AMENDMENT NO. 2 TO PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 TO PURCHASE AGREEMENT (this "Amendment") is made
as of January 9, 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 Purchaser Agreement.
WHEREAS, the Company and the Purchasers are parties to a Purchase
Agreement dated as of October 23, 1996 (the "Purchase Agreement") and Amendment
No. 1 to Purchase Agreement, dated as of June 17, 1997;
WHEREAS, the Company's execution of this Amendment is a condition for
the Purchasers' execution of Supplement No. 3 to Purchase Agreement, dated as of
the date hereof, between the Company and the Purchasers ("Supplement No. 3");
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 Purchaser's execution of Supplement No. 3, 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. By January 19, 1998 the Company shall have authorized the
issuance and sale to the Purchasers of 5,000 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 filing 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 discretion, 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) GTR may, at its sole election, subject to clause (ii)
below, purchase from time to time prior to July 9, 1999, upon written
notice to the Company's Board, up to 5,000 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 splits, 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 Company hereby covenants that by
January 19, 1998 the Company's board of directors shall have authorized the
issuance of 5,000 shares of the Series B Preferred Stock (including without
limitation, filing the Certificate of Designation to provide for the designation
of 5,000 shares of the Series B Preferred Stock), and the reservation for
issuance upon conversion of the Series B Preferred Stock of an additional
833,333 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.
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.
* * * * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Amendment 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:__________________________
