EXHIBIT 10.2
AMENDMENT
TO
ASSET PURCHASE AGREEMENT
This Amendment (this "Amendment") to the Asset Purchase Agreement (the
"Original Purchase Agreement") dated December 20, 2004 by and among WORKSTREAM
INC., a Canadian corporation ("Buyer"), WORKSTREAM USA, INC., a Delaware
corporation and wholly owned subsidiary of Buyer ("Buyer Sub"), and PROACT
TECHNOLOGIES CORP., a Delaware corporation ("Seller"), is entered into this 30th
day of December, 2004 among Buyer, Buyer Sub and Seller.
BACKGROUND
The parties hereto desire to amend the Purchase Agreement as set forth in
this Amendment.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definition of Terms. Capitalized terms used herein and not otherwise
defined shall have the meanings given them in the Purchase Agreement.
2. Amendments. The Purchase Agreement is hereby amended as follows:
(a) Section 8.8 of the Purchase Agreement is hereby deleted in its
entirety and replaced by the following
SECTION 8.8. INDEMNIFICATION CAP. The maximum aggregate liability of
Seller for claims arising under this Article VIII (other than in
respect of (i) the claims related to Xxxxxxxxx x. Xxxxxx and ProAct
v. Online Benefits described on Schedule 4.11 for which no
limitation shall apply, (ii) those with respect to the three former
employees, specifically Xxxx Xxxxxxx, Xxxxxxxxx Xxxxxxxxxxx and
Xxxxxx Xxxxxxx, who do not have agreements regarding inventions and
developments as described in Schedule 4.7(b) which shall be limited
to the aggregate amount of the Purchase Price, (iii) the sales tax
liability referred to on Schedule 4.12 for which no limitation shall
apply, and (iv) the representations and warranties of Seller in
Section 4.2, which shall be limited to the aggregate amount of the
Purchase Price) shall be the aggregate value of the Escrow Shares at
any given time, and such amount shall be Buyer's sole source of
payment in respect thereof. Any indemnity payment by Seller to
Buyer, at Seller's sole option, shall be in the form of (a) cash, or
(b) shares of Buyer common shares the value of which shall be based
on the average of the closing prices for the Buyer's common shares
as quoted on the Nasdaq SmallCap Market for the 20 days that such
Market was open for the transaction of business prior to the date of
delivery to Seller of such shares under this Article VIII.
3. Confirmation of Purchase Agreement. Except as amended and supplemented
by this Amendment, the Purchase Agreement is ratified and confirmed in all
respects. The Purchase Agreement and this Amendment shall be read, taken and
construed as one and the same instrument. To the extent of any inconsistency
between the Purchase Agreement and this Amendment, this Amendment shall govern.
Any future reference to the Purchase Agreement shall mean the Purchase Agreement
as amended by this Amendment.
4. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Delaware (excluding conflict of laws).
5. Counterparts. This Amendment may be executed in any number of duplicate
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. The exchange of copies of
this Amendment and of signature pages by facsimile transmission shall constitute
effective execution and delivery of this Amendment as to the parties and may be
used in lieu of the original Amendment for all purposes. Signature pages of the
parties transmitted by facsimile shall be deemed to be their original signatures
for all purposes.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Amendment as of the date first written above.
WORKSTREAM INC.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxxx
Chief Executive Officer
WORKSTREAM USA, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
Chief Executive Officer
PROACT TECHNOLOGIES CORP.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxx
Chief Financial Officer
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