EXHIBIT 4.7
SUPPLEMENT NO. 1, dated as of September 28, 2004 (this "Supplement"),
between CONSPIRACY ENTERTAINMENT HOLDINGS, INC. (the "Company") and WHALEHAVEN
CAPITAL FUND LIMITED (the "Supplement Lender"), to Securities Purchase
Agreement, dated as of August 31, 2004 (the "Original Agreement"), between the
Company and the Lenders named therein (the "Original Lenders").
Reference is made to the Original Agreement. Capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Original Agreement or, as may be relevant, in the other Transaction Agreements
as in effect on the Closing Date (the "Original Transaction Agreements").
On the Closing Date, as contemplated by the Original Agreement (the
"Original Closing Date"), the Original Lenders advanced an aggregate of
$1,050,000 to the Company and the Company issued certain Debentures and Warrants
to the Original Lenders.
The Company desires to borrow an additional $50,000 (the "Additional
Purchase Price") and the Supplement Lender is willing to advance the Additional
Purchase Price, all on the terms and conditions provided herein.
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Subject to the terms and conditions of the Original Agreement
and the other Original Transaction Agreements and of this Supplement, (x) the
Supplement Lender hereby agrees to loan to the Company the principal amount
equal to the Additional Purchase Price, and (y) the Company agrees to issue to
the Supplement Lender (i) a Debenture in such principal amount (the "Additional
Debenture") and (ii) Warrants based on such Additional Debenture (the
"Additional Warrants"), all on the same terms and conditions as provided in the
Original Agreement, except that the Maturity Date of the Additional Debenture
and the Expiration Date of the respective Additional Warrants shall be same as
provided in the corresponding Debentures and Warrants issued to the Original
Lenders on the Closing Date.
2. Consummation of the purchase and sale of the Additional
Debenture and Additional Warrants (collectively, the "Additional Securities" and
such transaction, the "Additional Funding") has been consented to by the
Original Lenders, as provided in a separately executed Lenders' Consent,
acknowledged and agreed to by the Company. The Joint Escrow Instructions are
incorporated herein by reference, and, except as modified by Annex 1 attached
hereto, shall apply to the consummation of the Additional Funding.
3. (a) The closing of the Additional Funding shall take place on
the date (the "Additional Closing Date") mutually agreed to by the Company and
the Supplement Lender.
(b) The Additional Closing Date shall be deemed a Closing
Date under the Securities Purchase Agreement; provided, however, that references
to the "Closing Date" in the Registration Rights Agreement shall be deemed to
refer to the Original Closing Date.
(c) Except as contemplated hereby, the closing of the
Additional Funding shall be conducted in the same manner as the closing
conducted on the Original Closing Date. Counsel to the Company may provide an
opinion that refers to the opinion given on the Original Closing Date and
provides that it applies to the transactions consummated pursuant to this
Supplement.
(d) Upon consummation of the Additional Funding, the
Supplement Lender shall be deemed a Lender under the Original Agreement to the
extent of the Additional Purchase Price, and shall be deemed an Other Lender
with respect to the Original Agreement of each of the Original Lenders.
4. By its signature below, the Supplement Lender acknowledges
that is shall be deemed to be a signatory to the Registration Rights Agreement
and the SRFF Escrow Agreement (as that term is defined in the Joint Escrow
Instructions).
5. The Supplement Lender hereby represents to the Company as
follows:
(a) The Supplement Lender has been provided with copies
of all of the Original Agreement and each of the annexes attached thereto;
(b) Each of the representations contained in Section 2 of
the Original Agreement is incorporated herein by reference, as if set forth
herein in full and as if each of such representations were made on and as of the
date hereof; and
(c) The Supplement Lender's address for notices is as
provided opposite the Supplement Lender's signature below.
6. The Company hereby represents to the Supplement Lender as
follows:
(a) Each of the representations and warranties of the
Company contained in the Section 3 of the Original Agreement is true and correct
as of the date hereof, as if each of such representations and warranties were
made on and as of the date hereof.
(b) As of the date hereof, the Company has performed and
complied with all agreements and conditions required by the Original Agreement
to be performed or complied with by it at or prior to the date hereof.
(c) There has been no Material Adverse Effect from the
Original Closing Date to and including the Additional Closing Date.
(d) Except as contemplated hereby or by the Lenders'
Consent, each of the Original Transaction Agreements continues to be in full
force and effect and be applicable, to the extent relevant, to the Additional
Securities and the related Shares.
(e) There has been no material adverse change to the
business, operations or financial condition or results of operation of the
Company and its subsidiaries taken as a whole from the Original Closing Date
through and including the date hereof.
7. Except as contemplated hereby or by the Lenders' Consent, all
terms and conditions of the Original Transaction Agreements remain in full force
and effect.
IN WITNESS WHEREOF, each of the Company and the Lender has executed
this Supplement by its duly authorized representative as of the date first above
written.
WHALEHAVEN CAPITAL FUND LIMITED
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Address By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopier No. _________________ Title: Director
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Jurisdiction of Incorporation
or Organization
CONSPIRACY ENTERTAINMENT
HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and Chief
Executive Officer
