EMPLOYMENT AGREEMENT
Exhibit
10.2
THIS
AGREEMENT
is made
as of the 15th
Day of
February 2008
BETWEEN:
Xxx
Xxxxxxx
of
the
City of Xxxxxxx, Xxxxxxx 00000
(hereinafter
referred to as the "Employee")
AND:
a
corporation incorporated under the laws of Canada
(hereinafter
referred to as the "Employer")
WHEREAS:
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:
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1.
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DEFINITIONS
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In
this
agreement, unless the context otherwise specifies or requires, the following
terms shall have the following meanings:
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1.1
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"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;
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1.2
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“Chief
Financial Officer”
shall mean the Chief Financial Officer for the
Company;
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| 1.3 | "Court" shall mean a Court of competent jurisdiction; |
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1.4
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"Parties"
shall mean the Parties to this Agreement and "Party" shall mean one
of the
Parties to this Agreement.
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2.
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EMPLOYMENT
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2.1
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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.
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2.2
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The
Employee specifically undertakes and agrees with the Employer that
he
shall be responsible for the
following:
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2.2.1
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for
fulfilling the title and role of the CFO of the Employer; and
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2.2.2
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such
other duties as may be reasonably
required.
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2.2.3
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the
starting date of Employee would be no later than February 15th,
2008
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3.
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TERM
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3.1
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The
Initial Term of this Agreement shall be a period of one (1) year
from the
date hereof. Unless written notice is given by either party at least
ninety (90) days before the end of the Initial Term or any one (1)
year
extension thereof (each, a “Renewal Term”), that they wish this Agreement
to terminate at the end of the Initial or respective Renewal Term,
whichever may apply, this Agreement will be automatically extended
by
successive one year Renewal Terms. Any references herein to the “Term”
shall include both the Initial Term and any and all Renewal Terms.
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REMUNERATION
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4.1
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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:
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4.1.1
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Base
Salary.
The Employee shall be entitled to receive a salary, not less than
$140,000.00 (U.S.) per year.
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| 4.1.2 | Restricted Stock Units: In addition to the base salary outlined in section 4.1.1 on the first date of employment, the Employee shall be granted 30,000 Restricted Stock Units (the “RSU’s”). These RSU’s shall vest 100% on the date of the business merger with Empagio. |
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5.
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BENEFITS
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5.1
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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:
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5.1.1
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Vacation.
The Employee shall be entitled to vacation time of three (3)
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5.1.2
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Other
Benefits. The
Employee shall be entitled to participate in all benefit programs
provided
by Employer to its executives effective upon the Employee’s start date.
The Employer shall pay for family coverage premiums for the Employee
for
health and dental (if any) insurance offered by the Employer.
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2
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6.
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ATTENTION
TO DUTIES
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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.
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7.
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CONFIDENTIALITY
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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 or trade secrets of the Employer to any person or persons, firm,
association or corporation, nor shall the Employee use the same for any purpose,
in either case, except on behalf of the Employer. Notwithstanding the foregoing,
the obligations of the Employee in this Section 7 shall not apply to
confidential information (i) which at the date hereof or thereafter becomes
a matter of public knowledge without breach by the Employee of this Agreement;
or (ii) which is obtained by the Employee from a person, firm, or entity
(other than the Employer or an affiliate of the Employer) under circumstances
permitting its use or disclosure to others.
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8.
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OWNERSHIP
OF INVENTIONS
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8.1
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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.
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8.2
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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, at the Employer’s expense, 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.
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9.
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NON-COMPETITION
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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. 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. Notwithstanding
the foregoing, the Employee shall not be precluded from competing with the
business of the Employer in the event his employment is terminated by the
Employee for good reason or by the Employer other than for cause, unless the
Employer provides the applicable compensation and benefits set out in section
10.1.3 hereof, in which case, the Employee shall be precluded from competing
as
described in this section 9 until such time as such compensation and benefits
are terminated.
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10.
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TERMINATION
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10.1
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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
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by
the Employee without good reason (as defined below), 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;
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10.1.2
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by
the Employee for good reason on the giving of not less than one (1)
month
prior written notice to the Employer, if the Employer has not cured
the
event giving rise to good reason by the end of such notice period.
For
purposes of this Agreement good reason shall mean, absent the Employee’s
prior written consent: (i) the Employer’s failure to timely provide the
Employee with the salary, bonus and equity as set forth in section
4.1
hereof or to provide benefits to the Employee in accordance with
section
5.1 hereof; (ii) a material breach by the Employer of this Agreement
or
any other agreement with the Employee; (iii) a material diminution
by the
Employer in the Employee’s title, responsibilities, authority or reporting
structure; (iv) failure of the Employer to ensure that any successor
or
assign of the Employer agrees in writing to be bound by the terms
of this
Agreement. If the Employee terminates his employment for good reason,
he
shall be entitled to the payments set forth in section 10.1.3 hereof,
to
be provided within thirty (30) days after his termination;
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| 10.1.3 | by the Employer in its absolute discretion without cause upon not less than one (1) month prior written notice to the Employee, on giving the Employee a payment equal to (i) if the employment is terminated during the first six months of full time employment then a payment equal to (3) months base salary at the rate in effect on the Employee’s termination date; or (ii) if the employment is terminated after six months of full time employment then a payment equal to three (3) months base salary at the rate in effect on the Employee’s termination date. The payment representing this aggregate amount shall be paid within thirty (30) days from notice provided herein; |
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10.1.4
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by
the Employer for cause. The parties agree that for the purposes of
this
Agreement, “cause” shall mean the following, as reasonably determined by
the Employer in good faith, and that the Employee shall be terminated
immediately upon written notice for such
cause:
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10.1.4.1
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any
material breach of the provisions of this Agreement or of an established
written policy of the Employer after Employer provided written notice
to
Employee and 10 day opportunity to cure during which time Employee
failed
to cure;
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10.1.4.2
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any
intentional or grossly negligent disclosure of any confidential
information as described in section 7 hereof, by the
Employee;
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4
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10.1.4.3
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in
carrying out his duties hereunder, the Employee; (i) has been grossly
negligent, or (ii) has committed willful gross
misconduct;
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10.1.4.4
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personal
conduct on the Employee’s part which is of such a serious and substantial
nature that, as reasonably determined in good faith in the sole discretion
of the Employer, it would materially injure the reputation of the
Employer
if the Employee is retained as an Employee;
or
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10.1.4.5
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any
and all omissions, commissions or other conduct, which would constitute
cause under applicable law.
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10.2
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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.
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10.3
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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 law or
legislation.
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11.
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RESULTS
OF TERMINATION
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11.1
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If
this Agreement is terminated for cause, as described in section 10.1.4
hereof, the Employee shall be entitled to receive his remuneration
to the
date of such termination for cause, including any and all vacation
pay and
bonuses earned to date.
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11.2
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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, as well as any and all amounts
to
which he may be entitled pursuant to sections 10.1.2 or 10.1.3.
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12.
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MEDIATION/ARBITRATION
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12.1
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Should
any dispute or disagreement of any kind arise at any time; (i) regarding
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 mediation
between the Parties, or either Party may refer the dispute or disagreement
directly to arbitration without going to
mediation.
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12.2
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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
section.
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5
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12.3
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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:
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| 12.3.1 | the reference to arbitration shall be to one (1) arbitrator. |
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12.3.2
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any
such arbitration shall be held in the city of Orlando, Florida. The
arbitration shall be completely private. The arbitrator shall fix
the
appropriate procedures which may include discovery, an oral hearing(s)
and
any other procedures the arbitrator deems appropriate. 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 Parties shall do all such acts and
things
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, including attorneys’ fees, to
either Party, provided that such award is permitted by the applicable
law
governing the underlying claim. In the absence of any award of costs,
each
of the Parties shall bear their own costs, including attorneys’ fees, of
any arbitration pursuant to this paragraph and one-half of the cost
of the
arbitrator. The arbitrator shall be strictly bound by applicable
legal
principles and the general nature of this Agreement in rendering
his/her/its decision.
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12.3.3
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The
Parties agree that good faith negotiations, mediation and arbitration
shall all be without recourse to the Courts. The award of the arbitrator
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.
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13.
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RIGHT
TO INJUNCTIVE RELIEF
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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.
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14.
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ASSIGNMENT
OF RIGHTS
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The
rights and obligations which accrue to the Employer under this Agreement shall
automatically inure to the benefit of and be binding on its successors and
assigns, whether by operation of law or otherwise. The rights of the Employee
under this Agreement are not assignable or transferable in any manner, except
that any accrued salary or bonus, vested options or other benefits shall be
provided to the Employee’s heirs, beneficiaries or estate, or trustee under any
trust set up by and for Employee.
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| 15. |
CHANGE
OF CONTROL
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The
Employer agrees that should there be a change in control of the Employer during
the Employee’s employment with the Employer, all stock options, RSU’s and
restricted stock held by the Employee shall become immediately vested and
exercisable in full. The Employer further agrees that should there be a change
in control of the Employer, and the Employee is not offered a position of
increased responsibility (Vice President of Finance for Workstream) with an
increase of base salary to $140,000.00, and the Employee’s employment is
terminated for any reason save and except for cause, the Employee shall receive,
any payments or benefits to which he is entitled pursuant to section 10.1.3
hereof or the remaining salary for the Term whichever amount is greater. For
the
purposes of this section, “change in control” shall be defined as such term is
defined the Employer’s 2002 Amended and Restated Stock Option Plan.
| 16. |
RESIDENCE
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| 17. |
INDEMNIFICATION
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The
Employer agrees to fully indemnify and defend the Employee against all claims,
liabilities, costs, attorneys’ fees, settlement payments and damages relating to
or arising from any threatened or actual legal action against the Employee
by
the company with which the Employee was last employed before the date hereof,
in
relation in any manner to section 7 of the Employee’s prior employment agreement
with such company.
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18.
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CURRENCY
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All
dollar amounts referred to in this Agreement are in United States
funds.
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19.
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AMENDMENT
OF AGREEMENT
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This
Agreement may be altered or amended at any time by the mutual consent in writing
of the parties hereto.
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20.
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TIME
OF ESSENCE
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Time
shall be of the essence hereof.
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21.
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GOVERNING
LAW
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This
Agreement shall be governed by and construed in accordance with the laws of
the
Province of Ontario.
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22.
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HEADINGS
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The
headings appearing throughout this Agreement are inserted for convenience only
and form no part of the Agreement.
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23.
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SEVERABILITY
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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.
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24.
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ENTIRE
AGREEMENT
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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.
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25.
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AGREEMENT
BINDING
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This
Agreement shall inure 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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26.
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INDEPENDENT
LEGAL ADVICE
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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.
| 27. |
SURVIVAL
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In
the
event this Agreement terminates for any reason, sections 7, 9, 10.1.2, 10.1.3,
11, 15 and 17 hereof shall survive to the extent necessary to give full effect
to their terms.
IN
WITNESS WHEREOF
this
Agreement has been executed by the parties hereto as of the date first set
forth
above.
SIGNED,
SEALED & DELIVERED
| /s/ | /s/ Xxx Xxxxxxx | ||
|
Witness |
Xxx Xxxxxxx |
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| WORKSTREAM INC. | |||
| /s/ Xxxxxxx Xxxxxxxxx | |||
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Xxxxxxx Xxxxxxxxx |
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| Title: Chairman of the Board |
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