Suite 300 Ottawa, Ontario K2K 3G1
000
Xxxxx
Xxxx
Xxxxx
000
Xxxxxx,
Xxxxxxx X0X 0X0
February
29, 2008 (Via Electronic Mail)
Personal
and Confidential
Mr.
Xxxxxx Xxxxx
0000
Xxxxxx Xx.
Xxxxxxxxxx,
XX 00000
Re: Separation
Agreement and General Release
Dear
Deepak:
This
letter will confirm your resignation from employment and the terms of your
separation from employment with Workstream Inc. (“Workstream”).
Your
employment with Workstream terminated effective February 29, 2008 (the
“Termination Date”). Regardless of whether you sign this letter, you will have
been or will be paid all of your wages at the base rate through your last day
of
active work on February 22, 2008; and your group medical insurance benefits
will
continue through the end of the current calendar month. Assuming you agree
to
the terms of this letter (the “Agreement”) Workstream will provide you with the
additional separation benefits described below.
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1.
|
You
will be permitted to retain the 250,000 Restricted Stock Units (the
“RSUs”) previously granted you by Workstream pursuant to your employment
agreement dated December 11, 2006, as amended (the “Employment
Agreement”). All of the RSUs will be deemed to be vested upon your
delivery of a signed copy of this letter to me and
shares subject to RSUs shall be delivered within 30 days of the date
thereof.
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|
2.
|
Workstream
will
pay reasonable expenses submitted by you for periods prior to the
date
hereof and will
continue to pay your car allowance at the rate of Five Hundred dollars
(USD$500.00) per month for twelve (12) months from your Termination
Date.
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|
3.
|
You
and any eligible dependents will continue to be covered under Workstream’s
group health and dental plans through the end of the current calendar
month. Thereafter, you will be eligible to continue your existing
coverage
under these plans at your own expense in accordance with the Consolidated
Omnibus Budget Reconciliation Act (“COBRA”). If you agree to the terms of
this letter (the “Agreement”), Workstream will reimburse you the amount of
the COBRA premium for up to twelve (12) months from your Termination
Date.
You agree to advise Workstream promptly in the event that you obtain
subsequent employment in any position that provides you group health
and
dental benefits at which time Workstream will be relieved from the
obligation to reimburse you for any further COBRA
premiums.
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Mr.
Xxxxxx Xxxxx
February
29, 2008
Page
2 of
4
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4.
|
You
agree to waive and forfeit all rights to any Stock Options (referred
to as
Option Shares in the Employment Agreement) in Workstream, whether
vested
or not vested.
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|
5.
|
You
hereby confirm your resignation, effective February 29, 2008, as
President
and Chief Executive Officer, as a Director and as an employee of
Workstream.
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Workstream
waives the right to enforce any non-competition provisions of any agreements
between Workstream and you, but you agree to remain bound by the obligation
contained in your Employment Agreement not to solicit to hire or encourage
to
leave their employ, any of Workstream’s other employees for a period of one (1)
year following the Termination Date.
By
offering you the opportunity to enter into this Agreement, Workstream does
not
admit that it has any liability to you arising out of or in any manner relating
to your employment or separation from employment. Workstream expressly denies
that it has any such liability. Accordingly, this Agreement should not be
treated or construed as an admission of liability by Workstream of any kind
or
nature whatsoever.
In
return
for the additional separation benefits described above, you hereby agree, for
yourself and your successors, heirs, executors, administrators, and assigns,
to
remise, release and forever discharge Workstream and its affiliates and
subsidiaries as well as its and their stockholders, directors, officers,
partners, agents, servants, employees past and present, and affiliated entities,
and each of them, and any of their heirs, successors, and assigns (collectively
the “Releasees”) from any and all claims, grievances, demands, liens,
agreements, contracts, covenants, actions, suits, causes of action, wages,
obligations, debts, expenses, attorneys’ fees, damages, judgments, orders and
liabilities of whatever kind or nature in law, equity or otherwise (collectively
the “Claims”), which you have, had or may have had against any Releasee up until
the date of this Agreement. Without limiting the generality of the foregoing,
you acknowledge that the said additional separation benefits are in satisfaction
of all claims for damages for wrongful dismissal, including all non-salary
benefits, including long term disability and pension contributions provided
to
you, or on your behalf, in respect of your employment, vacation pay, any and
all
expenses, whether incurred before or after the date hereof, in respect of your
employment, and any and all claims which you may have, or have had, under the
Employment
Standards Act,
S.O.
2000, c. 41, as amended, and the Human
Rights Code,
R.S.O.
1990, c. H-19, as amended. Except as set forth below, you expressly acknowledge
that this Agreement is intended to include in its effect, without limitation,
all claims which have arisen and of which you know or do not know, should have
known, had reason to know, or suspect to exist in your favor at the time of
execution hereof, and that this Agreement contemplates the extinguishment of
any
such claim or claims. Thus, this Agreement includes a release of all known
and unknown claims. The foregoing release shall not be construed to operate
as a
release or waiver of any rights you have under the United States federal Age
Discrimination in Employment Act of 1967, as amended or
of any
rights to indemnification under any bylaw, resolution or agreement between
Workstream and you or of any coverage under any fiduciary indemnity policy
in
effect. The foregoing release does not release any obligations due to you
pursuant to the ADEA Release between you and Workstream dated February 29,
2008.
Mr.
Xxxxxx Xxxxx
February
29, 2008
Page
3 of
4
You
acknowledge that you understand and agree that all rights under Section 1542
of
the Civil Code of California are hereby expressly waived by you. Section 1542
reads as follows:
A
general
release does not extend to claims which the creditor does not know or suspect
to
exist in his favor at the time of executing the release, which if known by
him
must have materially affected his settlement with the debtor.
Notwithstanding
the provisions of Section 1542, and for the purpose of implementing a full
and
complete release and discharge of Releasees, you expressly acknowledges that
this Agreement and the general release set forth above is intended to include
in
its effect, without limitation, all claims which you do not know or suspect
to
exist in your favor at the time of execution hereof, and that the settlement
agreed upon contemplates the extinguishment of any and all such claim or
claims.
You
represent that you have not filed, or permitted to be filed in your name or
on
your behalf, any lawsuit or administrative agency charge or complaint against
any of the Releasees based upon any act or event which is released by this
Agreement. You further agree that if any such matter is pending, you will not
seek or accept any personal relief, including but not limited to an award of
monetary damages or reinstatement to employment with Workstream and that you
will act promptly to voluntarily withdraw it, with prejudice, as a condition
of
receiving payment pursuant to this Agreement.
You
agree
that, as a further condition to receipt of the separation benefits as outlined
above, you will provide reasonable cooperation, and assistance as and when
reasonably requested by Workstream with respect to matters in which you were
involved or had knowledge of during your employment with Workstream.
In
the
event you desire to have Workstream provide an employment reference for you,
you
agree to direct all inquiries to the Manager, Human Resources who will confirm
your dates of employment and position held. You and Workstream agree not to
disparage each other.
You
agree
that within seven (7) calendar days of signing this Agreement, you will return
to Workstream all of its property in your possession or control. You further
represent and warrant that you will not retain any copies or duplicates of
such
property.
Aside
from a separate agreement being offered to you by Workstream in consideration
of
a release of your rights under the United States federal Age Discrimination
in
Employment Act, this Agreement sets forth the entire agreement between you
and
Workstream regarding your separation from employment. This Agreement may
not be
altered, amended, or modified, except by a further written document signed
by
you and an officer of Workstream. You and Workstream agree to continue to
be
bound by the provisions of the Employment Agreement which are stated in that
document as surviving termination of that agreement.
The
terms
of this Agreement shall be governed by and construed in accordance with
the laws
of the Province of Ontario. Any
dispute regarding any aspect of this Agreement, including its formation,
or any
act which would violate any provision on this Agreement (hereafter referred
to
as “arbitrable dispute”), shall be resolved in final and binding arbitration
pursuant to the provisions of the Employment Agreement, which are incorporated
herein by reference. Judgment on any award by such arbitrator may be entered
in
any court having proper jurisdiction.
Mr.
Xxxxxx Xxxxx
February
29, 2008
Page
4 of
4
By
executing this Agreement, you acknowledge that you have been informed of your
right to consult with an attorney before signing this Agreement and that you
have done so to the extent that you desire. You represent and warrant that
you
have carefully read and fully understand the provisions of this Agreement and
that you freely, knowingly and voluntarily enter into this Agreement.
Please
signify your acceptance of this Agreement by signing in the space indicated
below, having your signature notarized and returning the signed copy to me
via
facsimile. This Agreement may be signed in counterparts and facsimile signatures
shall be acceptable as originals.
Sincerely,
/s/
Xxxxxxx Xxxxxxxxx
By:
Xxxxxxx Xxxxxxxxx
Executive
Chairman of the Board
Accepted
and agreed to on this 29th
day
of February,
2008
/s/
Xxxxxx
Xxxxx
Xxxxxx
Xxxxx
Notary
Public Acknowledgement
State
of
California:
County
of
______________________:
I,
________________________________, a Notary Public for ______________County,
California,
do hereby certify that Xxxxxx Xxxxx personally appeared before me this day
and
acknowledged the due execution of the foregoing document.
Witness
my hand and official seal, this the __________ day of _____________,
2008.
|
Notary
Public
|
My
commission expires ______________________________________, 200__.
000
Xxxxx
Xxxx
Xxxxx
000
Xxxxxx,
Xxxxxxx X0X 0X0
February
29, 2008 (Via Electronic Mail)
Personal
and Confidential
Mr.
Xxxxxx Xxxxx
0000
Xxxxxx Xx.
Xxxxxxxxxx,
XX 00000
Re: ADEA
Release
Dear
Deepak:
This
letter will confirm our agreement concerning your release of all possible claims
arising under the United States federal Age Discrimination in Employment Act
of
1967, as amended, against Workstream Inc. (“Workstream”) and those associated
with it.
Your
employment with Workstream pursuant to the Employment Agreement dated December
11, 2006, as amended (the “Employment Agreement”), terminated effective February
29, 2008 (the “Termination Date”). Assuming you agree to the terms of this
letter (the “OWBPA Agreement”), Workstream will pay you severance pay at the
rate of Twenty-five Thousand dollars (USD$25,000.00) per month for four (4)
months from your Termination Date.
In
return
for the severance pay benefits described above, you hereby agree, for yourself
and your successors, heirs, executors, administrators, and assigns, to remise,
release and forever discharge Workstream and its affiliates and subsidiaries
as
well as its and their stockholders, directors, officers, partners, agents,
servants, employees past and present, and affiliated entities, and each of
them,
and any of their heirs, successors, and assigns (collectively the “Releasees”)
from any and all claims, grievances, demands, liens, agreements, contracts,
covenants, actions, suits, causes of action, wages, obligations, debts,
expenses, attorneys’ fees, damages, judgments, orders and liabilities of
whatever kind or nature in law, equity or otherwise arising under the United
States federal Age Discrimination in Employment Act of 1967, as amended
(collectively the “ADEA Claims”), which you have, had or may have had against
any Releasee up until the date of this Agreement. As further set forth below,
you expressly acknowledge that this Agreement is intended to include in its
effect, without limitation, all ADEA Claims which have arisen and of which
you
know or do not know, should have known, had reason to know, or suspect to exist
in your favor at the time of execution hereof, and that this OWBPA Agreement
contemplates the extinguishment of any such claim or claims. Thus, this
OWBPA Agreement includes a release of all known and unknown ADEA Claims
but
does
not release (i) any of your rights to indemnification under any bylaw,
resolution or agreement between Workstream and you or any claims under any
fiduciary indemnity policy in effect or (ii) any rights under the Separation
Agreement and General Release between Workstream and you dated February 29,
2008.
Mr.
Xxxxxx Xxxxx
February
29, 2008
Page
2 of
4
You
acknowledge that you understand and agree that all rights under Section 1542
of
the Civil Code of California are hereby expressly waived by you. Section 1542
reads as follows:
A
general
release does not extend to claims which the creditor does not know or suspect
to
exist in his favor at the time of executing the release, which if known by
him
must have materially affected his settlement with the debtor.
Notwithstanding
the provisions of Section 1542, and for the purpose of implementing a full
and
complete release and discharge of Releasees, you expressly acknowledges that
this OWBPA Agreement and the general release set forth above is intended to
include in its effect, without limitation, all ADEA Claims which you do not
know
or suspect to exist in your favor at the time of execution hereof, and that
the
settlement agreed upon contemplates the extinguishment of any and all such
claim
or claims.
You
hereby represent and acknowledge to Workstream that (a) Workstream has advised
you in writing to consult with an attorney of your choosing; (b) you have had
twenty-one (21) days to consider the waiver of your rights under the United
States federal Age Discrimination in Employment Act of 1967, as amended prior
to
signing this OWBPA Agreement; (c) you have seven (7) days after signing this
OWBPA Agreement in which to revoke it by delivering a written notice of such
revocation to the Workstream at 000 Xxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxx
X0X
0X0, attention: Xxxxxxx
Xxxxxxxxx, Executive Chairman of the Board;
(d) the
consideration provided you under this OWBPA Agreement is sufficient to support
the release provided by you under this OWBPA Agreement and is greater than
what
you would be entitled to receive if you did not sign this OWBPA Agreement;
and
(e) you have not filed any charges, claims or lawsuits against Workstream or
any
Releasee which have not been terminated as of the date of this OWBPA Agreement.
You understand that Workstream regards the representations made by you as
material and that Workstream is relying on these representations in entering
into this OWBPA Agreement. You acknowledge and agree that Workstream’s
obligation to make payments or provide other benefits under this OWBPA Agreement
will not commence until the period for revocation has passed and this OWBPA
Agreement becomes irrevocable by you.
You
understand and acknowledge that in deciding whether to sign this OWBPA
Agreement, you are not relying on any promises, statements or representations,
oral or written, other than those that are set forth expressly herein.
The
terms of this OWBPA Agreement shall be governed
by and construed in accordance with the laws of the Province of Ontario. Any
dispute regarding any aspect of this Agreement, including its formation, or
any
act which would violate any provision on this Agreement (hereafter referred
to
as “arbitrable dispute”), shall be resolved in final and binding arbitration
pursuant to the provisions of the Employment Agreement, which are incorporated
herein by reference. Judgment on any award by such arbitrator may be entered
in
any court having proper jurisdiction.
Mr.
Xxxxxx Xxxxx
February
29, 2008
Page
3 of
4
Please
signify your acceptance of this Agreement by signing in the space indicated
below, having your signature notarized and returning the signed copy to me
via
facsimile. This Agreement may be signed in counterparts and facsimile signatures
shall be acceptable as originals.
Sincerely,
/s/
Xxxxxxx Xxxxxxxxx
By:
Xxxxxxx Xxxxxxxxx
Executive
Chairman of the Board
Accepted
and agreed to on this 29thday
of
February,
2008
/s/
Xxxxxx
Xxxxx
Xxxxxx
Xxxxx
Notary
Public Acknowledgement
State
of
California:
County
of
_____________________:
I,
________________________________, a Notary Public for ________________ County,
California,
do hereby certify that Xxxxxx Xxxxx personally appeared before me this day
and
acknowledged the due execution of the foregoing document.
Mr.
Xxxxxx Xxxxx
February
29, 2008
Page
4 of
4
Witness
my hand and official seal, this the __________ day of _____________,
2008.
|
Notary
Public
|
My
commission expires ______________________________________, 200__.
