EXHIBIT 10.15 EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective the 1st day of
March, 2000, by and between Power Photo Kiosks Inc., a corporation with offices
at 181 Whitehall Drive, Markham, Ontario L3R 9T1 (the "Employer") and Allan
Turowetz residing at 25 Castleridge Drive, Richmond Hill, Ontario L4B 1P9 (the
"Employee").
WITNESSETH:
WHEREAS, Employer desires to engage the services of Employee upon the terms
set forth herein; and
WHEREAS, Employee desires to be employed by Employer and to appropriately
memorialize the terms and conditions of such employment.
NOW THEREFORE, in consideration of the mutual promises, covenants and
conditions contained herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties agree as
follows:
1. BASIC EMPLOYMENT PROVISIONS
(a) Employment and Term. Employer hereby agrees to employ Employee (hereinafter
referred to as the "Employment") as Executive Vice President of Employer (the
"Position") and Employee agrees to be employed by Employer in such Position for
a period of (5) years ending on the 31st day of March, 2005 (the "Termination
Date"), unless terminated earlier as provided herein (the "Employment Period").
(b) Duties. Employee in the Position will be subject to the direction and
supervision of the Board of Directors (the "Board") and will have those duties
and responsibilities that are assigned to him during his Employment Period by
the Board consistent with the position, provided that the Board will not assign
any greater duties or responsibilities to the Employee than are necessary for
the Employee's faithful and adequate performance of the duties and
responsibilities assigned. The parties expressly acknowledge that the Employee
will devote all of Employee's business time and attention to the transaction of
the Employer's business as is reasonably necessary to discharge Employee's
responsibilities hereunder. Employee agrees to perform faithfully the duties
assigned to the best of Employee's ability.
2. COMPENSATION
(a) Salary. During the Employment Period, Employer will pay to Employee a salary
as basic compensation for the services to be rendered by Employee hereunder. The
initial amount of such basic compensation will be One Hundred Thousand Dollars
($100,000.00 US) per year. Such salary will be reviewed as appropriate by the
Board of the Employer and may be increased in the Board's sole discretion based
upon the performance of the Employer. Such salary will accrue and be
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payable in accordance with the payroll practices of Employer in effect from time
to time. All such payments will be subject to deductions and withholdings
authorized or required by applicable law.
In addition, in lieu of back salary the employee will receive a bonus of
$75,000 once the company has raised a minimum of $1,500,000 in the private
placement offering closing July 31, 2000.
(b) Bonus. An initial bonus of 105,000 free-trading shares valued at $1.00 per
share will be granted to the employee once the $1,500,000 placement offering is
completed.
During the Employment Period, Employee may be eligible to receive any
additional salary, bonus or other compensations as may be determined in the
Board's sole discretion.
(c) Benefits. During the Employment Period, Employee will be entitled to such
other benefits as are available to other key employees and executives of
Employer, including, without limitation, group life, hospitalization and other
insurance, paid vacations, and pension benefits.
(d) Automobile Allowance. Employer will pay Employee for reasonable automobile
expenses actually incurred by Employee in the furtherance of the Employer's
business.
(e) Stock Options.
(1) Under this agreement warrants are granted to Employee under a Warrant
Plan implemented by Employer. Employee has the option to purchase up to a total
of 100,000 shares of the Employer's common stock, annually, which options are
exercisable at a price of $1.00 US per share. The stock options will begin to
vest at the end of the fiscal year commencing on July 31, 2000 and each fiscal
quarter thereafter. Employee will have five (5) years after the shares are
vested to exercise said options.
(2) Notwithstanding the five (5) year period set forth in subparagraph
(e)(1), if for any reason the Employee is not employed by Employer at the end of
such fiscal year, the options will vest and the Employee will be entitled to
such stock options. In addition, if for any reason whatsoever Employee ceases to
be employed by Employer, Employee will have one hundred and eighty (180) days
from the date Employee ceased to be employed by Employer in the Position within
which to exercise any options owned by him and in the event and to the extent he
fails to exercise the options, they will lapse.
(3) No option granted hereunder or any of the rights or privileges thereby
conferred will be transferred, assigned, pledged or hypothecated in any way
(whether by operation of law or otherwise) and no such option, right or
privilege will be subject to execution, attachment or similar process. Upon any
attempt so to transfer, assign, pledge or hypothecate or otherwise dispose of
the option or any right or privilege conferred thereby, contrary to the
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provisions hereof, or upon the levy of any attachment or similar process
upon such option, right or privilege, the option and such right or privilege
will immediately become null and void.
6. TERMINATION
(a) Death or Disability. This Agreement will terminate automatically upon the
death or total disability of Employee. For the purpose of this Agreement, "total
disability" will be deemed to have occurred if Employee will have been unable to
perform the assigned duties due to mental or physical incapacity for a period of
three (3) consecutive months or for any sixty (60) working days out of a six (6)
month consecutive period.
(b) Cause. Employer may terminate the employment of Employee under this
Agreement for Cause. For the purpose of this Agreement, "cause" will be deemed
to be any felony convictions, fraud, dishonesty, competition with Employer,
unauthorized use of any of Employer's trade secrets or confidential information,
or failure to properly perform the duties assigned to Employee, in the
reasonable judgment of Employer.
(c) Without Cause. Except in the case of change of control as defined herein, in
which case subparagraph (d) will apply, Employer may terminate the employment of
Employee under this Agreement with written notice to Employee (the "W/C
Notice").
(d) Change of Control. Upon change of control of Employer, Employer may
terminate this Agreement. For the purpose of this Agreement, "change of control"
will mean a change in the control of Employer of a nature that would be required
to be reported in response to (1) Item 1 of Form 8K; (2) Item 5(f) of Schedule
14A of Regulation 14A; or (3) any other rule of regulation as promulgated by the
Securities and Exchange Commission.
(e) Voluntary Termination by Employee. Employee may terminate this Agreement
with six (6) month written notice to Employer (the "V/T Notice").
7. COMPENSATION UPON TERMINATION
(a) Death or Disability. If the Employment Period is terminated pursuant to the
provisions of Section 3(a) above, the following will be payable:
(1) In the case of death, no further compensation will be payable to
Employee, except that Employee's estate, heir or beneficiaries, as applicable,
will be entitled, in addition to any other benefits specifically provided to
them under any benefit plan, to receive Employee's then current salary for the
lesser (i) twelve (12) months from the date of death or (ii) for the balance of
the Employment Period.
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(2) In the case of disability, no further compensation will be payable to
Employee, except that Employee will be entitled, in addition to any other
benefits specifically provided to Employee under any benefit plan, to receive
Employee's then current salary for the lesser of (i) twelve (12) months from the
date of the disability or (ii) for the balance of the Employment Period.
(b) Termination for Cause. If the Employment of Employee under this Agreement is
terminated for cause pursuant to the provisions of Section 3(b) above, no
further compensation will be paid to Employee after the date of termination and
all benefits will cease at that time.
(c) Termination Without Cause. If the Employment o Employee under this Agreement
is terminated pursuant to Section 3(c) above, Employee will be entitled to
continue to receive from Employer the then current basic compensation hereunder
for a period of three (3) years from the date of the W/C Notice, such amount to
be paid in accordance with the payroll practices of Employer, and further will
be entitled to receive the benefits to which Employee would otherwise be
entitled pursuant to Section 2(c) above for a period of twelve (12) months from
the date of the W/C Notice.
(d) Termination due to Change of Control. If the Employment of Employee under
this Agreement is terminated pursuant to Section 3(d) above,
(1) in the event that Employer's new management offers Employee a position,
Employee will have thirty (30) days from the date the position is offered to
decide where to accept or not. If Employee accepts, this Agreement will be
terminated and all compensation will be in accordance with the new agreement. If
the Employee rejects the offered position, Employee will be entitled to receive
within sixty (60) days from the date of change of control, a lump sum equal to
the Employee's then current salary for the greater of (i) (24) months or (ii)
for the balance of the Employment Period, and further will be entitled to
receive the benefits to which Employee would otherwise be entitled pursuant to
Section 2(c) above the greater of (i) twelve (12) months or (ii) for the balance
of the Employment period from the date of the change of control;
(2) in the event that the Employe s new management does not offer Employee
a position, Employee will be entitled to receive within sixty (60) days from the
date of change of control, a lump sum equal to the Employee's then current
salary for the greater of (i) thirty six (36) months or (ii) for the balance of
the Employment Period, and further will be entitled to receive the benefits to
which Employee would otherwise be entitled pursuant to Section 2(c) above for
the greater of (i) twenty-four (24) months or (ii) for the balance of the
Employment period from the date of the change of control; and
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(3) upon a change of control of the Employer, all warrants outstanding will
vest and employee will have one hundred and eighty (180) days to exercise said
warrants.
(e) Termination Due to Voluntary Termination by Employee. If the Employee
voluntarily terminates the Employee's Employment pursuant to the provisions of
Section 3(e) above, Employee will be entitled to receive the then current salary
of Employee for the greater of (i) six (6) months from the date of the V/T
Notice or (ii) for the period from the date of the V/T Notice through the last
day on which Employee remains in the Position.
5. EXPENSE REIMBURSEMENT
Upon submission of properly documented expense account reports, Employer
will reimburse Employee for all reasonable business, travel and entertainment
expenses incurred by Employee in the course of his Employment with Employer.
6. ASSIGNMENT
This Agreement and all of the provisions hereof will be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, but neither this Agreement nor any of the rights, interests
or obligations hereunder will be assigned by any of the parties hereto, except
that this Agreement all of the provisions hereof may be assigned by Employer to
any successor to all or substantially all of its assets (by merger or otherwise)
and may otherwise be assigned upon the prior written consent of Employee.
7. CONFIDENTIAL INFORMATION
(a) Non-Disclosure. During the Employment Period or at any time thereafter,
irrespective of the time, manner or cause of the termination of this Agreement,
Employee will not directly or indirectly reveal, divulge, disclose or
communicate to any person or entity, other than authorized officers, directors
and employees of the Employer, in any manner whatsoever, any Confidential
Information (as hereinafter defined) of Employer without the prior written
consent of the Board.
(b) Definition. As used herein, "Confidential Information" means information
disclosed to or known by Employee as a direct or indirect consequence of or
through the Employment about Employer or its respective businesses, products and
practices, which information is not generally known in the business in which
Employer is or may be engaged. However, Confidential Information will not
include under any circumstances any information with respect to the foregoing
matters which is (i) available to the public from a source other than Employee,
(ii) released in writing by Employer to the public or to persons who are not
under a similar obligation of confidentiality to Employer and who are not
parties to this Agreement, (iii) obtained by Employee from a third party not
under a similar obligation of confidentiality to Employer, (iv) required to be
disclosed by any court process or any government or agency or department of any
government, or (v) the subject of a written waiver executed by Employer for the
benefit of Employee.
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(c) Return of Property. Upon termination of the Employment, Employee will
surrender to Employer all Confidential information, including without
limitation, all lists, charts, files, disks, tapes, programs, program and system
manuals and documentation, schedules, reports, financial statements, books and
records of the Employer, and all copies thereof, and all other property
belonging to the Employer will be accorded reasonable access to such
Confidential Information subsequent to the Employment Period for any proper
purpose as determined in the reasonable judgment of Employer.
8. AGREEMENT NOT TO COMPETE
(a) Employee agrees:
(a) To give the Board six (6) month's written advance notice of voluntary
termination of Employment with Employer. Such notice will include Employee's
future employment or self-employment intentions, identification of the
prospective employer and the general nature of the prospective employment or
self-employment, if known. Employer will continue to pay the then current salary
to Employee in accordance with paragraph 4(e) above.
(2) To participate in an exit interview conducted by a member of the
personnel department of Employer and/or by a representative of Employer, at the
time of or prior to the termination of Employment with Employer.
(3) That for two (2) years following the termination of the Employment,
Employee will promptly notify Employer of any change in the identification of
Employee's employer or the nature of such employment or of self-employment.
(4) Subject to the conditions hereinafter stated, Employee will not, within
two (2) years of leaving the employ of Employer, engage or enter into employment
by, or into self-employment or gainful occupation as, a Competing Business (as
hereinafter defined) or act directly or indirectly as an advisor, consultant,
sales agent, as defined herein or broker for a Competing Business. As used
herein, "Competing Business" means a business that is engaged in the
manufacture, sale or other disposition of a product or service or has under
development a product or service that is in direct competition with a product or
service, whether existing or under development, of the Employer. Employee
acknowledges that Employer does not have an adequate remedy at law in the event
Employee violates this provision and, therefore, Employee agrees that, in such
an event, Employer will be entitled to seek equitable relief, including but not
limited to, injunctive relieve and to withhold all payments due to Employee
hereunder pending a judicial determination of whether Employee has violated this
Agreement.
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(b) Employer further agrees:
(1) That within fifteen (15) business days after receiving identification
of the prospective employer, the nature of the employment or self-employment
pursuant to Paragraph 8(a)(1) above, or any change therein pursuant to Paragraph
8(a)(3) above, Employer will advise Employee as to whether such employment
constitutes a Competing Business as defined in Paragraph 8(a)(4) above.
(2) In the event Employer advises Employee that such employment constitutes
a Competing Business, Employee agrees not to accept such employment offer from a
prospective Employer or be self-employed provided Employer forwards to Employee
at the end of each of the twenty-four (24) successive calendar months following
the month in which Employment by Employer terminates, a check in the amount
equal to one-half (1/2) of the monthly salary of Employee (exclusive of extra
compensation of any kind) as of the Termination Date. Provided, however, that
all payments due under this Paragraph 8(b)(2) will not be required during any
periods that Employee is receiving payments under either Paragraphs 4(a) or
4(c).
(c) The provisions of 8(a)(2) - 8(a)(4) and 8(b) will apply whether the
termination is voluntary or involuntary and for whatever reason. In addition,
8(a)(1) will apply in the case of a voluntary termination by Employee.
9. WAIVER OF AGREEMENT NOT TO COMPETE
The Employer, based on the facts revealed to it by the Employee regarding
the new employment and in its discretion upon written notification to Employee,
may at any time waive or elect not to enforce the provisions of Paragraph
8(a)(4), in which event the obligations of Paragraph 8(b)(2) above will
thereafter not apply.
10. AGREEMENT NOT TO SOLICIT EMPLOYEES
Employee agrees that, for a period of two (2) years following the
termination of the Employment Period, Employee will not, on behalf of any
business, engage in a business competitive with Employer, solicit or induce, or
in any manner attempt to solicit or induce, either directly or indirectly, any
key person employed by, or any agent of Employer, to terminate such employment
or agency, as the case may be, with Employer. In the event of violation hereof,
Employer may terminate any payments due to Employee hereunder.
11. NO VIOLATION
Employee hereby represents and warrants to Employer that the execution,
delivery and performance of this Agreement or the passage of time, or both, will
not conflict with, result in a default, right to accelerate or loss of rights
under any provision of any agreement or understanding to which the Employee or,
to the best knowledge of Employee, any of Employee's
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affiliates are a party or by which Employee, or to the best knowledge of
Employee, Employee's affiliates may be found or affected.
12. CAPTIONS
The captions, headings and arrangements used in this Agreement are for
convenience only and do not in any way affect, limit or amplify the provisions
hereof.
13. NOTICES
All notices required or permitted to be given hereunder will be in writing
and will be deemed delivered, whether or not actually received, two (2) days
after being deposited in the United States mail, postage prepaid, registered or
certified mail, return receipt requested, addressed to the other address as such
party may designate by notice:
Employer: Power Photo Kiosks Inc. 181 Whitehall Drive Markham, Ontario
Canada L3R 9T1
Employee: Allan Turowetz
25 Castleridge Drive
Richmond Hill, Ontario
L4B 1P9
14. INVALID PROVISIONS
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws, such provisions will be fully
severable, and this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this Agreement;
the remaining provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid or unenforceable provision or
by its severance of this Agreement In lieu of each such illegal, invalid or
unenforceable provision, there will be added automatically as part of this
Agreement, a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
15. ENTIRE AGREEMENT; AMENDMENTS
This Agreement contains the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, if any, relating to the subject matter hereof, including the
Prior Agreement, which is fully replaced hereby. This Agreement may be amended,
in whole or in part only, by an instrument in writing setting forth the
particulars of such amendment and duly executed by an officer of Employer
expressly authorized by the Board to do so and by Employee.
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16. WAIVER
No delay or omission by any party hereto to exercise any right or power
hereunder will impair such right or power to be construed as a waiver thereof. A
waiver by any of the parties hereto of any of the covenants to be performed by
any other party or any breach thereof will not be construed to be a waiver of
any succeeding breach thereof or of any other covenant herein contained. Except
as otherwise expressly set forth herein, all remedies provided for in this
Agreement will be cumulative and in addition to and not in lieu of any other
remedies available to any party at law, in equity or otherwise.
17. COUNTERPARTS
This Agreement may be executed in multiple counterparts, each of which will
constitute an original, and all of which together will constitute one and the
same agreement.
18. GOVERNING
This Agreement will be construed and enforced according to the laws of the
Province of Ontario, Canada.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement effective as of the date first above written.
EMPLOYER: EMPLOYEE:
Power Photo Kiosks Inc. Allan Turowetz
181 Whitehall Drive 25 Castleridge Drive
Markham, Ontario Richmond Hill, Ontario
L3R 9T1 L4B 1P9
By: /s/ Ronald Terry Cooke /s/ Allan Turowetz
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