CONSULTING AGREEMENT
THIS AGREEMENT is dated for reference the 1st day of January, 2001.
BETWEEN:
DYNAMOTIVE TECHNOLOGIES CORPORATION
105 - 0000 Xxxx 00xx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
(the "Company")
AND:
R. XXXXXX XXXXXXXX
0 Xxxxxx Xxx
Xxxxxxxxxx Xxxxx,
Xxxxxx, XX00 0XX
(the "Consultant")
WHEREAS:
(A) The Company has agreed to retain the Consultant and the Consultant has
agreed to serve the Company on a full-time basis;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual
covenants and agreements herein contained, the parties hereto mutually agree as
follows:
PART 1
APPOINTMENT
1.1 The Company appoints the Consultant and the Consultant accepts the
appointment, to act as President and Chief Executive Officer (the "Appointment")
upon the terms and conditions of this Agreement and the Consultant agrees to
diligently and faithfully carry out and perform its duties and obligations
described in this Agreement.
1.2 The Consultant acknowledges that the employment contemplated hereby is
full-time and agrees to devote his time in carrying out his obligations
hereunder.
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PART 2
TERM OF AGREEMENT
2.1 Unless terminated earlier for good cause, this Agreement shall commence on
the date first appearing in this Agreement and shall continue for an initial
term of three years ending on December 31, 2003.
2.2 This agreement shall automatically renew after the initial term unless
either party gives notice of its intention not to renew at least 90 days before
the expiry of the initial period.
PART 3
DUTIES OF THE CONSULTANT
3.1 In consideration of the Company's payment of the Consultant's remuneration,
the Consultant agrees to perform the duties and responsibilities in respect to
the Appointment in accordance with the general directions of the Chief Executive
Officer of the Company.
3.2 As President & CEO, the Consultant will be responsible for all the affairs
of the Company including strategic direction, provision of appropriate
resources, appropriate financial plans, budgets and controls, custody and
efficient utilization of resources and keeping the Board and shareholders
appropriately informed. The Consultant will also be responsible for the
expansion of the US subsidiary's operations within the US and Latin America.
PART 4
REMUNERATION
4.1 In consideration of the performance by the Consultant of its obligations
under this, Agreement, the Company shall pay to the Consultant a consulting fee
in the amount of CDN$225,000 per year, ("Base Consulting Fee") payable at
CDN$18,750 per month on the last working day of the month upon presentation of
an invoice. The Consultant's remuneration shall be subject to an annual
performance review by the Board of Directors of the Company.
4.2 A discretionary bonus of a minimum of 20% of the Base Consulting Fee will be
paid to the Consultant provided certain objectives are accomplished; such
objectives will be agreed from time to time by the parties hereto.
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PART 5
EXPENSES AND DISBURSEMENTS
5.1 In addition to the remuneration, the Company shall pay to the Consultant
within thirty (30) days after receipt by the Company of invoices therefor, the
full amount of all reasonable expenses, disbursements and out-of-pocket costs
incurred by the Consultant on behalf of the Company in performing its duties
under this Agreement.
PART 6
CONFIDENTIALITY AND WORK PRODUCT
6.1 The Confidentiality Agreement (attached as Schedule A) is an integral part
of this Employment Agreement and by signing the enclosed duplicate copy of this
Agreement you agree to be bound by all the terms of the Confidentiality
Agreement.
6.2 Notwithstanding anything else in this Agreement, it is expressly
acknowledged and understood by the Consultant that all of the work product of
the Consultant while employed by the Company shall belong to the Company
absolutely and notwithstanding the generality of the foregoing, all patents,
inventions, improvements, notes, documents, correspondence produced by the
Consultant during the term of this Agreement hereunder shall be the exclusive
property of the Company. The Consultant further agrees to execute without delay
or request for further consideration any necessary patent assignments,
conveyance or other documents and assurances as may be necessary to transfer all
rights to same to the Company. In the event of the termination of the Consultant
for any reason hereunder, the Consultant shall promptly turn over to the Company
all of the foregoing intellectual property which is evidenced by any physical
documentation (whether written, digital, magnetic, electronic or otherwise) or
any other of the Company's assets or property in his possession or under his
control.
6.3 In the event of termination of this Agreement, the Consultant agrees not to
accept employment with any person, company, partnership or other business
enterprise which is directly competing in any of the Company's businesses at the
time of termination nor will the Consultant otherwise independently compete in
all cases for a period of one year from the date of termination.
PART 7
TERMINATION WITHOUT CAUSE
7.1 The Company has the right to terminate this Agreement at any time during its
initial or renewal terms however and if such termination is without good cause
the Company shall be obliged to pay to the Consultant severance for the balance
of the initial or renewal term of this Agreement.
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All options and SAR's awards that have vested shall not be callable; and all
unvested SAR's shall remain eligible for vesting through to the termination date
of the agreement.
PART 8
TERMINATION FOR GOOD CAUSE
8.1 The Company shall be entitled to terminate this Agreement immediately in the
event of good cause. For purposes hereof, good cause shall mean:
(a) any conviction for a felony or crime involving fraud;
(b) any grossly negligent or wilful misconduct that directly results in
loss to the Company; and
(c) in the event the Consultant does not correct any breach of this
Agreement or any persistent wilful failure or refusal to satisfy the
reasonable requirements of the Company under this Agreement, including
specific directives of the Company's board or its Chief Executive Officer,
provided always that the Consultant shall have a reasonable opportunity to
correct any acts or omissions which are set out in a notice of
non-compliance providing the complained of acts or omissions are reasonably
capable of correction.
PART 9
NOTICE
9.1 Any notice required to be given hereunder by any party shall be given or
made in writing and either delivered personally or sent by registered mail,
postage prepaid, addressed to the parties as set out on the first page of this
Agreement, or to such other address at which any of the parties hereto may from
time to time notify the others in writing. The time of giving or making such
notice shall be, if delivered, when delivered, and if mailed, then on the fifth
(5th) business day after the day of mailing thereof.
PART 10
ASSIGNMENT AND MISCELLANEOUS
10.1 Neither party to this Agreement shall be entitled to assign its benefits,
interests or obligations under this Agreement without the written consent of the
other party hereto.
10.2 This Agreement, once executed, and along with the documents referenced
herein, constitute the entire understanding between the Company and the
Consultant with respect to the terms and conditions of this Agreement and
supersedes all prior agreements and discussions between the parties.
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10.3 This Agreement is made in the Province of British Columbia and shall be
enforceable in the courts thereof.
10.4 The provisions respecting the Consultant's confidentiality obligations
transfer of intellectual property rights and non-competition in Section 8 shall
survive the termination of this Agreement.
10.5 The headings of this Agreement are inserted for convenience only and shall
not affect the construction of this Agreement.
PART 11
NON-COMPETITION
11.01 In the event of termination of this Agreement, the Consultant agrees not
to accept employment with any person, company, partnership or other business
enterprise which is directly competing in any of the Company's businesses at the
time of termination nor will the Consultant otherwise independently compete in
all cases for a period of one year from the date of termination.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
DYNAMOTIVE TECHNOLOGIES
CORPORATION
Per: /s/ Xxxxxxx Xxx
-----------------------------------
Authorized Signatory
/s/ R. Xxxxxx Xxxxxxxx
-----------------------------------------
R. XXXXXX XXXXXXXX
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Schedule A
NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is dated for reference the 1st day of January, 2001
BETWEEN:
DYNAMOTIVE TECHNOLOGIES CORPORATION, a British Columbia company having a
-----------------------------------
place of business at 105 - 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0
("Disclosing Party")
AND:
R. XXXXXX XXXXXXXX, an individual having its principal office at 0 Xxxxxx
Xxx, Xxxxxxxxxx Xxxxx, Xxxxxx, XX00 0XX
("Receiving Party")
WHEREAS:
A. the Disclosing Party is in the business of environmental and renewable
energy technologies;
B. the Receiving Party is in the business of ;
--------------------------------
C. the Disclosing Party and the Receiving Party intend to investigate
collaborative business opportunities (the "Purpose");
D. in order to fulfill the Purpose the Disclosing Party may disclose
information that is not available to the general public to the Receiving
Party (the "Confidential Information"), including without limitation,
BioOil information, trade secrets, financial, corporate, marketing,
product, research, technical, manufacturing and/or personnel information or
any other information, in any form or media, relating to the Disclosing
Party, its affiliates, associates and/or other related entities
(collectively "Related Entities") and/or to any of their respective
customers, suppliers and other business partners (collectively "Business
Partners"), specifically identified as confidential by the Disclosing Party
at, or prior to, the time of its disclosure, or the nature of which is such
that it would generally be considered confidential in the industry in which
the Disclosing Party operates; and
E. the disclosure of any Confidential Information to third parties would cause
harm to the Disclosing Party, its Related Entities and Business Partners;
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NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the Disclosing
Party disclosing Confidential Information to the Receiving Party and of the
covenants and agreements contained in this Agreement, the parties agree as
follows:
1. Treatment of Confidential Information - The Receiving Party covenants that,
except as specifically set out in paragraph 2, it will deal with any of the
Confidential Information which it receives or gains access to, in
accordance with the terms and conditions of this Agreement.
2. Exclusions - The terms and conditions of this Agreement shall not apply to
any Confidential Information which the Receiving Party can establish:
a) is, or becomes, readily available to the public other than through a
breach of the obligations set out in this Agreement; or
b) was disclosed, lawfully and not in breach of any contractual or other
legal obligation, to the Receiving Party by a third party.
3. Ownership of Confidential Information - The Receiving Party acknowledges
that the Confidential Information, including all patent rights, trade
secrets, copyrights and all other intellectual property and proprietary
rights related thereto, is and shall be the sole and exclusive property of
the Disclosing Party, its Related Entities or Business Partners as
appropriate, and shall be held in trust by the Receiving Party for these
persons. The Receiving Party acknowledges that it shall not acquire any
right, title or interest in or to the Confidential Information or to any
intellectual property or other proprietary rights related thereto.
4. Disclosure - The Receiving Party shall keep all of the Confidential
Information in strict confidence and shall not, without the prior written
consent of the Disclosing Party, directly or indirectly, disclose, allow
access to, transmit, transfer or make available to any person, firm,
company, consultant, partnership, entity or other party (each a "Person"),
for any use whatsoever, any Confidential Information, other than to a
Person who:
a) is an officer, director, employee or consultant of the Receiving
Party;
b) has a need to know such Confidential Information to facilitate the
fulfilment of the Purpose; and
c) has executed a non-disclosure or other agreement with the Receiving
Party which prohibits the disclosure of the Confidential Information
on terms that are consistent with the provisions of this Agreement.
Notwithstanding the foregoing, to the extent the Receiving Party can
establish that it is required by law to disclose any Confidential
Information it shall be permitted to do so, provided that notice of the
requirement to disclose is first delivered to the Disclosing
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Party at the address set out above in a timely manner, so that the
Disclosing Party has the opportunity to contest this potential disclosure.
5. Use of Confidential Information - The Receiving Party shall use any
Confidential Information disclosed hereunder solely to fulfill the Purpose
and shall not, either directly or indirectly, use the Confidential
Information for any other reason or in any other manner.
6. Reproduction/Security - Except as reasonably required to fulfill the
Purpose, the Receiving Party shall not, either directly or indirectly, copy
or reproduce Confidential Information in any manner or medium. The
Receiving Party shall ensure that any such copy of Confidential Information
is clearly marked, or otherwise identified, as confidential and proprietary
to the Disclosing Party. The Receiving Party shall ensure that all
Confidential Information, and all copies thereof, are stored in a secure
place while in the Receiving Party's possession, custody, charge or
control.
7. Return of Confidential Information - Upon fulfilment of the Purpose, or at
any time upon request by the Disclosing Party, the Receiving Party shall
immediately return to the Disclosing Party all Confidential Information,
and all copies thereof, in the Receiving Party's possession, charge,
control or custody and shall ensure that any third party to which it has
disclosed the Confidential Information does the same. This agreement shall
survive to the fullest extent and time as permitted by law.
8. Equitable Relief - The Receiving Party acknowledges that a breach of this
Agreement will result in irreparable and immediate harm to the Disclosing
Party and agrees that in the event of such a breach, the Disclosing Party
shall be entitled to equitable relief by way of temporary or permanent
injunction and to seek such other relief that any court may deem just and
proper.
9. No Representations or Warranties - The Receiving Party acknowledges and
agrees that:
a) this Agreement does not constitute any representation, warranty or
guarantee by the Disclosing Party that the Confidential Information
does not infringe any third party rights; and
b) the Disclosing Party shall not be liable for any errors or omissions
in the Confidential Information or the use or the results of the use
of the Confidential Information.
10. No Obligation - Nothing in this Agreement obligates the Disclosing Party to
make any particular disclosure of Confidential Information.
11. Indemnity - The Receiving Party shall indemnify and hold the Disclosing
Party harmless from and against any and all claims, suits, losses, damages,
costs or expenses, including reasonable attorney fees, incurred or suffered
by the Disclosing Party as a result
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of the Receiving Party, or its officers, directors, employees or
consultants, using or disclosing the Confidential Information other than in
accordance with this Agreement, whether this use or disclosure is done
negligently or otherwise.
12. Governing Law - This Agreement shall be governed and construed in
accordance with the laws in force in the Province of British Columbia. The
courts of British Columbia shall have non-exclusive jurisdiction to hear
any matters arising in connection with this Agreement.
13. Entire Agreement - This Agreement constitutes the entire agreement between
the parties with respect to the subject matter of this Agreement and
cancels and supersedes any prior discussions, correspondence,
understandings, agreements or communication of any nature relating to the
subject of this Agreement.
14. Assignment - This Agreement may not be assigned by either party without the
prior written consent of the other.
15. Recitals Included - The recitals set out in the preamble of this Agreement
shall be deemed to be included in, and form an integral part of this
Agreement.
16. Term - This Agreement is to remain in effect for five (5) years after the
effective date of execution.
17. Counterparts - This Agreement may be executed in one or more counterparts
each of which when executed by any of the parties shall be deemed to be an
original, and all such counterparts shall together constitute one and the
same Agreement. This Agreement may be delivered by facsimile transmission
by either party to the other.
IN WITNESS WHEREOF the parties have executed this Agreement:
DYNAMOTIVE TECHNOLOGIES CORPORATION
R. XXXXXX XXXXXXXX
Per: /s/ Xxxxxxx Xxx Per: /s/ R. Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Signature Signature
Xxxxxxx Xxx R. Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name Name
Chairman C.E.O.
-------------------------------- --------------------------------
Position Position
CONSULTING AGREEMENT AMENDMENT
THIS AGREEMENT is dated for reference the 9th day of April, 2001.
BETWEEN:
DYNAMOTIVE TECHNOLOGIES CORPORATION
105 - 0000 Xxxx 00xx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
(the "Company")
AND:
R. XXXXXX XXXXXXXX
0 Xxxxxx Xxx
Xxxxxxxxxx Xxxxx,
Xxxxxx, XX00 0XX
(the "Consultant")
Except for amendments to Part 4.1 as detailed below, all other terms and
conditions of the Consulting Agreement dated January 1, 2001 shall remain in
effect.
PART 4
REMUNERATION
4.1 In consideration of the performance by the Consultant of its obligations
under this, Agreement, the Company shall pay to the Consultant, retroactive to
January 1, 2001, a consulting fee in the amount of US$200,000 per year, ("Base
Consulting Fee") payable at US$11,111 per month on the last working day of the
month upon presentation of an invoice and the balance of US$66,668 payable as
follows: a) US$2,777.81 per month which must be applied to exercise 3,703
options to a maximum of 44,445 options to purchase common shares of the Company
at U.S. $.75 per share; such options shall expire on April 30, 2003, details per
the Stock Option Agreement attached as Schedule A, and b) US$2,777.81per month
payable in restricted shares at US$.75 per share to a maximum of 44,445 shares;
the Consultant shall invoice the Company monthly and the Company shall issue the
appropriate shares aggregated quarterly.
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TO EVIDENCE THEIR AGREEMENT TO THIS AMENDMENT, each of the parties has executed
this Agreement as set out below.
DYNAMOTIVE TECHNOLOGIES
CORPORATION
Per: /s/ Xxxxxxx Xxx
-----------------------------------------------
Authorized Signatory
/s/ R. Xxxxxx Xxxxxxxx
-----------------------------------------------------
R. XXXXXX XXXXXXXX
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Schedule B
STOCK OPTION AGREEMENT
This Agreement effective this 9th day of April, 2001.
BY AND BETWEEN:
R. XXXXXX XXXXXXXX
0 Xxxxxx Xxx
Xxxxxxxxxx Xxxxx,
Xxxxxx, XX00 0XX
(hereinafter referred to as "CONSULTANT")
AND
DYNAMOTIVE TECHNOLOGIES CORPORATION
000-0000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
(hereinafter referred to as "DynaMotive").
WHEREAS, DynaMotive has commissioned the CONSULTANT to provide consulting
services to the Company.
WHEREAS, DynaMotive desired to grant the CONSULTANT an option to purchase Common
Shares in the Company.
NOW THEREFORE IT IS AGREED:
1. DynaMotive grants the CONSULTANT an option to purchase a total of forty
four thousand four hundred forty five (44,445) Common Shares (hereinafter
called the "Options") at an exercise price of U.S. $.75 per share (subject
to adjustment as hereinafter provided); such option shall terminate on
April 30, 2003 ("Termination Date"). The Options provided herein shall vest
upon presentation of invoices as set out in paragraph 4.01 of the
Consulting Agreement Amendment.
2. Such Options may be exercised at the discretion of the CONSULTANT.
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3. In order to exercise the 44,445 options, the CONSULTANT shall, no later
than the close of business (Vancouver time) on the Termination Date give
written notice to DynaMotive of the intention to exercise the Option in
whole or in part, such notice to be accompanied by an invoice for services
rendered; After receipt of such notice, DynaMotive shall issue a Treasury
Order to its Registrar and Transfer Agent for the required number of Common
Shares.
4. The Options granted may not be assigned nor transferred in whole or in
part.
5. The Option shall be in full force and effect and exercisable until the
Termination Date. However, should the CONSULTANT die during the term of the
Option, any unexercised portion of the Option shall be available for
exercise by the CONSULTANT's estate within twelve (12) months after the
date of the CONSULTANT's death.
6. The exercise of this Option or any amendments to this Agreement may be
subject to the prior approval, where necessary, by certain securities
legislation or jurisdictions.
7. In the event that there is any material change in the Common Shares of
DynaMotive through the declaration of stock dividends or stock splits or
consolidations or exchanges of shares, the number of Common Shares subject
to Option and the Option price thereof shall be adjusted appropriately by
the Board of Directors and such adjustment shall be effective and binding
for all purposes of this Agreement.
8. In the event that DynaMotive shall amalgamate, consolidate with, or merge
into another corporation, the CONSULTANT will thereafter receive, upon the
exercise of the Option, the securities or property to which a holder of the
number of Common Shares then deliverable upon the exercise of the within
Option would have been entitled to upon such amalgamation, consolidation,
or merger and DynaMotive will take steps in connection with such
amalgamation, consolidation, or merger as may be necessary to ensure that
those provisions hereof shall thereafter be applicable, as near as
reasonably may be, in relation to any securities or property thereafter
deliverable upon the exercise of the Option granted herein. A sale of all
or substantially all of the assets of DynaMotive for a consideration (apart
from the assumption of obligations) a substantial portion of which consists
of securities shall be deemed a consolidation, amalgamation or merger for
the purposes hereof.
9. This Agreement shall enure to the benefit of and be binding upon the
parties hereto and upon the successors or assigns of DynaMotive and upon
the executors, administrators and legal personal representatives of the
CONSULTANT.
10. This Agreement shall be governed, construed and enforced according to the
laws of the Province of British Columbia and is subject to the exclusive
jurisdiction of the courts of the Province of British Columbia.
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IN WITNESS WHEREOF the parties hereto have hereunto executed this Agreement as
of the day and year first above written.
THE COMMON SEAL OF DYNAMOTIVE )
TECHNOLOGIES CORPORATION )
was hereunto affixed in the )
presence of: ) C/S
)
)
/s/ Xxxxxxx Xxx )
----------------------------- )
)
SIGNED, SEALED AND DELIVERED )
by CONSULTANT in the presence of: )
)
)
------------------------------ )
Name )
) /s/R. Xxxxxx Xxxxxxxx
) -----------------------------------
) R.XXXXXX XXXXXXXX
)
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Address )
)
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)
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Occupation
