AMENDMENT NO. 3 TO PURCHASE AGREEMENT
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THIS AMENDMENT NO. 3 TO PURCHASE AGREEMENT (this "Amendment") is made
as of June 2, 1998, by and among Esquire Communications Ltd., a Delaware
corporation (the "Company"), Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV Limited
Partnership, an Illinois limited partnership ("GTCR") and Antares Leveraged
Capital Corp., a Delaware corporation ("Antares" and collectively with GTCR
referred to herein collectively as the "Purchasers" or individually as a
"Purchaser"). Each capitalized term used herein which is not defined herein
shall have the meaning given to such term in the Purchase Agreement.
WHEREAS, the Company and the Purchasers are parties to a Purchase
Agreement dated as of October 23, 1996 (the "Purchase Agreement"), an Amendment
No. 1 to Purchase Agreement, dated as of June 17, 1997, and an Amendment No. 2
to Purchase Agreement, dated as of January 9, 1998;
WHEREAS, the Company's execution of this Amendment is a condition for
the Purchasers' execution of Supplement No. 4 to Purchase Agreement, dated as of
the date hereof, between the Company and the Purchasers ("Supplement No. 4");
and
WHEREAS, the Company and the Purchasers desire to amend certain
provisions of the Purchase Agreement as set forth herein.
NOW, THEREFORE, the parties to this Amendment hereby, for good and
valuable consideration, including, without limitation, in consideration for, and
as a condition to, the Purchasers' execution of Supplement No. 4, agree as
follows:
Section 1. Amendment.
(a) The first sentence of Section 1A of the Purchase Agreement is
hereby deleted in full and the following sentence inserted in lieu thereof:
"The Company shall authorize the issuance and sale to the Purchasers of
22,500 shares of its Series A Convertible Preferred Stock, par value $.01
per share (the "Series A Preferred Stock"), having the rights and
preferences set forth in Exhibit A attached hereto. As of June 2, 1998 the
Company shall have authorized the issuance and sale to the Purchasers of
7,500 shares of its Series B Convertible Preferred Stock, par value $.01
per share (the "Series B Preferred Stock" and, together with the Series A
Preferred Stock, the "Preferred Stock") and made all filings required
therefor, including filing a Certificate of Designation with respect to the
Series B Preferred Stock, containing identical rights and preferences as
the Series A Preferred Stock, but providing that the Series B Preferred
Stock is junior to the Series A Preferred Stock and changing the initial
conversion price in Section 6.2(a) thereof from $3.00 to $6.00."
(b) Section 1C(i) is hereby deleted in full and the following
paragraph inserted in lieu thereof:
"(i) (A) GTCR may, at its sole election, subject to clause (ii) below,
purchase from time to time prior to December 17, 1998, upon written notice
to the Company's board of directors (the "Board"), up to an additional
15,000 shares of the Series A Preferred Stock at a price of $1,000 per
share (as adjusted from time to time as a result of stock dividends, stock
splits, recapitalizations and similar events).
(B) GTCR may, at its sole election, subject to clause (ii) below,
purchase from time to time prior to December 2, 1999, upon written notice
to the Company's Board, up to 7,500 shares of Series B Preferred Stock at a
price of $1,000 per share (as adjusted from time as a result of stock
dividends, stock slits, recapitalizations and similar events) (a purchase
pursuant to clause (A) above or this clause (B), an "Additional
Purchase")."
Section 2. Board Authorization. On or prior to the date of this
Amendment the Company's board of directors shall have authorized the execution,
delivery and performance of this Amendment, the issuance of an additional 2,500
shares of the Series B Preferred Stock (including without limitation, filing an
Amendment to the Certificate of Designation to provide for the designation of an
additional 2,500 shares of the Series B Preferred Stock), and the reservation
for issuance upon conversion of such shares of Series B Preferred Stock of an
additional 416,667 shares of Common Stock plus any shares of Common Stock
issuable upon conversion of accrued dividends.
Section 3. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
This Amendment shall become effective upon the execution of a counterpart by
each of the parties hereto.
Section 4. Effect of Amendment. Except as expressly amended
hereby, the Purchase Agreement, as amended hereby and otherwise as in effect
immediately prior to this Amendment, continues in full force and effect in
accordance with the original terms thereof.
Section 5. Applicable Law. The corporate law of the State of
Delaware shall govern all issues and questions concerning the relative rights
and obligations of the Company and its stockholders. All other issues and
questions concerning the construction, validity, interpretation and
enforceability of this Amendment shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without giving effect to any
choice of law or conflict of law provisions (whether of the State of Illinois or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
Section 6. Descriptive Headings. The descriptive headings of this
Amendment are inserted for convenience only and do not constitute a part of this
Amendment.
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Section 7. Severability. Whenever possible, each provision of this
Amendment shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
No. 3 to Purchase Agreement on the day and year first above written.
ESQUIRE COMMUNICATIONS LTD.
By: _______________________________
Its: ______________________________
GOLDER, THOMA, XXXXXXX, XXXXXX FUND
IV LIMITED PARTNERSHIP
By: GTCR IV, L.P.
Its: General Partner
By: Golder, Thoma, Cressey, Rauner, Inc.
Its: General Partner
By: ________________________________
Its: _______________________________
ANTARES LEVERAGED CAPITAL CORP.
By: _______________________________
Its: _______________________________
