EX-4.1 3 form8k55-ex41.txt [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"), JAMES E. HELZER, 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." 2 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 Marilyn Helzer. 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] 3 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/ Douglas P. Fields ------------------------------- Douglas P. Fields, Chief Executive Officer PURCHASER James E. Helzer, Individually /s/ James E. Helzer ----------------------------------- James E. Helzer TDA INDUSTRIES, INC., a New York corporation By: /s/ Douglas P. Fields -------------------------------- Douglas P. Fields, President and Chief Executive Officer