Exhibit 10.2
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. XxXxx (the "Employee"),
and domiciled at: 0000 Xxxxxxxxx Xxxxxxxx
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 Vice President and Chief Financial
Officer 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 Vice President
and Chief Financial Officer, responsible for
1. All financial preparations on behalf of TPI;
2. All financial reporting requirements for securities and operations;
3. Preparation of all client contracts;
4. Interfacing with investors and Employer appointed investor relations
firms;
5. 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 Vice President and 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
Vice President and 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 Vice President and 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.
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:
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a) Salary. Employer shall provide, a salary (26 installments) of four
thousand and six hundred and fifteen dollars and thirty-eight cents
($4615.38) 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) Allowance: Employer shall also provide on a monthly basis a car
allowance for the use of the Employee's personal conveyance in the
amount of seven hundred dollars ($700.00). This allowance is payable on
condition of providing the necessary adminsitrative 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 3 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
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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
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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 in 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.
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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
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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 Xxxxxxxxx Xxxxxxxx, Xxxxxxxxxxx, 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 provisions 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.
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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
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Xxxx X. XxXxx
Employee: Date: January 1, 1997
/s/ Xxxx X. XxXxx
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