-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MACiWMKaWoIz9+peO6Z3qy5qPj/te/NBRQBB401HVHS6bSSfaJjP8BzvdcEHpMIL RPta1xnlnjcSd93lOqGttg== 0000922996-04-000014.txt : 20040122 0000922996-04-000014.hdr.sgml : 20040122 20040122163425 ACCESSION NUMBER: 0000922996-04-000014 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20040122 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ACT TELECONFERENCING INC CENTRAL INDEX KEY: 0000918709 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 841132665 STATE OF INCORPORATION: CO FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-54823 FILM NUMBER: 04537705 BUSINESS ADDRESS: STREET 1: 1658 COLE BLVD STREET 2: STE 130 CITY: GOLDEN STATE: CO ZIP: 80401 BUSINESS PHONE: 3032359000 MAIL ADDRESS: STREET 1: 1658 COLE BLVD STREET 2: STE 130 CITY: GOLDEN STATE: CO ZIP: 80401 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NEWEST MEZZANINIE LP CENTRAL INDEX KEY: 0001232501 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1700 LINCOLN ST STREET 2: SUITE 2000 CITY: DENVER STATE: CO ZIP: 80203 BUSINESS PHONE: 3037649677 MAIL ADDRESS: STREET 1: 1700 LINCOLN ST STREET 2: SUITE 2000 CITY: DENVER STATE: CO ZIP: 80203 SC 13D/A 1 act_13d.htm ACT 13D (AMENDMENT NO. 1)

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

Schedule 13D

Under the Securities Exchange Act of 1934
(Amendment No. 1)*

ACT Teleconferencing, Inc.
(Name of Issuer)

Common Stock, no par value
(Title of Class of Securities)

000955104
(CUSIP Number)

Thomas R. Stephens
Bartlit Beck Herman Palenchar & Scott
1899 Wynkoop, Suite 800
Denver, Colorado 80202
(303) 392-3100
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

January 15, 2004
(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

(Continued on following page(s))

CUSIP No. 000955104

1.     Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only).

    NewWest Mezzanine Fund LP

2.     Check the Appropriate Box if a Member of a Group (See Instructions)

    (A)     X
    (B)

3.     SEC Use Only

4.     Source of Funds (See Instructions)     WC

5.     Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)

6.     Citizenship or Place of Organization     Colorado


       
Number of
Shares Bene-
ficially
Owned by Each
Reporting
Person With 		   7.

   8.

   9.

  10. 		  Sole Voting Power

  Shared Voting Power

  Sole Dispositive Power

 Shared Dispositive Power 		 541,667

          

  541,667

11.     Aggregate Amount Beneficially Owned by Each Reporting Person     541,667

12.     Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

13.     Percent of Class Represented by Amount in Row (11)     4.0%

14.     Type of Reporting Person (See Instructions)     PN

CUSIP No. 000955104

1.     Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only).

    Touchstone Capital Group, LLLP

2.     Check the Appropriate Box if a Member of a Group (See Instructions)

    (A)     X
    (B)

3.     SEC Use Only

4.     Source of Funds (See Instructions)     OO

5.     Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)

6.     Citizenship or Place of Organization     Colorado


       
Number of
Shares Bene-
ficially
Owned by Each
Reporting
Person With 		   7.

   8.

   9.

  10. 		  Sole Voting Power

  Shared Voting Power

  Sole Dispositive Power

 Shared Dispositive Power 		 541,667

          

  541,667

11.     Aggregate Amount Beneficially Owned by Each Reporting Person     541,667

12.     Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

13.     Percent of Class Represented by Amount in Row (11)     4.0%

14.     Type of Reporting Person (See Instructions)     PN

CUSIP No. 000955104

1.     Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only).

     KCEP Ventures II, L.P.

2.     Check the Appropriate Box if a Member of a Group (See Instructions)

    (A)     X
    (B)

3.     SEC Use Only

4.     Source of Funds (See Instructions)     WC

5.     Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)

6.     Citizenship or Place of Organization     Missouri


       
Number of
Shares Bene-
ficially
Owned by Each
Reporting
Person With 		   7.

   8.

   9.

  10. 		  Sole Voting Power

  Shared Voting Power

  Sole Dispositive Power

 Shared Dispositive Power 		 916,667

          

  916,667

11.     Aggregate Amount Beneficially Owned by Each Reporting Person     916,667

12.     Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

13.     Percent of Class Represented by Amount in Row (11)     6.6%

14.     Type of Reporting Person (See Instructions)     PN

CUSIP No. 000955104

1.     Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only).

     KCEP II, L.C.

2.     Check the Appropriate Box if a Member of a Group (See Instructions)

    (A)     X
    (B)

3.     SEC Use Only

4.     Source of Funds (See Instructions)     WC

5.     Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)

6.     Citizenship or Place of Organization     Missouri


       
Number of
Shares Bene-
ficially
Owned by Each
Reporting
Person With 		   7.

   8.

   9.

  10. 		  Sole Voting Power

  Shared Voting Power

  Sole Dispositive Power

 Shared Dispositive Power 		 916,667

          

  916,667

11.     Aggregate Amount Beneficially Owned by Each Reporting Person     916,667

12.     Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

13.     Percent of Class Represented by Amount in Row (11)     6.6%

14.     Type of Reporting Person (See Instructions)     OO

CUSIP No. 000955104

1.     Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only).

     Convergent Capital Partners I, L.P.

2.     Check the Appropriate Box if a Member of a Group (See Instructions)

    (A)     X
    (B)

3.     SEC Use Only

4.     Source of Funds (See Instructions)     WC

5.     Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)

6.     Citizenship or Place of Organization     Delaware


       
Number of
Shares Bene-
ficially
Owned by Each
Reporting
Person With 		   7.

   8.

   9.

  10. 		  Sole Voting Power

  Shared Voting Power

  Sole Dispositive Power

 Shared Dispositive Power 		 541,667

          

  541,667

11.     Aggregate Amount Beneficially Owned by Each Reporting Person     541,667

12.     Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

13.     Percent of Class Represented by Amount in Row (11)     4.0%

14.     Type of Reporting Person (See Instructions)     PN

CUSIP No. 000955104

1.     Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only).

     Convergent Capital, LLC

2.     Check the Appropriate Box if a Member of a Group (See Instructions)

    (A)     X
    (B)

3.     SEC Use Only

4.     Source of Funds (See Instructions)     WC

5.     Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)

6.     Citizenship or Place of Organization     Delaware


       
Number of
Shares Bene-
ficially
Owned by Each
Reporting
Person With 		   7.

   8.

   9.

  10. 		  Sole Voting Power

  Shared Voting Power

  Sole Dispositive Power

 Shared Dispositive Power 		 541,667

          

  541,667

11.     Aggregate Amount Beneficially Owned by Each Reporting Person     541,667

12.     Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)

13.     Percent of Class Represented by Amount in Row (11)     4.0%

14.     Type of Reporting Person (See Instructions)     PN

Introductory Statement

               This amended statement on Schedule 13D relates to the Common Stock, no par value per share (the “Common Stock”) of ACT Teleconferencing, Inc., a Colorado corporation (“ACT”). This amendment is filed by (i) NewWest Mezzanine Fund, LP, a Colorado limited partnership (“NewWest”), by virtue of its direct ownership of warrants to acquire Common Stock, and by Touchstone Capital Group LLLP, a Colorado limited liability limited partnership (“Touchstone”), by virtue of being the sole general partner of NewWest, (ii) KCEP Ventures II, L.P., a Missouri limited partnership (“KCEP Ventures”), by virtue of its direct ownership of warrants to acquire Common Stock, and by KCEP II, L.C., a Missouri limited company (“KCEP”), by virtue of being the sole general partner of KCEP Ventures, and (iii) Convergent Capital Partners I, L.P., a Delaware limited partnership (“Convergent”), by virtue of its direct ownership of warrants to acquire Common Stock, and by Convergent Capital, LLC, a Delaware limited liability company (“Convergent Capital”), by virtue of being the sole general partner of Convergent. NewWest, KCEP Ventures and Convergent are collectively referred to as the “Reporting Persons.” Items 4, 5, 6 and 7 of the statement on Schedule 13D previously filed by the Reporting Persons, the James F. Seifert Management Trust dated October 8, 1992, an Iowa trust (the “Trust”), and, by virtue of acting as trustees of the Trust, James F. and Nancy L. Seifert is amended as follows.

Item 4. Purpose of Transaction

No change except for the addition of the following:

The Reporting Persons intend to continuously review their investment in ACT, and depending upon their evaluation of the ACT’s prospects and upon future developments (including, but not limited to, performance of the Common Stock in the market, availability of funds, alternative uses of funds, and money, stock market and general economic conditions), any of the Reporting Persons or other entities that may be deemed to be affiliated with the Reporting Persons may from time to time purchase Common Stock, and any of the Reporting Persons or other entities that may be deemed to be affiliated with the Reporting Persons may from time to time dispose of all or a portion of the Common Stock held or deemed to be held by such person, or cease buying or selling Common Stock. Any such additional purchases or sales of the Common Stock may be in open market or privately-negotiated transactions or otherwise.

Pursuant to the Warrant Agreement entered into on May 12, 2003 by ACT, the Reporting Persons and certain other persons, as amended (the “Warrant Agreement”), the Reporting Persons have the right to name two representatives to serve on the ACT Board of Directors. As previously reported, the Reporting Persons designed Terry Matlack as one of the two representatives. In addition, Keith Bares has also been designated by the Reporting Persons as one of the two representatives.

Item 5. Interest in Securities of the Issuer

No change except for the addition of the following:

As a result of issuances of Common Stock by ACT on January 15, 2004:

   
  (i)     the warrants to acquire 541,667 shares of Common Stock directly beneficially owned by NewWest currently constitute approximately 4.0% of the sum of (i) the 10,924,966 shares of Common Stock outstanding as of December 17, 2003, according to ACT's Registration Statement on Form S-3 filed on December 31, 2003, and (ii) the Common Stock issuable upon exercise of such warrants;

(ii)     the warrants to acquire 916,667 shares of Common Stock directly beneficially owned by KCEP Ventures currently constitute approximately 6.6% of the sum of (i) the 10,924,966 shares of Common Stock outstanding as of December 17, 2003, according to ACT's Registration Statement on Form S-3 filed on December 31, 2003, and (ii) the Common Stock issuable upon exercise of such warrants; and

(iii)     the warrants to acquire 541,667 shares of Common Stock directly beneficially owned by Convergent currently constitute approximately 4.0% of the sum of (i) the 10,924,966 shares of Common Stock outstanding as of December 17, 2003, according to ACT's Registration Statement on Form S-3 filed on December 31, 2003, and (ii) the Common Stock issuable upon exercise of such warrants.

This statement is no longer filed on behalf of the Trust and Mr. and Ms. Seifert. The Reporting Persons understand that the Trust and Mr. and Ms. Seifert ceased to beneficially own more than 5% of the Common Stock on January 15, 2004. In addition, Mr. Seifert has advised the Reporting Persons that neither the Trust nor Mr. and Ms. Seifert are acting together with the Reporting Persons for the purpose of acquiring, holding, voting or disposing of any equity securities of ACT.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

No change except for the addition of the following:

The Note Agreement and the Warrant Agreement previously filed as exhibits to this statement have been amended by: (i) the First Amendment, Consent and Waiver effective as of May 12, 2003, (ii) the Second Amendment, Consent and Waiver effective as of August 14, 2003, (iii) the Third Amendment executed as of October 23, 2003 and effective as of May 12, 2003, and (iv) the Fourth Amendment, Consent, Waiver and Forbearance Agreement effective as of January 8, 2004, copies of which are attached as exhibits to this statement.

Item 7. Material to be Filed as Exhibits

No change except for the addition of the following:


Exhibit
Number		 Description

10
  

11
  

12
  

13
First Amendment, Consent and Waiver effective as of May 12, 2003 among ACT, the Reporting Persons and certain other parties.

Second Amendment, Consent and Waiver effective as of August 14, 2003 among ACT, the ReportingPersons and certain other parties.

Third Amendment executed as of October 23, 2003 and effective as of May 12, 2003 among ACT, theReporting Persons and certain other parties.

Fourth Amendment, Consent, Waiver and Forbearance Agreement effective as of January 8, 2004,among ACT, the Reporting Persons and certain other parties.

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.


   
  NEWWEST MEZZANINE FUND LP
By Touchstone Capital Group LLLP, General Partner
TOUCHSTONE CAPITAL GROUP LLLP


/s/ David L. Henry                                                        
By David L. Henry, Managing General Partner of Touchstone Capital Group LLLP
Date: January 16, 2004  

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.


   
  KCEP VENTURES II, L.P.
By KCEP II, LC, General Partner
KCEP II, LC,


/s/ Terry Matlack                                                                 
By Terry Matlack, Managing Director of KCEP II, LC
Date: January 16, 2004  

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.


   
  CONVERGENT CAPITAL PARTNERS I, L.P.
By Convergent Capital, LLC, General Partner
CONVERGENT CAPITAL, LLC


/s/ Keith S. Bares                                                        
By Keith S. Bares, Executive Vice President of Convergent Capital, LLC
Date: January 16, 2004  
 EX-99 3 amend1-act.htm 1ST AMENDMENT, CONSENT AND WAIVER

FIRST AMENDMENT, CONSENT AND WAIVER

                  This First Amendment, Consent and Waiver (“Waiver”) is effective as of May 12, 2003 and relates to (i) the Note Agreement dated as of May 12, 2003 (the “Note Agreement”) among NewWest Mezzanine Fund, LP (“NewWest”), KCEP Ventures II, L.P. (“KCEP”), Convergent Capital Partners I, L.P. (“Convergent”), James F. Seifert Management Trust dated October 8, 1992 (the “Trust”), ACT Teleconferencing, Inc. (“Holdings”), ACT Teleconferencing Services, Inc. (the “Services”) and certain Co-Borrowers listed on the signature page of this Waiver (the “Co-Borrowers), and (ii) the Warrant Agreement dated as of May 12, 2003 (the “Warrant Agreement”) among NewWest, KCEP, Convergent, the Trust, Holdings, Services, and certain Principals set forth on the signature page of this Waiver (the “Principals”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Note Agreement.

Recitals

                  Holdings and Services have requested that the Purchaser waive certain Events of Default under the Note Agreement and the Warrant Agreement and amend the Warrant Agreement, subject in each case to the terms and conditions set forth herein, and the Purchaser has agreed to grant such waiver and effect such amendment, on the terms and conditions set forth herein.

                  NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter stated, the parties hereby agree as follows:

                  1.               Waiver. Subject to the conditions set forth in this Waiver, the Purchaser hereby waives the Event of Default existing under Section 6.18 of the Note Agreement resulting solely from the size of Holdings’ Board of Directors not being set at seven.

                  2.               Warrant Agreement Amendment. The first sentence of Section 14.2 of the Warrant Agreement is amended and restated to read as follows:


   
  "In addition to representatives with attendance rights as described in Section 14.1, so long as the Notes remain outstanding or the aggregate Applicable Percentage of the Institutional Holders is at least 5%, the Boards of Directors of the Company and Services shall consist of not more than (i) nine members during the period from May 12, 2003 until the end of the Company's 2003 annual meeting of shareholders, (ii) eight members during the period from the end of the Company's 2003 annual meeting of shareholders until November 30, 2003, and (ii) seven members thereafter, and the Institutional Holders shall have the right to name two representatives who shall maintain seats on such Boards, and be entitled to all benefits generally available to members of such Boards."


                  3.               Funding under Note Agreement; Guarantee. The parties consent and agree that the funding under the Note Agreement originally scheduled to occur on the 10th day following the Closing, provided that no Default or Event of Default existed on such date, shall instead take place on May 30, 2003, provided that no Default or Event of Default exists on such date. The parties further agree that the Guarantee of Holdings and its subsidiaries in favor of the Purchaser shall be amended and restated to remove ACT Teleconferencing Limited (UK) as a guarantor and to read as set forth in the attached Guarantee.

                  4.               Conditions to Effectiveness. The effectiveness of this Waiver is expressly conditioned upon Holdings and Borrower delivering to the Purchaser all of the following, all in form and substance acceptable to the Purchaser: (a) this Waiver duly executed by Holdings, Services, the Co-Borrowers and the Principals; and (b) Holdings and Borrower shall have provided evidence satisfactory to the Purchaser that all events of default under any other promissory notes or loan agreements have been waived and such waivers are in full force and effect.

                  5.               Reaffirmation of Financing Documents. All terms, conditions and provisions of the Note Agreement and the other Financing Documents are hereby reaffirmed and continued in full force and effect and shall remain unaffected and unchanged, except as specifically amended by this Waiver. All covenants, representations and warranties of Holdings and Borrower in this Waiver shall survive the closing and delivery of this Waiver. The Events of Default specified in the Note Agreement shall continue to be the events of default under the Note. The Purchaser’s remedies with respect to the occurrence of an Event of Default shall continue to be as set forth in the Note Agreement and in the Financing Documents. Borrower confirms that, in accordance with Section 8.3 of the Note Agreement, Borrower will promptly reimburse the Purchaser for all reasonable expenses relating to this Waiver.

                  6.               Representations and Warranties. Holdings and Borrower represent and warrant to the Purchaser that (i) they have full power and authority to consummate this Waiver and the execution and delivery by Holdings and Borrower of this Waiver have been duly and properly made and authorized, (ii) this Waiver and the Financing Documents to which Holdings and Borrower are a party each constitutes a valid and binding obligation of Holdings and Borrower, enforceable against Holdings and Borrower in accordance with its respective terms, (iii) the execution and delivery of this Waiver will not violate any provisions of any law or any order of any court or governmental authority or agency and will not conflict with or result in any breach of any of the terms, conditions or provisions of, or constitute a default under Holdings and Borrower’s articles of incorporation or bylaws or any indenture or other agreement or instrument to which Holdings or Borrower is a party or by which they may be bound or result in the imposition of any Liens or encumbrances on any of its property (other than as contemplated in the other Financing Documents and as contemplated hereby), (iv) no further approval, consent or withholding of objection on the part of any regulatory body, federal, state or local, is necessary in connection with the execution and delivery by Holdings and Borrower of this Waiver, (v) Holdings and Borrower have no defense, offset or counterclaim with respect to the payment of any sum owed to the Purchaser, or with respect to the performance or observance of any warranty or covenant contained in the Financing Documents, and the Purchaser has performed all obligations and duties owed to Holdings and Borrower through the date of this Waiver, and (vi) giving effect to this Waiver, there is no Default or Event of Default.

                  7.               General Release. In consideration of, among other things, the Waiver provided for herein, each of Holdings and Borrower, on behalf of itself and its stockholders and other Affiliates and their successors and assigns (collectively, the “Releasors”), hereby forever waives, releases and discharges to the fullest extent permitted by law any and all claims (including, without limitation, cross claims, counterclaims, rights of set-off and recoupment), causes of action, demands, suits, costs, expenses and damages (collectively, the “Claims”), that any Releasor now has or hereafter may have, of whatsoever nature and kind, whether known or unknown, whether now existing or hereafter arising, whether arising at law or in equity, against the Purchaser and any of their affiliates, partners, shareholders and “controlling persons” (within the meaning of the federal securities laws), and their respective successors and assigns and each and all of the officers, directors, employees, agents, attorneys and other representatives of each of the foregoing (collectively, the “Releasees”), based in whole or in part on facts, whether or not now known, existing on or before the execution of this Waiver. In entering into this Waiver, Holdings and Borrower has consulted with and been represented by counsel and expressly disclaims any reliance on any representations, acts or omissions by any of the Releasees and hereby agrees and acknowledges that the validity and effectiveness of the release set forth above do not depend in any way on any such representations, acts and/or omissions or the accuracy, completeness or validity thereof. The provisions of this Section shall survive the termination of the Note Agreement and the other Financing Documents and payment in full of the Obligations.

                  8.               Governing Law. This Waiver and all matters concerning this Waiver shall be governed by the laws of the State of Colorado for contracts entered into and to be performed in such state without regard to principles of conflicts of laws.

                  9.               Entire Agreement. Except as modified by this Waiver, the Note Agreement and the Warrant Agreement remain in full force and effect. The Note Agreement and the Warrant Agreement, as modified by this Waiver, and together with the other Financing Documents, embody the entire agreement and understanding among the parties to this Waiver, and supersedes all prior agreements and understandings among the parties relating to the subject matter of the Note Agreement and the Warrant Agreement as modified by this Waiver.

                  10.               Counterparts; Telecopy Execution. This Waiver may be executed in any number of separate counterparts, each of which, when taken together, shall constitute one and the same instrument, admissible into evidence, notwithstanding the fact that all parties have not signed the same counterpart. Delivery of an executed counterpart of this Waiver by facsimile shall be equally as effective as delivery of a manually executed counterpart of this Waiver. Any party delivering an executed counterpart of this Waiver by facsimile shall also deliver a manually executed counterpart of this Waiver, but the failure to deliver a manually executed counterpart shall not affect the validity, enforceability, and binding effect of this Waiver.

[Signature page follows]

                  IN WITNESS WHEREOF, the parties hereto have executed this Waiver effective as of the day, month and year first above written.


 
HOLDINGS: ACT Teleconferencing, Inc.


By _______________________________
Its _______________________________

SERVICES: ACT Teleconferencing Services, Inc.


By _______________________________
Its _______________________________

CO-BORROWER: ACT VideoConferencing, Inc.


By _______________________________
Its _______________________________

CO-BORROWER: ACT Proximity, Inc.


By _______________________________
Its _______________________________

CO-BORROWER: ACT Research, Inc.


By _______________________________
Its _______________________________


PRINCIPALS:

_________________________________
Gerald V. Eeckhout

_________________________________
Gavin J. Thomson

_________________________________
Gene Warren

__________________________________
Charles T. Stout


Accepted as of the date of this Waiver:

INVESTORS:


NEWWEST MEZZANINE FUND LP
By Touchstone Capital Group LLLP, General Partner


___________________________________
David L. Henry, Managing General Partner

KCEP VENTURES II, L.P.
By KCEP II, LC, General Partner


___________________________________
Terry Matlack, Managing Director

CONVERGENT CAPITAL PARTNERS I, L.P.
By Convergent Capital, LLC, General Partner


___________________________________
Keith S. Bares, Executive Vice President


JAMES F. SEIFERT MANAGEMENT TRUST DATED OCTOBER 8, 1992
By James F. Seifert and Nancy L. Seifert, as Trustees and not individually


___________________________________
James F. Seifert, Trustee


___________________________________
Nancy L. Seifert, Trustee
EX-99 4 amend2-act.htm 2ND AMENDMENT, CONSENT AND WAIVER

SECOND AMENDMENT, CONSENT AND WAIVER

              This Second Amendment, Consent and Waiver (“Amendment”) is effective as of August 14, 2003 and relates to the Note Agreement dated as of May 12, 2003 (the “Note Agreement”) among NewWest Mezzanine Fund, LP (“NewWest”), KCEP Ventures II, L.P. (“KCEP”), Convergent Capital Partners I, L.P. (“Convergent”), James F. Seifert Management Trust dated October 8, 1992 (the “Trust”), ACT Teleconferencing, Inc. (“Holdings”), ACT Teleconferencing Services, Inc. (the “Services”) and certain Co-Borrowers listed on the signature page of this Amendment (the “Co-Borrowers), as amended pursuant to the First Amendment, Consent and Wavier dated as of May 12, 2003 among the parties. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Note Agreement.

Recitals

             Holdings and Services have requested that the Purchaser waive certain Events of Default under the Note Agreement, subject to the terms and conditions set forth herein, and the Purchaser has agreed to grant such waiver and effect such amendment, on the terms and conditions set forth herein.

             NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter stated, the parties hereby agree as follows:

             1.     Waiver and Note Agreement Amendment.


           (a)     Subject to the conditions set forth in this Amendment, the Purchaser hereby waives any
Events of Default resulting from the matters set forth on Exhibit A. With respect to any covenants set forth on the Financial Covenants Schedule, such waiver is effective only for the period ended June 30, 2003 and not for any future periods.

         (b)      Holdings and Services agree (i) to increase Holding's directors and officers insurance to at least $2,000,000 and provide evidence of such change to the Purchaser no later than September 15, 2003, (ii) obtain a waiver of any defaults or events of default under the Bank Agreement (including, without limitation, the net worth covenant under the Bank Agreement) and provide evidence of such waiver no later than September 15, 2003, (iii) file any required additional listing application with Nasdaq for the Underlying Shares and provide evidence of such filing to the Purchaser no later than September 15, 2003 and (iv) provide Purchaser with copies of the borrowing base certificates filed with Vectra Bank for March, April, May and June 2003 on or before September 15, 2003. Any failure by Holdings and Services to comply with the provisions of this Amendment shall constitute an Event of Default under the Note Agreement.

             2.     Conditions to Effectiveness. The effectiveness of this Amendment is expressly conditioned upon Holdings and Borrower delivering to the Purchaser all of the following, all in form and substance acceptable to the Purchaser: (a) this Amendment duly executed by Holdings, Services, the Co-Borrowers and the Principals; (b) evidence satisfactory to the Purchaser that all events of default under any other promissory notes or loan agreements have been waived and such waivers are in full force and effect; and (c) a waiver and amendment fee of $15,000 (to be paid in addition to any expenses to be paid pursuant to Section 8.3 of the Note Agreement).

             3.     Reaffirmation of Financing Documents. All terms, conditions and provisions of the Note Agreement and the other Financing Documents are hereby reaffirmed and continued in full force and effect and shall remain unaffected and unchanged, except as specifically amended by this Amendment. All covenants, representations and warranties of Holdings and Borrower in this Amendment shall survive the closing and delivery of this Amendment. The Events of Default specified in the Note Agreement shall continue to be the events of default under the Note. The Purchaser’s remedies with respect to the occurrence of an Event of Default shall continue to be as set forth in the Note Agreement and in the Financing Documents. Borrower confirms that, in accordance with Section 8.3 of the Note Agreement, Borrower will promptly reimburse the Purchaser for all reasonable expenses relating to this Amendment.

             4.     Representations and Warranties. Holdings and Borrower represent and warrant to the Purchaser that (i) they have full power and authority to consummate this Amendment and the execution and delivery by Holdings and Borrower of this Amendment have been duly and properly made and authorized, (ii) this Amendment and the Financing Documents to which Holdings and Borrower are a party each constitutes a valid and binding obligation of Holdings and Borrower, enforceable against Holdings and Borrower in accordance with its respective terms, (iii) the execution and delivery of this Amendment will not violate any provisions of any law or any order of any court or governmental authority or agency and will not conflict with or result in any breach of any of the terms, conditions or provisions of, or constitute a default under Holdings and Borrower’s articles of incorporation or bylaws or any indenture or other agreement or instrument to which Holdings or Borrower is a party or by which they may be bound or result in the imposition of any Liens or encumbrances on any of its property (other than as contemplated in the other Financing Documents and as contemplated hereby), (iv) no approval, consent or withholding of objection on the part of any regulatory body, federal, state or local, is necessary in connection with the execution and delivery by Holdings and Borrower of this Amendment, (v) Holdings and Borrower have no defense, offset or counterclaim with respect to the payment of any sum owed to the Purchaser, or with respect to the performance or observance of any warranty or covenant contained in the Financing Documents, and the Purchaser has performed all obligations and duties owed to Holdings and Borrower through the date of this Amendment, and (vi) giving effect to this Amendment, there is no Default or Event of Default.

             5.     General Release. In consideration of, among other things, the Amendment provided for herein, each of Holdings and Borrower, on behalf of itself and its stockholders and other Affiliates and their successors and assigns (collectively, the “Releasors”), hereby forever waives, releases and discharges to the fullest extent permitted by law any and all claims (including, without limitation, cross claims, counterclaims, rights of set-off and recoupment), causes of action, demands, suits, costs, expenses and damages (collectively, the “Claims”), that any Releasor now has or hereafter may have, of whatsoever nature and kind, whether known or unknown, whether now existing or hereafter arising, whether arising at law or in equity, against the Purchaser and any of their affiliates, partners, shareholders and “controlling persons” (within the meaning of the federal securities laws), and their respective successors and assigns and each and all of the officers, directors, employees, agents, attorneys and other representatives of each of the foregoing (collectively, the “Releasees”), based in whole or in part on facts, whether or not now known, existing on or before the execution of this Amendment. In entering into this Amendment, Holdings and Borrower has consulted with and been represented by counsel and expressly disclaims any reliance on any representations, acts or omissions by any of the Releasees and hereby agrees and acknowledges that the validity and effectiveness of the release set forth above do not depend in any way on any such representations, acts and/or omissions or the accuracy, completeness or validity thereof. The provisions of this Section shall survive the termination of the Note Agreement and the other Financing Documents and payment in full of the Obligations.

             6.     Governing Law. This Amendment and all matters concerning this Amendment shall be governed by the laws of the State of Colorado for contracts entered into and to be performed in such state without regard to principles of conflicts of laws.

             7.     Entire Agreement. Except as modified by this Amendment, the Note Agreement remains in full force and effect. The Note Agreement, as modified by this Amendment, and together with the other Financing Documents, embody the entire agreement and understanding among the parties to this Amendment, and supersedes all prior agreements and understandings among the parties relating to the subject matter of the Note Agreement as modified by this Amendment.

             8.     Counterparts; Telecopy Execution. This Amendment may be executed in any number of separate counterparts, each of which, when taken together, shall constitute one and the same instrument, admissible into evidence, notwithstanding the fact that all parties have not signed the same counterpart. Delivery of an executed counterpart of this Amendment by facsimile shall be equally as effective as delivery of a manually executed counterpart of this Amendment. Any party delivering an executed counterpart of this Amendment by facsimile shall also deliver a manually executed counterpart of this Amendment, but the failure to deliver a manually executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment.

[Signature page follows]

        IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective as of the day, month and year first above written.


HOLDINGS: ACT Teleconferencing, Inc.


By ________________________________
Its ________________________________

SERVICES: ACT Teleconferencing Services,


By ________________________________
Its ________________________________

CO-BORROWER: ACT VideoConferencing, Inc.


By ________________________________
Its ________________________________

CO-BORROWER: ACT Proximity, Inc.


By ________________________________
Its ________________________________

CO-BORROWER: ACT Research, Inc.


By ________________________________
Its ________________________________

Accepted as of the date of this Amendment:


INVESTORS:


NEWWEST MEZZANINE FUND LP
By Touchstone Capital Group LLLP, General Partner


___________________________________
David L. Henry, Managing General Partner

KCEP VENTURES II, L.P.
By KCEP II, LC, General Partner


___________________________________
Terry Matlack, Managing Director

CONVERGENT CAPITAL PARTNERS I, L.P.
By Convergent Capital, LLC, General Partner


___________________________________
Keith S. Bares, Executive Vice President


JAMES F. SEIFERT MANAGEMENT TRUST DATED OCTOBER 8, 1992
By James F. Seifert and Nancy L. Seifert, as Trustees and not individually


___________________________________
James F. Seifert, Trustee


___________________________________
Nancy L. Seifert, Trustee

 EX-99 5 amend3-act.htm 3RD AMENDMENT

THIRD AMENDMENT

               This Third Amendment (“Amendment”) is executed as of October 23, 2003 and is effective as of May 12, 2003 and relates to the Warrant Agreement dated as of May 12, 2003, as amended effective May 12, 2003 (the “Warrant Agreement”) among NewWest Mezzanine Fund, LP (“NewWest”), KCEP Ventures II, L.P. (“KCEP”), Convergent Capital Partners I, L.P. (“Convergent”), James F. Seifert Management Trust dated October 8, 1992 (the “Trust”), ACT Teleconferencing, Inc. (“Holdings”), ACT Teleconferencing Services, Inc. (the “Services”) and certain Principals set forth on the signature page of this Amendment (the “Principals”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Note Agreement dated as of May 12, 2003, as amended, among Holdings, Services, NewWest, KCEP, Convergent, the Trust and certain co-borrowers (the “Note Agreement”).

Recitals

               Holdings has requested that the Purchaser amend the Warrant Agreement, subject to the terms and conditions set forth herein, and the Purchaser has agreed to effect such amendment, on the terms and conditions set forth herein.

               NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter stated, the parties hereby agree as follows:

                1.           Warrant Agreement Amendments.

     
(a)   Section 6 of the Warrant Agreement is amended to insert the following provisions immediately following the last line ofss.6:

    "Notwithstanding anything to the contrary in this Agreement, the Company agrees that it will not, without the affirmative approval of the holders of a majority of the common stock issued and outstanding on a record date at least 30 but no more than 60 days prior to an election for such purpose, issue or Transfer any Shares, or take any other action that, in accordance with thisss.6, is deemed to be an issuance or Transfer of any Shares, in each case for a consideration per Share less than the Exercise Price in effect immediately prior to such issue or Transfer. If the requirement for such stockholder approval is waived by the Holders in accordance withss.18.4 of this Warrant Agreement, then the maximum number of Underlying Shares, following any adjustment pursuant to thisss.6 in connection with such issuance or Transfer, that will have an adjusted Exercise Price of less than $2.42 shall be 2,048,655 (804,829 of which shall be Underlying Shares initially held by KCEP Ventures II, L.P., 475,581 of which shall be Underlying Shares initially held by NewWest Mezzanine Fund LP, 475,581 of which shall be Underlying Shares initially held by Convergent Capital Partners I, L.P., and 292,664 of which shall be Underlying Shares initially held by the James F. Seifert Management Trust dated October 8, 1992), with the balance of such Underlying Shares having an increased Exercise Price such that the average of the Exercise Prices for all Underlying Shares is $2.42.

"If the adjusted Exercise Price, calculated in accordance with thisss.6 as a result of any such issuance or Transfer (i) would be $1.50 or more, such adjustment shall not be necessary and the Exercise Price shall remain $2.50; and (ii) would be less than $1.50, then the Exercise Price shall be adjusted to such amount plus $1.00."

(b)   Section 7 of the Warrant Agreement is amended and restated to read as follows:

    "If the average of the closing bid prices of the Shares over the last 45 trading days prior to April 30, 2004, is greater than $1.50, then no adjustment of the Exercise Price shall be made pursuant to thisss.7. If such average is less than $1.50, then the Exercise Price shall be adjusted to an amount equal to such average plus $1.00. If any adjustment to the Exercise Price is made under thisss.7, then the provisions ofss.6 of this Warrant Agreement shall apply as if the Exercise Price, as adjusted under thisss.7, had been the Exercise Price at all times since the date of this Warrant Agreement.

"Each Holder agrees, individually and not jointly, that such Holder will not sell any Shares short prior to April 30, 2004.

"Notwithstanding anything to the contrary in this Agreement, if any adjustment to the Exercise Price occurs as a result of thisss.7 which lowers the Exercise Price to less than $2.42, then the Exercise Price otherwise determined pursuant to thisss.7 shall apply only with respect to 2,048,655 Underlying Shares (804,829 of which shall be Underlying Shares initially held by KCEP Ventures II, L.P., 475,581 of which shall be Underlying Shares initially held by NewWest Mezzanine Fund LP, 475,581 of which shall be Underlying Shares initially held by Convergent Capital Partners I, L.P., and 292,664 of which shall be Underlying Shares initially held by the James F. Seifert Management Trust dated October 8, 1992), and the Exercise Price with respect to all Underlying Shares in excess of such 2,048,655 Underlying Shares shall be increased such that the average of the Exercise Prices of all Underlying Shares shall be $2.42. The limitations of this paragraph shall not apply with respect to any Underlying Shares if the issuance of such Underlying Shares has been approved by the stockholders of the Company prior to the issuance of such Underlying Shares."

(c)
  The definition of Exercise Price in the Warrant Agreement is amended to add the following:

    "Notwithstanding anything in this Agreement to the contrary, any adjustment to the Exercise Price applicable to any Underlying Shares initially issued to the James F. Seifert Management Trust dated October 8, 1992 shall be made in accordance with this Warrant Agreement, but the resulting adjusted Exercise Price for such Underlying Shares shall in no event be less than $2.22."

(d)    Section 6 of the Warrant Agreement is amended to add the following at the end of the second paragraph of  such Section 6:

    "All numbers and dollar amounts set forth in this Warrant Agreement shall be appropriately adjusted for any such subdivision or combination, if any, occurring after May 12, 2003."

                2.           Covenants of Holdings and Services. On or prior to October 31, 2003 (or such later date as specified by the Purchaser), Holdings and Services agree to retain a consultant, reasonably acceptable to the Purchaser, and to cooperate fully with such consultant and provide such consultant with full access to documents, employees or other information so that such consultant can prepare a report for the Holdings Board of Directors with respect to a proposed transaction. Holdings and Services shall not be obligated to incur more than $25,000 in fees for such consultant.

                3.           Conditions to Effectiveness. The effectiveness of this Amendment is expressly conditioned upon Holdings and Services delivering to the Purchaser this Amendment duly executed by Holdings, Services and the Principals and Nasdaq approving this Amendment as complying with Nasdaq’s listing standards.

                4.           Reaffirmation of Financing Documents. All terms, conditions and provisions of the Note Agreement and the other Financing Documents are hereby reaffirmed and continued in full force and effect and shall remain unaffected and unchanged, except as specifically amended by this Amendment. All covenants, representations and warranties of Holdings and Services in this Amendment shall survive the closing and delivery of this Amendment. The Events of Default specified in the Note Agreement shall continue to be the events of default under the Note, and Purchaser is not, by executing this Amendment, waiving any existing or future Event of Default or default under any Financing Document. The Purchaser’s remedies with respect to the occurrence of an Event of Default shall continue to be as set forth in the Note Agreement and in the Financing Documents. Holdings and Services confirm that, in accordance with Section 8.3 of the Note Agreement, Borrower will promptly reimburse the Purchaser for all reasonable expenses relating to this Amendment.

                5.           Representations and Warranties. Holdings and Services represent and warrant to the Purchaser that (i) they have full power and authority to consummate this Amendment and the execution and delivery by Holdings and Services of this Amendment have been duly and properly made and authorized, (ii) this Amendment and the Financing Documents to which Holdings and Borrower are a party each constitutes a valid and binding obligation of Holdings and Borrower, enforceable against Holdings and Borrower in accordance with its respective terms, (iii) the execution and delivery of this Amendment will not violate any provisions of any law or any order of any court or governmental authority or agency and will not conflict with or result in any breach of any of the terms, conditions or provisions of, or constitute a default under Holdings and Borrower’s articles of incorporation or bylaws or any indenture or other agreement or instrument to which Holdings or Borrower is a party or by which they may be bound or result in the imposition of any Liens or encumbrances on any of its property (other than as contemplated in the other Financing Documents and as contemplated hereby), (iv) no further approval, consent or withholding of objection on the part of any regulatory body, federal, state or local, is necessary in connection with the execution and delivery by Holdings and Services of this Amendment, except for review and approval by Nasdaq, and (v) Holdings and Borrower have no defense, offset or counterclaim with respect to the payment of any sum owed to the Purchaser, or with respect to the performance or observance of any warranty or covenant contained in the Financing Documents, and the Purchaser has performed all obligations and duties owed to Holdings and Borrower through the date of this Amendment.

                6.           General Release. In consideration of, among other things, the Amendment provided for herein, each of Holdings and Services, on behalf of itself and its stockholders and other Affiliates and their successors and assigns (collectively, the “Releasors”), hereby forever waives, releases and discharges to the fullest extent permitted by law any and all claims (including, without limitation, cross claims, counterclaims, rights of set-off and recoupment), causes of action, demands, suits, costs, expenses and damages (collectively, the “Claims”), that any Releasor now has or hereafter may have, of whatsoever nature and kind, whether known or unknown, whether now existing or hereafter arising, whether arising at law or in equity, against the Purchaser and any of their affiliates, partners, shareholders and “controlling persons” (within the meaning of the federal securities laws), and their respective successors and assigns and each and all of the officers, directors, employees, agents, attorneys and other representatives of each of the foregoing (collectively, the “Releasees”), based in whole or in part on facts, whether or not now known, existing on or before the execution of this Amendment. In entering into this Amendment, Holdings and Services have consulted with and been represented by counsel and expressly disclaims any reliance on any representations, acts or omissions by any of the Releasees and hereby agrees and acknowledges that the validity and effectiveness of the release set forth above do not depend in any way on any such representations, acts and/or omissions or the accuracy, completeness or validity thereof. The provisions of this Section shall survive the termination of the Note Agreement and the other Financing Documents and payment in full of the Obligations.

                7.           Governing Law. This Amendment and all matters concerning this Amendment shall be governed by the laws of the State of Colorado for contracts entered into and to be performed in such state without regard to principles of conflicts of laws.

                8.           Entire Agreement. Except as modified by this Amendment, the Note Agreement and the Warrant Agreement remain in full force and effect. The Note Agreement and the Warrant Agreement, as modified by this Amendment, and together with the other Financing Documents, embody the entire agreement and understanding among the parties to this Amendment, and supersedes all prior agreements and understandings among the parties relating to the subject matter of the Note Agreement and the Warrant Agreement as modified by this Amendment.

                9.           Counterparts; Telecopy Execution. This Amendment may be executed in any number of separate counterparts, each of which, when taken together, shall constitute one and the same instrument, admissible into evidence, notwithstanding the fact that all parties have not signed the same counterpart. Delivery of an executed counterpart of this Amendment by facsimile shall be equally as effective as delivery of a manually executed counterpart of this Amendment. Any party delivering an executed counterpart of this Amendment by facsimile shall also deliver a manually executed counterpart of this Amendment, but the failure to deliver a manually executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment.

[Signature page follows]

        IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective as of the day, month and year first above written.


 
HOLDINGS: ACT Teleconferencing, Inc.


By ________________________________
Its ________________________________

SERVICES: ACT Teleconferencing Services, Inc.


By ________________________________
Its ________________________________

PRINCIPALS:

_________________________________
Gerald V. Eeckhout

_________________________________
Gavin J. Thomson

_________________________________
Gene Warren

Accepted as of the date of this Amendment:

INVESTORS:


 
NEWWEST MEZZANINE FUND LP
By Touchstone Capital Group LLLP, General Partner


___________________________________
David L. Henry, Managing General Partner

KCEP VENTURES II, L.P.
By KCEP II, LC, General Partner


___________________________________
Terry Matlack, Managing Director

CONVERGENT CAPITAL PARTNERS I, L.P.
By Convergent Capital, LLC, General Partner


___________________________________
Keith S. Bares, Executive Vice President


JAMES F. SEIFERT MANAGEMENT TRUST DATED OCTOBER 8, 1992
By James F. Seifert and Nancy L. Seifert, as Trustees and not individually


___________________________________
James F. Seifert, Trustee


___________________________________
Nancy L. Seifert, Trustee

EX-99 6 amend4-act.htm 4TH AMEND. CONSENT WAIVER FORBEARANCE AGMT

FOURTH AMENDMENT

CONSENT, WAIVER AND FORBEARANCE AGREEMENT

               This Fourth Amendment, Consent, Waiver and Forbearance Agreement (“Amendment”) is effective as of January 8, 2004 and relates to (i) the Note Agreement dated as of May 12, 2003, as amended (the “Note Agreement”) among NewWest Mezzanine Fund, LP (“NewWest”), KCEP Ventures II, L.P. (“KCEP”), Convergent Capital Partners I, L.P. (“Convergent”), James F. Seifert Management Trust dated October 8, 1992 (the “Trust”), ACT Teleconferencing, Inc. (“Holdings”), ACT Teleconferencing Services, Inc. (the “Services”) and certain Co-Borrowers listed on the signature page of this Amendment (the “Co-Borrowers), as amended, and (ii) the Warrant Agreement dated as of May 12, 2003 (the Warrant Agreement”) among NewWest, KCEP, Convergent, the Trust and Holdings, as amended. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Note Agreement.

Recitals

               Holdings and Services have requested that the Purchaser forbear in connection with certain current events of default under the Note Agreement and to agree to certain amendments and waivers, subject to the terms and conditions set forth in this Amendment, and the Purchaser has agreed to such forbearance, amendments and waivers under the Note Agreement, on the terms and conditions set forth herein.

               NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter stated, the parties hereby agree as follows:

                1.        Waivers and Note Agreement Amendment.


   
             (a)        Subject to the conditions set forth in this Amendment, the Purchaser hereby waives (i) the requirement set forth in section 6 of the Warrant Agreement that Holdings shall not, without shareholder approval, issue (A) 2,100,000 shares of Holdings' common stock, no par value, at a price of $1.05 per share, to certain investors pursuant to the Stock Purchase Agreement dated as of January 8, 2004 among Holdings and certain investors (together with the other transactions contemplated by such agreement, the "Barron Transaction") and (B) warrants to acquire 250,000 shares of Holdings common stock, no par value, at a price of $1.10 per share, to Robert C. Kaphan and Richard Parlato pursuant to the Warrant Agreement dated as of January 2, 2004 among Holdings and such individuals (together with the amendment to the promissory notes held by such individuals and the other transactions contemplated by such agreement and amendment, the "Proximity Transaction"), and (ii) the right under section 15 of the Warrant Agreement to purchase a portion of the securities referred to in clause (i) above.

           (b)        The Note Agreement is hereby amended to add, as a Permitted Lien, the security  interest granted by Services in favor of Robert C. Kaphan and Richard Parlato pursuant to the Security  Agreement dated as of January 2, 2004 among Services and such individuals.

           (c)       If Borrower is in full compliance with all provisions of the Note Agreement and this  Amendment as of March 31, 2004 (and provided that no Event of Default, other than the Specified  Defaults, shall have occurred and all Specified Defaults shall have been cured, to the extent curable),  then all Specified Defaults shall be deemed to be waived by Purchaser.

                2.        Forbearance. So long as Holdings and Services comply with all terms and conditions of the Note Agreement, as amended by this Amendment (other than the Specified Defaults as defined below), the Purchaser agrees to forbear, until March 31, 2004, from (i) accelerating or demanding immediate payment of the Obligations, and (ii) exercising remedies under the Note Agreement. For purposes of this Amendment, the Specified Defaults shall mean the defaults identified by Purchaser in writing as of the date of this Amendment. Such agreement to forbear is effective only for the Specified Defaults and not for any other defaults of covenants or obligations so listed by Purchaser or for any time periods not so listed by Purchaser.

                 3.        Covenants of Holdings and Services.Holdings and Services agree (i) to provide evidence reasonably satisfactory to the Purchaser no later than January 20, 2004 that Holdings has a current directors and officers insurance policy of at least $2,000,000, (ii) provide evidence reasonably satisfactory to the Purchaser no later than January 20, 2004 that all defaults or events of default under the Bank Agreement have been waived, (iii) to provide Purchaser, no later than January 20, 2004, with copies of all borrowing base and covenant compliance certificates provided to the Bank since May 12, 2003, any amendments to the Bank Indebtedness, and any other documents required to be provided to Purchaser pursuant to section 6.6(m) of the Note Agreement, (iv) to provide evidence reasonably satisfactory to the Purchaser no later than January 20, 2004 that Holdings has filed any required additional listing application with Nasdaq for the Underlying Shares, (v) provide Purchaser, no later than January 20, 2004, with copies of all correspondence since May 12, 2003 with Compunetix regarding Services’ lease with Compunetix, (vi) provide Purchaser, no later than January 20, 2004, a certificate of Holdings’ Chief Financial Officer that Holdings and Services have complied with the provisions clauses (i) – (v) above, and (vii) in accordance with Section 8.3 of the Note Agreement, Borrower will reimburse the Purchaser for all reasonable expenses within 10 days of receiving notice from the Purchaser of such expenses. Any failure by Holdings and Services to comply with the provisions of this Amendment shall constitute an Event of Default under the Note Agreement.

                4.        Conditions to Effectiveness. The effectiveness of this Amendment is expressly conditioned upon Holdings and Borrower delivering to the Purchaser all of the following, all in form and substance acceptable to the Purchaser: (a) this Amendment duly executed by Holdings, Services, the Co-Borrowers and the Principals; (b) evidence satisfactory to the Purchaser that all events of default under any other promissory notes or loan agreements have been waived and such waivers are in full force and effect; and (c) consummation of the Barron Transaction and the Proximity Transaction, including the execution by Robert C. Kaphan and Richard Parlato of a subordination agreement acceptable to the Purchaser.

                5.        Reaffirmation of Financing Documents. All terms, conditions and provisions of the Note Agreement and the other Financing Documents are hereby reaffirmed and continued in full force and effect and shall remain unaffected and unchanged, except as specifically amended by this Amendment. All covenants, representations and warranties of Holdings and Borrower in this Amendment shall survive the closing and delivery of this Amendment. The Events of Default specified in the Note Agreement shall continue to be the events of default under the Note. The Purchaser’s remedies with respect to the occurrence of an Event of Default shall continue to be as set forth in the Note Agreement and in the Financing Documents.

                6.        Representations and Warranties. Holdings and Borrower represent and warrant to the Purchaser that (i) they have full power and authority to consummate this Amendment and the execution and delivery by Holdings and Borrower of this Amendment have been duly and properly made and authorized, (ii) this Amendment and the Financing Documents to which Holdings and Borrower are a party each constitutes a valid and binding obligation of Holdings and Borrower, enforceable against Holdings and Borrower in accordance with its respective terms, (iii) the execution and delivery of this Amendment will not violate any provisions of any law or any order of any court or governmental authority or agency and will not conflict with or result in any breach of any of the terms, conditions or provisions of, or constitute a default under Holdings and Borrower’s articles of incorporation or bylaws or any indenture or other agreement or instrument to which Holdings or Borrower is a party or by which they may be bound or result in the imposition of any Liens or encumbrances on any of its property (other than as contemplated in the other Financing Documents and as contemplated hereby), (iv) no approval, consent or withholding of objection on the part of any regulatory body, federal, state or local, is necessary in connection with the execution and delivery by Holdings and Borrower of this Amendment, (v) Holdings and Borrower have no defense, offset or counterclaim with respect to the payment of any sum owed to the Purchaser, or with respect to the performance or observance of any warranty or covenant contained in the Financing Documents, and the Purchaser has performed all obligations and duties owed to Holdings and Borrower through the date of this Amendment, and (vi) giving effect to this Amendment, there is no Default or Event of Default.

                7.        General Release. In consideration of, among other things, the Amendment provided for herein, each of Holdings, Borrower and the Principals, on behalf of itself and its stockholders and other Affiliates and their successors and assigns (collectively, the “Releasors”), hereby forever waives, releases and discharges to the fullest extent permitted by law any and all claims (including, without limitation, cross claims, counterclaims, rights of set-off and recoupment), causes of action, demands, suits, costs, expenses and damages (collectively, the “Claims”), that any Releasor now has or hereafter may have, of whatsoever nature and kind, whether known or unknown, whether now existing or hereafter arising, whether arising at law or in equity, against the Purchaser and any of their affiliates, partners, shareholders and “controlling persons” (within the meaning of the federal securities laws), and their respective successors and assigns and each and all of the officers, directors, employees, agents, attorneys and other representatives of each of the foregoing (collectively, the “Releasees”), based in whole or in part on facts, whether or not now known, existing on or before the execution of this Amendment. In entering into this Amendment, Holdings, Borrower and the Principals have consulted with and been represented by counsel and expressly disclaim any reliance on any representations, acts or omissions by any of the Releasees and hereby agree and acknowledge that the validity and effectiveness of the release set forth above does not depend in any way on any such representations, acts and/or omissions or the accuracy, completeness or validity thereof. The provisions of this Section shall survive the termination of the Note Agreement and the other Financing Documents and payment in full of the Obligations.

                8.        Governing Law. This Amendment and all matters concerning this Amendment shall be governed by the laws of the State of Colorado for contracts entered into and to be performed in such state without regard to principles of conflicts of laws.

                9.        Entire Agreement. Except as modified by this Amendment, the Note Agreement remains in full force and effect. The Note Agreement, as modified by this Amendment, and together with the other Financing Documents, embody the entire agreement and understanding among the parties to this Amendment, and supersedes all prior agreements and understandings among the parties relating to the subject matter of the Note Agreement as modified by this Amendment.

                10.        Counterparts; Telecopy Execution. This Amendment may be executed in any number of separate counterparts, each of which, when taken together, shall constitute one and the same instrument, admissible into evidence, notwithstanding the fact that all parties have not signed the same counterpart. Delivery of an executed counterpart of this Amendment by facsimile shall be equally as effective as delivery of a manually executed counterpart of this Amendment. Any party delivering an executed counterpart of this Amendment by facsimile shall also deliver a manually executed counterpart of this Amendment, but the failure to deliver a manually executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment.

[Signature page follows]

               IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective as of the day, month and year first above written.


 
HOLDINGS: ACT Teleconferencing, Inc.


By ________________________________
Its ________________________________

SERVICES: ACT Teleconferencing Services, Inc.


By ________________________________
Its ________________________________

CO-BORROWER: ACT VideoConferencing, Inc.


By ________________________________
Its ________________________________

CO-BORROWER: ACT Proximity, Inc.


By ________________________________
Its ________________________________

CO-BORROWER: ACT Research, Inc.


By ________________________________
Its ________________________________

PRINCIPALS:

__________________________________
Gene Warren

__________________________________
Gavin Thomson

__________________________________
Gerald D. Van Eeckhout

Accepted as of the date of this Amendment:

INVESTORS:


 
NEWWEST MEZZANINE FUND LP
By Touchstone Capital Group LLLP, General Partner


___________________________________
David L. Henry, Managing General Partner

KCEP VENTURES II, L.P.
By KCEP II, LC, General Partner


___________________________________
Terry Matlack, Managing Director

CONVERGENT CAPITAL PARTNERS I, L.P.
By Convergent Capital, LLC, General Partner


___________________________________
Keith S. Bares, Executive Vice President


JAMES F. SEIFERT MANAGEMENT TRUST DATED OCTOBER 8, 1992
By James F. Seifert and Nancy L. Seifert, as Trustees and not individually


___________________________________
James F. Seifert, Trustee


___________________________________
Nancy L. Seifert, Trustee

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