CONVERTIBLE NOTE AND WARRANT SALE
AGREEMENT
CONVERTIBLE NOTE
AND WARRANT SALE AGREEMENT (this “ Agreement ”)
dated as of September 28, 2006 between AMATIS LIMITED (“
Seller ”), Global Employment Holdings, Inc. (“
Global ”) and the Purchasers named in Schedule I
hereto (the “ Purchasers ”).
Seller owns
$18,170,000 aggregate principal amount of Senior Secured
Convertible Notes (the “ Notes ”) issued by
Global and warrants to purchase 290,720 shares of Global’s
common stock with an exercise price of $6.25 per share (the “
Warrants ,” and together with the Notes, the “
Securities ”), purchased from Global on March 31,
2006; and
Seller wishes to
sell, and the Purchasers wish to purchase, the Securities on the
terms set forth herein (the “ Sale
”).
Seller and the
Purchasers agree as follows:
1. Purchase
and Sale . Subject to the terms and conditions herein, each
Purchaser shall purchase the portion of the Securities set forth
opposite its name on Schedule I hereto for the dollar amount
set forth opposite its name thereon (together, the “
Purchase Price ”). The full interest payment due on
October 1, 2006 shall be paid to the Purchasers. On the
business day that all parties hereto have executed and delivered
this Agreement (the “ Closing Date ”), each
Purchaser shall pay by wire transfer its portion of the Purchase
Price to Seller pursuant to wire instructions furnished by Seller.
On the Closing Date, Global shall (i) cancel on its books the
Securities held in the name of Seller, (ii) cancel on its
books the Securities purchased by Global hereunder, and
(iii) issue new Securities in the names and amounts forth on
Schedule I and deliver them to the respective Purchasers. Also
on the Closing Date Seller shall return the old Securities to
Global. Assuming each Purchaser otherwise fulfills its obligations
to pay for its portion of Securities as outlined in this Agreement,
Global hereby attests that the validity of each such
Purchaser’s ownership in its portion of Securities to be
purchased shall be absolute and in no way be contingent on, or
dependent upon, the Seller fulfilling its obligations to deliver
its old Securities to Global.
|
|
(a)
|
|
The
obligations of each Purchaser under this Agreement are subject to
satisfaction of the following conditions:
|
(i)
Representations and Warranties. The representations and
warranties of Seller contained in Section 3 will be true and
correct on and as of the Closing Date with the same effect as
though such representations and warranties had been made on and as
of the Closing Date.
(ii)
Performance. Seller will have performed and complied with
all covenants, agreements, obligations and conditions contained in
this Agreement that are required to be performed or complied with
by it on or before the Closing Date.
(iii)
Certificate. An officer of Seller will deliver to the
Purchasers a certificate dated the Closing Date and certifying that
the conditions specified in paragraphs (a) and (b) have
been fulfilled.
(iv)
No Injunctions. No temporary restraining order, preliminary
or permanent injunction or other order issued by any court of
competent jurisdiction or other legal or regulatory restraint or
prohibition preventing the consummation of the Sale shall have been
issued, nor shall any proceeding brought by a domestic
administrative agency or commission or other domestic governmental
entity or other third party, seeking any of the foregoing be
pending.
|
|
(b)
|
|
The
obligations of Seller under this Agreement are subject to
satisfaction of the following conditions:
|
(i)
Representations and Warranties. The representations and
warranties of each Purchaser contained in Section 4 will be
true and correct on and as of the Closing Date with the same effect
as though such representations and warranties had been made on and
as of the Closing Date.
(ii)
Performance. Each Purchaser will have performed and complied
with all covenants, agreements, obligations and conditions
contained in this Agreement that are required to be performed or
complied with by it on or before the Closing Date.
(iii) No
Injunctions. No temporary restraining order, preliminary or
permanent injunction or other order issued by any court of
competent jurisdiction or other legal or regulatory restraint or
prohibition preventing the consummation of the Sale shall have been
issued, nor shall any proceeding brought by a domestic
administrative agency or commission or other domestic governmental
entity or other third party, seeking any of the foregoing be
pending.
3.
Representations and Warranties of Seller . Seller hereby
represents and warrants to the Purchasers that:
|
|
(a)
|
|
Organization . Seller is a company duly
organized, validly existing and in good standing under the laws of
the Cayman Islands, and has all necessary limited partnership
powers to own its assets and to carry on its business as now owned
and operated by it.
|
2
|
|
(b)
|
|
Authority . This Agreement and the Sale have
been approved by all requisite corporate action; Seller has full
power and authority to execute, deliver and perform this Agreement;
this Agreement is a legal, valid and binding obligation of Seller
and is enforceable in accordance with its terms and conditions,
except as such enforceability may be limited by general principles
of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, liquidation or similar laws
relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.
|
|
|
|
|
|
|
|
(c)
|
|
No Conflicts . Neither the execution and delivery
of this Agreement nor the consummation by Seller of the Sale will:
(i) conflict with or result in any breach of any provision of
its constitutive documents; (ii) require any consent,
approval, authorization or permit of, or registration, declaration
or filing with or notification to, any governmental authority;
(iii) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise
to any right of termination, cancellation or acceleration or lien
or other charge or encumbrance) under, any of the terms, conditions
or provisions of any material note, license, agreement or other
instrument or obligation to which Seller or any of its assets may
be bound; or (iv) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Seller or its
assets.
|
|
|
|
|
|
|
|
(d)
|
|
Ownership of Securities
. Seller is the
beneficial and record owner of the Securities, free and clear of
any encumbrance.
|
|
|
|
|
|
|
|
(e)
|
|
Litigation . There is no action, proceeding or
investigation pending to which Seller is a party or, to
Seller’s knowledge, threatened, against Seller, which
questions the validity of this Agreement or impairs the ability of
Seller to consummate the Sale.
|
|
|
|
|
|
|
|
(f)
|
|
Fair Value . The Purchase Price represents fair
value to Seller for the Securities.
|
4.
Representations and Warranties of Purchasers . Each
Purchaser, severally and not jointly, hereby represents and
warrants to Seller that:
|
|
(a)
|
|
Purchase Entirely for Own
Account . The
Securities will be acquired for investment for such
Purchaser’s own account, not as a nominee or agent, and not
with a view to the resale or distribution of any part thereof. Such
Purchaser has no present intention of selling, granting any
participation in, or otherwise distributing the same. Such
Purchaser does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect
to any of the Securities.
|
|
|
|
|
|
|
|
(b)
|
|
Accredited Investor
. Such Purchaser
acknowledges that it/he/she is an “accredited investor”
within the meaning of Rule 501 under the Securities Act of
1933, as amended (the “ Act ”) as presently in
effect.
|
3
|
|
(c)
|
|
Restricted Securities
. Such Purchaser
understands that the Securities have not been sold pursuant to a
registration statement under the Act, or under the laws of any
jurisdiction and that the Securities are characterized as
“restricted securities” under the federal securities
laws inasmuch as they are being acquired in a transaction not
involving a public offering and that under such laws and applicable
regulations such securities may be resold without registration
under the Act only in certain limited circumstances. In this
connection, such Purchaser represents that it is familiar with
Rule 144 under the Act, as presently in effect, and
understands the resale limitations imposed thereby and by the Act,
including without limitation, the Rule 144 condition that
current information about the Company be made available to the
public.
|
|
|
|
|
|
|
|
(d)
|
|
Acknowledgments
. Such Purchaser is
aware that: (i) investment in the Securities involves a high
degree of risk, lack of liquidity and substantial restrictions on
transferability of interest, and (ii) no federal or state
agency or any other government or governmental agency has made any
finding or determination as to the fairness for investment by the
public, nor any recommendation or endorsement of the
Securities.
|
|
|
|
|
|
|
|
(e)
|
|
Reliance on Exemptions
. Such Purchaser
understands that the Securities are being offered and sold to it in
reliance on specific exemptions from the registration requirements
of United States federal and state securities laws and that the
Seller is relying in part upon the truth and accuracy of, and such
Purchaser’s compliance with, the representations, warranties,
agreements, acknowledgments and understandings of such Purchaser
set forth herein in order to determine the availability of such
exemptions and the eligibility of such Purchaser to acquire the
Securities.
|
|
|
|
|
|
|
|
(f)
|
|
Validity, Enforcement
. This Agreement has
been duly and validly authorized, executed and delivered on behalf
of such Purchaser and shall constit
|
|
