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.