EXHIBIT 4.6
AMENDMENT NO. 1 TO THE TRANSACTION DOCUMENTS ISSUED PURSUANT TO THE
SECURITIES PURCHASE AGREEMENT BETWEEN RCG COMPANIES INCORPORATED AND
THE PURCHASERS SIGNATORY THERETO (THE "PURCHASERS") FOR THE PURCHASE
OF THE SECURED CONVERTIBLE DEBENTURES, DUE FEBRUARY 8, 2007 AND COMMON
STOCK PURCHASE WARRANTS
This Amendment No. 1 ("Amendment") is made to that certain Securities
Purchase Agreement ("Purchase Agreement") dated as of February 8, 2005 among RCG
Companies Incorporated (the "Company") and the purchasers signatory thereto (the
"Purchasers") for the purchase of the Secured Convertible Debentures, due
February 8, 2007 issued to the Purchasers (the "Debentures") and the Common
Stock Purchase Warrants issued to the Purchasers (the "Warrants") and to the
Transaction Documents, as referenced below.
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. Addition of Purchaser. For the purpose of the Purchase Agreement and
the Transaction Documents, the term Purchaser shall be amended and
restated to include JGB Capital L.P. ("JGB"), who shall now be
considered a signatory to the Purchase Agreement and the Transaction
Documents.
2. Closing Date. All references to the Closing Date in the Purchase
Agreement and the Transaction Documents shall be to the date of the
Purchase Agreement which is February 8, 2004 and shall not be
amended or restated by this Amendment.
3. Definitions. Section 1.1 of the Purchase Agreement shall be amended
and restated to include the following:
""Amendment" means, the Amendment No. 1 to this Agreement,
dated as of February 8, 2005 by and between the Company and
the Purchasers."
""Intercreditor Agreement" means, the Intercreditor Agreement,
dated as of February 8, 2005 by and between the Company and
the Purchasers."
""Transaction Documents" means this Agreement, the Debentures,
the Warrants, the Escrow Agreement, the Security Agreement and
Security Documents, the Registration Rights Agreement and the
Intercreditor Agreement."
4. Aggregate Subscription Amounts. All references in the Purchase
Agreement and the Transaction Documents to the aggregate Principal
Amount for the transaction equal to $7,000,000 shall be amended and
restated as $8,000,000, including Section 2.1 of the Purchase
Agreement which shall be amended and restated as follows:
EXHIBIT 4.6
"Section 2.1. Closing. On the Closing Date, each Purchaser
shall purchase from the Company, severally and not jointly
with the other Purchasers, and the Company shall issue and
sell to each Purchaser, (a) up to $8,000,000 Principal Amount
of Debentures; and (b) the Warrants as determined pursuant to
Sections 2.2(a)(iii) - (iv). Upon satisfaction of the
conditions set forth in Section 2.2, the Closing shall occur
at the offices of the Escrow Agent or such other location as
the parties shall mutually agree."
5. Participation in Future Financing. The first sentence of Section
4.13 of the Purchase Agreement shall be amended and restated as
follows:
"Section 4.13. Participation in Future Financing. From the
date of the Amendment until the Debentures are no longer
outstanding, upon any financing by the Company of its Common
Stock or Common Stock Equivalents (a "Subsequent Financing"),
each Purchaser shall have the right to participate in up to
100% of such Subsequent Financing."
6. Future Financing. The first sentence of Section 4.14 of the Purchase
Agreement shall be amended and restated as follows:
"Section 4.14 Future Financings. From the date of the
Amendment until 90 days after the Effective Date, other than
as contemplated by this Agreement, neither the Company nor any
Subsidiary (with respect to Common Stock Equivalents) shall
issue or sell any Common Stock or Common Stock Equivalents
entitling any Person to acquire shares of Common Stock."
7. Filing of Form 8-K. Within 1 Trading Day of the date hereof, the
Company shall file a Current Report on Form 8-K disclosing the
material terms of this Amendment and attaching this Amendment as an
exhibit thereto.
8. Escrow Agreement. Pursuant to the Escrow Agreement, dated as of
February 8, by and among, the Company, the Purchasers and Feldman
Weinstein, LLP (the "Escrow Agent" and such agreement, the "Escrow
Agreement"), the Subscription Amount of each Purchaser, including
JGB, shall be deposited with the Escrow Agent. JGB shall be subject
to all of the terms and conditions of the Escrow Agreement.
9. Effect on Purchase Agreement and the Transaction Documents. Except
as expressly set forth above, all of the terms and conditions of the
Purchase Agreement and the Transaction Documents shall continue in
full force and effect after the execution of this Amendment, and
shall not be in any way changed, modified or superseded by the terms
set forth herein.
EXHIBIT 4.6
10. Definitions. CAPITALIZED TERMS NOT OTHERWISE DEFINED HEREIN HAVE THE
MEANINGS GIVEN TO SUCH TERMS IN THE PURCHASE AGREEMENT AND THE
TRANSACTION DOCUMENTS.
EXHIBIT 4.6
Executed as of February 8, 2005 by the undersigned duly authorized
representatives of the Company and Purchasers:
RCG COMPANIES INCORPORATED ALPHA CAPITAL AG
By: ____________________________ By: ____________________________
Name: Name:
Title: Title:
PALISADES MASTER FUND, L.P. CRESCENT INTERNATIONAL LTD.
By: ____________________________ By: ____________________________
Name: Name:
Title: Title:
ANDREW RECKLES PERFECT TIMING LLC
By: ____________________________ By: ____________________________
Name: Name:
Title: Title:
PORTSIDE GROWTH AND OPPORTUNITY FUND BRISTOL INVESTMENT FUND, LTD.
By: ____________________________
Name: By: ____________________________
Title: Name:
Title:
JGB CAPITAL L.P.
By: ____________________________
Name:
Title:
ESCROW AGENT:
FELDMAN WEINSTEIN LLP
By:______________________________
Name:
Title: