EX-10.28.2
AMENDMENT NO. 1 TO
SECURITIES PURCHASE AGREEMENT
Among
▇▇▇▇▇▇▇ Options, Inc.,
MDNH Partners, L.P.
And
Telscape International, Inc.
This AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT is entered into as of
March 15, 1999 (the "Amendment"), by and among ▇▇▇▇▇▇▇ Options, Inc., a
California corporation ('▇▇▇▇▇▇▇ Options"), MDNH Partners, L.P., a California
limited partnership ("NMNH"), and Telscape International, Inc., a Texas
corporation (the "Company").
RECITALS
A. The Company, Kendu Partners, a California general partnership ("Kendu"),
and MDNH entered into a Securities Purchase Agreement (the "Purchase Agreement")
and Registration Rights Agreement (the "Registration Agreement"), each effective
as of December 18, 1998 regarding the sale and issuance to Kendu and MDNH of up
to 950,000 shares of the Company's common stock, par value $.001 per share (the
"Common Stock") and the registration of such shares under the Securities
Exchange Act of 1934, as amended.
B. Kendu (1) assigned all of its rights and obligations under the Purchase
Agreement and Registration Agreement to ▇▇▇▇▇▇▇ Options and (2) sold 125,000
shares of the Company's Common Stock (which shares were purchased pursuant to
the Purchase Agreement) to ▇▇▇▇▇▇▇ Option pursuant to a Securities Purchase
Agreement and Assignment and Assumption Agreement each dated December 31, 1998
(the "Assignment Documents").
C. The Company, MDNH and ▇▇▇▇▇▇▇ Options now wish to amend the terms of
certain of their rights and obligations under the Purchase Agreement and
Registration Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals which are hereby
incorporated by this reference and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Amendment of the Purchase Agreement.
(a) The first sentence of Subsection (a) of Section 1.2., Optional
Purchases, of the Purchase Agreement is hereby modified and amended in its
entirety as follows:
"In addition to the purchase of the Initial Shares pursuant to Section
1.1 above, the Investors agree to purchase during the Commitment Period (as
such term is defined below), at the Company's option and subject to the
conditions set forth in Section 2.2, up to $2,000,000 of shares of Common
Stock (the "First Option Shares") at $6.75 per share."
(b) Subsection (a) of Section 6.3., Lock-Up Period, of the Purchase
Agreement is hereby modified and amended in its entirety as follows:
"(a) Each Investor agrees that it will not sell or transfer, or contract
to sell or transfer, (1) any of the Initial Shares or Second Option Shares
acquired hereby until the expiration of nine (9) months after such shares of
Common Stock have been acquired and (2) any of the First Option Shares until
July 31, 1999."
(c) Subsection (i) of the first sentence of Section 5.6., Penalties for
Failure to Obtain or Maintain Effectiveness of a Registration Statement, of the
Purchase Agreement is hereby modified and amended in its entirety as follows:
"(i) the Company fails to file a Registration Statement and obtain the
effectiveness of a Registration Statement (1) with respect to the Initial
Shares and the Second Option Shares within nine (9) months after the Initial
Closing Date or relevant Optional Closing Date, as the case may be, and (2)
with respect to the First Option Shares on or before July 31, 1999,"
(d) The parties acknowledge receipt from the Company of the Optional
Purchase Notice with respect to the First Option Shares (as such terms are
defined in the Purchase Agreement).
(e) The term "Investors," as used in the Purchase Agreement shall mean
MDNH and ▇▇▇▇▇▇▇ Options, as such terms are defined in this Amendment.
Section 2. Amendment of Registration Agreement. Subsection (b) of Section
2.1., Registration Statements, of the Registration Agreement is hereby modified
and amended in its entirety as follows:
"(b) The Registration Statement relating to the Initial Shares shall be
declared effective by the SEC no later than nine (9) months following the
Initial Closing Date and shall remain in effect until such time as the
Investors have sold all of the Initial Shares. Each Registration Statement
relating to the First Option Shares that the Investors purchase pursuant to
the Securities Purchase Agreement shall be declared effective by the SEC on
or before July 31, 1999 and shall remain in effect until such time as the
Investors have sold all of the First Option Shares. Each Registration
Statement relating to the Second Option Shares that the Investors purchase
pursuant to the Securities Purchase Agreement shall be declared effective by
the SEC no later than nine (9) months following each respective Optional
Closing Date and shall remain in effect until such time as the Investors have
sold all of the Second Option Shares."
Section 3. Counterparts. This Amendment may be executed in any number of
counterparts, all of which together shall constitute one instrument.
Furthermore, facsimile copies shall be deemed the same as originals.
Section 4. Entire Agreement. This Amendment, together with the Purchase
Agreement, the Registration Agreement and the Assignment Documents, contains our
entire agreement concerning the proposed transactions and supersedes any prior
oral or written understandings and agreements. Any waiver of any right or
obligation hereunder must be in writing signed by the party to be charged.
Subject to applicable law, this Amendment may be amended, modified, or
supplemented only by a written agreement signed by the parties.
Section 4. No Other Modification. Except as expressly amended herein, all
terms, covenants and provisions of the Purchase Agreement and the Registration
Agreement are and shall remain in full force and effect. All references in such
documents to the Purchase Agreement and the Registration Agreement shall
henceforth refer to the Purchase Agreement and the Registration* Agreement as
amended by this Amendment. This Amendment shall be deemed incorporated into, and
a part of, each of the Purchase Agreement and the Registration Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers as of the date first written
above.
TELSCAPE INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ OPTIONS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
MDNH PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President - G.P.
