EXHIBIT 10.12
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made as of the 12th day of May, 2003.
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 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 FINANCIAL OFFICER" shall mean the chief financial officer of
the recruiting software operation of the Employer;
1.3 "COURT" shall mean a Court of competent jurisdiction;
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 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 $140,000.00(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 $50,000.00
performance bonus based on certain targets being achieved.
These targets will be mutually agreed to by the Parties. The
Employee shall be entitled to receive an additional
$10,000.00 transition bonus based on certain targets being
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achieved in the first 6 months. These targets will be
mutually agreed to by the Parties.
4.1.3 STOCK OPTIONS. In addition to the base salary outlined in
section 4.1.1 the employee shall be granted options to
purchase up to 50,000 common shares of Workstream (the
"Option Shares") at a price that is the closing price on the
NASDAQ market the date this agreement is signed.
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.
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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 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:
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10.1.1 by the Employee for any reason, on the giving of not less
than three (3) months 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) months 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
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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
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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. 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.
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.
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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
/s/ Xxxxx Xxx /s/ Xxxxx X. Xxxxxxxx
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WITNESS Xxxxx X. Xxxxxxxx
WORKSTREAM INC.
Per: /s/ Xxxxxxx Xxxxxxxxx
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Title: Chief Executive Officer
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