Exhibit 10.4
AMENDMENT
TO
SECURITIES PURCHASE AGREEMENT
This AMENDMENT (this "AMENDMENT"), dated as of November 16, 2004, is
entered into by and between IT&E INTERNATIONAL GROUP, INC., a Nevada
corporation (the "COMPANY"), and LAURUS MASTER FUND, LTD., a Cayman Islands
company ("LAURUS"), for the purpose of amending the terms of the Securities
Purchase Agreement, dated as of October 18, 2004, by and between the Company
and Laurus (as amended, modified or supplemented from time to time, the
"SECURITIES PURCHASE AGREEMENT"). Capitalized terms used herein without
definition shall have the meanings ascribed to such terms in the Securities
Purchase Agreement.
WHEREAS, the Company and Laurus have agreed to make certain changes to
the Securities Purchase Agreement as set forth herein;
NOW, THEREFORE, in consideration of the above, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Section 11 of the Securities Purchase Agreement is hereby amended
by inserting the following new Section 11.14 at the end thereof:
"11.14 Limitation on Acquisition of Common Stock of Company.
Notwithstanding anything to the contrary contained in this Agreement, any
Related Agreement, any document, instrument or agreement entered into in
connection with the transactions contemplated hereby or any document,
instrument or agreement entered into in connection with any other
transaction entered into by and between Laurus and the Company (and/or
subsidiaries or affiliates of the Company), Laurus shall not acquire
stock in Company (including, without limitation, pursuant to a contract
to purchase, by exercising an option or warrant, by converting any other
security or instrument, by acquiring or exercising any other right to
acquire, shares of stock or other security convertible into shares of
stock in Company, or otherwise, and such options, warrants, conversion or
other rights shall not be exercisable) to the extent such stock
acquisition would cause any interest (including any original issue
discount) payable by Company to Laurus not to qualify as portfolio
interest, within the meaning of Section 881(c)(2) of the Internal Revenue
Code of 1986, as amended (the "Code") by reason of Section 881(c)(3) of
the Code, taking into account the constructive ownership rules under
Section 871(h)(3)(C) of the Code."
2. This Amendment to the Securities Purchase Agreement shall be
effective as of the date hereof following the execution of same by each of the
Company and Laurus.
3. Except as specifically set forth in this Amendment, there are no
other amendments to the Securities Purchase Agreement, and all of the other
forms, terms and provisions of the Securities Purchase Agreement remain in full
force and effect.
4. This Amendment shall be binding upon the parties hereto and their
respective successors and permitted assigns and shall inure to the benefit of
and be enforceable by each of the parties hereto and its successors and
permitted assigns. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. This
Amendment may be executed in any number of counterparts, each of which shall be
an original, but all of which shall constitute one instrument.
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IN WITNESS WHEREOF, each of the Company and Laurus has caused this
Amendment to Securities Purchase Agreement to be signed in its name effective
as of this 16th day of November, 2004.
IT&E INTERNATIONAL GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: CEO
LAURUS MASTER FUND, LTD.
By: /s/ Xxxxxx Grin
------------------------------
Name: Xxxxxx Grin
Title: Director
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