SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
000-27507 88-0350448
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(Commission File Number) (IRS Employer
Identification No.)
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On April 2, 2004, the registrant filed a current report on Form 8-K disclosing the sale of the registrant's products for employee climate survey, skills/competency measurement, performance management and corporate compliance management to Workstream Inc., a Canadian corporation. This filing amends the original April 2, 2004, filing and discloses changes to the transaction as documented on May 27, 2004, by an Addendum to Asset Purchase Agreement and Escrow Agreement, a copy of which is attached to this filing as Exhibit 2.1.
Item 2. Disposition of Assets.
On March 17, 2004, the registrant sold its products for employee climate survey, skills/competency measurement, performance management and corporate compliance management to Workstream Inc. At the time of the sale, the assets sold constituted the assets underlying all of the business operations of the registrant and all assets related thereto. On May 27, 2004, the parties to the transaction entered into an Addendum to Asset Purchase Agreement and Escrow Agreement which modified some of the terms and conditions of the original transaction. Pursuant to the changes, cash consideration to the registrant was reduced to $250,000 from $300,000 and certain stock consideration to the registrant was reduced to 246,900 common shares of Workstream Inc. from 350,000 common shares. Other terms and conditions of the original transaction remained the same. The changes to the original transaction were arrived at through arms length negotiations between the parties and were prompted by events that occurred after the original sale.
Item 7. Exhibits
Exhibit No. Description
2.1 Addendum to Asset Purchase Agreement and Escrow
Agreement
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
AUXILIO, INC.
By: /s/ Janes P. Stapleton
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James P. Stapleton
Date: August 2, 2004 Chief Financial Officer
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ADDENDUM TO ASSET PURCHASE AGREEMENT
AND ESCROW AGREEMENT
THIS ADDENDUM DATED AS OF MAY 27, 2004 (THIS"ADDENDUM") AMENDS AND MODIFIES THE THE ASSET PURCHASE AGREEMENT DATED MARCH 17TH, 2004 BETWEEN WORKSTREAM INC., WORKSTREAM USA, INC. AND PEOPLEVIEW, INC. (THE"ASSET PURCHASE AGREEMENT") AND THE ESCROW AGREEMENT DATED MARCH 17TH, 2004 BETWEEN WORKSTREAM INC., WORKSTREAM USA, INC., PEOPLEVIEW, INC. AND BORDEN LADNER GERVAIS LLP AS ESCROW AGENT (THE"ESCROW AGREEMENT").
PeopleView, Inc. hereby agrees to the following adjustments in the Purchase Price of the aforementioned Asset Purchase Agreement:
1. PeopleView, Inc. agrees that the stock consideration will be reduced from 350,000 common shares, as stated in Section 2.5.1 of the Asset Purchase Agreement to 262,500 common shares, effectively equaling 75% of the original amount of the Asset Purchase Agreement.
2. In addition, PeopleView, Inc. agrees to further reduce the amount of common shares they anticipate to receive by $39,000 or 15,600 common shares at $2.50 per share. This amount is equal to the total amount of outstanding invoices owed by PeopleView to Prosys, Inc. for the final development and delivery of the HCM Tools asset. These Invoices are attached as schedule A to this addendum.
3. The actions described in paragraphs 1 and 2 herein will bring the total amount of common shares to be delivered by Workstream Inc. to PeopleView, Inc. as part of the Asset Purchase Agreement to 246,900 common shares.
4. PeopleView, Inc. agrees to forgo the"Cash Hold Back Funds" of $50,000 as stated in Section 2.5.3 of the Asset Purchase Agreement.
5. Workstream Inc. agrees to uphold Section 2.5.2 of the Asset Purchase Agreement, which states"by delivery to the Vendor of a warrant to purchase 50,000 common shares (the"Warrant Shares"), no par value in Workstream at a purchase price of $3.00 per common share (the"Warrant").
6. Workstream, Inc. agrees to deliver the share certificates and the warrant agreement within seven (7) days of the execution of this addendum.
7. The parties to the Escrow Agreement agree to: (a) delete Recital D and all mention of the"Hold Back Funds" from the Escrow Agreement; and (b) delete section 4 and Schedule"B" of the Escrow Agreement in its entirety.
8. Except as modified hereby, the Asset Purchase Agreement and the Escrow Agreement continues in full force and effect, unmodified in any way.
9. All capitalized terms not otherwise defined herein will have the meanings given to such terms in the Asset Purchase Agreement.
10. This Addendum shall be governed by and interpreted in accordance with the laws of the state of New York without reference to the conflicts of law provisions thereof.
11. This Addendum 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.
12. Each of Workstream Inc. and Workstream USA, Inc., (each, a"Releasor"), for good and valuable consideration, the sufficiency of which is hereby acknowledged, releases and discharges, as of the date of this Addendum, PeopleView, Inc. and PeopleView Inc.'s past and present employees, officers, directors, shareholders, successors, predecessors, affiliates, subsidiaries, parent companies, assigns, and every other individual, person, corporation, partnership, proprietorship and other entity in the world, including but not limited to all governmental bodies, departments and agencies (all collectively referred to herein as the"Released Parties") from all obligations, actions, causes of action, debts, claims, liabilities, covenants, contracts, controversies, agreements, promises, claims for attorneys fees and costs (all collectively referred to herein as the"Released Claims"), which such Releasor, such Releasor's heirs, executors, administrators successors and assigns ever had, now have or hereafter may have arising out of or relating to the functionality, fitness, features, completion or non-completion and performance of the software products known asClimate Sight,Skill Sight, Performance Sight, Compliance Sight and HCM TOOLS. The Releasors each acknowledge and agree as follows:
- That all computer systems and application software, including without limitation, the software products known as Climate Sight, Skill Sight, Performance Sight, Compliance Sight and HCM TOOLS and all documentation relating thereto and the latest revisions of all related object and source codes therefor, forming part of the Purchased Assets are fully functional, merchantable and fit for the purpose for which they were intended.
It is understood and agreed by Releasor that it may have sustained damages,
losses, costs or expenses for which it might have made claims against the
Released Parties that are presently unknown or unsuspected and that such
damages, losses, costs and expenses may give rise to additional damages, loses,
costs or expenses in the future. It is specifically acknowledged by Releasor
that the foregoing release and waiver set forth below has been agreed upon and
given in light of such facts and that the release is intended to release the
Released Parties from potential liabilities for all such damages, losses, costs
and expenses. Should any provision, part or term of this Section 12 be declared
or determined by a court of competent jurisdiction to be illegal, invalid or
unenforceable, the legality, validity and enforceability of the remaining parts,
terms and provisions should not be affected thereby, and said illegal, invalid
or unenforceable part, provision or term shall be deemed not to be part of this
Section 12.
Notwithstanding the aforementioned, the release described in this Section 12 does not limit in any way the Releasors' right to be indemnified pursuant to the Asset Purchase Agreement, except with respect to any claims arising out of or relating to the functionality, fitness, features, completion or non-completion and performance of the software products known as Climate Sight, Skill Sight, Performance Sight, Compliance Sight and HCM TOOLS.
IN WITNESS WHEREOF this Addendum has been executed by the parties hereto as of the date first set forth above.
SIGNED, SEALED AND DELIVERED
PEOPLEVIEW, INC.
Per: /s/ Joseph J. Flynn Title: Chairman & CEO |
WORKSTREAM USA, INC.
Per: /s/ David Polansky Title: CFO WORKSTREAM INC. Per: /s/ David Polansky Title: CFO BORDEN LADNER GERVAIS LLP, AS ESCROW AGENT Per: Title: |