AMENDMENT NO. 1 TO PURCHASE AND SALE AGREEMENT AND PLAN OF REORGANIZATION dated August 4, 2009 (the “Agreement”)
AMENDMENT
NO. 1
TO
AND
PLAN
OF REORGANIZATION
dated
August 4, 2009
(the
“Agreement”)
This Amendment No. 1 to the Agreement
is made and entered into as of August 27, 2009, by and between International
Medical Staffing, Inc., a Delawaare corporation (“IMSG”), and PureSpectrum,
Inc., a Nevada corporation (“PSPM”).
All terms not defined herein shall have
the meaning ascribed to them in the Agreement.
The parties hereby amend the Agreement
as follows:
1. The
following definitions shall be inserted in Section 1. Definitions:
“Buyer Convertible Debentures”
shall have the meaning set forth in Section 2.3.
“Seller Convertible
Debentures” shall mean all debentures of Seller that are convertible into
Seller Common Stock as listed on Schedule C, as such schedule may be amended
from time to time.”
2. The
following definitions in Section 1. Definitions, shall be amended and restated
in their entirety to read as follows:
“Buyer Securities” means Buyer
Convertible Notes, Buyer Convertible Debentures, Buyer Notes, Buyer Shares and
Buyer Warrants.”
“Seller Securities” means
Seller Convertible Notes, Seller Convertible Debentures, Seller Notes, Seller
Shares and Seller Warrants.”
3. Section
2.3 shall be amended and restated in its entirety to read as
follows:
“2.3 Assumed
Obligations.
Buyer agrees that at the Closing, Buyer shall assume Seller’s obligations
under (i) the Seller Warrants, the Seller Convertible Notes, the Seller
Convertible Debentures, and the Seller Notes outstanding as of the Closing Date
and (ii) those Contracts, covenants, obligations and liabilities on the list
attached hereto as Schedule 2.3, as such
list may be updated from time to time (collectively, the "Assumed
Liabilities"). It is expressly understood and agreed that Buyer’s
assumption of Seller’s obligations under the Seller Warrants, the Seller
Convertible Notes, the Seller Convertible Debentures and the Seller Notes
outstanding as of the Closing Date shall be satisfied and discharged in full by
Buyer’s issuance of the Buyer Warrants, the Buyer Convertible Notes, the Buyer
Convertible Debentures and the Buyer Notes as contemplated by Sections 2.4 and
2.5. Seller shall remain liable for any and all of its
liabilities, debts and obligations not specifically assumed by Buyer pursuant to
this Section
2.3.”
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4. Section
2.4 shall be amended and restated in its entirety to read as
follows:
“2.4 Consideration. In
full and complete payment for the Assets, Buyer agrees to (a) the assumption of
the Assumed Liabilities pursuant to Section 2.3 hereof, (b) issue
a number of Buyer Shares equal to the number of Seller Shares that are issued
and outstanding as of the Closing Date; (c) issue Buyer Warrants under
substantially the same terms and conditions as each of the Seller Warrants
unexercised and outstanding as of the Closing Date and providing for the same
number of unexercised shares, the same option prices and the same expiration
dates as such Seller Warrants; (d) issue Buyer Convertible Notes for the same
face amount (net of any principal payments made), interest rate, conversion
price, payment terms and other terms and conditions as each of the Seller
Convertible Notes outstanding as of the Closing Date; (e) issue Buyer
Convertible Debentures for the same face amount (net of any principal repayments
made), interest rate, conversion price, payment terms and other terms and
conditions as each of the Seller convertible Debentures outstnading as of the
Closing Date; and (f) issue Buyer Notes for the same face amount (net of any
principal payments made), interest rate, payment terms and other terms and
conditions as each of the Seller Notes outstanding as of the Closing
Date. In order to facilitate the liquidation and dissolution of
Seller under Section
2.5, and the assumption by Buyer of Seller’s obligations under the Seller
Warrants, Seller Convertible Notes, Seller Convertible Debentures and the Seller
Notes (outstanding as of the Closing Date) as part of the Assumed Liabilities,
the Buyer Shares, the Buyer Warrants, the Buyer Convertible Notes, the Buyer
convertible Debentures and the Buyer Notes to be issued under this
Section 2.4 shall be so
issued in the names of the Seller Shareholders and the holders of the Seller
Warrants, the Seller Convertible Notes and the Seller Notes, respectively, in
accordance with Section
2.5.”
5. Section
2.5 shall be amended and restated in its entirety to read as
follows:
“2.5 Liquidation
of Seller. Immediately after Closing, Seller shall file a
Certificate of Dissolution with the Office of the Secretary of State of the
State of Nevada, pursuant to which Seller shall be dissolved and liquidated in
accordance with Sections 78.580 and 78.585 of the Nevada Business Corporation
Act. Pursuant to such liquidation and dissolution: each Seller
Shareholder shall receive a number of Buyer Shares equal to the number of Seller
Shares that are held by such Seller Shareholder as of the Closing Date; each
holder of unexpired Seller Warrants shall receive Buyer Warrants, as described
in Section 2.4, for the
same number of unexercised shares covered by the unexpired Seller Warrants that
are held by such warrant holder as of the Closing Date; each holder of
outstanding Seller Convertible Notes shall receive Buyer Convertible Notes, as
described in Section
2.4, for the same face amount (net of any principal payments made) as the
outstanding Seller Convertible Notes that are held by such note holder as of the
Closing Date; each holder of outstanding Seller Convertible Debentures shall
receive Buyer Convertible Debentures, as described in Section 2.4, for the same face
amount (net of any principal repayments made) as the ourstanding Seller
Convertible Debentures that are held by such debenture holder as of the closing
date; and each holder of outstanding Seller Notes shall receive Buyer Notes, as
described in Section
2.4, for the same face amount (net of any principal payments made) as the
outstanding Seller Notes that are held by such note holder as of the Closing
Date. The Seller Securities shall be deemed cancelled and of no
further force or effect immediately upon Closing and Seller may request each
holder of Seller Securities to affirm such cancellation in writing as a
condition to issuance of the Buyer Shares, Buyer Warrants, Buyer Convertible
Notes, Buyer Convertible Debentures or Buyer Notes, as applicable; provided,
however, that such cancellation shall be effective regardless of whether such
written affirmation is requested or obtained.”
6. Section
5.4(c) shall be amended and restated to read as follows:
“(c) The
Buyer shall call a special meeting of its stockholders or, if permitted, will
obtain a Consent in Lieu of Meeting as soon as practicable, to approve the
amendment of its Amended and restated Certificate of Incorporation to (i) change
the Buyer’s name to “PureSpectrum, Inc.” and (ii) confer upon the directors the
power to adopt, amend and repeal the company’s bylaws.”
7. In
Section 6.1, (i) replace the period with “; and” at the end of section 6.1(g);
(ii) insert a new Section 6.1(h) to read as follows:
“(h) the
Buyer S-4/Proxy is declared effective by the Securities and Exchange
Commission.” and
(iii)
delete the last sentence (The
Buyer may waive any condition specified in this Section 6.1
if it executes a
writing so stating at or prior to the Closing.).
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8. In
Section 6.2, (i) amend and restate Section 6.2(e) to read as
follows:
“(e) The
Buyer shall have duly amended its Amended and Restated Certificate of
Incorporation to change its name to ‘PureSpectrum, Inc.’ and to confer upon the
directors the power to adopt, amend and repeal the company’s
bylaws;”;
(ii)
replace the period with “; and” at the end of section 6.2(j); (iii) insert a new
Section 6.2(k) to read as follows:
“(k) the
Buyer S-4/Proxy is declared effective by the Securities and Exchange
Commission;” and
(iv)
delete the last sentence (The
Seller may waive any condition specified in this Section 6.2
if it executes a
writing so stating at or prior to the Closing.).
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INTERNATIONAL
MEDICAL STAFFING, INC.
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By:
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/S/ Xxxxxxx X. Xxxxxx
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By:
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/S/ Xxx X. Xxxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Name:
Xxx X. Xxxxxxx
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Title:
Executive Vice President
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Title:
President
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