EXHIBIT 10.11
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made as of the 27th day of January, 2003
BETWEEN:
XXXXXXX XXXXXXXXX,
of the City of Lake Forest, Illinois, USA
(hereinafter referred to as the "Employee")
AND:
WORKSTREAM INC..,
a corporation incorporated under the laws of Canada
(hereinafter referred to as the "Employer")
WHEREAS:
A. The Employer wishes to employ the Employee and the Employee wishes to
serve the Employer upon the terms and subject to the conditions herein
contained.
NOW THEREFORE in consideration of the premises and the mutual covenants herein
and other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged by each of the parties, the parties hereto covenant and
agree as follows:
1. DEFINITIONS
In this agreement, unless the context otherwise specifies or requires, the
following terms shall have the following meanings:
1.1 "AGREEMENT", "HERETO", "HEREIN", "HEREOF", "HEREUNDER" and similar
expressions refer to this Agreement and not to any particular section
or any particular portion of this Agreement and includes all schedules
attached to this Agreement;
1.2 "CHIEF EXECUTIVE OFFICER" shall mean the chief executive officer of
the employer;
1.3 "COURT" shall mean a Court of competent jurisdiction; and
1.4 "PARTIES" shall mean the Parties to this Agreement and "Party" shall
mean one of the Parties to this Agreement.
2. EMPLOYMENT
2.1 The Employer agrees to employ the Employee and the Employee agrees to
act as Chief Executive Officer or in such other employment as the
Employer and the Employee may from time to time agree and the Employee
agrees to serve the Employer upon the terms and subject to the
conditions set out in this Agreement.
2.2 The Employee specifically undertakes and agrees with the Employer that
he shall be responsible for the following:
2.2.1 for fulfilling the title and role of Chief Executive Officer
of the Employer; and
2.2.2 such other duties as required.
3. TERM
3.1 The term of this Agreement shall be a period of one (1) year from the
date on which this Agreement is signed (the "Term"). Unless written
notice is given by either party at least ninety (90) days before the
end of the one (1) year Term or any extension hereof, that they wish
this Agreement to terminate at the end of that Term, this Agreement
will be automatically extended by successive one (1) year terms. In
the event that such notice is given by the Employer and not by the
Employee and the Employer does not offer the Employee continued
employment on terms and conditions comparable to those contained
herein following the termination of this Agreement, such notice shall
be deemed termination of Employee's employment other than for cause
and the provisions of section 10 shall thereupon be applicable.
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4. REMUNERATION
4.1 In consideration of the Employee's undertaking and the performance of
the obligations contained in this Agreement, the Employer shall,
unless otherwise agreed upon by all parties to this Agreement, pay and
grant the following remuneration to the Employee:
4.1.1 BASE SALARY. As set by the Employer's board of directors
(the "Board") the Employee shall be entitled to receive a
salary, not less than $200,000.00 (U.S.) per year.
4.1.2 BONUSES. In addition to the base salary specified in section
4.1.1 the Employee shall be entitled to receive a bonus of
$175,000.00. This bonus will be weighted as follows:
------------------ ---------------------- ------------------ ----------------------- ------------------
Performance Minimum Level vs. Achieves Plan Exceeds Plan Maximum
Measure Plan
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Revenues vs. Plan $10,000 $25,000 $35,000 $45,000
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Gross Profit $10,000 $25,000 $35,000 $45,000
Margin vs. Plan
------------------ ---------------------- ------------------ ----------------------- ------------------
EBITDA vs. Plan $10,000 $25,000 $35,000 $45,000
------------------ ---------------------- ------------------ ----------------------- ------------------
Individual $10,000 $25,000 $35,000 $40,000
Objectives
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4.1.3 BONUS PLAN
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Performance Minimum Level Achieves Plan Exceeds Plan Maximum
Measure
------------------ ---------------------- ------------------ ----------------------- ------------------
Revenues vs. 15% Growth 20% Growth 30% Growth >40% Growth
Last Fiscal Year
End
------------------ ---------------------- ------------------ ----------------------- ------------------
Gross Profit 25% 30% 35% >40%
Margin vs. Last
Fiscal Year End
------------------ ---------------------- ------------------ ----------------------- ------------------
EBITDA Positive $.05/Share $.07/Share >$.10/Share
------------------ ---------------------- ------------------ ----------------------- ------------------
Individual One Week Holiday Two Weeks Three Weeks Four Weeks
Objectives Holiday Holiday Holiday
Professional Professional
Development Course Development
Course
International
Business
Development Trip*
------------------ ---------------------- ------------------ ----------------------- ------------------
* IT IS ENVISIONED THAT THIS TRIP TO PROMOTE THE COMPANY WOULD BE DONE
OUTSIDE OF NORTH AMERICA.
4.1.4 STOCK OPTIONS. In addition to the base salary outlined in
section 4.1.1 the Employee will be awarded 300,000 stock
options based on the closing price per share of the
Company's common stock as quoted on NASDAQ as of the date of
this agreement. The employee may, in the absolute discretion
of the Employer, participate in the Employer's stock option
plan that is in place from time to time, and receive
additional stock options as determined by the Board.
5. BENEFITS
5.1 In consideration of the Employee's undertaking and the performance of
the obligations contained in this Agreement, the Employer shall,
unless otherwise
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agreed upon by all parties to this Agreement, pay and grant the
following benefits to the Employee:
5.1.1 CAR ALLOWANCE. The Employee shall be entitled to receive a
car allowance in the amount of $800.00 per month.
5.1.2 VACATION. The Employee shall be entitled to vacation time of
five weeks. Such vacation time shall be used at times
mutually agreeable to the Employee and the Employer. This
vacation is to be taken by the Employee without his wireless
devices.
5.1.3 SICK LEAVE. The Employee shall be entitled to receive a
cumulative bank of 60 days sick leave.
5.1.4 SHORT TERM DISABILITY. The Employee shall be entitled to
receive short term disability benefits set forth on a basis
consistent with the company practice generally in effect for
other executives of the Employer which benefits may be
amended by the Employer from time to time. These benefits
shall constitute an amount not less than 66.67% of the
Employee's monthly gross income to a maximum of $4,500 per
month. The Employer acknowledges that it has an obligation
to ensure that such benefits continue to be made available
through a third party benefit carrier or otherwise.
5.1.5 LONG TERM DISABILITY. The Employee shall be entitled to
receive long term disability benefits set forth on a basis
consistent with the Employer's practice generally in effect
for other executives of the Employer which benefits may be
amended by the Employer from time to time. These benefits
shall constitute an amount not less than 66.67% of the
Employee's monthly gross income to a maximum to $4,500 per
month. The Employer acknowledges that it has an obligation
to ensure that such benefits continue to be made available
through a third party benefit carrier or otherwise.
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5.1.6 LIFE INSURANCE. The Employer agrees to pay the monthly
premium for term life insurance held by the Employee, for a
total life insurance amount of $5,000,000.
5.1.7 OTHER BENEFITS. The Employee shall be entitled to receive
all benefits granted to prior Chief Executive Officers of
the Employer that are not specifically listed in this
Agreement, as well as, participation in all health benefit
plans which the Employer provides.
5.1.8 EXPENSES. The Employer shall reimburse the Employee for all
reasonable and necessary business expenses upon the
presentation to the Employer of appropriate written
documentation and receipts.
6. ATTENTION TO DUTIES
The Employee shall devote his whole working time and attention to the
Employer during the Term of this Agreement and will not engage in any other
capacity or activity which, in the sole opinion of the Employer acting
reasonably, would hinder or interfere with the performance of the duties of
the Employee.
7. CONFIDENTIALITY
The parties acknowledge that in carrying out his duties under this
Agreement, the Employee will have access to and become entrusted with
confidential information regarding the business plans and operations of the
Employer, computer systems and technology, unique methodology and other
proprietary information. The Employee acknowledges that the right to
maintain such detailed confidential information constitutes a proprietary
right, which the Employer is entitled to protect. Accordingly, the Employee
shall not, during the Term of this Agreement, or at any time thereafter,
disclose any of such detailed confidential information, trade secrets or
other private affairs of the Employer to any person or persons, firm,
association or corporation, nor shall the Employee use the same for any
purpose other than on behalf of the Employer.
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8. OWNERSHIP OF INVENTIONS
8.1 The Employee shall promptly communicate and disclose to the Employer
all inventions, improvements, modifications, discoveries, designs,
formulae, methods and processes made, discovered or conceived by the
Employee either alone or jointly with others, during the period of his
employment with the Employer, providing the same relate to or are
capable of being used by the corporation or any affiliate thereof in
the normal course of their businesses.
8.2 The Employee acknowledges and declares that all inventions,
improvements, modifications, discoveries, designs, formulae, methods,
processes, as are described in section 8.1 hereof, and all patents and
patent applications relating thereto are the property of the Employer
and hereby assigns to the Employer all of the right, title and
interest of the Employee in any such inventions, improvements,
modifications, discoveries, designs, formulae, methods and processes,
and in any patents or patent applications relating thereto. The
Employee shall execute all instruments and documents and do all such
further acts and things as may be necessary or desirable, in the
Employer's opinion to carry out the provisions of this section.
9. NON-COMPETITION
The Employee shall not, without prior written consent of the Employer for
the period of his employment hereunder or for a period of one (1) year
following the termination of this Agreement or any renewal hereof, for any
reason be it for cause or not, either alone or in conjunction with any
individual, firm, corporation, association or any entity, except for the
Employer, whether as principal, agent, shareholder, employee or in any
other capacity whatsoever, perform the duties of or provide the services as
are described in section 2.2 hereof in a business which competes with the
Employer, within any geographical location where the Employer has carried
on business or expended time and personnel and financial resources or been
involved in any capacity in any business. Furthermore, the Employee also
agrees that upon the termination of his employment he will not attempt to
hire or encourage to leave their employ, any of the Employer's other
employees, provided, however, that the Employee shall not be precluded from
competing with the business of the Employer in the event of a termination
of Employee's employment as a result of a material breach by the Employer
of the provisions of this Agreement or in the event that Employee's
employment is terminated by the Employer other
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than for cause, unless the Employer provides the applicable compensation
and benefits set out in section 10 hereof in which case, the Employee shall
be precluded from competing until such time as such compensation and
benefits are terminated.
10. TERMINATION
10.1 The parties understand and agree that employment pursuant to this
Agreement may be terminated during the Term in the following manner in
the specified circumstances:
10.1.1 by the Employee for any reason, on the giving of not less
than one (1) months prior written notice to the Employer,
which the Employer may waive, in whole or in part;
10.1.2 by the Employer within three (3) months of the signing of
this Agreement, in its absolute discretion, on giving the
Employee payment of the equivalent of twelve (12) months
salary, benefits and entitlements in lieu thereof, along
with all salary or entitlements to which the Employee is
entitled in accordance with any relevant statute, or this
Agreement, whichever is greater, including termination pay,
severance pay, unpaid vacation pay, if applicable and all
salary and benefits due to that date. The payment
representing this amount shall be paid within thirty (30)
days from notice provided herein;
10.1.3 by the Employer upon or after six (6) months of the signing
of this Agreement and prior to twelve(12) months of the
signing of this Agreement, in its absolute discretion, on
giving the Employee payment of the equivalent of six (6)
months salary, benefits and entitlements in lieu thereof,
along with all salary or entitlements to which the Employee
is
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entitled in accordance with any relevant statute, or this
Agreement, whichever is greater, including termination pay,
severance pay, unpaid vacation pay, if applicable and all
salary and benefits due to that date. The payment
representing this amount shall be paid within thirty (30)
days from notice provided herein;
10.1.4 by the Employer upon or after twelve (12) months of the
signing of this Agreement, in its absolute discretion, on
giving the Employee payment of the equivalent of twelve (12)
months salary, benefits and entitlements in lieu thereof,
along with all salary or entitlements to which the Employee
is entitled in accordance with any relevant statute, or this
Agreement, whichever is greater, including termination pay,
severance pay, unpaid vacation pay, if applicable and all
salary and benefits due to that date. The payment
representing this amount shall be paid within thirty (30)
days from notice provided herein;
10.1.5 by the Employer without notice or payment in lieu thereof
for cause. The parties agree that for the purposes of this
Agreement, "cause" shall include, but shall not be limited
to, the following, and that the Employee shall be terminated
without notice or payment in lieu thereof for such cause:
10.1.5.1 any material breach of the provisions of this
Agreement or of the established policies of the
Employer known to the Employee in the performance
of his duty under this Agreement;
10.1.5.2 consistent poor performance of the Employee's
part, after being advised as to the standard
reasonably required;
10.1.5.3 any intentional or negligent disclosure of any
confidential information as described in section 7
hereof, by the Employee;
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10.1.5.4 in carrying out his duties hereunder, the
Employee; (i) has been grossly negligent, or (ii)
has committed willful gross misconduct;
10.1.5.5 personal conduct on the Employee's part which is
of such a serious and substantial nature that, as
determined in the sole discretion of the Employer,
it would injure the reputation of the Employer if
the Employee is retained as an Employee; or
10.1.5.6 any and all omissions, commissions or other
conduct which would constitute cause at law, in
addition to the specified causes.
10.2 The Parties understand and agree that the giving of notice or the
payment of termination pay, and severance pay, as required by the
Employer to the Employee on termination shall not prevent the Employer
from alleging cause for the termination.
10.3 The Employee authorizes the Employer to deduct from any payment, any
amounts properly owed to the Employer by the Employee by reason of
advances, loans or in recommence for damages to or loss of the
Employer's property and equipment, save only that this provision shall
be applied so as not to conflict with any applicable legislation.
11. RESULTS OF TERMINATION
11.1 If this Agreement is terminated for cause, as described in section
10.1.5 hereof, the Employee shall be entitled to receive his
remuneration to the date of such termination for cause, including any
and all vacation pay earned to date.
11.2 If this Agreement is terminated upon written notice as described in
paragraphs 10.1.1, 10.1.2, 10.1.3 and 10.1.4 hereof, the Employer
shall pay to the Employee to the end of the notice period his salary
and at the end of the date terminating the notice provision, the
Employer shall pay to the Employee vacation pay equivalent and any
other monies due pursuant to the provisions of the EMPLOYMENT
STANDARDS ACT, R.S.O. 1990, c. E.14., as amended.
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12. MEDIATION/ARBITRATION
12.1 Should any dispute or disagreement of any kind arise at any time; (i)
the rights and liabilities of the Parties hereof or with respect to
the interpretation, validity, construction, meaning, performance,
effect or application of this Agreement, as amended from time to time;
or (ii) between the Employer and the Employee, the Parties agree that
good faith negotiations shall take place between the Employer and the
Employee. If such good faith negotiations have not resolved the
dispute or disagreement within a reasonable period of time, either
Party may request a mediation between the Parties, or either Party may
refer the dispute or disagreement directly to arbitration without
going to mediation.
12.2 The mediator shall be agreed upon by the both Parties. In the event
that the Parties are unable to agree upon the mediator, the dispute or
disagreement shall be referred to arbitration in accordance with this
clause.
12.3 All discussions before the mediator shall be non-binding, confidential
and without prejudice to the position of either Party. The Parties
agree that if the mediation process does not result in a satisfactory
solution of the dispute or disagreement after the lesser of either;
(a) ten (10) hours of mediation, or (b) thirty (30) days from the
commencement of the mediation, then either Party may refer the dispute
or disagreement to arbitration pursuant to the provisions of the
ARBITRATION XXX, 0000, S.O. 1991, c. 17 (the "ARBITRATION ACT"), as
amended and in accordance with the following:
12.3.1 the reference to arbitration shall be to one (1) arbitrator.
If the Parties cannot agree on a choice of arbitrator within
ten (10) days from the expiry of the mediation process as
herein provided, any Party may apply to the
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Ontario Superior Court of Justice for the appointment of an
arbitrator as provided for in Section 10 of the ARBITRATION
ACT;
12.3.2 if the arbitrator has allowed his/her/its time or extended
time from making any award, as provided in the ARBITRATION
ACT, to expire without making any award, any Party to the
arbitration may apply to the Ontario Superior Court of
Justice or to a Judge thereof to appoint any umpire who
shall have the like power to act in reference and to make an
award as if he/she/it had been duly appointed by all the
Parties to the submission and by the consent of all the
Parties thereto;
12.3.3 if any umpire is appointed pursuant to the foregoing
subsection 12.3.2, such umpire shall make his award within
three (3) months after the original or extended time
appointed for making the award of the arbitrator has expired
or on or before any later date to which the Parties to the
reference by any writing signed by them may from time to
time agree to enlarge the time for making the award, or if
the Parties have not agreed, then within such time as the
Court or Judge who appointed such umpire may deem proper;
12.3.4 any such arbitration or reference to an umpire shall be held
in the City of Ottawa. The arbitration shall be completely
private. The arbitrator shall fix the appropriate procedures
which may include an oral hearing. The issue or issues to be
decided by the arbitrator shall be defined in an arbitration
agreement filed on consent by the aggrieved party. In the
event the Parties to the arbitration shall be unable to
agree upon the issue or issues to be decided by the
arbitrator in any arbitration pursuant to this paragraph,
the arbitrator shall have jurisdiction to determine the
issue or issues to be so decided. The Employee shall do all
such acts and thing as are necessary to enable the
arbitrator to make a proper finding respecting the matters
in issue. The arbitrator may order interest on any award and
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the arbitrator may award costs to either Party. In the
absence of any award of costs, each of the Parties shall
bear their own costs of any arbitration pursuant to this
paragraph and one-half of the cost of the arbitrator. The
arbitrator shall be strictly bound by legal principals and
the general nature of this Agreement in rendering
his/her/its decision.
12.3.5 The Parties agree that good faith negotiations, mediation
and arbitration shall all be without recourse to the Courts.
The award of the arbitrators shall be final and binding,
except that either Party may appeal an arbitration award to
the Courts on a question of law. Judgement upon the award
rendered by the arbitrator may be entered in any Court
having jurisdiction.
13. RIGHT TO INJUNCTIVE RELIEF
As a violation by the Employee of the provisions of paragraphs 7 and 9
hereof could cause irreparable injury to the Employer and there is no
adequate remedy at law for such violation, the Employer shall have the
right, in addition to any other remedies available to it at law or in
equity, to enjoin the Employee in a court of equity from violating such
provisions. The provisions of paragraphs 7 and 9 hereof shall survive the
termination of this Agreement.
14. ASSIGNMENT OF RIGHTS
The rights which accrue to the Employer under this Agreement shall pass to
its successors or assigns. The rights of the Employee under this Agreement
are not assignable or transferable in any manner.
15. CURRENCY
All dollar amounts referred to in this Agreement are in United States
funds.
16. AMENDMENT OF AGREEMENT
This Agreement may be altered or amended at any time by the mutual consent
in writing of the parties hereto.
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17. TIME OF ESSENCE
Time shall be of the essence hereof.
18. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Canada and the laws of the Province of Ontario applicable therein.
19. ATTORNMENT
The parties hereby irrevocably attorn and submit to the non-exclusive
jurisdiction of the Courts of the Province of Ontario with respect to any
matter arising under or related to this Agreement.
20. HEADINGS
The headings appearing throughout this Agreement are inserted for
convenience only and form no part of the Agreement.
21. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement will
not affect the validity or enforceability of any other provision hereof and
any such invalid or unenforceable provision will be deemed to be severable.
22. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between
the parties and supersedes all prior and contemporaneous agreements,
understandings and discussions, whether oral or written, and there are no
other warranties, agreements or representations between the parties except
as expressly set forth herein.
23. AGREEMENT BINDING This Agreement shall enure to the benefit of and be
binding upon the parties hereto and their respective personal
representatives, executors, administrators, successors and assigns.
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24. INDEPENDENT LEGAL ADVICE
The Employee acknowledges that he has read and understands the Agreement
and acknowledges that he has had the opportunity to obtain independent
legal advice regarding the terms of the Agreement and their legal
consequences.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto as of
the date first set forth above.
SIGNED, SEALED & DELIVERED
/s/ Xxxxxx Xxxxx /s/ Xxxxxxx Xxxxxxxxx
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Witness Xxxxxxx Xxxxxxxxx
WORKSTREAM INC.
AUDIT COMMITTEE CHAIRMAN
Per: /S/ XXXXXXX XXXX
Title: Audit Committee Chairman
WORKSTREAM INC.
XXXX XXXXXXX
Per: /S/ XXXX XXXXXXX
----------------------------------
Title: Chief Financial Officer
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