-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PkuewCowhUYyKqHH0LXC5ucpGcxh365ST+QK4bAckPIAk/C10qnpl5L5QhapsVT2 3WUhb/k1Vttk9Z2cgG54uQ== 0001144204-04-017387.txt : 20041101 0001144204-04-017387.hdr.sgml : 20041101 20041101170529 ACCESSION NUMBER: 0001144204-04-017387 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20040531 FILED AS OF DATE: 20041101 DATE AS OF CHANGE: 20041101 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WORKSTREAM INC CENTRAL INDEX KEY: 0001095266 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 000000000 FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-15503 FILM NUMBER: 041110718 BUSINESS ADDRESS: STREET 1: 495 MARCH RD STE 300 STREET 2: OTTAWA ONTARIO CITY: CANADA K2K 3G2 STATE: A6 ZIP: 00000 BUSINESS PHONE: 6132362263 MAIL ADDRESS: STREET 1: 495 MARCH RD SE 300 STREET 2: OTTAWA ONTARIO CITY: CANADA K2K 3G2 STATE: A6 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: E CRUITER COM INC DATE OF NAME CHANGE: 19990917 10-K/A 1 v07970_10ka.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------------- FORM 10-K/A (Amendment No. 1) ------------------------- FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO SECTIONS 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 (MARK ONE) |X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED: MAY 31, 2004 OR |_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM ________________ TO ________________ COMMISSION FILE NUMBER: 001-15503 -------------------------- WORKSTREAM INC. (Exact name of Registrant as specified in its charter) CANADA N/A (State or other jurisdiction of (IRS Employer Identification No.) incorporation or organization) 495 MARCH ROAD, SUITE 300 OTTAWA, ONTARIO K2K 3G1 (Address of principal executive offices) (zip code) (613) 270-0619 (Registrant's telephone number, including area code) -------------------------- SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: NAME OF EACH EXCHANGE TITLE OF EACH CLASS ON WHICH REGISTERED COMMON SHARES, NO PAR BOSTON STOCK EXCHANGE VALUE SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: COMMON SHARES, NO PAR VALUE --------------------------- (TITLE OF CLASS) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes |X| No |_| Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. |X| Indicate by check mark whether the registrant is an accelerated filer (as defined in Exchange Act Rule 12b-2). Yes |_| No |X| The aggregate market value of the outstanding voting and non-voting common equity held by non-affiliates of the registrant, computed by reference to the price at which the common equity was last sold as of the last business day of the registrant's most recently completed second fiscal quarter, was $23,208,513. Common shares held by each executive officer and director and by each person who owned 10% or more of the outstanding common shares as of such date have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate status is not necessarily a conclusive determination for other purposes. The total number of common shares, no par value per share, outstanding on October 22, 2004 was 41,289,422, excluding 1,046,549 shares held in escrow. DOCUMENTS INCORPORATED BY REFERENCE None. WORKSTREAM INC. FORM 10-K/A TABLE OF CONTENTS ITEM PAGE PART III 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters....................................... 1 EXPLANATORY NOTE This Amendment No. 1 on Form 10-K/A (this "Amendment") amends the Registrant's Annual Report on Form 10-K for the fiscal year ended May 31, 2004, originally filed on August 13, 2004 (the "Original Filing"). The Registrant hereby amends Item 12 of Part III to include the information required to be filed with the Securities and Exchange Commission. In addition, in connection with the filing of this Amendment and pursuant to the rules of the Securities and Exchange Commission, the Registrant is including with this Amendment certain currently dated certifications. Except as described above, no other changes have been made to the Original Filing. PART III ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS EQUITY COMPENSATION PLANS The following table sets forth certain information regarding our equity compensation plans as of May 31, 2004: EQUITY COMPENSATION PLAN INFORMATION
- ------------------------------------------------------------------------------------------------------------- NUMBER OF SECURITIES TO WEIGHTED-AVERAGE NUMBER OF SECURITIES BE ISSUED UPON EXERCISE EXERCISE PRICE OF REMAINING AVAILABLE FOR OF OUTSTANDING OPTIONS, OUTSTANDING OPTIONS, FUTURE ISSUANCE UNDER WARRANTS AND RIGHTS WARRANTS AND RIGHTS EQUITY COMPENSATION PLANS - ------------------------------------------------------------------------------------------------------------- PLAN CATEGORY Equity compensation plans approved by security 1,591,503 $ 2.17 1,205,070 holders - ------------------------------------------------------------------------------------------------------------- Equity compensation plans not approved by security 250,000 $2.70 -- holders (1) - ------------------------------------------------------------------------------------------------------------- Total........ 1,841,503 $2.24 1,205,070 - -------------------------------------------------------------------------------------------------------------
(1) In connection with our acquisition of the technology and assets of Tech Engine, Inc. in October 2001, we entered into employment agreements with two former employees of Tech Engine. Pursuant to those employment agreements, we issued options to purchase an aggregate of 250,000 common shares at an exercise price of $2.70 per share. These options are fully vested and were granted outside of the terms our stock option plan then in effect. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The following table sets forth certain information regarding the beneficial ownership of our common shares as of September 27, 2004, by: (i) each person known by us to be the beneficial owner of more than five percent (5%) of our common shares; (ii) each director and nominee for election as director of Workstream; (iii) each Named Executive Officer; and (iv) all executive officers and directors as a group. Unless otherwise indicated, the principal address of each beneficial owner listed below is c/o Workstream Inc., 495 March Road, Suite 300, Ottawa, Ontario, Canada K2K 3G1.
- ------------------------------------------------------------------------------------------------------------- NUMBER OF COMMON SHARES NAME & ADDRESS OF BENEFICIAL OWNER BENEFICIALLY OWNED (1) PERCENTAGE OF CLASS - ------------------------------------------------------------------------------------------------------------- Michael Mullarkey 4,275,000 10.2% - ------------------------------------------------------------------------------------------------------------- Paul Champagne 3,463,625 8.2% P.O. Box 4085 Station A Toronto, Ontario M5W2X6 - ------------------------------------------------------------------------------------------------------------- William Blair Small Cap Growth Fund 2,418,160 5.7% 222 West Adams Street Chicago, IL 60606 - ------------------------------------------------------------------------------------------------------------- Matthew Ebbs 113,333 (2) * - ------------------------------------------------------------------------------------------------------------- Michael Gerrior 37,667(3) * - ------------------------------------------------------------------------------------------------------------- Thomas Danis 13,333(4) * - ------------------------------------------------------------------------------------------------------------- Cholo Manso 35,333(5) * - ------------------------------------------------------------------------------------------------------------- Arthur Halloran 6,667(6) * - ------------------------------------------------------------------------------------------------------------- Steve Singh -- -- - ------------------------------------------------------------------------------------------------------------- David Polansky 16,667(7) * - ------------------------------------------------------------------------------------------------------------- All executive officers and directors as a 4,505,000 (8) 10.7% group (9 persons) - -------------------------------------------------------------------------------------------------------------
* Less than 1% (1) With respect to each stockholder, includes any shares issuable upon exercise of options and conversion of convertible notes held by such stockholder that are or will become exercisable or convertible within 60 days of September 27, 2004. (2) Consists of 113,333 common shares issuable upon the exercise of stock options. (3) Includes 7,667 common shares issuable upon the exercise of stock options. (4) Consists of 13,333 common shares issuable upon the exercise of stock options. (5) Includes 13,333 common shares issuable upon the exercise of stock options. (6) Consists of 6,667 common shares issuable upon the exercise of stock options. (7) Consists of 16,667 common shares issuable upon the exercise of stock options. 2 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. WORKSTREAM INC. By:/s/ Michael Mullarkey ----------------------------------------- Michael Mullarkey, President, Chief Executive Officer and Chairman of the Board Dated: November 1, 2004 3 EXHIBIT INDEX Exhibit No. Description 31.1 Certification of Michael Mullarkey pursuant to Rule 13a-14(a)/15d-14(a). 31.2 Certification of David Polansky pursuant to Rule 13a-14(a)/15d-14(a). 32.1 Certification of Michael Mullarkey pursuant to 18 U.S.C. Section 1350. 32.2 Certification of David Polansky pursuant to 18 U.S.C. 1350. EX-31.1 2 v07970_ex31-1.txt Exhibit 31.1 CERTIFICATION I, Michael Mullarkey, certify that: 1. I have reviewed this annual report on Form 10-K/A of Workstream Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and we have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Dated: November 1, 2004 /s/ Michael Mullarkey ----------------------------------------- Michael Mullarkey Chief Executive Officer EX-31.2 3 v07970_ex31-2.txt Exhibit 31.2 CERTIFICATION I, David Polansky, certify that: 1. I have reviewed this annual report on Form 10-K/A of Workstream Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and we have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. Dated: November 1, 2004 /s/ David Polansky ----------------------------------------- David Polansky Chief Financial Officer EX-32.1 4 v07970_ex32-1.txt Exhibit 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of Workstream Inc. (the "Company") on Form 10-K/A for the year ending May 31, 2004, as filed with the Securities Exchange Commission on the date hereof (the "Report"), I, Michael Mullarkey, the Chief Executive Officer of the Company, certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge: 1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ Michael Mullarkey ----------------------------------------- Michael Mullarkey Chief Executive Officer Dated: November 1, 2004 EX-32.2 5 v07970_ex32-2.txt Exhibit 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report of Workstream Inc. (the "Company") on Form 10-K/A for the year ending May 31, 2004, as filed with the Securities Exchange Commission on the date hereof (the "Report"), I, David Polansky, the Chief Financial Officer of the Company, certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of my knowledge: 1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ David Polansky ----------------------------------------- David Polansky Chief Financial Officer Dated: November 1, 2004 -----END PRIVACY-ENHANCED MESSAGE-----