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EXHIBIT 4.23
FIRST AMENDMENT dated as of the 28th day of June 1999 (the "First
Amendment") among Team Communications Group, Inc., a California corporation
(the "Company"), Austinvest Anstalt Balzers ("Austinvest"), Esquire Trade &
Finance Inc. ("Esquire"). Amro International, S.A. ("Amro") and Nesher
Inc.("Nesher"). Austinvest, Esquire, Amro and Nesher are each referred to
herein as a "Purchaser" and are collectively referred to herein as the
"Purchasers."
WHEREAS, the Company and each of the Purchasers entered into the
Securities Purchase Agreement (the "Purchase Agreement") dated as of January
28, 1999 pursuant to which the Purchasers purchased from the Company 8%
Convertible Debentures due 2002 (the "Debentures") and warrants (the
"Warrants") to purchase shares of the Company's common stock, no par value per
share (the "Common Stock");
WHEREAS, the Company and each of the Purchasers entered into a
Registration Rights Agreement, dated the date of the Purchase Agreement (the
"Registration Rights Agreement"), pursuant to which the Company agreed to file
a registration statement (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") with respect to the shares of Common
Stock issuable upon the conversion of the Debentures and the exercise of the
Warrants; and
WHEREAS, the Company is terminating its obligation to sell additional
Debentures and Warrants and has instead agreed to issue and sell to the
Purchasers an aggregate of 175,000 shares of its Common Stock (the "News
Shares") for an aggregate purchase price of $700,000 and to include the New
Shares in the Registration Statement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth herein, the sufficiency of which is hereby acknowledged, the Company
and the Purchasers agree to amend the Purchase Agreement and the Registration
Rights Agreement as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.
(a) All capitalized terms used herein which are not otherwise
specifically defined herein shall have the respective meaning as ascribed
thereto in the Purchase Agreement or the Registration Agreement, respectively.
(b) Unless otherwise expressly indicated, all references contained herein
to SECTIONS or other subdivisions refer to the corresponding SECTIONS and other
subdivisions of the Purchase Agreement or the Registration Rights Agreement,
respectively.
(c) The sections and the headings in the sections in this First Amendment
are for convenience only. Said sections and headings shall not be deemed to be
part of this First Amendment and in no way define, limit, extend or describe
the scope or intent of its provisions.
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ARTICLE II
AMENDMENT TO THE REGISTRATION RIGHTS AGREEMENT
SECTION 2.1 Amendment to Section 1. The following definition set forth
in Section 1 of the Registration Rights Agreement are hereby amended as follows:
(a) "Effectiveness Date" is amended to mean the 90th day following the
Filing Date.
(b) "Filing Date" is amended to mean the 9th day of July, 1999.
(c) The definition of "Registrable Securities" is hereby amended in its
entirety to read as follows:
"Registrable Securities" means the shares of Common Stock issuable
upon conversion of the Debentures, the shares of Common Stock issuable upon
exercise of the Warrants and the New Shares. Such registered shares of
Common Stock shall be allocated among the Holders pro rata based on the
total number of Registrable Securities issued or issuable as of each date
that a Registration Statement, as amended, relating to the resale of the
Registrable Securities is declared effective by the Commission.
SECTION 2.2 Amendment to Section 7(e).
(a) Section 7(e) of the Registration Rights Agreement is hereby amended
by deleting the words "is not filed on or prior to the Filing Date, or" from
the text of clause (A) of the third sentence thereof.
(b) Section 7(e) of the Registration Rights Agreement is hereby further
amended by deleting clauses (I) through (IV) of the penultimate sentence
thereof and inserting in lieu thereof the following:
"3.0% of the aggregate principal amount of Debenture purchased by such
Holder the aggregate amount of the exercise price of the Warrants
purchased by such Holder, whether or not exercised, and the aggregate
purchase price of the New Shares purchased by such Holder, commencing on
the Event Date until the applicable event is cured."
ARTICLE III
WAIVER OF SUBSEQUENT SALES PROVISION
SECTION 3.1 Waiver of Subsequent Sales Provision. The Purchasers hereby
agree with the Company that, notwithstanding Section 3.12 of the Purchase
Agreement, the Company may offer, sell or grant any shares of Common Stock, any
option to purchase its Common Stock or
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equity equivalent securities or any securities convertible into shares of
Common Stock that permit the holder thereof to acquire Common Stock at a price
that is less than the market price of the Common Stock at the time of the
issuance of such security. For the avoidance of doubt, we may file a
registration statement at any times for such shares provided the filing date is
after the Filing Date.
ARTICLE IV
WAIVER OF PENALTIES
SECTION 4.1 Waiver of Penalties under Registration Rights Agreement. The
Purchasers hereby waive all penalties accrued as of the date hereof pursuant to
Section 7(e) of the Registration Rights Agreement.
ARTICLE V
AUTHORIZATION AND SALE OF NEW SHARES
SECTION 5.1 Authorization and Sale of the New Shares. The Company has
authorized the issuance and sale of the New Shares.
SECTION 5.2 Purchase and Sale. Subject to the terms and conditions hereof
and in reliance on the representations and warranties contained herein, in the
Purchase Agreement and the Registration Rights Agreement, the Company shall
issue and sell to each Purchaser, and such Purchaser will purchase from the
Company, on the Closing Date (as defined below) the number of New Shares set
forth opposite the name of such Purchaser on Schedule 1 attached hereto, for a
purchase price per New Share of $4.00, with the aggregate purchase price for
all the New Shares being $700,000.
SECTION 5.3 Closing. The closing of the purchase and sale of the New
Shares (the "Closing Date") will take place at the offices of Stroock & Stroock
& Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, immediately
following the execution hereof or such later date or different location as the
parties shall agree in writing.
On the Closing Date, the Company will deliver to each Purchaser a
certificate or certificates (in definitive form) in the denominations specified
in Schedule 1 and registered in the name of such Purchaser (or in the name of
such Purchaser's nominee) representing the New Shares to be purchased by such
Purchaser against payment to the Company of the purchase price of such New
Shares.
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ARTICLE VI
EFFECTIVE DATE OF FIRST AMENDMENT
SECTION 6.1 Effective Date. This First Amendment shall be effective only
upon the filing of the Registration Statement on or before July 9, 1999. If the
Registration Statement has not been filed on or prior to July 9, 1999, this
First Amendment shall be null and void ab initio.
ARTICLE VI
MISCELLANEOUS
SECTION 7.1 Representations and Warranties. To induce the Purchasers to
enter into this First Amendment, the Company represents and warrants to the
Purchasers:
(a) that the representations and warranties contained in the Purchase
Agreement will be, after giving effect to the amendments provided herein, true
and correct in all respects as if made on and as of the date hereof, and that
no Event of Default (as defined in the Debentures) or an event which with the
giving of notice or lapse of time, or both, would become an Event of Default
will have occurred or be continuing as of the date hereof; and
(b) the New Shares have been duly authorized and when issued, delivered
and paid for in the manner set forth in this First Amendment, will be validly
issued, fully paid and nonassessable and free and clear of all liens.
SECTION 7.2 Short Sales. After the date hereof, no Purchaser shall engage
in a short selling transaction with respect to shares of Common Stock, except
to the extent that such Purchaser has any short position on the date hereof.
SECTION 7.3 No Other Amendments. Except as expressly modified hereby, each
of the Purchase Agreement and the Registration Rights agreement shall continue
in full force and effect in accordance with its respective terms.
SECTION 7.4 Legal Fees and Expenses. The Company hereby agrees to pay all
attorneys' fees, expenses, costs and charges incurred in connection with the
preparation, negotiation and execution of this First Amendment and the other
documents contemplated hereby.
SECTION 7.5 Governing Law. The rights and obligations of the parties under
or pursuant to this First Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 7.6 Representation and Warranty. Each party hereto hereby
represents and warrants that this First Amendment is a legal, valid and binding
obligation of such party and is enforceable against such party in accordance
with its terms.
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SECTION 7.7 References to Purchase Agreement or Registration Rights
Agreement. Whenever in any certificate, letter, notice or other instrument
reference is made to the Purchase Agreement or the Registration Rights
Agreement, such reference without more shall include reference to this First
Amendment.
SECTION 7.8 Counterparts. This First Amendment may be executed
simultaneously in counterparts, each of which shall be deemed an original, and
it shall not be necessary in making proof of the contents of this First
Amendment to produce or account for more than one such counterpart.
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IN WITNESS WHEREOF this First Amendment has been executed by duly
authorized representatives of the parties hereto on the day, month and year
first above written.
TEAM COMMUNICATIONS GROUP, INC.
By:
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Name:
Title:
AUSTINVEST ANSTALT BALZERS
By:
----------------------------
Name:
Title:
ESQUIRE TRADE & FINANCE INC.
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
AMRO INTERNATIONAL, S.A.
By:
----------------------------
Name:
Title:
NESHER INC.
By:
----------------------------
Name:
Title:
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IN WITNESS WHEREOF this First Amendment has been executed by duly
authorized representatives of the parties hereto on the day, month and year
first above written.
TEAM COMMUNICATIONS GROUP, INC.
By:
----------------------------
Name:
Title:
AUSTINVEST ANSTALT BALZERS
By: /s/ [Signature Illegible]
----------------------------
Name:
Title:
ESQUIRE TRADE & FINANCE INC.
By:
----------------------------
Name:
Title:
AMRO INTERNATIONAL, S.A.
By:
----------------------------
Name:
Title:
NESHER INC.
By:
----------------------------
Name:
Title:
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