FIRST AMENDMENT TO NOTES SECURITIES PURCHASE AGREEMENT
Exhibit 10.2
FIRST AMENDMENT TO NOTES SECURITIES PURCHASE AGREEMENT (this “Amendment”), dated as of
September 28, 2006, by and among Global Employment Holdings, Inc., a Delaware corporation (the
“Company”), Global Employment Solutions, Inc., a Colorado corporation (“GES”), and the investors
listed on the signature pages hereto (individually, a “Buyer” and collectively, the “Buyers”).
WHEREAS:
A. The Company, GES and the Buyers are party to a Notes Securities Purchase Agreement, dated
as of March 31, 2006, (the “Purchase Agreement”). Capitalized terms not otherwise defined have the
meanings set forth in the Purchase Agreement.
B. Amatis Limited (“Amatis” or the “Old Collateral Agent”) has agreed to sell all of the Notes
and Warrants it purchased pursuant to the Purchase Agreement.
C. Amatis was named the Collateral Agent in the Purchase Agreement and wishes to be released
from its role as the Collateral Agent.
D. Whitebox Convertible Arbitrage Partners, LP (“Whitebox” or the “New Collateral Agent”) has
agreed to replace Amatis as the Collateral Agent.
NOW, THEREFORE, the Company, GES and each Buyer hereby agree as follows:
1. Amendment of Section 4(p). Section 4(p) of the Purchase Agreement is hereby
deleted from the Purchase Agreement and the following inserted in its place:
Whitebox Convertible Arbitrage Partners, LP (the “Collateral Agent”) is hereby
appointed as the collateral agent for the Buyers hereunder, and each Buyer hereby
authorizes the Collateral Agent (and its officers, directors, employees and agents)
to take any and all such actions on behalf of the Buyers with respect to the
Collateral (as defined in the Security Documents) and the Obligations in accordance
with the terms of this Agreement. The Collateral Agent shall not have, by reason
hereof or any of the other Transaction Documents, a fiduciary relationship in
respect of any Buyer. Neither the Collateral Agent nor any of its officers,
directors, employees and agents shall have any liability to any Buyer for any
action taken or omitted to be taken in connection hereof except to the extent
caused by its own gross negligence or willful misconduct, and each Buyer agrees to
defend, protect, indemnify and hold harmless the Collateral Agent and all of its
officers, directors, employees and agents (collectively, the “Indemnitees”) from
and against any losses, damages, liabilities, obligations, penalties, actions,
judgments, suits, fees, costs and expenses (including, without limitation,
reasonable attorneys’ fees, costs and expenses) incurred by such Indemnitee,
whether direct, indirect or consequential, arising from or in connection with the
performance by such Indemnitee of the duties and obligations of Collateral Agent
pursuant hereto.
2. Resignation and Appointment of Collateral Agent. The Old Collateral Agent hereby
resigns as the Collateral Agent. The Buyers and the Company hereby accept the resignation of the
Old Collateral Agent as the Collateral Agent and hereby appoint the New Collateral Agent as the
Collateral Agent.
3. Acceptance of Appointment of Collateral Agent. The New Collateral Agent hereby
accepts its appointment as the Collateral Agent.
4. Assignment.
(a) Old Collateral Agent hereby assigns, without recourse, to New Collateral Agent, for the
ratable benefit of the noteholders, all of Old Collateral Agent’s right, title and interest in, to
and under (a) the Collateral and in, to and under all of the Security Documents, any UCC-1
Financing Statements or other instrument perfecting the security interest in the Collateral and any
other Transaction Document evidencing the grant of any item or security interest in any property of
the Company, (b) any Collateral delivered in connection with the execution and delivery of the
Purchase Agreement, and (c) all proceeds thereof (collectively, the “Assigned Items”). New
Collateral Agent hereby accepts all of Old Collateral Agent’s right, title and interest, as
collateral agent, in, to and under the Assigned Items.
(b) Except as otherwise specifically stated in this Amendment, Old Collateral Agent
specifically disclaims any warranty, guaranty or representation, oral or written, past, present or
future with respect to the Assigned Items, including, without limitation: (a) the validity,
existence, or priority of any lien or security interest relating to the Assigned Items; (b) the
existence or basis for any claim, counterclaim, defense or offset relating to the Assigned Items;
(c) the financial condition of the Company or any of its subsidiaries; (d) the compliance of the
Assigned Items with any laws, ordinances or regulations of any government or other body; (e) the
condition or existence of any Assigned Items; and (f) the future performance of the Company or the
Collateral. Old Collateral Agent shall not be responsible in any manner whatsoever for the
correctness of any recitals, statements, representations or warranties contained in any of the
Security Documents or other Transaction Documents. The New Collateral Agent acknowledges and
represents to Old Collateral Agent that having been given the opportunity to undertake its own
investigation of the Assigned Items, it is relying solely on its own investigation of the Assigned
Items and not any information provided or to be provided by Old Collateral Agent (except as
specifically set forth in this Amendment). This assignment is made on an “AS IS”,
“WHERE IS” basis, with all faults, and the New Collateral
Agent, by acceptance of this Amendment expressly acknowledges that OLD COLLATERAL AGENT MAKES NO WARRANTY OR REPRESENTATION,
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AMENDMENT, EXPRESS OR IMPLIED, RELATING TO THE ASSIGNED
ITEMS. THIS ASSIGNMENT IS MADE WITHOUT RECOURSE.
5. No Other Changes. Except as explicitly set forth in this Amendment, all of the
terms and conditions of the Purchase Agreement remain in full force and effect.
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6. Further Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as any other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Amendment and the consummation of
the transactions contemplated hereby. Specifically, Amatis shall cause a release of the
assignments for security with respect to all of the Intellectual Property owned by the Company and
its Subsidiaries (the “Existing Assignments”) to be filed with the United States Patent and
Trademark Office.
7. Assignments
for Security. Within one business day after execution of this
Amendment, the Company and its Subsidiaries, as applicable,
shall deliver to the New Collateral Agent duly executed assignments for security with respect to
all of the Intellectual Property owned by the Company and its Subsidiaries.
8. Facsimile Signatures; Counterparts. This Amendment may be executed via facsimile
signature. This Amendment may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when counterparts have
been signed by each party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory thereto with the same
force and effect as if the signature were an original, not a facsimile signature.
[Signature Page Follows]
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IN WITNESS WHEREOF, each Buyer, the Company and GES have caused their respective signature
page to this Securities Purchase Agreement to be duly executed as of the date first written above.
| GLOBAL EMPLOYMENT HOLDINGS, INC. | GLOBAL EMPLOYMENT SOLUTIONS, INC. | |||||||
By:
|
/s/ Xxxxxx Xxxxx | By: | /s/ Xxxxxx Xxxxx | |||||
| Name: Xxxxxx Xxxxx | Name: Xxxxxx Xxxxx | |||||||
| Title: President and Chief Executive Officer | Title: President and Chief Executive Officer | |||||||
IN WITNESS WHEREOF, each Buyer, the Company and GES have caused their respective signature
page to this Securities Purchase Agreement to be duly executed as of the date first written above.
| BUYERS: | ||||||
| AMATIS LIMITED | ||||||
| By: Amaranth Advisors, L.L.C., | ||||||
| Its Trading Advisor | ||||||
| By: | /s/ Xxxx X. Xxxxxxx | |||||
| Name: Xxxx X. Xxxxxxx | ||||||
| Title: Authorized Signatory | ||||||
| RADCLIFFE SPC, LTD. for and on behalf of the Class A Convertible Crossover Segregated Portfolio | ||||||
| By: | RG Capital Management, L.P | |||||
| By: | RGC Management Company, L.L.C. | |||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||
| Name: Xxxxxx X. Xxxxxxxxxx | ||||||
| Title: Managing Director | ||||||
| MAGNETAR CAPITAL MASTER FUND, LTD | ||||||
| By: | Magnetar Financial LLC, its Investment Manager | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| WHITEBOX CONVERTIBLE ARBITRAGE PARTNERS, LP | ||||||
| By: | Whitebox Convertible Arbitrage Advisors LLC | |||||
| By: | Whitebox Advisors LLC | |||||
| By: | /s/ Xxxxxxxx Xxxx | |||||
| Name: Xxxxxxxx Xxxx | ||||||
| Title: Chief Financial Officer/Director | ||||||
| GUGGENHEIM PORTFOLIO XXXI, LLC | ||||||
| By: | Guggenheim Advisors, LLC | |||||
| By: | Whitebox Advisors LLC | |||||
| By: | /s/ Xxxxxxxx Xxxx | |||||
| Name: Xxxxxxxx Xxxx | ||||||
| Title: Chief Financial Officer | ||||||
| PANDORA SELECT PARTNERS, LP | ||||||
| By: | Pandora Select Advisors LLC | |||||
| By: | /s/ Xxxxxxxx Xxxx | |||||
| Name: Xxxxxxxx Xxxx | ||||||
| Title: Chief Financial Officer/Director | ||||||
| WHITEBOX INTERMARKET PARTNERS, LP | ||||||
| By: | Whitebox Intermarket Advisors LLC | |||||
| By: | Whitebox Advisors LLC | |||||
| By: | /s/ Xxxxxxxx Xxxx | |||||
| Name: Xxxxxxxx Xxxx | ||||||
| Title: Chief Financial Officer/Director | ||||||
| CONTEXT ADVANTAGE FUND, LP | ||||||
| f/k/a Context Convertible Arbitrage Fund, L.P. | ||||||
| By: | Context Capital Management LLC, General Partner | |||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: Xxxxxxx X. Xxxxx | ||||||
| Title: Managing Member | ||||||
| CONTEXT OFFSHORE ADVANTAGE FUND, LTD. | ||||||
| f/k/a Context Convertible Arbitrage Offshore, Ltd. | ||||||
| By: Context Capital Management LLC, its Investment Advisor | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: Xxxxxxx X. Xxxxx | ||||||
| Title: Managing Member | ||||||
| CONTEXT OPPORTUNISTIC MASTER FUND, L.P. | ||||
| By: Context Capital Management LLC, its Investment Advisor | ||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: Xxxxxxx X. Xxxxx | ||||
| Title: Managing Member | ||||
| ACCEPTED BY: | ACCEPTED BY: | |||||||
| WHITEBOX CONVERTIBLE ARBITRAGE PARTNERS, LP, | AMATIS LIMITED, | |||||||
| as New Collateral Agent | as Old Collateral Agent | |||||||
| By: Amaranth Advisors L.L.C, | ||||||||
| Its: Trading Advisor | ||||||||
By:
|
/s/ Xxxxxxxx Xxxx | By: | /s/ Xxxx X. Xxxxxxx | |||||
| Name: Xxxxxxxx Xxxx | Name: Xxxx X. Xxxxxxx | |||||||
| Title: Chief Financial Officer | Title: Authorized Signatory | |||||||
Address:
|
0000 Xxxxxxxxx Xxxxxxxxx | Address: | Xxx Xxxxxxx Xxxx | |||
| Xxxxx 000 | Xxxxxxxxx, XX 00000 | |||||
| Xxxxxxxxxxx, XX 00000 |
