Exhibit 2.2
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "AMENDMENT") is made
and entered into as of May 26, 2004 by and among Workstream Inc., a corporation
organized under the laws of Canada ("PURCHASER"), Kadiri, Inc., a California
corporation ("Kadiri"), and Workstream Acquisition III, Inc., a Delaware
corporation and wholly-owned subsidiary of Purchaser (the "MERGER SUB") and Xxxx
XxXxxxx as stockholder representative ("Stockholder Representative"), to amend
that certain Agreement and Plan of Merger by and among Purchaser, Kadiri and the
Merger Sub (the "AGREEMENT"). All capitalized terms not otherwise defined herein
will have the meanings given to such terms in the Agreement.
RECITALS
WHEREAS, the parties to the Agreement wish to amend certain terms of the
Agreement;
NOW, THEREFORE, in consideration of the foregoing recital, and for other
good and valuable, consideration, the parties hereto agree as follows:
1. MODIFICATION OF SECTION 2.4. Section 2.4 of the Agreement is hereby
amended and restated in its entirety as follows:
"2.4 CERTIFICATE OF INCORPORATION; BYLAWS; DIRECTORS AND OFFICERS.
(a) At the Effective Time, the Certificate of Incorporation of the
Surviving Corporation shall be as set out on Schedule 2.4
until thereafter amended as provided by law.
(b) At the Effective Time, the Bylaws of the Corporation, as in
effect immediately prior to the Effective Time, shall be the
Bylaws of the Surviving Corporation until thereafter amended.
(c) The initial directors of the Surviving Corporation shall be
the directors of Merger Sub immediately prior to the Effective
Time, until their respective successors are duly elected or
appointed and qualified. The initial corporate officers of the
Surviving Corporation shall be the corporate officers of
Merger Sub immediately prior to the Effective Time, until
their respective successors are duly appointed."
2. SCHEDULE 2.4 TO THE AGREEMENT is attached hereto as Appendix "A".
3. MODIFICATION OF SECTION 10.3. Section 10.3 of the Agreement is hereby
amended and restated in its entirety as follows:
"10.3 RECOVERY FOR INDEMNIFICATION CLAIMS.
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In the event that Purchaser is entitled to indemnification from the
Corporation Stockholders pursuant to the terms of this Agreement for
breaches of the Corporation's representations and warranties contained in
Sections 4.3 and 4.32, such indemnification may be recovered by deducting
the amount of such Claims from the Escrow Shares described in Section 2(c)
of the Escrow Agreement by instructing the Escrow Agent to return a number
of Escrow Shares to the Purchaser equal to the value of such Claim based
on the Merger Price Per Share."
4. MISCELLANEOUS.
(a) Survival. Except as modified hereby, the Agreement continues in
full force and effect, unmodified in any way.
(b) Governing Law. This Amendment shall be governed and construed in
accordance with the laws of the State of Delaware and the federal laws of the
United States of America applicable in the State of Delaware, and without regard
to the conflict of laws principles applicable in such jurisdiction.
(c) Counterparts. This Amendment 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 amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment and
have caused this Amendment to be delivered as of the date first above written.
WORKSTREAM INC. KADIRI, INC.
Per: /s/ Xxxxxxx Xxxxxxxxx Per: /s/ Xxx Xxxxxxxx
--------------------- ----------------------
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxx Xxxxxxxx
Title: Chief Executive Officer Title: President & CEO
WORKSTREAM ACQUISITION III, INC.
Per: /s/ Xxxxxxx Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
/s/ Xxxxx Xxxxxx /s/ Xxxx XxXxxxx
------------------- ------------------------------
Witness Xxxx XxXxxxx,
as Stockholder Representative
[SIGNATURE PAGE TO AMENDMENT TO AGREEMENT AND PLAN OF MERGER]
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APPENDIX "A"
SCHEDULE 2.4
ARTICLE I
The name of the Corporation is Kadiri Inc. (the "Corporation").
ARTICLE II
The purpose of this Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated under the California
Corporations Code.
ARTICLE III
The aggregate number of shares which this Corporation shall have the
authority to issue is One Thousand (1,000) and such shares shall be designated
as Common Stock, par value $.001 per share.
ARTICLE IV
1. Limitation of Directors' Liability. The liability of the directors of
this Corporation for monetary damages shall be eliminated to the fullest extent
permissible under California law.
2. Indemnification of Corporate Agents. This Corporation is authorized to
provide indemnification of agents (as defined in Section 317 of the California
Corporation Code) through bylaw provisions, agreements with agents, votes of
shareholders or disinterested directors or otherwise, in excess of the
indemnification otherwise permitted by Section 317 of the California
Corporations Code, subject only to the applicable limits set forth in Section
204 of the California Corporations Code with respect to actions for breach of
duty to this Corporation and its shareholders.
3. Amendment, Repeal or Modification. Any amendment, repeal or
modification of the foregoing provisions of this ARTICLE IV shall not adversely
affect any right of indemnification or limitation of liability of an agent of
this Corporation relating to acts or omissions occurring prior to such
amendment, repeal or modification.
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