Exhibit 10.1
Transformation Processing Inc. (TPI)
0000 Xxxxxxxx Xxxx, Xxxxx 000
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 1st day of January, 1997.
BY AND BETWEEN: Transformation Processing Inc. ("TPI"), body corporate under
the laws of Ontario, having an office at 0000 Xxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxx X0X 0X0.
PARTY OF THE FIRST PART
AND: Xxxx X. XxXxxx (the "Employee"),
and domiciled at: 0000 Xxxxxx Xxxxx
Xxxxxxxxxx, 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 Executive Vice President 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 Executive Vice
President, responsible for
1. Creation and execution of TPI business plan and mission statement;
2. Oversee hiring and administration of development and administrative
staff;
3. Handling day to day operations concerning several lines of business;
4. Acting responsibly as a member of the Board of Directors;
5. Promoting TPI through membership in industry associations;
6. Continually demonstrating moral and ethical standards of business
conduct.
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 Executive Vice President
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 Executive
Vice President 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 Executive Vice President, 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.
5. TERM
The employment of the Employee hereunder shall begin on the 1st day of
January, 1997 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:
a) Salary. Employer shall provide, a salary (26 installments) of five
thousand one hundred and fifty-three dollars and eighty-five cents
($5153.85) gross pay for the period during which Employee is employed,
through and including the date of termination of employment in accordance
with the termination provisions herein set forth.
b) 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.
c) Vacation. Employee shall be entitled each year to a vacation with pay in
accordance with Employer policy.
d) 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.
e) 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
a. For Cause. The Board of Directors 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 the
giving of 30 days' notice in addition to the minimum statutory notice.
Notwithstanding the foregoing, Employer may terminate this Agreement
immediately upon paying Employee 6 months base salary plus 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 30 days written notice to Employer. In such event, Employer's only
obligations to Employee shall be to continue to employ Employee during the
period of 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.
8. 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, for a period
of up to six months following the termination of Employee's employment ("the
restrictive period"); engage in competition with Employer, successors or
assigns in the Territory to in or with respect to Employer's "customers" or
provide information, solicit or sell for, own, or organize any interest in,
either directly or indirectly or through any affiliate or subsidiary
corporation, partnership or other entity, or become engaged by, act as agent
for or in any manner assist, any person, corporation or other entity that is
directly or indirectly in competition with Employer, its successors or
assigns in the Territory or with respect to Employer's "customers" as
defined on this paragraph. Employee does further agree that within the
restrictive period, Employee 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:
i) 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.
ii) Liquidated damages in the amount of $300.00 per day for each day
during which Employee is in violation of the covenants contained herein
after notice of breach thereof and Employee does specifically acknowledge
and stipulate that liquidated damages in such amount are fair and
reasonable in that it may be difficult for Employer to determine the
extent of the damages actually incurred in the event of the breach of the
restrictive covenants contained herein by Employee.
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.
10. OTHER EMPLOYMENT
Employee shall devote his entire time, attention and energy to Employer's
business. 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. For the purposes of this
restriction, the Employee will be considered to be engaged or interested in
businesses detrimental to the business interests of the Employer if he
participates in such businesses as a stockholder, director, officer,
employee, partner, consultant, individual proprietor, lender or agent,
except that nothing herein shall preclude Employee from holding not more
than ten (10%) percent of the outstanding shares of any publicly traded
shares of any publicly held company, registered on a national securities
exchange, which may be so engaged in a trade or business of employer.
Provided, however, that Employer may participate as a stockholder, director,
officer or employee of Employer or TPI.
11. 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.
12. 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.
13. 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.
14. ATTORNMENT
For the purpose of all legal proceedings this Agreement shall be deemed to
have been 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.
15. 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 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx, X0X 0X0 and to Employer at
0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxx, X0X 0X0 or at such
place as either party by written notice designates.
16. 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.
17. 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.
18. 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.
19. GENDER
Any reference in this Agreement to the masculine or neuter shall include
the masculine, the feminine and the neuter where appropriate.
20. 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.
Transformation Processing Inc. (TPI)
By: /s/ Xxxx Xxxxxxx Date: January 1, 1997
---------------------------------
Xxxx X. XxXxxx
Employee: /s/ Xxxx X. XxXxxx Date: January 1, 1997
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