and all other actions that Dolphin may
determine to be necessary or useful for the attachment, perfection and priority
of, and the ability of Dolphin to enforce, Dolphin's security interest in any
and all of the collateral contemplated herein, including, without limitation
filing and/or amending appropriate financing statements and entering into
appropriate security, pledge and other agreements in order to give effect to the
terms hereof.
(i) NO STRICT CONSTRUCTION. The language used in this Amendment
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against
any party.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
Agreement as of the date first written above.
DOLPHIN DIRECT EQUITY PARTNERS
By: Dolphin Advisors, LLC
its managing general partner
By: Dolphin Management Inc.
its managing member
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
ACT TELECONFERENCING, INC.
By:
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Name:
Title:
