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EXHIBIT 10.25
TRANSFORMATION PROCESSING INC. (TPI)
0000 XXXXXXXX XXXXX, XXXXX 0000
XXXXXXXXXXX, XXXXXXX
X0X 0X0
TRANSFORMATION PROCESSING INC. (TPI)
MANAGEMENT EMPLOYMENT CONTRACT
AGREEMENT made and entered into at the City of Mississauga, in the Province of
Ontario, Canada, this 27th day of April , 1999.
BY AND BETWEEN: Transformation Processing Inc. ("TPI"), body corporate under the
laws of Ontario, having an office at 0000 Xxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxxxxxx, Xxxxxxx X0X 0X0.
PARTY OF THE FIRST PART
AND: Xxxxxx Xxxxxx (the "Employee"),
and domiciled at: 0000 Xxxxxxxxxx Xxxxxx #00
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
PARTY OF THE SECOND PART
RECITALS
A. Employer is in the business of Software Development and Professional Services
and TPI is otherwise engaged in the business of Information Technology.
B. Employee has agreed to provide services as Chief Financial Officer (CFO) to
Employer and to enter into this agreement with Employer.
NOW THEREFORE, Employer and Employee do hereby stipulate, covenant and agree as
follows:
1. EMPLOYMENT
Employer hereby employs Employee and Employee hereby accepts employment
upon the terms and conditions set forth in this Agreement. Employee
hereby warrants and covenants that he is not bound by any legal
obligation inconsistent with him entering into this Agreement.
2. DUTIES AND RESPONSIBILITIES
TPI retains the professional services of the Employee as Chief
Financial Officer, responsible for:
All financial preparations on behalf of TPI;
All financial reporting requirements for securities and operations;
Preparation of all Client and Vendor Contracts; Implementation of
internal accounting processes and controls; Preparation of internal
budgeting and reporting structure; Other duties as assigned.
Employee hereby warrants and covenants that he is not bound by any
legal obligation inconsistent with him entering into this Agreement.
Employee is employed to provide services as Chief Financial Officer
responsible for performing the tasks accepted within the framework and
time schedule of all projects to the satisfaction of TPI.
3. SERVICE
Employee agrees that he will service Employer faithfully and to the
best of his ability and devote his full working time to the business
affairs of Employer and the promotion of Employer's business, in
accordance with Employer's directions, instructions and specifications.
Employee shall be bound by and shall faithfully observe and abide by
all the rules and regulations of Employer from time to time in force
which are brought to his notice or of which he should reasonably be
aware.
The Employee agrees to represent himself as an employee of TPI for the
purposes of this agreement and for any other agreements TPI makes with
the Client regarding the Employee, whether verbal or written, in which
this agreement may result. The Employee hereby understands and agrees
not to promote or market himself to the Client as anything other than a
Chief Financial Officer of TPI. Employee agrees not to participate or
hold office with any other organization at the time of his employ with
TPI and prior to the effective date of this contract declare that this
is the status as he joins the company.
4. SAFE PERFORMANCE OF DUTIES
In the position of Chief Financial Officer, the Employee may operate a
motor vehicle on a regular and ongoing basis in the course of carrying
out his duties under the terms of this Agreement. Any insobriety while
performing under this Agreement or any use of illegal drugs shall be
cause for immediate termination.
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5. TERM
The employment of the Employee hereunder shall begin on the 27th day of
April, 1999 and shall continue until otherwise terminated as provided
for in this agreement.
6. COMPENSATION AND BENEFITS
In consideration for services rendered by Employee hereunder, he shall
receive:
SALARY. Employer shall provide, bi-weekly in 26 installments a salary
of three thousand and seventy-six dollars and ninety-two cents
($3846.15) gross pay for the period effective May 24, 1999, during
which Employee is employed, through and including the date of
termination of employment in accordance with the termination
provisions herein set forth.
BONUS. Employee will have the opportunity to earn up to 250,000 TPI
share options through performance incentives during the first year
of employment. The criterion for this incentive program will be
provided to the Employee within the first 90 days of full time
employment and on the anniversary of this Agreement for each
subsequent year.
Further to this individualized program, the Employee will be
invited to participate in Employer operated company wide sales
incentive programs run from time to time. These programs entitle
participants to a share of a bonus pool calculated on a percentage
of the gross sales developed over the program period.
AUTO EXPENSES. Employer shall also pay on a monthly basis, expenses for
the use of the Employees personal conveyance in the amount of
$0.35 per kilometre. This amount adjusts to $0.33 per kilometre
after 5000 kilometres per year. This expense is payable on
condition of providing the necessary administrative forms as per
Employer policy.
VACATION. Employee shall be entitled to three (3) weeks of paid
vacation in the first year and each subsequent year to a vacation
with pay in accordance with Employer policy.
EXPENSES. Employee shall be reimbursed for all authorized traveling and
other out of pocket expenses actually and properly incurred by him
in connection with his duties hereunder. For all such expenses
employee will provide original receipts, otherwise the employee
will be responsible for paying his own expenses.
BENEFITS. Employee shall participate in all employee benefit plans as
are provided by Employer from time to time: provided he is
otherwise eligible to participate and desires to be covered and so
participates; provided further that nothing herein shall be
construed to obligate Employer in any manner to put into effect
any plans not presently in existence or to provide special
benefits to Employee.
7. TERMINATION
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a. FOR CAUSE. Employer shall have the right at any time, for cause, to
terminate the employment of Employee without notice. For purposes of
this Agreement, "for cause" shall include, but not be limited to, the
following:
Breach of any provision of this Agreement by Employee;
Insobriety of Employee while performing duties under this
Agreement;
Any act of dishonesty or falsification of reports, records or
information submitted to Employer by Employee;
Misrepresentation of TPI to clients;
Use of illegal drugs.
b. PURSUANT TO NOTICE. Employer may terminate this Agreement upon
giving the minimum statutory notice. Notwithstanding the foregoing,
Employer may terminate this Agreement immediately upon paying Employee
the minimum statutory requirements in lieu of such notice and upon
making the benefit plan contributions necessary to maintain Employee's
participation for the minimum period prescribed by law in all benefit
plans provided to Employee by Employer immediately prior to the
termination of this Agreement. Employee agrees that Employer may deduct
from any payment of salary in lieu of notice hereunder Employee's
benefit plan contributions which were regularly made during the term of
this Agreement in accordance with the terms of all benefit plans to be
maintained hereunder for the minimum period prescribed by law.
c. Employer may from time to time , advance monies to Employee in
anticipation of possible bonus entitlement in accordance with
Exhibit A of this Agreement. AS PERMITTED BY REGULATION 325, SECTION
14 OF THE EMPLOYMENT STANDARDS ACT, EMPLOYEE HEREBY GIVES HIS
WRITTEN AUTHORIZATION TO DEDUCT SUCH ADVANCES FROM ANY AMOUNTS
PAYABLE BY EMPLOYER TO EMPLOYEE UNDER SECTION 7(B) ABOVE.
d. The parties confirm that the notice and pay in lieu of notice
provision contained in Section 7(b) is fair and reasonable and the
parties agree that upon any termination of this Agreement by Employer
in accordance with Section 7(b) or upon any termination of this
Agreement by Employee, Employee shall have no action, cause of action,
claim or demand against Employer or any other person as a consequence
of such termination.
e. DUTIES UPON TERMINATION. In the event the employment of Employee is
terminated for any reason whatsoever including the expiration of the
term of this Agreement, Employee shall deliver immediately to Employer
all customer lists, correspondence, letters, contracts, call reports,
price lists, manuals, mailing lists, investor lists,(hard copy or
electronically stored) advertising materials, ledgers, supplies,
equipment, cheques, xxxxx cash, and all other materials and records of
any kind that may be in Employees possession or under his control which
belong to the Employer by the Employee, including any and all copies of
such items previously described in this paragraph.
f. TERMINATION BY EMPLOYEE. Employee may terminate this Agreement upon
giving the minimum statutory written notice to Employer. In such event,
Employer's only obligations to Employee shall be to continue to employ
Employee during the period of
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notice under this Section 7(f) or pay employee in lieu of such notice
an amount equal to Employee's base salary for the period of notice
under this Section 7(f). In the event this Agreement is terminated by
Employee under this Section 7(f) the provisions of Sections 7(e) and 8
shall continue to apply.
RESTRICTIVE COVENANT
Employee acknowledges and recognizes that the list of customers (
whether now existing or developed during the period of his/her
employment by him/her or at his/her discretion) and business
methodology of Employer are a valuable, special and unique asset of
Employer and were acquired or will be hereafter acquired at
considerable expense to Employer and that said lists and business
methodologies are confidential and are a valuable trade and business
secrets and assets belonging to Employer and TPI. Furthermore, it is
stipulated and agreed by Employee that during the term of this
Agreement Employee will be placed in a position by Employer to become
acquainted with its confidential and privileged information relating to
customer files and special customer information, production methods and
techniques, promotional materials and information and confidential
processes, designs, ideas, machinery, plans, devices or materials, and
other similar matters treated by Employer and TPI as confidential (the
"Confidential Information") and that the use of the Confidential
Information by persons or entities other than Employer and TPI against
Employer and TPI might seriously damage Employer and TPI in its
business. As a consequence of the above, in return for the
consideration of his employment and the payment of his salary and
receipt of other benefits, that in the event of termination of his
employment for any reason whatsoever, Employee agrees as follows:
a. NOT TO DIVULGE CONFIDENTIAL INFORMATION. During the term of his
employment under this Agreement and thereafter, Employee shall not,
without the prior written consent of Employer, divulge, furnish or make
accessible to any third person, company or other organization (other
than in the regular course of business of Employer), any of the
Confidential Information concerning Employer or TPI.
b. NOT TO COMPETE. Employee will not, directly or indirectly, will not
in any way divert or attempt to divert from Employer any business
whatsoever and Employee does further agree that during said restrictive
period he will not influence or attempt to influence any of the
customers of Employer not to do business with Employer, and Employee
does further agree that he will not make or permit the making of any
public announcement or statement of any kind that Employee was formerly
employed or connected with Employer, which announcement has as its
purpose directly or indirectly the intent to violate the provision of
this Agreement. The term "customer" as used herein, shall mean any
person or entity to which the Employer provides or has provided within
a period of one year prior to Employee's termination, materials, or
services for the furtherance of such entity or person's business or any
person or entity that within said period of one year Employee pursued
or communicated with for the purposes of obtaining business for
Employer.
c. ENFORCEMENT. It is stipulated that a breach by Employee of the
restrictive covenants set forth herein will cause irreparable damage to
Employer, and that in the event of any breach of the provisions under
subparagraphs (a) and (b) above, Employer, in addition to any other
remedies it has, shall be entitled to any and all of the following
remedies:
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An injunction restraining the Employee from violating or continuing to
violate the restrictive covenants contained herein. It is further
stipulated that the existence of any claim or cause of action on the
part of Employee against Employer, whether arising from this Agreement
or otherwise, shall in no way constitute a defense to the enforcement
of the restrictive covenants contained herein, and the restrictive
period for which Employer is entitled to an injunction shall be
extended in an amount which equals the time period during which
Employee is or has been in violation of the restrictive covenants
contained herein.
9. PROVISIONS WHICH OPERATE FOLLOWING TERMINATION
Notwithstanding any termination of this Agreement for any reason
whatsoever and with or without cause, the provisions of all sections
and any other provisions of this
Agreement necessary to give efficacy thereto shall continue in full force and
effect following such termination.
OTHER EMPLOYMENT
Employee shall devote his entire time, attention and energy to
Employer's business during the course of fulfilling the duties outlined
herein. While employed hereunder, Employee shall not, directly or
indirectly, either individually or through any corporation, partnership
or other business entity, engage or be interested in any other
business, and he may not engage in any activity whatsoever, regardless
of where located, detrimental to the business interests of Employer.
Provided, however, that Employer may participate as a stockholder,
director, officer or employee of Employer or TPI.
ENTIRE AGREEMENT
This Agreement sets forth the entire understanding between the parties
with respect to the terms of Employee's employment, and supersedes any
prior Agreements, whether written or oral, concerning the subject
matter. There are no representations, warranties, conditions,
undertakings, or collateral agreements expressed or implied statutory
between the parties other than an expressly set forth in this
Agreement. This Agreement cannot be amended except by a writing signed
by both parties provided, however, that Exhibit A may be amended by
Employer without Employee's consent as provided in said exhibit and,
further, Employer may, from time to time amend Employer's Rules and
Regulations which are incorporated by reference.
NO WAIVER
No waiver of any term or provision of this Agreement shall be deemed to
be a waiver of any subsequent breach of such term or provision of this
Agreement.
GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the province of Ontario and the laws of Canada applicable
therein.
ATTORNMENT
For the purpose of all legal proceedings this Agreement shall be deemed
to have been
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performed in the Province of Ontario and the Courts of the Province of
Ontario shall have jurisdiction to entertain any action arising under
this Agreement. Employer and Employee each hereby attorns to the
jurisdiction of the courts of the Province of Ontario provided that
nothing herein contained shall prevent Employer from proceeding at its
election against Employee in the Courts of any other province or
country.
NOTICES
Any notice that may be given hereunder shall be sufficient if in
writing and mailed by certified mail, return receipt, requested, to
Employee at 0000 Xxxxxxxxxx Xxxxxx #00, Xxxxxxxxxxx, Xxxxxxx, X0X 0X0
and to Employer at 0000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxxxxx,
Xxxxxxx, X0X 0X0 or at such place as either party by written notice
designates.
HEIRS AND ASSIGNS
This Agreement may be assigned by Employer only, and shall be binding
upon the parties hereto, their successors and heirs, wherever the
context admits or requires.
SEVERANCE CLAUSE
The parties agree that each of the parts and provision of this
Agreement are severable and the invalidity or unenforceability of any
one or more of the provisions or parts of this Agreement shall not
affect the validity and/or enforceability of any other part or
provision of this Agreement.
LEGAL FEES
In the event the Employer must enforce any of the rights herein granted
to it through a lawyer, then Employee shall be liable for any and all
reasonable legal fees, expenses and court costs, in connection with the
enforcement of Employer's rights hereunder.
GENDER
Any reference in this Agreement to the masculine or neuter shall
include the masculine, the feminine and the neuter where appropriate.
ACKNOWLEDGMENT
Employee acknowledges that this Agreement has been executed by him
without coercion by Employer and pursuant to the advice of Employee's
own independent counsel, and that no representations of any kind have
been made by Employer as in inducement to obtain Employee's execution
of this Agreement other than those representations specifically
contained in this written document.
IN WITNESS WHEREOF, the parties hereto have executed this agreement at the place
and as of the date first herein above written.
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TRANSFORMATION PROCESSING INC. (TPI)
By: /s/ XXXX XXXXXXX Date: APRIL 27, 1999
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XXXXXX XXXXXX
Employee: /s/ XXXXXX XXXXXX Date: APRIL 27, 1999
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