Exhibit 10.21
JOINDER AGREEMENT
THIS JOINDER AGREEMENT is made as of the 14th day of May, 2002 by and
among Workstream Inc. ("Workstream"), Workstream USA, Inc. ("Workstream USA"),
Sands Brothers Venture Capital IV LLC ("Sands IV"), Sands Brothers Venture
Capital III LLC ("Sands III") (collectively Sands III and Sands IV shall
hereinafter be referred to as "Sands"), and Crestview Capital Fund, L.P.
("Fund"), Crestview Capital Fund II, L.P. ("Fund II") and Crestview Captial
Offshore Fund, Inc. ("Offshore") (Fund, Fund II and Offshore shall hereinafter
collectively referred to as the "Purchasers").
WHEREAS Workstream and Sands are parties to the Amended and Restated
Securities Purchase Agreement, Security Agreement and the Amended and Restated
Registration Rights Agreement, copies of which are attached hereto as Exhibits
"A" through "C", (collectively "Workstream Agreements");
AND WHEREAS Workstream USA and Sands are parties to a Guarantee, a copy
of which is attached hereto as Exhibit "D" (the "Workstream USA Agreement");
AND WHEREAS Purchasers wish to become parties to the Workstream USA
Agreement and the Workstream Agreements;
AND WHEREAS Sands, Workstream and Workstream USA wish to acknowledge
and agree to the joinder of Purchasers to the Workstream USA Agreement and the
Workstream Agreements.
NOW THEREFORE in consideration of the mutual covenants set forth in
this Agreement to effect the joinder of Purchasers to the Workstream Agreements
and the Workstream USA Agreement, the parties hereto covenant and agree as
follows:
1. Purchasers agree to join and become parties to, and Purchasers hereby are
joined as parties to, each and every one of the Workstream Agreements and
the Workstream USA Agreement which will, from the date of this Joinder
Agreement, be binding on Purchasers as though Purchasers had been original
parties thereto.
2. As parties to the Workstream Agreements, each of the Purchasers shall be
defined as: a "Purchaser" in the Amended and Restated Securities Purchase
Agreement attached hereto as Exhibit "A" (the "Securities Purchase
Agreement"); a "Holder" in the Security Agreement attached hereto as
Exhibit "B"; a "Holder" in the Amended and Restated Registration Rights
Agreement attached hereto as Exhibit "C"; and a "Lender" in the Guarantee
Agreement attached hereto as Exhibit "D".
3. Except as modified by the joinder of Purchasers to the Workstream
Agreements and the Workstream USA Agreement specified in paragraph 1, the
Workstream Agreements and Workstream USA Agreement continue in full force
and effect in accordance with the terms and conditions set forth therein.
4. Sands, Workstream and Workstream USA hereby acknowledge and agree to the
joinder of Purchasers to the Workstream Agreements and the Workstream USA
Agreement as specified in paragraph 1 and paragraph 2 herein.
5. Sands and Purchasers hereby acknowledge and agree that any payments or
prepayments by Workstream pursuant to the Workstream Documents shall rank
pari passu among Sands and each of the Purchasers, so that no amounts shall
be paid or prepaid to Sands prior to a proportionate amount being paid or
prepaid to each of the Purchasers.
6. As promptly as possible after the execution and delivery of this Agreement
(but no later than July 31, 2002), Workstream shall cause a meeting of its
stockholders (the "Workstream Stockholder Meeting") to be held (on a date
selected in consultation with Sands and the Purchasers (collectively
referred to as the "Securities Purchasers")) for the purpose of voting on
the approval of the transactions contemplated by the Securities Purchase
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Agreement, including (i) approval and adoption of the Articles of Amendment
attached hereto as Exhibit "E" and (ii) approval of the issuance of the
shares contemplated thereby, either preferred shares or common shares,
(collectively the "Transactions"). The board of directors of Workstream
(the "Board") shall recommend approval and adoption of the Transactions. In
connection with the Workstream Stockholder Meeting, Workstream: (a) shall
prepare and file with SEC, and use its reasonable best efforts to have
cleared by the SEC and will thereafter mail to its stockholders as promptly
as practicable a proxy statement meeting the requirements of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended (the
"Proxy Statement") and all other proxy materials relating to the Workstream
Stockholder Meeting, which Proxy Statement shall include the recommendation
of the Board in favour of the Transactions; (b) shall ensure that all
proxies solicited in connection with the Workstream Stockholder Meeting are
solicited in compliance with all applicable statutes, laws and regulations,
including the rules and regulations promulgated by the SEC; and (c) shall
otherwise comply with applicable law in connection with obtaining the
approval of Workstream's stockholders in connection with the transactions
contemplated thereby. Workstream will provide the Securities Purchasers
with a copy of the preliminary Proxy Statement and all modifications
thereto prior to filing or delivery to the SEC and will consult with the
Securities Purchasers promptly of any receipt of any comments from the SEC
or its staff and of any request by the SEC or its staff for amendments or
supplements to the Proxy Statement or for additional information and will
supply the Securities Purchasers with copies of all correspondence between
the Company or any of its representatives, on the one hand, and the SEC or
its staff, on the other hand, with respect to the Proxy Statement. If at
any time after the mailing of the Proxy Statement to Workstream's
stockholders there shall occur any event that should be set forth in an
amendment or supplement to the Proxy Statement, Workstream will promptly
prepare and mail to its stockholders such an amendment or supplement.
Workstream will not mail any Proxy Statement, or any amendment or
supplement thereto, to which the Securities Purchasers reasonably object.
The Company covenants that the Proxy Statement, including any amendment or
supplement thereto shall not contain any untrue statement or a material
fact or omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading.
7. The benefits granted to Purchasers by virtue of this Joinder Agreement and
the related Workstream Agreements and Workstream USA Agreement may be
assigned to any other person or entity with the consent of all of the
parties hereto, which consent may not be unreasonably withheld. Should such
consent be granted, the provisions of this Joinder Agreement and the
Workstream Agreements and Workstream USA Agreement shall continue in full
force and effect and be binding upon all successors and assigns of
Purchasers.
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8. This Agreement may be executed in counterparts, each of which shall
constitute an original, but all of which taken together shall constitute
one and the same instrument.
9. The parties agree that all matters with respect to the validity,
construction or interpretation of this Joinder Agreement shall be governed
by the internal law of the State of New York and that with respect to the
validity, construction or interpretation of any of the Workstream
Agreements and the Workstream USA Agreement, the provisions of such
respective Agreements concerning applicable law shall control.
10. All notices which are required or permitted by this Joinder Agreement or
the Workstream Agreements or the Workstream USA Agreement shall be provided
to the parties at the following addresses:
if to Workstream or: Workstream Inc.
Workstream USA 000 Xxxxx Xxxx, Xxxxx 000
Xxxxxx, XX X0X 0X0
Xxxxxx
Attention: Xxxxxxx Xxxxxxxxx
with a copy to: Xxxxxx-Xxxxxxxxx, Hill & XxXxxxxxx LLP
00 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX X0X 0X0
Xxxxxx
Attention: Xxxxxxx Xxxxxxx
if to Sands: Sands Brothers Venture Capital III LLC
00 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
X. S. A.
Attention: Xxxxxx Xxxxx
with a copy to: Xxxxxxx, Krooks & Xxxx, P.C.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 00000
U .S. A.
Attention: Xxxxxx Xxxxxxx
if to any Purchasers: Kingsport Capital Partners LLC
00 Xxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
U. S. A.
with a copy to: Xxxx, Xxxxxx & Xxxxxxxxx
0 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
U. S. A.
Attention: Xxxxx Xxxxx
Any party may change its address by notice similarly given. Notice shall be
effective when delivered personally or when mailed (with confirmed receipt), and
notice given by any means other than as set forth above shall not be valid.
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IN WITNESS WHEREOF this Agreement has been executed by the parties
hereto at the date first written above.
SIGNED, SEALED AND DELIVERED WORKSTREAM INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chairman and CEO
WORKSTREAM USA INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: CEO
SANDS BROTHERS VENTURE
CAPITAL III LLC by SB Venture
Capital Management III LLC, Manager
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Manager
SANDS BROTHERS VENTURE
CAPITAL IV LLC by SB Venture
Capital Management IV LLC, Manager
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Manager
CRESTVIEW CAPITAL FUND, L.P.
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Manager
CRESTVIEW CAPITAL FUND II, L.P.
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Manager
CRESTVIEW CAPITAL OFFSHORE FUND, INC.
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Manager
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