Exhibit 10.4
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: Xxxxxxxx Xxxxxxxxx (the "Employee"),
and domiciled at: 000 xxxxxx xx x'Xxxxxxx
Xx. Xxxxxxx, Xxxxxx
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, Technology 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,
Technology, responsible for
1. Continuing development of migration software for TPI;
2. Hiring and administration of development staff;
3. Working within the parameters of the development plan for TPI;
4. Acting responsibly as a member of the Board of Directors;
5. Managing projects including identification of staffing and equipment
requirements, liasing with the client and setting time tables;
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 Vice President, Technology
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, Technology 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, Technology, 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 three
thousand and seventy-six dollars and ninety-two cents ($3076.92)
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 000 Xxxxxx xx x'Xxxxxxx, Xx. Xxxxxxx, Xxxxxx, 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 an 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
--------------------
Xxxxxxxx Xxxxxxxxx
Employee: /s/ Xxxxxxxx Xxxxxxxxx Date: January 1, 1997
--------------
