-----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, NyIRG0BEcQt6BYQY7Q5mf+3cBeXbIHqxRfiwBt5eDXTaURlxGTVIT7R+BCBpXFSx 9RurTBTCmtOiwwgJIftWxA== 0001144204-05-005889.txt : 20050223 0001144204-05-005889.hdr.sgml : 20050223 20050223171340 ACCESSION NUMBER: 0001144204-05-005889 CONFORMED SUBMISSION TYPE: 8-K/A PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20050223 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050223 DATE AS OF CHANGE: 20050223 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RCG COMPANIES INC CENTRAL INDEX KEY: 0000722839 STANDARD INDUSTRIAL CLASSIFICATION: LAND SUBDIVIDERS & DEVELOPERS (NO CEMETERIES) [6552] IRS NUMBER: 232265039 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-08662 FILM NUMBER: 05635060 BUSINESS ADDRESS: STREET 1: 6836 MORRISON BOULEVARD STREET 2: SUITE 200 CITY: CHARLOTTE STATE: NC ZIP: 28211 BUSINESS PHONE: 7043665054 MAIL ADDRESS: STREET 1: 6836 MORRISON BLVD STREET 2: SUITE 200 CITY: CHARLOTTE STATE: NC ZIP: 28211 FORMER COMPANY: FORMER CONFORMED NAME: ERESOURCE CAPITAL GROUP INC DATE OF NAME CHANGE: 20001113 FORMER COMPANY: FORMER CONFORMED NAME: FLIGHTSERV COM DATE OF NAME CHANGE: 19990716 FORMER COMPANY: FORMER CONFORMED NAME: PROACTIVE TECHNOLOGIES INC DATE OF NAME CHANGE: 19950921 8-K/A 1 v013479_8k-a.txt ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM 8-K/A AMENDMENT NO. 1 TO CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): FEBRUARY 23, 2005 ---------- RCG COMPANIES INCORPORATED (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ---------- DELAWARE 1-8662 23-2265039 (STATE OR OTHER JURISDICTION (COMMISSION FILE NUMBER) (IRS EMPLOYER OF INCORPORATION) IDENTIFICATION NO.) 6836 MORRISON BLVD., STE. 200, CHARLOTTE, 28211 NORTH CAROLINA (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (704) 366-5054 ---------- (FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) EXPLANATORY NOTE This Amendment No. 1 to our Current Report on Form 8-K filed February 14, 2005 is being filed for the sole purposes of (i) adding one investor to the private placement, (ii) increasing the aggregate amount raised in the private placement by $500,000, and (iii) filing as exhibits the following two additional agreements: Amendment No. 1 to Securities Purchase Agreement dated February 8, 2005, and an Intercreditor Agreement dated February 8, 2005. Funds were received under the additional investment as of February 17, 2005. Item 1.01 Entry into Material Definitive Agreement Item 2.03 Creation of a Direct Financial Obligation Item 3.02. Unregistered Sale of Equity Securities On February 8, 2005, RCG Companies Incorporated (the "Company") closed an initial private placement offering with eight accredited investors. Pursuant to the terms of the Securities Purchase Agreement, the Company sold and the purchasers purchased an aggregate of $7,968,700 of two year senior secured convertible debentures (the "Debentures"). The Debentures are original issue discounted notes, discounted to $6,294,391. If not converted earlier, the Debentures are due on February 8, 2007. The initial conversion price of the Debentures is $1.30 per share and the Debentures are not convertible into shares of the Company's common stock until the shareholders of the Company have approved the transaction pursuant to the rules of the American Stock Exchange. The Company has a right to redeem the Debentures for cash any time after the issuance date at 130% of the principal amount of the Debentures. The purchasers are granted a senior security interest in the assets of the Company, subject to carve outs for certain existing indebtedness. In addition, the Company issued a total of 10,177,139 Warrants, exercisable for the Company's common stock. 50% of the Warrants are exercisable at $1.55 per share and the remaining 50% of the Warrants are exercisable at $1.87 per share. The shares underlying the Warrants are not issuable for 180 days from the closing date of the offering. The Warrants have full ratchet anti-dilution provisions, but only after the shareholders approve the issuance in excess of 20% of the outstanding common stock of RCG to the purchasers of the Debentures. The Company has covenanted to hold a shareholders meeting to approve the issuance in excess of 20% of its common stock no later than May 31, 2005. The Company also covenanted to file a registration statement underlying the common stock in both the Debentures and Warrants within 45 days of the closing date and to make its reasonable best efforts to have such registration declared effective at the earliest date. If the registration statement is not timely filed or declared effective within 120 days following the closing, additional cash payments equal to 1.5% per month shall be owed on the Debentures. The Company paid a placement fee equal to 10% in cash of the aggregate number of dollars raised and issued Warrants in substantially the same form as issued to the purchasers in the amount of 50,000 Warrants for each $1 million aggregate principal amount of dollars raised. The proceeds of the offering will be used for an initial deposit on the disclosed OneTravel, Inc. acquisition, marketing and general working capital. The transaction was approved by the Company's Board of Directors on February 7, 2005. The securities will be issued pursuant to an exemption from registration provided by Section 4(2) and Rule 506 of Regulation D of the Securities Act of 1933, as amended. The securities offered have not been registered under the Securities Act and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements. Item 5.02 Departure of Directors or Principal Officers; Election of Directors, Appointment of Principal Officers On February 8, 2005, K. Wesley M. Jones, Sr. resigned as a member of the Company's Board of Directors. Mr. Jones served on the nominating and corporate governance committee and compensation committee. At the time of his resignation, Mr. Jones cited time constraints for his resignation. Item 9.01. Financial Statements and Exhibits Exhibits Exhibit Description - ------- ----------- 4.1 Securities Purchase Agreement dated February 8, 2005 (2) 4.2 Form of Secured Convertible Debenture (2) 4.3 Security Agreement dated February 8, 2005 (2) 4.4 Form of Warrant (2) 4.5 Registration Rights Agreement dated February 8, 2005 (2) 4.6 Amendment No. 1 to Securities Purchase Agreement dated February 8, 2005 (1) 4.7 Intercreditor Agreement dated February 8, 2005 (1) - ---------- (1) Filed herewith. (2) Previously filed on Form 8-K on February 14, 2005. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Dated: February 23, 2005 RCG COMPANIES INCORPORATED By: /s/ Michael Pruitt -------------------------- Michael Pruitt President EX-4.6 2 v013479_ex4-6.txt 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: EX-4.7 3 v013479_ex4-7.txt EXHIBIT 4.7 INTER-CREDITOR AGREEMENT This INTER-CREDITOR AGREEMENT (this "Agreement') is made and effective as of February 8, 2005, by and among RCG Companies Incorporated, a Delaware corporation (the "Company" or the "Debtor"), the purchasers signatory to the Security Purchase Agreement (the "Purchase Agreement"), dated as of February 8, 2005, by and among the Company and the purchasers (the "Purchasers") and JGB Capital L.P. ("JGB" and collectively, the Purchasers and JGB shall be referred to herein as the "Creditors"). RECITALS WHEREAS, the Debtor and the Purchasers have executed that certain Purchase Agreement and any and all subsequent amendments and waivers thereto, for the purchase of Secured Convertible Debentures, due February 8, 2007 (the "Debentures") and Common Stock Purchase Warrants (the "Warrants"); WHEREAS, payments are to be made to the Creditors by Debtor pursuant to the Debentures (as defined in the Purchase Agreement), which such Debentures are secured by certain Security Agreements by and between the Debtor and Creditors and dated as of the date hereof; WHEREAS, the Creditors wish to memorialize their agreement concerning their respective rights, duties and obligations to one another with respect to the Purchase Agreement, the Debentures and Transaction Documents (as defined in the Purchase Agreement); and WHEREAS, ALL CAPITALIZED TERMS NOT OTHERWISE DEFINED HEREIN SHALL HAVE THEIR RESPECTIVE MEANINGS AS SET FORTH IN THE PURCHASE AGREEMENT. NOW, THEREFORE, in consideration of the mutual covenants herein, their respective performances and benefits pertaining to the Purchase Documents, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: AGREEMENT 1. Payment of Obligations and Expenses. 1.1. The parties agree that the payment of all amounts due under the Debentures and all expenses related to such Transaction Documents shall be shared in proportion to the amount owed to each Creditor pursuant to their Debenture. To the extent that any party receives a Debenture payment in excess of the payment amount due to such party pursuant to such party's Debenture, the other parties shall immediately be notified and such excess amounts shall be paid to such parties on a pro-rata basis. 1.2 If an Event of Default occurs and any party hereto receives payment from the Company, the other parties hereto shall be immediately notified and such payment shall be shared with all of the other Creditors on a pro-rata basis. 1 EXHIBIT 4.7 1.3 If an Event of Default occurs and any party hereto collects proceeds pursuant to its rights under the Security Agreements, the other parties shall be immediately notified and such proceeds shall be shared with the other Creditors on a pro-rata basis. 1.4 The Company agrees it shall treat each of the Creditors on a pari passu basis, without preference or priority of any kind over one another, including in the event of a bankruptcy, and without regard to perfection or order of priority of the Creditors. 2. Indemnification by the Debtor. The Debtor shall indemnify, defend, and hold harmless the Creditors against and in respect of any and all liability, claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable professional and attorney's fees, including those arising from settlement negotiations, that the Creditors shall incur or suffer, which arise, result from, or relate to any breach of, or failure by the Debtor to perform, any of the Debtor's representations, warranties, covenants, or agreements in this Agreement or in any schedule, certificate, exhibit or other instrument furnished or to be furnished by the Debtor under this Agreement. 3. Indemnification by Each Creditor. Each Creditor (the "Indemnifying Creditor") shall indemnify, defend, and hold harmless each of the other Creditors (the "Indemnified Creditors") against and in respect of any and all liability, claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable professional and attorney's fees, including those arising from settlement negotiations, that such Indemnified Creditors shall incur or suffer, which arise, result from, or relate to any breach of, or failure by the Indemnifying Creditor to perform, any of Indemnifying Creditor's representations, warranties, covenants, or agreements in this Agreement or in any schedule, certificate, exhibit or other instrument furnished or to be furnished by the Indemnifying Creditor under this Agreement. 4. Miscellaneous. 4.1 Assignment. The rights and obligations of the parties under this Agreement may not be assigned or assumed without the written consent of all parties. Any attempt to transfer same shall be void ab initio. 4.2 Binding Effect. This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, and successors. 4.3 Parties in Interest. Except as expressly provided in this Agreement, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties to it and their respective successors and assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor shall any provision give any third persons any right to subrogation or action over against any party to this Agreement. 2 EXHIBIT 4.7 4.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations and understandings of the parties. 4.5 Amendment. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all the parties. 4.6 Waiver. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. 4.7 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified on the signature page prior to 4:00 p.m. (New York City time) on a business day and an electronic confirmation of delivery is received by the sender, (b) the next business day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number specified in this Section on a day that is not a business day or later than 4:00 p.m. (New York City time) on any business day, (c) three business days following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (d) upon actual receipt by the party to whom such notice is required to be given. The addresses for such notices and communications are those set forth on the signature pages hereof, or such other address as may be designated in writing hereafter, in the same manner, by such Person. 4.9 Governing Law and Venue. This Agreement shall be construed in accordance with, and governed by, the laws of the State of New York, and any action or proceeding, including arbitration, brought by any party in which this Agreement is a subject, shall be brought in New York County, New York. 4.10 Effect of Headings. The headings of the Sections of this Agreement are included for purposes of convenience only, and shall not affect the construction or interpretation of any of its provisions. 4.11 Invalidity. Any provision of this Agreement which is invalid, void, or illegal, shall not affect, impair, or invalidate any other provision of this Agreement, and such other provisions of this Agreement shall remain in full force and effect. 4.12 Counterparts. This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 4.13 Number and Gender. When required by the context of this Agreement, each number (singular and plural) shall include all numbers, and each gender shall include all genders. 3 EXHIBIT 4.7 4.14 Joint and Several Liability. In the event either party now or hereafter shall consist of more than one person, firm, or corporation, then and in such event, all such persons, firms or corporations shall be jointly and severally liable as parties under this Agreement. 4.15 Further Assurances. Each party to this Agreement agrees to execute further instruments as may be necessary or desirable to carry out this Agreement, provided the party requesting such further action shall bear all related costs and expenses. 4.16 Professional Fees and Costs. If any legal or equitable action, arbitration, or other proceeding, whether on the merits or on motion, are brought or undertaken, or an attorney retained, to enforce this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, then the successful or prevailing party or parties in such undertaking (or the party that would prevail if an action were brought) shall be entitled to recover reasonable attorney's fees and other professional fees and other costs incurred in such action, proceeding, or discussions, in addition to any other relief to which such party may be entitled. The parties intend this provision to be given the most liberal construction possible and to apply to any circumstances in which such party reasonably incurs expenses. 4.17 Effectiveness. This Agreement shall be dated and effective upon execution of this Agreement (or one or more of its counterparts) by all of the parties. 4 EXHIBIT 4.7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized signatories as of the date first indicated above. RCG COMPANIES INCORPORATED By:__________________________________________ Name: Title: [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGE FOR CREDITORS FOLLOWS] 5 EXHIBIT 4.7 [SIGNATURE PAGE OF CREDITORS TO rcg INTERCREDITOR AGREEMENT] Name of Creditor: ____________________________________ Signature of Authorized Signatory of Creditor: ____________________________ Name of Authorized Signatory: _____________________________________________ Title of Authorized Signatory: ____________________________________________ [SIGNATURE PAGES CONTINUE] 6 -----END PRIVACY-ENHANCED MESSAGE-----