EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 22nd day of September, 2004.
BETWEEN:
XXXXX XXXXXXXX
of the City of Orlando, Florida, 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 and Employee entered into an Employment Agreement on the 5th
of May 2003 and
B. The Employer wishes to extend the terms of the Employment Agreement beyond
the current term, and
C. The Employee wishes to extend the terms of the Employment Agreement beyond
the current term.
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. "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;
2. "Chief Financial Officer" shall mean the chief financial officer of
the recruiting software operation of the Employer;
3. "Court" shall mean a Court of competent jurisdiction;
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 Financial 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 Chief Financial Officer of
the Employer; and
2.2.2 such other duties as required.
2.3 In connection with the Employee's employment by the Employer, the
Employee shall be based at the offices of the Employer located in
Orlando, Florida except for reasonably required travel on the
Employer's business.
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 initial one (1) year Term or any one (1) year
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.
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. The Employee shall be entitled to receive a
salary, not less than $160,000.00(U.S.) per year, retroactive
to June 1, 2004.
1.1.2 Bonuses. In addition to the base salary specified in section
4.1.1 the Employee shall be entitled to receive a $90,000.00
performance bonus based on certain targets being achieved.
These targets will be mutually agreed to by the Parties.
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 agreed upon by all parties to this Agreement, pay
and grant the following benefits to the Employee:
5.1.1 Vacation. The Employee shall be entitled to vacation time of
three weeks. Such vacation time shall be used at times
mutually agreeable to the Employee and the Employer.
5.1.2 Car Allowance. The Employee shall be entitled to receive a car
allowance in the amount of $500.00 per month.
5.1.3 Other Benefits. The Employee shall be entitled to participate
in all health benefit plans that the Employer provides at no
cost to the Employee.
5.1.4 Expenses. The Employer shall reimburse the Employee for all
reasonable and necessary business expenses, including but not
limited to cellular phone 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.
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 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) month prior written notice to the Employer, which
the Employer may waive, in whole or in part;
10.1.2 by the Employer in its absolute discretion, on giving the
Employee payment of the equivalent of three (3) 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 for cause on giving the Employee payment of
the equivalent of one (1) month salary, benefits and
entitlements. 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:
10.1.3.1 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;
10.1.3.2 consistent poor performance of the Employee's part,
after being advised as to the standard reasonably
required;
10.1.3.3 any intentional or negligent disclosure of any
confidential information as described in section 7
hereof, by the Employee;
10.1.3.4 in carrying out his duties hereunder, the Employee;
(i) has been grossly negligent, or (ii) has committed
willful gross misconduct;
10.1.3.5 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
10.1.3.6 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
10.1.3 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 and 10.1.3 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 under applicable United States federal or state law .
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 American Arbitration Association's National Rules
for the Resolution of Employment Disputes in effect at the time of
the arbitration demand, in accordance with the following:
12.3.1 the reference to arbitration shall be to one (1)
arbitrator.
12.3.2 any such arbitration 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 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.
12.3.3 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.
Judgment 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.
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 the Province of Ontario.
19. HEADINGS
The headings appearing throughout this Agreement are inserted for
convenience only and form no part of the Agreement.
20. 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.
21. 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.
22. 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.
23. 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
X.X. Xxxxx /s/ Xxxxx Xxxxxxxx
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Witness Xxxxx X. Xxxxxxxx
WORKSTREAM INC.
Per: /s/ Xxxxxxx Xxxxxxxxx
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Title: Chief Executive Officer
