[EXHIBIT 4.1]
FIRST AMENDMENT
TO
SECURITIES PURCHASE AGREEMENT
FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT (this "First
Amendment") dated as of May 5, 2003 by and between EAGLE SUPPLY GROUP,
INC., a Delaware corporation (the "Company"), XXXXX X. XXXXXX, President
of the Company (the "Purchaser"), and TDA INDUSTRIES, INC., a New York
corporation ("TDA").
RECITALS
WHEREAS, the Company and the Purchaser entered into a Securities
Purchase Agreement, dated as of February 6, 2003 (the "Original
Securities Purchase Agreement"), whereby the Company issued and sold
to the Purchaser 1,000,000 shares of Common Stock and Warrants to
purchase 1,000,000 shares of Common Stock for an aggregate purchase
price of $1,000,000;
WHEREAS, the Common Stock is listed for quotation on the Nasdaq
SmallCap Market;
WHEREAS, the parties to the Original Securities Purchase
Agreement believed that the transactions contemplated by the Original
Securities Purchase Agreement satisfied applicable Nasdaq rules and
interpretations and did not require prior stockholder approval, upon
review of the Original Securities Purchase Agreement and Warrant
Nasdaq determined that the approval of the Company's stockholders is
required prior to: (i) the adjustment of the exercise price of the
Warrants below $0.875 per Warrant Share, and (ii) the Purchaser's
exercise of the Warrants with respect to Warrant Shares exceeding
811,090 Warrant Shares (collectively, the "Nasdaq Shareholder Approval
Proposals");
WHEREAS, as an inducement to the Purchaser to enter into this
First Amendment, TDA has agreed to vote all shares of Common Stock
held by TDA in favor of the Nasdaq Shareholder Approval Proposals when
the vote of the Company's stockholders is solicited with respect to
the Nasdaq Shareholder Approval Proposals; and
WHEREAS, upon the recommendation of Nasdaq the Company, the
Purchaser and TDA now desire to amend the Securities Purchase
Agreement on the terms and conditions set forth in this First
Amendment (the Original Securities Purchase Agreement, as amended by
this First Amendment, is referred to herein as the "Agreement").
NOW, THEREFORE, in consideration of the above and mutual
representations, warranties, covenants, and agreements herein
contained, the parties hereby agree as follows:
1. Representations and Warranties.
(a) The caption "Section 4.3 Capitalization" of
the Original Securities Purchase Agreement shall be
deleted and replaced by "Section 4.4 Capitalization."
(b) The Original Securities Purchase Agreement
is hereby amended by adding a new section 4A
immediately following Section 4 of the Agreement which
reads as follows:
"4A. Representations and Warranties of TDA.
TDA hereby represents and warrants to the
Purchaser as follows:
4A.1 Organization. TDA is a
corporation duly organized, validly
existing, and in good standing under
the laws of the State of New York.
4A.2 Authority. The execution,
delivery and performance of this
Agreement and the transactions
contemplated thereby have been duly
authorized by all necessary corporate
action on the part of TDA. This
Agreement has been duly executed and
delivered by TDA and constitutes a
valid and binding obligation of TDA.
4A.3 Beneficial Ownership of Common
Stock. TDA is the beneficial owner of
5,300,000 shares of Common Stock and
has sole dispositive and voting power
with respect to such shares, free and
clear of all Liens, including, without
limitation, any restrictions on the
right to vote such shares.
4A.4 Non-Contravention. The
execution, delivery and performance of
this Agreement by TDA and the
consummation by TDA of the
transactions contemplated by this
Agreement do not and will not conflict
with or result in a breach by TDA of
any of the terms or provisions of, or
constitute a default under (a) the
certificate of incorporation or other
charter document and by-laws of TDA,
each as currently in effect, (b) any
material indenture, mortgage, deed of
trust, or other material agreement or
instrument to which TDA is a party or
by which it or any of its properties
or assets are bound, or (c) to its
knowledge, any existing applicable
law, rule, or regulation or any
applicable decree, judgment, or order
of any court, United States federal or
state regulatory body, administrative
agency, or other governmental body
having jurisdiction over TDA or any of
its assets; except in the case of
Section 4A.4(b) and 4A.4(c) hereof for
conflicts, breaches, or defaults that
would not have a material adverse
effect on TDA."
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2. Other Agreements and Covenants. Section 6 of the Original
Securities Purchase Agreement is hereby amended by adding a new
Section 6.5 and Section 6.6 as follows:
"6.5 Stockholder Vote. The Company hereby
agrees and covenants to the Purchaser that
it will seek a vote of the stockholders of
the Company to approve the Nasdaq
Shareholder Approval Proposals as soon as
practicable following the filing of the
Company's Form 10-Q for the quarter ended
March 31, 2003.
6.6 TDA Voting Agreement. TDA hereby
agrees and covenants to the Purchaser that
it will (i) support any Company action to
call for a stockholder vote on the Nasdaq
Shareholder Approval Proposals as soon as
practicable following the date hereof, and
(ii) vote all of the shares of Common Stock
beneficially owned by TDA ("TDA Shares") in
favor of the Nasdaq Shareholder Approval
Proposals.
3. Miscellaneous.
Section 10.1 of the Original Securities Purchase Agreement
is hereby amended:
(a) by deleting the phrase "If to Purchasers" and by
inserting in lieu thereof, the phrase "If to Purchaser", and
(b) by deleting the reference to Xxxxxxx Xxxxxx.
4. Defined Terms. All terms that are capitalized herein, but
which are not otherwise defined herein by this First Amendment shall
have the meaning ascribed to them in the Original Securities Purchase
Agreement.
5. Inconsistent Provisions. All provisions of the Original
Securities Purchase Agreement that have not been amended by this First
Amendment shall remain in full force and effect. Notwithstanding the
foregoing to the contrary, to the extent that there is any
inconsistency between the provisions of the Original Securities
Purchase Agreement and this First Amendment, the provisions of this
First Amendment shall control and be binding.
6. Counterparts. This First Amendment may be executed in one
or more counterparts, all of which taken together shall constitute a
single instrument. Execution and delivery may be by facsimile
transmission.
7. Effective Date. Each of the parties hereto hereby agrees
that upon execution of this First Amendment the changes to the
Original Securities Purchase Agreement contained herein shall be
effective as of February 6, 2003.
[Signatures on Following Page]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
First Amendment to be executed on its behalf.
THE COMPANY
EAGLE SUPPLY GROUP, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx,
Chief Executive Officer
PURCHASER
Xxxxx X. Xxxxxx, Individually
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
TDA INDUSTRIES, INC.,
a New York corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx,
President and Chief Executive
Officer
