Exhibit 10.119
AMENDMENT NO. 1 TO
SECURITIES PURCHASE AGREEMENT
Among
IMPAC GROUP, INC.
BT CAPITAL INVESTORS, L.P.
and
PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
Dated as of October 29, 1999
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
Amendment No. 1 to the Securities Purchase Agreement, dated as of
October 29, 1999, by and between IMPAC Group, Inc. (the "Company"), a Delaware
corporation, BT Capital Investors, L.P. ("BTI"), Phoenix Home Life Mutual
Insurance Company ("Phoenix" and together with BTI, each a "Purchaser," and
collectively the "Purchasers").
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into a Securities Purchase
Agreement, dated as of January 11, 1999 (the "Purchase Agreement"); and
WHEREAS, the parties hereto wish to amend certain of the terms and
conditions of the Purchase Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Amendment No. 1, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1.
AMENDMENTS
Section 3.08 of the Purchase Agreement shall be deleted in its
entirety and replaced with the following:
"Section 3.08 Transfer of Securities. (a) Each Purchaser
agrees that it will not offer to sell, assign, transfer or otherwise
dispose of ("Transfer") any of the Securities except in transactions
exempt from registration under the Securities Act or in a sale
registered under the Securities Act. In connection with any proposed
Transfer pursuant to such an exemption, the Purchasers agree that
the Company may request an opinion of the Purchaser's counsel that
such Transfer is not in violation of the registration requirements
of the Securities Act, or other applicable law; provided, however,
that no such opinion will be required for any Transfer to an
Affiliate of the Purchaser making such Transfer, if such Affiliate
is an "accredited investor" as defined in Rule 501 under the
Securities Act of 1933, as amended. For the purposes of
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this Section 3.08, "Affiliate" shall have the meaning set forth in
the Stockholders Agreement.
(b) Each certificate representing the Securities shall bear legends
in or substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). NO
TRANSFER, SALE OR OTHER DISPOSITION OF THESE SHARES MAY BE MADE IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
WITH RESPECT TO THESE SHARES OR THE AVAILABILITY OF AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE ACT."
(c) BTI agrees that so long as any shares of Preferred are
outstanding it and/or its Affiliates (as defined in Section 3.08(a))
will own and retain the right to vote at least a majority of such
shares; provided, however, that BTI and any of its Affiliates may
Transfer any shares of Preferred (and thereby fail to own and retain
the right to vote such shares) to the extent necessary to comply
with Regulation Y (12 C.F.R. PART 225) of the Board of Governors of
the Federal Reserve System. Prior to any such sale, at the request
of the Company BTI and its counsel will meet with the Company to
review and discuss BTI's analysis of its non-compliance with
Regulation Y."
ARTICLE 2.
COVENANTS
Upon surrender to the Company of any certificate representing shares
of Preferred, the Company shall issue to the holder of the original certificate
a new certificate, which shall represent the same number of shares of Preferred
and shall bear the legend set forth in Section 3.08(b) of the Purchase
Agreement, as amended hereby. The Purchasers shall surrender any certificate
representing shares of Preferred in accordance with this Article 2 pursuant to a
letter of transmittal in the form of Exhibit A hereto.
ARTICLE 3.
GENERAL PROVISIONS
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Section 3.1. This Amendment No. 1 may be executed in one or more
counterparts. each of which executed counterparts shall be deemed to constitute
an original and all of which, taken together, shall be deemed to constitute one
and the same instrument.
Section 3.2. This Amendment No. 1 (together with the Purchase
Agreement and the Schedules delivered in connection therewith) constitutes the
entire agreement of the parties and supersedes all prior agreements and
undertakings, both written and oral (other than the Purchase Agreement and the
Schedules delivered in connection therewith), between all or any of the parties,
with respect to the subject matter hereof. The Purchase Agreement, as amended by
this Amendment No. 1, is hereby ratified and confirmed in all respects and shall
continue in full force and effect.
Section 3.3. Capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereunto have duly executed this
Amendment No. 1 as of the date first written above.
IMPAC GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
BT CAPITAL INVESTORS, L.P.
By: /s/ Xxxxx Xxxxxxxxxxx
----------------------------------------
Name: XXXXX XXXXXXXXXXX
Title: DIRECTOR
PHOENIX HOME LIFE MUTUAL
INSURANCE COMPANY
By: /s/ Xxxxxxxxxxx Xxxxxx
----------------------------------------
Name: XXXXXXXXXXX XXXXXX
Title: Vice President, Corporate Portfolio Management
PHOENIX HOME LIFE
Exhibit A
IMPAC GROUP, INC.
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Legal Department
Ladies and Gentlemen:
Reference is made to (i) Amendment No. 1 to the Securities Purchase
Agreement (the "Amendment"), dated as of __________, 1999, by and among IMPAC
Group, Inc. (the "Company"), BT Capital Investors, L.P. ("BTI"), Phoenix Home
Life Mutual Insurance Company ("Phoenix") and (ii) the Securities Purchase
Agreement, dated as of January 11, 1999, by and among the Company, BTI and
Phoenix (the "Purchase Agreement"). Capitalized terms used but not defined
herein shall have the meanings set forth in the Purchase Agreement.
In accordance with Article 2 of the Amendment, we hereby surrender
the enclosed certificate representing _________ shares of Preferred in exchange
for the issuance by the Company of a certificate representing the same number of
Preferred and containing the legend set forth in Section 3.08 of the Purchase
Agreement, as amended.
Best regards,
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