EXHIBIT 4.9
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is made and entered
into as of the 31st day of December, 2003 by and among Workstream Inc., a
corporation incorporated under the laws of Canada (the "Company"), and the
Purchasers.
The parties hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Affiliate" means, with respect to any person, any other person which
directly or indirectly controls, is controlled by, or is under common control
with, such person.
"Agent Securities Purchase Agreement" means the securities purchase
agreement dated the date hereof by and between the Company and Sunrise
Securities Corporation ("Sunrise");
"Business Day" means a day, other than a Saturday or Sunday, on which
banks in Xxx Xxxx Xxxx xxx Xxxxxx, Xxxxxxx are open for the general transaction
of business.
"Common Shares" shall mean the Company's Common Shares, and any securities
into which such shares may hereinafter be reclassified.
"Letter Agreement" shall mean the letter agreement dated the date hereof
by and between the Company, Sunrise and Low wherein Sunrise appointed Low as its
designee.
"Low" means Xxxxxx Low, an adult individual.
"Low's Warrant Shares" means the Common Shares issuable upon the exercise
of the Low's Warrants.
"Low's Warrants" means the warrants to purchase Common Shares issued to
Low pursuant to the Agent Securities Purchase Agreement and the Letter
Agreement.
"Pequot Purchasers" means Pequot Scout Fund, L.P., Pequot Navigator
Offshore Fund, Inc. and Pequot Navigator Onshore Fund, L.P., collectively.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Purchasers" or "Purchaser" shall mean the persons and entities set forth
on Schedule A attached hereto and, if applicable, any transferee or assignee
thereof to whom the rights under this Agreement are assigned in accordance with
Section 7(c) hereof, provided that the shareholder or such transferee or
assignee shall then own the Registrable Securities.
"Register," "registered" and "registration" refer to a registration made
by preparing and filing a Registration Statement or similar document in
compliance with the 1933 Act (as defined below), and the declaration or ordering
of effectiveness of such Registration Statement or document.
"Registrable Securities" shall mean the Shares, and the Common Shares
issuable (i) upon the exercise of the Low's Warrants, if any, and (ii) any other
securities issued or issuable with respect to or in exchange for Registrable
Securities; provided, that, a security shall cease to be a Registrable Security
upon (A) sale pursuant to a Registration Statement or Rule 144 under the 1933
Act, or (B) such security becoming eligible for sale by the Purchasers pursuant
to Rule 144(k).
"Registration Statement" shall mean any registration statement of the
Company filed under the 1933 Act that covers the resale of any of the
Registrable Securities pursuant to the provisions of this Agreement, amendments
and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
"Securities Purchase Agreements" means the securities purchase agreements
dated the date hereof by and between the Company and each of the Pequot
Purchasers.
"SEC" means the U.S. Securities and Exchange Commission.
"SEC Filings" means the Company's most recent Form 10-K for the fiscal
year ended May 31, 2003 and all other reports, schedules, forms or statements
filed by the Company or its subsidiaries with the SEC under the 1933 Act or the
1934 Act on or during the 18 months preceding the date hereof;
"Shares" means the Common Shares issued pursuant to the terms of the Agent
Securities Purchase Agreement and the Securities Purchase Agreements.
"1933 Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
2. Registration.
(a) Registration Statements. Promptly following the closing of
the purchase and sale of the securities contemplated by the Agent Securities
Purchase Agreement and the Securities Purchase Agreements (the "Closing Date")
but no later than forty-five (45) days after the Closing Date (the "Filing
Deadline"), the Company shall prepare and file with the SEC one Registration
Statement on Form S-3 (or, if Form S-3 is not then available to the Company, on
such form of registration statement as is then available to effect a
registration for resale of the Registrable Securities, subject to the
Purchasers' consent), covering the resale of the Registrable Securities in an
amount at least equal to the number of Shares plus the Common Shares necessary
to permit the exercise in full of the Low's Warrants. Such Registration
Statement also shall cover, to the extent allowable under the 1933 Act and the
rules promulgated thereunder (including Rule 416), such indeterminate number of
additional Common Shares resulting from stock splits, stock dividends or similar
transactions with respect to the Registrable Securities. The Registration
Statement (and each amendment or supplement thereto, and each request for
acceleration of effectiveness thereof) shall be provided in accordance with
Section 3(c) to the Purchasers and their counsel prior to its filing or other
submission. If a Registration Statement covering the Registrable Securities is
not filed with the SEC on or prior to the Filing Deadline, the Company will make
pro rata payments to each Purchaser, as liquidated damages and not as a penalty,
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in an amount equal to 1.5% of the aggregate amount invested by the Pequot
Purchasers for each 30-day period or pro rata for any portion thereof following
the date by which such Registration Statement should have been filed for which
no Registration Statement is filed with respect to the Registrable Securities.
Such payments shall be in partial compensation to the Purchasers, and shall not
constitute the Purchasers' exclusive remedy for such events. Such payments shall
be made to each Purchaser in cash.
(b) Expenses. The Company will pay all expenses associated
with each registration, including filing and printing fees, counsel and
accounting fees and expenses, costs associated with clearing the Registrable
Securities for sale under applicable state securities laws, listing fees and the
Purchasers' reasonable expenses in connection with the registration, but
excluding discounts, commissions, attorney's fees, fees of underwriters, selling
brokers, dealer managers or similar securities industry professionals with
respect to the Registrable Securities being sold.
(c) Effectiveness.
(i) The Company shall use commercially reasonable efforts to
have the Registration Statement declared effective as soon as practicable. The
Company shall notify the Purchasers by facsimile or e-mail as promptly as
practicable, and in any event, within two (2) Business Days, after any
Registration Statement is declared effective and shall with two (2) Business
Days provide the Purchasers with copies of any related Prospectus to be used in
connection with the sale or other disposition of the securities covered thereby.
(ii) No more than twice in any twelve (12) month period for an
aggregate of not more than thirty (30) days, the Company may delay the
disclosure of material non-public information concerning the Company, by
suspending the use of any Prospectus included in any registration contemplated
by this Section containing such information, the disclosure of which at the time
is not, in the good faith opinion of the Company, in the best interests of the
Company (an "Allowed Delay"); provided, that the Company shall promptly (a)
notify the Purchasers in writing of the existence of (but in no event, without
the prior written consent of a Purchaser, shall the Company disclose to such
Purchaser any of the facts or circumstances regarding) material non-public
information giving rise to an Allowed Delay, and (b) advise the Purchasers in
writing to cease all sales under the Registration Statement until the end of the
Allowed Delay.
(d) Underwritten Offering. If any offering pursuant to a
Registration Statement pursuant to Section 2(a) hereof involves an underwritten
offering, the Company shall have the right to select an investment banker and
manager to administer the offering, which investment banker or manager shall be
reasonably satisfactory to the Purchasers.
3. Company Obligations. The Company will use commercially reasonable
efforts to effect the registration of the Registrable Securities in accordance
with the terms hereof, and pursuant thereto the Company will, as expeditiously
as possible:
(a) use commercially reasonable efforts to cause such
Registration Statement to become effective and to remain continuously effective
for a period that will terminate upon the earlier of (i) the date on which all
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Registrable Securities covered by such Registration Statement as amended from
time to time, have been sold, and (ii) the date on which all Registrable
Securities covered by such Registration Statement may be sold pursuant to Rule
144(k);
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement and the Prospectus as
may be necessary to keep the Registration Statement effective for the period
specified in Section 3(a) and to comply with the provisions of the 1933 Act and
the 1934 Act with respect to the distribution of all of the Registrable
Securities covered thereby;
(c) provide copies to and permit counsel designated by the
Purchasers to review each Registration Statement and all amendments and
supplements thereto no fewer than three (3) Business Days prior to their filing
with the SEC and not file any document to which such counsel reasonably objects;
(d) furnish to the Purchasers and their legal counsel (i)
promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company (but not later than two (2) Business Days after
the filing date, receipt date or sending date, as the case may be) one (1) copy
of any Registration Statement and any amendment thereto, each preliminary
prospectus and Prospectus and each amendment or supplement thereto, and each
letter written by or on behalf of the Company to the SEC or the staff of the
SEC, and each item of correspondence from the SEC or the staff of the SEC, in
each case relating to such Registration Statement (other than any portion of any
thereof which contains information for which the Company has sought confidential
treatment), and (ii) such number of copies of a Prospectus, including a
preliminary prospectus, and all amendments and supplements thereto and such
other documents as each Purchaser may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such Purchaser that are
covered by the related Registration Statement;
(e) in the event the Company selects an underwriter for the
offering, the Company shall enter into and perform its reasonable obligations
under an underwriting agreement, in usual and customary form, including, without
limitation, customary indemnification and contribution obligations, with the
underwriter of such offering;
(f) if required by the underwriter, or if any Purchaser is
described in the Registration Statement as an underwriter, the Company shall
furnish, on the effective date of the Registration Statement (except with
respect to clause (i) below) and on the date that Registrable Securities are
delivered to an underwriter, if any, for sale in connection with the
Registration Statement (including any Purchaser deemed to be an underwriter),
(i) (A) in the case of an underwritten offering, an opinion, dated as of the
closing date of the sale of Registrable Securities to the underwriters, from
independent legal counsel representing the Company for purposes of such
Registration Statement, in form, scope and substance as is customarily given in
an underwritten public offering, addressed to the underwriters and the
Purchasers participating in such underwritten offering or (B) in the case of an
"at the market" offering, an opinion, dated as of or promptly after the
effective date of the Registration Statement to the Purchasers, from independent
legal counsel representing the Company for purposes of such Registration
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Statement, in form, scope and substance as is customarily given in a public
offering, addressed to the Purchasers, and (ii) a letter, dated as of the
effective date of such Registration Statement and confirmed as of the applicable
dates described above, from the Company's independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters (including any Purchaser deemed to be an
underwriter);
(g) use commercially reasonable efforts to (i) prevent the
issuance of any stop order or other suspension of effectiveness and, (ii) if
such order is issued, obtain the withdrawal of any such order at the earliest
possible moment;
(h) prior to any public offering of Registrable Securities,
use commercially reasonable efforts to register or qualify or cooperate with the
Purchasers and their counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions requested by the Purchasers
and do any and all other commercially reasonable acts or things necessary or
advisable to enable the distribution in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, however, that the
Company shall not be required in connection therewith or as a condition thereto
to (i) qualify to do business in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(h), (ii) subject itself to general
taxation in any jurisdiction where it would not otherwise be so subject but for
this Section 3(h), or (iii) file a general consent to service of process in any
such jurisdiction;
(i) use commercially reasonable efforts to cause all
Registrable Securities covered by a Registration Statement to be listed on each
securities exchange, interdealer quotation system or other market on which
similar securities issued by the Company are then listed;
(j) immediately notify the Purchasers, at any time when a
Prospectus relating to Registrable Securities is required to be delivered under
the 1933 Act, upon discovery that, or upon the happening of any event as a
result of which, the Prospectus included in a Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and at the
request of any such holder, promptly prepare and furnish to such holder a
reasonable number of copies of a supplement to or an amendment of such
Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; and
(k) otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the SEC under the 1933 Act and the
1934 Act, take such other actions as may be reasonably necessary to facilitate
the registration of the Registrable Securities hereunder;
(l) With a view to making available to the Purchasers the
benefits of Rule 144 (or its successor rule) and any other rule or regulation of
the SEC that may at any time permit the Purchasers to sell Common Shares to the
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public without registration, the Company covenants and agrees to: (i) make and
keep public information available, as those terms are understood and defined in
Rule 144, until the earlier of (A) six months after such date as all of the
Registrable Securities may be resold pursuant to Rule 144(k) or any other rule
of similar effect or (B) such date as all of the Registrable Securities shall
have been resold; (ii) file with the SEC in a timely manner all reports and
other documents required of the Company under the 1934 Act; and (iii) furnish to
each Purchaser upon request, as long as such Purchaser owns any Registrable
Securities, (A) a written statement by the Company that it has complied with the
reporting requirements of the 1934 Act, (B) a copy of the Company's most recent
Annual Report on Form 10-K, and (C) such other information as may be reasonably
requested in order to avail such Purchaser of any rule or regulation of the SEC
that permits the selling of any such Registrable Securities without
registration.
4. Due Diligence Review; Information.
(a) Subject to Section 4(b) below, the Company shall make
available, during normal business hours, for inspection and review by the
Purchasers, advisors to and representatives of the Purchasers (who may or may
not be affiliated with the Purchasers and who are reasonably acceptable to the
Company), any underwriter participating in any disposition of Common Shares on
behalf of the Purchasers pursuant to a Registration Statement or amendments or
supplements thereto or any blue sky, NASD or other filing, all financial and
other records, all SEC Filings and other filings with the SEC, and all other
corporate documents and properties of the Company as may be reasonably necessary
for the purpose of such review, and cause the Company's officers, directors and
employees, within a reasonable time period, to supply all such information
reasonably requested by the Purchasers or any such representative, advisor or
underwriter in connection with such Registration Statement (including, without
limitation, in response to all questions and other inquiries reasonably made or
submitted by any of them), prior to and from time to time after the filing and
effectiveness of the Registration Statement for the sole purpose of enabling the
Purchasers and such representatives, advisors and underwriters and their
respective accountants and attorneys to conduct initial and ongoing due
diligence with respect to the Company and the accuracy of such Registration
Statement.
(b) The Company shall not disclose material nonpublic
information to the Purchasers, or to advisors to or representatives of the
Purchasers, unless prior to disclosure of such information the Company
identifies such information as being material nonpublic information and provides
the Purchasers, such advisors and representatives with the opportunity to accept
or refuse to accept such material nonpublic information for review and any
Purchaser wishing to obtain such information enters into an appropriate
confidentiality agreement with the Company with respect thereto.
5. Obligations of the Purchasers.
(a) Each Purchaser shall furnish in writing to the Company
such information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it, as
shall be reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such registration
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as the Company may reasonably request. At least five (5) Business Days prior to
the first anticipated filing date of any Registration Statement, the Company
shall notify each Purchaser of the information the Company requires from such
Purchaser if such Purchaser elects to have any of the Registrable Securities
included in the Registration Statement. A Purchaser shall provide such
information to the Company at least two (2) Business Days prior to the first
anticipated filing date of such Registration Statement if such Purchaser elects
to have any of the Registrable Securities included in the Registration
Statement.
(b) Each Purchaser, by its acceptance of the Registrable
Securities agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of a Registration
Statement hereunder, unless such Purchaser has notified the Company in writing
of its election to exclude all of its Registrable Securities from such
Registration Statement.
(c) In the event the Company, at the request of the
Purchasers, determines to engage the services of an underwriter, such Purchaser
agrees to enter into and perform its obligations under an underwriting
agreement, in usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the managing underwriter of
such offering and take such other actions as are reasonably required in order to
expedite or facilitate the dispositions of the Registrable Securities.
(d) Each Purchaser agrees that, upon receipt of any notice
from the Company of either (i) the commencement of an Allowed Delay pursuant to
Section 2(c)(ii) or (ii) the happening of an event pursuant to Section 3(j)
hereof, such Purchaser will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities, until the Purchaser's receipt of the copies of the supplemented or
amended prospectus filed with the SEC and declared effective and, if so directed
by the Company, the Purchaser shall deliver to the Company (at the expense of
the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies in the Purchaser's possession of the Prospectus covering
the Registrable Securities current at the time of receipt of such notice.
(e) No Purchaser may participate in any third party
underwritten registration hereunder unless it (i) agrees to sell the Registrable
Securities on the basis provided in any underwriting arrangements in usual and
customary form entered into by the Company, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions. Notwithstanding the foregoing, no Purchaser shall be
required to make any representations to such underwriter, other than those with
respect to itself and the Registrable Securities owned by it, including its
right to sell the Registrable Securities, and any indemnification in favor of
the underwriter by the Purchasers shall be several and not joint and limited in
the case of any Purchaser, to the proceeds received by such Purchaser from the
sale of its Registrable Securities. The scope of any such indemnification in
favor of an underwriter shall be limited to the same extent as the indemnity
provided in Section 6(b) hereof.
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6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify
and hold harmless each Purchaser and its officers, directors, members, employees
and agents, successors and assigns, and each other person, if any, who controls
such Purchaser within the meaning of the 1933 Act, against any losses, claims,
damages or liabilities, joint or several, to which they may become subject under
the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon: (i)
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof; (ii) any blue sky
application or other document executed by the Company specifically for that
purpose or based upon written information furnished by the Company filed in any
state or other jurisdiction in order to qualify any or all of the Registrable
Securities under the securities laws thereof (any such application, document or
information herein called a "Blue Sky Application"); (iii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; (iv) any violation
by the Company or its agents of any rule or regulation promulgated under the
1933 Act applicable to the Company or its agents and relating to action or
inaction required of the Company in connection with such registration; or (v)
any failure to register or qualify the Registrable Securities included in any
such registration in any state where the Company or its agents has affirmatively
undertaken or agreed in writing that the Company will undertake such
registration or qualification on a Purchaser's behalf (the undertaking of any
underwriter chosen by the Company being attributed to the Company) and will
reimburse such Purchaser, and each such officer, director or member and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by such Purchaser or any such controlling person in writing
specifically for use in such Registration Statement or Prospectus.
(b) Indemnification by the Purchasers. In connection with any
registration pursuant to the terms of this Agreement, each Purchaser will
furnish to the Company in writing such information as the Company reasonably
requests concerning the holders of Registrable Securities or the proposed manner
of distribution for use in connection with any Registration Statement or
Prospectus and agrees, severally but not jointly, to indemnify and hold
harmless, to the fullest extent permitted by law, the Company, its directors,
officers, employees, stockholders and each person who controls the Company
(within the meaning of the 0000 Xxx) against any losses, claims, damages,
liabilities and expense (including reasonable attorney fees) resulting from any
untrue statement of a material fact or any omission of a material fact required
to be stated in the Registration Statement or Prospectus or preliminary
prospectus or amendment or supplement thereto or necessary to make the
statements therein not misleading, to the extent, but only to the extent that
such untrue statement or omission is contained in any information furnished in
writing by such Purchaser to the Company specifically for inclusion in such
Registration Statement or Prospectus or amendment or supplement thereto. In no
event shall the liability of a Purchaser be greater in amount than the dollar
amount of the proceeds (net of all expense paid by such Purchaser in connection
with any claim relating to this Section 6 and the amount of any damages such
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holder has otherwise been required to pay by reason of such untrue statement or
omission) received by such Purchaser upon the sale of the Registrable Securities
included in the Registration Statement giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. Any person
entitled to indemnification hereunder shall (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person unless (a)
the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party with
respect to such claims (in which case, if the person notifies the indemnifying
party in writing that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such person); and
provided, further, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
hereunder, except to the extent that such failure to give notice shall
materially adversely affect the indemnifying party in the defense of any such
claim or litigation. It is understood that the indemnifying party shall not, in
connection with any proceeding in the same jurisdiction, be liable for fees or
expenses of more than one separate firm of attorneys at any time for all such
indemnified parties. No indemnifying party will, except with the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect of such claim or litigation.
(d) Contribution. If for any reason the indemnification
provided for in the preceding paragraphs (a) and (b) is unavailable to an
indemnified party or insufficient to hold it harmless, other than as expressly
specified therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such loss, claim, damage
or liability in such proportion as is appropriate to reflect the relative fault
of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations. No person guilty of fraudulent
misrepresentation within the meaning of Section 11(f) of the 1933 Act shall be
entitled to contribution from any person not guilty of such fraudulent
misrepresentation. In no event shall the contribution obligation of a holder of
Registrable Securities be greater in amount than the dollar amount of the
proceeds (net of all expenses paid by such holder in connection with any claim
relating to this Section 6 and the amount of any damages such holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission) received by it upon the sale of the
Registrable Securities giving rise to such contribution obligation.
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7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended only
by a writing signed by the Company and the Purchasers. The Company may take any
action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company shall have obtained the written consent to
such amendment, action or omission to act, of Low, having first received
approval of the Purchasers.
(b) Notices. Any notice or other communication to be given
hereunder shall be in writing and shall be given by delivery or by telecopier,
as follows:
if to the Company:
Workstream Inc.
000 Xxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxx
X0X 0X0
Attention: Mr. Xxxxxxx Xxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx-Xxxxxxxxx, Hill and XxXxxxxxx LLP
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
or if to the Pequot Purchasers:
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Attention:
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Fax:
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or if to Low:
Attention:
Fax:
and if so given, shall be deemed to have been given and received upon receipt by
the addressee or a responsible officer of the addressee if delivered, or four
hours after being telecopied and receipt confirmed during normal business hours
at the location of the recipient, as the case may be. Any party may, at any
time, give notice in writing to the others in the manner provided for above of
any change of address or telecopier number.
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(c) Assignments and Transfers by Purchasers. The provisions of
this Agreement shall be binding upon and inure to the benefit of the Purchasers
and their respective successors and assigns. A Purchaser may transfer or assign,
in whole or from time to time in part, to one or more persons its rights
hereunder in connection with the transfer of Registrable Securities by such
Purchaser to such person, provided that such Purchaser complies with all laws
applicable thereto and provides written notice of assignment to the Company
promptly after such assignment is effected. Further, any transferee or assignee
to whom rights under this Agreement are transferred shall, as a condition to
such transfer, deliver to the Company a written instrument pursuant to which
such transferee or assignee agrees to be bound by the obligations imposed upon
the Purchaser under this Agreement to the same extent as if such transferee were
an original Purchaser hereunder.
(d) Assignments and Transfers by the Company. This Agreement
may not be assigned by the Company (whether by operation of law or otherwise)
without the prior written consent of the Purchasers, provided, however, that the
Company may assign its rights and delegate its duties hereunder to any surviving
or successor corporation in connection with a merger or consolidation of the
Company with another corporation, or a sale, transfer or other disposition of
all or substantially all of the Company's assets to another corporation, without
the prior written consent of the Purchasers, after notice duly given by the
Company to each Purchaser.
(e) Benefits of the Agreement. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
(f) Counterparts; Faxes. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement may
also be executed via facsimile, which shall be deemed an original.
(g) Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(h) Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
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jurisdiction. To the extent permitted by applicable law, the parties hereby
waive any provision of law which renders any provisions hereof prohibited or
unenforceable in any respect.
(i) Further Assurances. The parties shall execute and deliver
all such further instruments and documents and take all such other actions as
may reasonably be required to carry out the transactions contemplated hereby and
to evidence the fulfillment of the agreements herein contained.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
(k) Governing Law; Consent to Jurisdiction. Governing Law;
Venue; Waiver of Jury Trail. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THE COMPANY AND EACH PURCHASER HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK,
BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT BY THE COMPANY
OR ANY PURCHASER HEREUNDER, IN CONNECTION HEREWITH OR WITH ANY TRANSACTION
CONTEMPLATED HEREBY OR DISCUSSED HEREIN, AND HEREBY IRREVOCABLY WAIVE, AND AGREE
NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY OR ANY
PURCHASER, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY
HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF
VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF
DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS
AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED
TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
THE COMPANY AND EACH PURCHASER HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused
their duly authorized officers to execute this Agreement as of the date first
above written.
The Company: WORKSTREAM INC.
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President and Chief Executive Officer
The Purchasers:
By:_____________________________
Name:
Title:
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SCHEDULE A
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PURCHASERS
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Xxxxxx Low
Pequot Scout Fund, L.P.
Pequot Navigator Offshore Fund, Inc.
Pequot Navigator Onshore Fund, L.P.
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