Exhibit 4.13
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CONFIDENTIAL EMPLOYMENT AGREEMENT
made this 1st day of October, 2005
T A B L E O F C O N T E N T S
Page
PART 1 INTERPRETATION 2
INTERPRETATION 2
PART 2 EMPLOYMENT, TERMS AND DUTIES 3
EMPLOYMENT 3
TERM 3
TITLE AND REPORTING 4
PARTICULAR DUTIES 4
GENERAL DUTIES 4
PART 3 COMPENSATION 4
SALARY 4
BONUS 4
OTHER BENEFITS 8
STOCK OPTIONS 9
HOLIDAYS 9
INCOME TAX AND OTHER DEDUCTIONS 9
REVIEW 10
PART 4 EMPLOYEE'S ADDITIONAL COVENANTS 10
CONFIDENTIAL INFORMATION 10
NO DISCLOSURE 10
NO COMPETITION 11
NOTICE OF CONFLICT 11
EXCEPTIONS 12
COMPANY'S PROPRIETARY RIGHTS 12
SPECIAL REMEDIES 12
PART 5 TERMINATION 13
VOLUNTARY TERMINATION 13
IF COMPANY TERMINATES OR PARTIES FAIL TO RENEW 13
TERMINATION FOR CAUSE AND OTHER EVENTS OF EARLY TERMINATION 15
EFFECT OF TERMINATION UNDER SECTION 5.3 15
RETURN OF PROPERTY 16
RESIGNATION OF OFFICE 16
PART 6 GENERAL 16
FURTHER ASSURANCES 16
ASSIGNMENT 16
SEVERABILITY 16
MODIFICATIONS, WAIVER AND CONSENT 17
NOTICE 17
BINDING EFFECT 18
GOVERNING LAW 18
TIME OF ESSENCE 18
COUNTERPARTS 18
ENTIRE AGREEMENT 18
SURVIVAL OF TERMS 18
CONFIDENTIAL EMPLOYMENT AGREEMENT
THIS AGREEMENT dated for reference and made the 1st day of October 2005 (the
"Effective Date")
BETWEEN:
DynaMotive Energy Systems Corporation, a body corporate duly
incorporated under the law of the Province of British Columbia, having
offices at Xxxxx 000, 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxx, XX, X0X 0X0
(the "Company")
OF THE FIRST PART
AND:
Xxxxx Xxxxxxxxxx, an individual residing at 0000 00xx Xxxxxx, Xxxx
Xxxxxxxxx, XX. X0X 0X0
(the "Employee")
OF THE SECOND PART
WHEREAS:
(A) The Company is an energy systems company that is focused on the
development of innovative energy solutions based on its patented pyrolysis
system and, through the application of its technology and know how, the
Company intends to tap into abundant organic resources that are generally
discarded by the agricultural and forest industries at a cost and to
economically convert them into a renewable and environmentally friendly fuel;
and
(B) The Company and the Employee have mutually agreed to evidence the terms
of the Employee's full time employment by the Company by this Agreement,
which is to supersede all prior agreements between the parties;
WITNESSETH that the parties mutually agree as follows:
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PART 1
INTERPRETATION
Interpretation
1.1 For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) "this Agreement" means this agreement of employment, including any
schedules hereto, as from time to time supplemented or amended by one
or more agreements entered into pursuant to the applicable provisions
hereof;
(b) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular section, subsection, paragraph, subparagraph or other
subdivision;
(c) all references to currency mean Canadian currency, unless
specified otherwise;
(d) a reference to an entity includes any entity that is a successor
to such entity;
(e) the headings are for convenience only and are not intended as a
guide to interpretation of this Agreement or any portion hereof;
(f) a reference to a statute includes all regulations made pursuant
thereto, all amendments to the statute or regulations in force from
time to time, and any statute or regulation which supplements or
supersedes such statute or regulations;
(g) "Board" means the board of directors of the Company as from time
to time constituted;
(h) "Bonus Criteria" means the objectives referred to as Bonus
Criteria in section 3.2 of this agreement and determined in the manner
provided therein;
(i) "CIBC Prime Rate" means the annual rate of interest announced from
time to time by Canadian Imperial Bank of Commerce as a reference rate
then in effect for determining interest rates on Canadian dollar
commercial loans in Canada;
(j) "Contract Year" means the period commencing October 1, 2005 and
ending the next following September 30, 2006 provided that the first
Contract Year shall commence October 1, 2005 and end September 30, 2006
and the second, third and fourth contract years shall commence
respectively on the 1st day of October of 2006, 2007 and 2008;
(k) "Closing Price of the Company's Common Shares" and "Closing
Price" means as of any given date, the average of the high and low
trading prices of the Common shares in the capital stock of the Company
on the NASD's Over the Counter Bulletin Board on such date, or if the
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Common shares trade on the TSX Venture Exchange or TSX Exchange on such
date, then the average of the high and low trading prices of the Common
shares of the Company on such exchange, or if the Common shares in the
capital stock of the Company did not trade on such date, on the next
preceding day on which trades were made;
(l) "Salary" in respect of a Contract Year, means the amount
determined for a Contract Year pursuant to section 3.1 of this
Agreement; and
(m) "Stock Option" mean the rights under an agreement between the
Company and the Employee, to have the Company sell or issue shares of
the Company, or shares of a corporation that does not deal at "arm's
length" with the Company (as that term is defined pursuant to the
Income Tax Act of Canada), to the Employee.
(n) "Common Share Purchase Warrants" mean the rights under an
agreement between the Company and the Employee, to have the Company
sell or issue shares of the Company, or shares of a corporation that
does not deal at "arm's length" with the Company (as that term is
defined pursuant to the Income Tax Act of Canada), to the Employee.
In the event that it may be necessary at any time for any party to this
Agreement to prove the CIBC Prime Rate applicable as at any time or times, a
certificate in writing of the manager of Canadian Imperial Bank of Commerce,
000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0 setting forth the
CIBC Prime Rate as at any time or times, shall be, and shall be deemed to be,
conclusive evidence of the CIBC Prime Rate as set forth in the certificate.
PART 2
EMPLOYMENT, TERMS AND DUTIES
Employment
2.1 The Company and the Employee hereby confirm the employment of the
employee by the Company on a full-time basis upon and subject to the terms
and conditions of this Agreement.
Term
2.2 This Agreement shall be for a period of four years commencing October
1, 2005 and ending September 30, 2009 unless earlier terminated pursuant to
Part 5. A notice to renew the terms of the Employee's employment with the
Company shall be provided by the Company to the Employee not less than nine
months prior to the expiration of this Agreement, but neither the notice, nor
the requirement for the notice, shall be taken to imply that the Employee is
required to consent to the renewal.
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Title and Reporting
2.3 The Employee shall have the title of Chief Financial Officer ("CFO").
2.4 The Employee shall report to the President and CEO.
Particular Duties
2.5 As CFO, the Employee shall be responsible for all related functions of
office of the CFO.
General Duties
2.6 During the term of this Agreement, the Employee will:
(a) diligently perform his duties arising under this Agreement to the
best of his skill and ability; and
(b) attend to his duties on a full-time basis, at the specific times
and days as reasonably directed by the Company, excepting holidays,
absence due to sickness and other authorized absences as set out in
this Agreement.
PART 3
COMPENSATION
Salary
3.1 The Company shall pay the Employee an annual Salary of $220,000.00
payable bi-monthly in arrears and subject to appropriate deductions and
remittances pursuant to income tax and social security legislation. The
Salary shall be adjusted annually equivalent to the percentage of the rise in
the Canadian Consumer Price Index commencing January 1, 2007.
Bonus
3.2 The Company shall pay to the Employee an annual bonus for each calendar
year or partial calendar year (the "Bonus Period"), governed by the terms of
this Agreement, calculated as a minimum bonus of 25% and a maximum bonus of
up to 60% of the aggregate Salary payable to the Employee, or on the
Employee's behalf, with respect to the Bonus Period pursuant to section 3.1
(before any amounts deducted or paid on behalf of the Employee pursuant to
income tax and social security legislation), to be based on the achievement
of certain objectives (the "Bonus Criteria"), such Bonus Criteria to be
agreed by the parties hereto for each Bonus Period as hereafter provided.
The Bonus Criteria must be presented by the Employee to the CEO within 30
days of the first day of each Bonus Period provided that for the Bonus Period
which falls within the ______calendar year, the Bonus Criteria must be
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presented by the Employee to the CEO by ___________. Failure by the Employee
and the Company to agree on the annual Bonus Criteria by the date that is 60
days after the first day of the Bonus Period for which it is to be determined
(or by _______________ in the case of the Bonus Period which falls within the
_________ calendar year) shall be resolved by arbitration.
3.3.1 The annual bonus amount for a Bonus Period must be determined by the
Company within 90 days after the last day of the Bonus Period (the "Bonus
Determination Date") and is payable to the Employee on the day that is 150
days after the last day of the Bonus Period (the "Payment Date") unless and
only to the extent, at least ten days prior to the Bonus Determination Date
and before being notified of the amount of his bonus, the Employee elects to:
(a) defer the receipt of all or a portion (expressed as a percentage
or otherwise) of the annual bonus amount until a specified date which
is not later than the ______ day of ________ of the third calendar year
following the calendar year in which the Bonus Period ended ( in this
section called the "Cash Bonus Deferral Election"); or
(b) in lieu of payment of all or part of the bonus in cash, enter into
an agreement with the Company to purchase that number of Common shares
in the Company determined by dividing the amount of the annual bonus
amount for which the Employee elects to receive shares (expressed as a
percentage or otherwise), by the Closing Price of the Company's Common
shares on the date notice of the Employee's election under this section
is given to the Company (in this section called the "Share Purchase
Election").
The Employee must provide annual written notice to the Company of his Cash
Bonus Deferral Election, specifying the amount, percentage, or fraction or
other means of calculating the annual bonus amount to be deferred, and of his
Share Purchase Election, specifying the amount of the annual bonus amount to
be used to calculate the number of shares subject to the Share Purchase
Election, and such notice must be presented to the Company at least ten days
prior to the Bonus Determination Date, i.e. before the Employee would
otherwise know of the amount and be entitled to receive payment of the annual
bonus. Once a Cash Bonus Deferral Election or Share Purchase Election is
delivered to the Company by the Employee, it may not be revoked for the Bonus
Period to which it relates and thereafter the annual bonus amount for that
Bonus Period shall:
(a) to the extent of the amount set forth in or calculated pursuant to
the Cash Bonus Deferral Election, be dealt with solely in accordance
with that election;
(b) to the extent of the amount subject to the Share Purchase
Election, be dealt with solely in accordance with that election; and
(c) to the extent of any balance of the annual bonus amount for that
Bonus Period, which is not covered by either the Cash Bonus Deferral
Election or Share Purchase Election, be payable to the Employee on the
Payment Date.
3.3.2 If the Employee makes a Cash Bonus Deferral Election, then he shall in
that election specify the amount of the annual bonus amount, or means of
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calculating the amount, of the bonus to be deferred by reason of that
election (the "Deferred Amount") and the Company agrees to grant at option to
the Employee, for a period of three years from the date of the particular
Cash Bonus Deferral Election, to purchase that number of Common shares in the
Company determined by dividing the Deferred Amount by the Closing Price of
the Company's Common shares on the day that the election is made or the day
the amount of the annual bonus amount is determined by the Company, whichever
day is later, with the exercise price for such Stock Options to be the said
Closing Price on such later day (the "Valuation Day"), and the Company and
the Employee will execute a stock option agreement substantially in the same
form as that attached as Schedule 2 to this Agreement but dated the Valuation
Day and relating only to the Stock Options referred to in this subsection
with such Stock Option rights to expire on the 4th anniversary of the making
of the election.
3.3.3 Notwithstanding the 60% of Salary maximum for the amount of an annual
bonus determined pursuant to this section, any amount of an annual bonus,
awarded by the Company to the Employee, that is not used to calculate the
number of shares subject to a Share Purchase Election or the number of Stock
Options to be granted by the Company pursuant to the preceding subsection,
and which remains unpaid by the Company 180 days after the end of the Bonus
Period shall be increased for an interest factor which shall be calculated by
adding to such unpaid bonus amount, an amount equal to what the interest
would be if such unpaid bonus amount were a debt owing to the Employee which
bears interest at the rate of 6% per annum calculated from and including the
Payment Date for such unpaid bonus amount and compounded monthly until paid;
provided that if, for any regulatory or other reason whatsoever, the Stock
Option referred to in the preceding subsection cannot be granted or, unless
waived by the Employee, be subject to immediate vesting (such an option being
referred to in this section as an "Impaired Option"), then the amount of the
bonus used to calculate the number of shares subject to the Impaired Option
shall be included in the amount of the bonus to be increased by the interest
factor pursuant to this subsection and such increased amount shall be payable
to the Employee as part of the bonus and the right of the Employee to the
Impaired Option shall lapse, and provided further that under no circumstances
may the date of payment of an annual bonus, or any portion thereof other than
the portion used to calculate the number of shares subject to a Share
Purchase Election, including any related interest factor, be later than the
last day of the third calendar year following the calendar year in which the
Bonus Period ended (herein referred to as the "Three Year Deadline").
Failure by the Company to pay any Deferred Amount of an annual bonus, which
is the subject of a Cash Bonus Deferral Election, by the Three Year Deadline
in respect of that amount shall result in the Company:
(a) paying and indemnifying the Employee against any interest and
penalties related to any income taxes that the Employee may become
subject to as a result of such a failure by the Company;
(b) providing the Employee with an interest free loan to pay any
income taxes that the Employee may become subject to as a result of
such a failure by the Company, any such advanced funds to be repaid in
full by the Employee upon receipt of the related unpaid bonus amounts
from the Company; and
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(c) paying and indemnifying the Employee against any income taxes,
interest, and penalties related to any taxable benefits which may be
considered to have been received by the Employee as a result of (a) or
(b).
3.3.4 Where the Employee makes a Share Purchase Election, the Company hereby
agrees:
(a) in lieu of any obligation to pay the bonus to the Employee to the
extent of the amount used to calculate the number of shares subject to
a Share Purchase Election, and upon receipt of a subscription notice
from the Employee subscribing for a specified number of Common shares
in the Company (not being less than the lesser of 25,000 Common shares
in total, or the balance of the Common shares of the Company that the
Employee is entitled to purchase pursuant to one or more Share Purchase
Elections) and payment by the Employee to the Company of one-tenth of
one cent for each share subscribed for in the notice, to allot and
issue to the Employee the number of shares specified in the notice in
consideration for one-tenth of one cent per share plus the value of
past services actually performed by the Employee during the Bonus
Period for which the Share Purchase Election was made;
(b) that the value of such past services shall be calculated for the
Board by multiplying the number of shares subject to a Share Purchase
Election for a particular Bonus Period, and subscribed for in the
notice referred to in paragraph (a) of this section, by the Closing
Price of the Company's Common shares on the date of the Share Purchase
Election for that Bonus Period;
(c) that the Employee may give one or more notices pursuant to this
provision with regard to a particular Share Purchase Election but the
aggregate number of Common shares to be allotted and issued to him
pursuant to all such notices shall not exceed the number of Common
shares the Employee was entitled to purchase as a result of the
particular Share Purchase Election before exercising any such rights;
provided that the Employee shall only have until four years after the date a
particular Share Purchase Election was made to notify the Company, by one or
more notices, that the Employee wishes to purchase any of the shares, which
he is entitled to purchase pursuant to the particular Share Purchase
Election, and to pay the price of one-tenth of one cent per share for any
share that the Company has agreed to issue pursuant to the particular Share
Purchase Election, and thereafter all rights of the Employee to any shares
not referred to in a subscription notice given by the Employee to the Company
pursuant to the particular Share Purchase Election by such date shall lapse.
3.3.5 The Employee, by execution of the written Share Purchase Election,
acknowledges that, subject to section 3.10 hereof, the Company is released
from any and all obligations to pay a bonus to the Employee to the extent of
the amount used to calculate the number of shares subject to the particular
Share Purchase Election.
3.3.6 Upon receipt of the notice from the Employee contemplated by a Share
Purchase Election and payment of the subscription price to it, the Company
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shall proceed to allot and issue the shares referred to in the notice,
including giving such directions and making such adjustments as would have
been necessary if the agreement between the Company and the Employee in this
section were a Stock Option governed by a Stock Option Agreement in
substantially the same form as Schedule 3 but dated the date of the Share
Purchase Election and relating only to the right to purchase the shares
subject to the Share Purchase Election at the price of one-tenth of one cent
per share with such rights to expire only on the 3rd anniversary of the
making of the election and not to expire on the 30th day after termination of
the Employee's employment or one year after death or disability of the
Employee.
New Plant Tonnage Bonus Share Options
Upon the successful commissioning or licensing of future plants to use the
technology and knowhow of the Company and its affiliates (including of any
partnership or joint venture in which the Company or its affiliates has at
least a 25% ownership interest), the Employee shall, during the term of this
Agreement and any renewals hereof, be granted additional rights to purchase
shares as commissioning bonuses consisting of the grant of a right to the
Employee to purchase Common shares of the Company upon receipt by the Company
of one or more subscription notices from the Employee subscribing for a
specified number of Common shares in the Company pursuant to this section
(not being less than 25,000 shares or the balance of the Common shares of
the Company that the Company has agreed to issue to the Employee pursuant to
this section, to a maximum value of US$25,000) and payment by the Employee to
the Company of one-tenth of one cent for each share subscribed for in the
notice. The Company agrees that upon receipt by the Company of such a
notice, the Company will allot and issue to the Employee the number of shares
specified in the notice in consideration of one-tenth of one cent per share
including the exercise price of one-tenth of one cent per share and the four
year term from the Commissioning Date for a plant owned by the Company, or
the date the original License Agreement is executed in relation to the
particular plant, to which the bonus share options applies, and during which
the four year term the right to purchase shares pursuant to the bonus share
options may be exercised.
The number of shares that the Employee shall be granted the right to purchase
with respect to each plant commissioning or licensing, as contemplated by
this section, shall be determined for each plant by multiplying 150 times the
number of tonnes of dry input capacity contracted on a daily basis, as
established in or pursuant to the License Agreement, and measured in input
values or, in the case of a plant owned by the Company, as would be
established by a License Agreement, if one was required; and provided that if
a plant, or the license applying to the operation of a plant, is expanded and
dry input capacity, so measured, is increased during the term of this
Agreement, then as of the date the increased capacity becomes subject to the
License Agreement, or an amendment thereto or replacement thereof, or would
become subject to such a license or amendment if the plant were not owned by
the Company (the "Expansion Date"), this increased capacity shall also give
rise to the right to purchase shares in the manner set out in this section as
if the Expansion Date were the date of an original License Agreement over a
new plant licensed for the increased capacity.
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Other Benefits
3.4 In addition to the other compensation set out in this Agreement, the
Employee shall participate in such health, medical, insurance or other
benefit plans established by the Company from time to time and made available
to staff and officers of the Company. To be eligible, the Employee shall have
a valid status in Canada, either a work permit or a landed status.
Stock Options
3.5 The 578,067 outstanding Stock Options previously granted by the Company
to the Employee under the terms of any prior employment or option agreement,
as listed in the attached Schedule 1, will remain in full force and effect.
3.6 The Company will, pursuant to a stock option agreement in the form
attached as Schedule 2 to this Agreement, execute a stock option agreement
with the Employee to record the Company's grant of Stock Options to the
Employee which entitle the Employee to purchase 1,750,000 Common shares of
the Company at an exercise price of US $0.48 and US$0.58 per share, which
price per share the Company and the Employee have determined to be at least
as great as the fair market value of the Company's shares on October 28, 2005
and which Stock Options will, in each case, have a term of three years from
the date on which they are originally scheduled to vest, as set forth under
the heading "Vesting Date" in the following schedule:
Number of Stock Exercise Vesting Termination
Options Price Date Date
200,000 US$0.48 November 1, 2005 November 1, 2008
150,000 US$0.58 November 1, 2005 November 1, 2008
200,000 US$0.48 September 30, 2006 September 30, 2009
150,000 US$0.58 September 30, 2006 September 30, 2009
350,000 US$0.58 September 30, 2007 September 30, 2010
350,000 US$0.58 September 30, 2008 September 30, 2011
350,000 US$0.58 September 30, 2009 September 30, 2012
Holidays
3.7 The Employee shall be entitled to four weeks of annual holidays to be
taken at time(s) reasonably satisfactory to the Employee and the Company.
Income Tax and Other Deductions
3.8 Notwithstanding any other provision of this Agreement, all amounts or
benefits to which the Employee is entitled under this Agreement, including
the right to the issue of shares or rights to purchase shares, may be subject
to appropriate deductions and remittances pursuant to income tax and social
security legislation and, as a condition of the issue of any shares that the
Company is required to issue to the Employee under any provision of this
Agreement, the Company may require the Employee to pay, to the Company, or
make arrangements satisfactory to the Company regarding payment of, any
federal, provincial, state or local taxes or other deductions or remittances
of any kind required by law to be deducted or withheld and remitted to any
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such taxing or other governmental authority with respect to such amounts or
shares or other benefits. The Company shall, to the extent permitted by law,
also have the right to deduct any such taxes or other payments from any
payment of any kind otherwise due to the Employee.
Review
3.9 At the end of the first year of employment under this Agreement, and
annually thereafter, the CEO will carry out an objective review of the terms
of reference of the position held by the Employee, the compensation to the
Employee and the Employee's performance, and the CEO's review shall be
presented to the Compensation Committee and the Board for approval.
PART 4
EMPLOYEE'S ADDITIONAL COVENANTS
Confidential Information
4.1 The Employee acknowledges that in the course of his employment by the
Company he will have access to and be entrusted with confidential information
and trade secrets of the Company (collectively the "Confidential
Information") relating to the business affairs, customers, suppliers,
technology, proprietary rights, patents, research, plans, research data,
marketing techniques, manufacturing methods, procedures and techniques,
industrial designs, inventions, improvements, discoveries and routines
concerning the Company, its business and those of its affiliates and of its
customers and their particular business requirements, the disclosure of any
of which to competitors of the Company or the general public would be highly
detrimental to the best interests of the Company or its affiliates, as the
case may be. The Employee agrees to exercise reasonable efforts to maintain
confidentiality respecting the foregoing.
The Employee further acknowledges that in the course of employment by the
Company he might, from time to time, be a representative of the Company in
negotiations and discussions with others and as such will be significantly
responsible for maintaining or enhancing the goodwill of the Company and its
affiliates.
The Employee further acknowledges that the right to maintain the
confidentiality of the Confidential Information and the right to preserve its
goodwill are proprietary rights which the Company is entitled to protect.
No Disclosure
4.2 The Employee will not, during the term of this Agreement and thereafter,
disclose any of the Confidential Information to any person nor will he use
the Confidential Information for any purpose other than the best interests of
the Company or an affiliate of the Company nor will he disclose or use for
any purpose other than those of the Company or its affiliates the private
affairs of the Company or of the affiliates of the Company or any other
confidential or proprietary information which he might acquire during the
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course of his employment by the Company with relation to the business and
affairs of the Company or its affiliates except:
(a) with the prior written authorization of the Company;
(b) as required to carry out the purposes of this Agreement or to
obtain advice of counsel thereon;
(c) as otherwise permitted under this Agreement;
(d) where the Confidential Information is in or comes into the public
domain through no act or omission of the Employee; or
(e) except as required by law.
No Competition
4.3 Except with the prior written consent of the Company or pursuant to this
Part 4, during the term of this Agreement and for one year after termination
of this Agreement, the Employee will not accept employment or provide
services to any person or engage in any business (directly or through any
kind of ownership or other arrangement other than ownership of 5% or less of
the securities of publicly held corporations) which is a competitor of the
Company and which is involved in the business of researching or
commercializing applications associated with the Company's technology in
areas that are being pursued by the Company during or prior to the term
hereof or upon which the Company has expended significant resources in
anticipation of future activity, and the Employee will not at any time after
termination hereof:
(a) interfere with the contractual arrangements between the Company
and any of its employees, contractors, suppliers, agents and any one else in
a contractual or fiduciary relationship with the Company and will not
recruit, hire or assist others in recruiting or hiring any employee of the
Company; or
(b) take any other action inconsistent with the fiduciary relationship
of a senior executive officer to his employer.
Notice of Conflict
4.4 If the Board, acting reasonably, determines that the Employee is
engaging in an activity which it deems to be a conflicting activity and the
Employee is so engaged, then the Company will so advise the Employee in
writing and the Employee will, as soon as possible in order to minimize any
injury to the Company and in any event within 10 days, or such longer period
as the Company agrees upon, after receipt of notice,
(a) discontinue the activity, and
(b) certify in writing to the Company that he has discontinued the
conflicting activity including where appropriate by sale or other
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disposition or by transfer of all such interests, except a beneficial
interest, into a "blind trust" or other fiduciary arrangement over
which the Employee has no control, direction or discretion; or
advise the Company that he disputes the conflict and the matter shall be
referred to arbitration.
Exceptions
4.5 Nothing in this Part 4 will operate to prevent the Employee from
(a) owning shares of any corporation, the shares of which are listed
for trading on any stock exchange or which are traded on the over-the-
counter market, provided that the shareholding does not constitute 5%
or more of the equity of the corporation;
(b) acquiring any business (whether by the purchase of shares, assets
or otherwise) for bona fide commercial reasons where an incidental part
of the business would otherwise be prohibited under this Agreement, but
only if the Employee and his affiliate(s) and associate(s), as the case
may be, use their best efforts to divest themselves upon reasonable
terms and with all reasonable speed of the incidental parts;
(c) serving as an officer or director, or being involved in, or
receiving any compensation from any other entity which does not compete
with the Company, provided that the Employee would not be otherwise in
conflict with his obligations of loyalty to the Company and to render
his full-time services to the Company and its affiliates during the
term of his employment by the Company.
Company's Proprietary Rights
4.6 All property, including intellectual property such as patentable
inventions, non-patentable processes or know-how, designs, copyright and the
like which the Employee creates or is involved in creating, directly or
indirectly, as a result of the services performed by the Employee for the
Company during his employment with the Company (the "Property") will be owned
by the Company and the Company shall at all times have sole proprietary
right, title and interest in the Property. The Employee will give the
Company notice of all Property as soon as it is created. The Employee
further agrees to execute, without delay or further consideration, any patent
assignments, conveyances, other documents and assurances as may be necessary
to effect the intent of this provision.
Special Remedies
4.7 The Employee acknowledges his obligations under this Part 4 are of a
special character and that in the event of any conduct by him in violation of
this Agreement or any of these obligations, the Company will sustain
irreparable injury and that money damages will not provide an adequate remedy
therefor. Accordingly, the Employee agrees that in addition to other
remedies and damages available to the Company at law or otherwise and if the
Company so elects, the Company is entitled
(a) to institute and prosecute proceedings either at law or in equity
in any court of competent jurisdiction,
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(b) to obtain damages for the conduct,
(c) to enforce specific performance,
(d) to enjoin the Employee, any principal, partner, agent, servant,
employer and employee of, and any other person acting for, on behalf of
or in conjunction with the Employee from the conduct, or
(e) to obtain any other relief or any combination of the foregoing
which the Company may elect to pursue.
4.8 If any restriction as to time, area, capacity or activity imposed on the
Employee by this Agreement is finally determined by a Court of competent
jurisdiction to be unenforceable (the "Offending Restriction") and so often
as it occurs, the Employee agrees that upon written notice from the Company
specifying for inclusion in this Agreement a lesser time or area, fewer
capacities or an activity of lesser scope than now contained in this
Agreement (the "Lesser Restriction"), then this Agreement will be deemed to
be amended by the substitution of the Lesser Restriction for the Offending
Restriction insofar as is lawfully enforceable.
PART 5
TERMINATION
Voluntary Termination
5.1 Subject to section 5.2, the Employee's employment may be terminated
before the end of the then current term of this Agreement on
(a) the effective termination date set out in any notice given by the
Company to the Employee, which termination date must occur not less
than three months after the date of the notice, or by any notice given
by the Employee to the Company on the same basis, or
(b) the effective termination date as set out in any agreement between
the Company and the Employee for voluntary termination.
If Company Terminates or Parties Fail to Renew
5.2 (a) If the Company gives notice under subsection 5.1(a) of this
Agreement, or the term of this Agreement or any renewal hereof expires,
then the Company will pay to the Employee forthwith a lump sum equal to
the aggregate of:
(i) the greater of
a. the Salary remaining until September 30, 2009; and
b. two times the Salary (at the rate in effect at the date of
termination or expiry);
- 14 -
(ii) in lieu of bonuses, a pro-rated bonus to the date of
termination or expiry calculated at the target rate of 50% of
Salary to such date, plus an amount equal to the amount payable
under subsection 5.2(a)(i); plus
(iii) in lieu of benefits, 10% of an amount equal to the amount
payable under subsection 5.2(a)(i);
and the Employee will accept such amount as full compensation for the
cessation of his employment.
(b) If within 12 months of a Change of Control, the Company gives
notice under subsection 5.1(a), the Company changes a fundamental term
or condition of employment of the Employee, or this Agreement or any
renewal hereof expires, then the Company will pay to the Employee
forthwith a lump sum equal to the aggregate of:
(i) the greater of
a. the Salary remaining until September 30, 2009; and
b. three times the Salary (at the rate in effect at the date
of such termination, change in terms of employment or
expiry);
(ii) in lieu of bonuses, a pro-rated bonus to the date of such
termination, change in terms of employment or expiry at the
target rate of 50% of Salary to such date, plus an amount equal to
the amount payable under subsection 5.2(b)(i); plus
(iii) in lieu of benefits, 10% of an amount equal to the amount
payable under subsection 5.2(a)(i);
and the Employee will accept such amount as full compensation for the
cessation of his employment.
(c) For the purpose of this Agreement "Change of Control" means the
occurrence of any of the following events:
(i) the acquisition by an acquiror (or group of acquirors acting
in concert) of a number of shares which at any time aggregate at
least 50.1% of the outstanding shares of the Company;
(ii) all or substantially all of the assets of the Company are
sold, transferred or otherwise disposed of;
(iii) the individuals who are members of the Board of Directors of
the Company on October 1, 2005 cease for any reason to constitute
a majority of the Board of Directors of the Company; or
(iv) the Board of Directors of the Company deems a transaction or
series of transactions to be a change of control.
- 15 -
(d) If there is a Change of Control, the Employee may resign, and
upon such resignation the Company will pay to the Employee the lump sum
amounts set out in section 5.2(b) herein.
(e) In the event the Employee ceases to be employed and becomes
entitled to any amount pursuant to subsections 5.2 (a), (b) or (d):
(i) all Stock Options and Common Share Purchase Warrants that the
Company has granted or agreed to grant to the Employee pursuant to
the Company's employee Stock Option Plan shall be made the subject
of a Stock Option Agreement substantially in the same form as
Schedule 1 and Schedule 2, except for the number of shares under
Option, the exercise price, and the fact that all the Options
shall "vest" immediately upon cessation of the Employee's
employment;
(ii) any options granted in lieu of bonus or salary (i.e. not be
pursuant to the Company's Stock Option Plan at fair market value
at the date of the grant) shall be made the subject of a Stock
Option Agreement substantially in the same form as Schedule 3
(unless such agreement for such options already exists) and for
greater certainty shall expire at the termination or expiry date
established at the time of the grant or pursuant to any agreement
in relation thereto; and
(iii) all other Stock Options that the Company would have issued
to the Employee in the normal course of the Employee's employment
with the Company will be issued at the fair market price for such
stock or shares as at the date of termination and shall
automatically vest with the Employee and be made the subject of a
Stock Option Agreement in the form of Schedule 1 or 3 as the case
may be.
Termination for Cause and Other Events of Early Termination
5.3 Despite any other term of this Agreement to the contrary, the Employee's
employment by the Company (and any office held by him) may be terminated by
the Company for cause without a notice period prior to the expiration of the
then current term of this Agreement upon the receipt by the Employee of
written notice from the Company terminating his employment for cause;
however, no termination based upon the Employee's failure or refusal to
perform his obligations under this Agreement, which if not remedied could
amount to cause, shall be considered to be for cause, under this Agreement,
unless the Board first gives written notice to the Employee advising of the
acts or omissions that the Company considers would constitute cause because
of the Employee's failure or refusal to perform his obligations and the
failure or refusal continues after the Employee has had a reasonable
opportunity to correct the acts or omissions as set out in the notice.
Effect of Termination under Section 5.3
5.4 If the Company terminates the Employee's employment under section 5.3,
then he is not entitled to receive and the Company will not pay any salary,
- 16 -
damages or other sums as a consequence of the termination except for Salary,
any unpaid bonus amounts, and unpaid and reimbursable expenses, accrued or
accruable, but unpaid, to the effective termination date, plus any other
amounts owing by the Company to the Employee and plus interest at the CIBC
Prime Rate plus 3% per annum on all amounts owing from the Company to the
Employee from and after the termination date until paid, such interest to be
payable and compounded monthly and if not so paid, itself bear interest, and
the Employee shall resign from any office, with the company or with an
affiliate, which the Company can not by itself lawfully terminate.
Return of Property
5.5 On the effective termination date, the Employee will deliver up to the
Company, in a reasonable state of repair, all property including without
limitation, all copies, extracts and summaries, whether in written, digital,
magnetic or electronic form, of documents and information of the Company in
the possession or under the control or direction of the Employee at the
termination date.
Resignation of Office
5.6 Upon termination of this Agreement, the Employee will resign as an
officer of the Company and of any subsidiaries or affiliates of the Company,
and of any other entity where the Employee has been appointed or nominated by
the Company.
PART 6
GENERAL
Further Assurances
6.1 Each party will, at its own expense and without expense to any other
party, execute and deliver the further agreements and other documents and do
the further acts and things as the other party reasonably requests to
evidence, carry out or give full force and effect to the terms of this
Agreement.
Assignment
6.2 Neither party may assign any right, benefit or interest in this
Agreement without the prior written consent of the other party. Any
purported assignment without such consent will be void.
Severability
6.3 If any one or more of the provisions contained in this Agreement or the
application of any of them to a person or circumstance is held by a court to
be illegal, invalid or unenforceable in respect of any jurisdiction, then to
the extent so held, it is separate and severable from this Agreement but the
validity, legality and enforceability of the provision will not in any way be
affected or impaired in any other jurisdiction and the remainder of the
Agreement or the application of the provision to persons or circumstances
- 17 -
other than those to which it is held to be invalid, illegal or unenforceable
is not affected unless the severing has the effect of materially changing the
economic benefit of this Agreement to the Employee or the Company.
Modifications, Waiver and Consent
6.4 No provision of this Agreement may be amended, modified, supplemented,
waived or discharged unless the amendment, modification, supplement, waiver
or discharge is agreed to in writing and signed by the Employee and on behalf
of the Company by an officer specifically designated by the Board. No waiver
by a party at any time or any breach by the other party of a term of this
Agreement or of performance of an obligation to be performed by the other
party under this Agreement is deemed to be a waiver of similar or dissimilar
terms or obligations at the same, any prior or subsequent time.
Notice
6.5 A notice, demand, request, statement or other evidence required or
permitted to be given under this Agreement (a "notice") must be written. It
will be sufficiently given if delivered to the address of a party set out on
page 1 and if
(a) delivered in person to the Employee either by certified mail or
courier so that a delivery receipt is obtained, or
(b) delivered to the Company or the President of the Company, as the
case may be, either by certified mail or courier so that a delivery
receipt is obtained.
At any time, a party may give notice to the other party of a change of
address and after the giving of the notice, the address specified in the
notice will be considered to be the address of the party for the purpose of
this section.
Any notice delivered or sent in accordance with this section will be deemed
to have been given and received
(c) if delivered, then on the day of delivery,
(d) if mailed, on the earlier of the day of receipt and the 7th
business day after the day of mailing, or
(e) if sent by telex, telegram, facsimile or other similar form of
written communication, on the first business day following the
transmittal date.
(f) if a notice is sent by mail and mail service is interrupted between
the point of mailing and the destination by strike, slowdown, force
majeure or other cause within three (3) days before or after the time of
mailing, the notice will not be deemed to be received until actually
received, and the party sending the notice will use any other service
which has not been so interrupted or will deliver the notice in order to
ensure prompt receipt.
- 18 -
Binding Effect
6.6 This Agreement will enure to the benefit of and be binding upon the
parties and their respective legal representatives and successors. This
agreement is otherwise personal and non-assignable.
Governing Law
6.7 This Agreement will be interpreted under and is governed by the laws of
the Province of British Columbia and the laws of Canada that are applicable
and, except for matters which cannot properly or lawfully be resolved by
arbitration, the courts of the Province of British Columbia will have
exclusive jurisdiction to entertain any action arising under this Agreement
and the parties hereby attorn to the jurisdiction of those courts.
Time of Essence
6.8 Time is of the essence in the performance of each obligation under this
Agreement.
Counterparts
6.9 This Agreement and any other writing delivered pursuant to this
Agreement may be executed in any number of counterparts with the same effect
as if all parties to this Agreement or such other writing had signed the same
document and all counterparts will be construed together and will constitute
one and the same instrument.
Entire Agreement
6.10 This Agreement constitutes the entire agreement between the parties in
respect of the employment of the Employee by the Company and supersedes and
replaces all prior negotiations, written or oral understandings, agreements
made between the parties.
Survival of Terms
6.11 The provisions of sections 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 5.3,
5.4, 5.5 and 5.6 shall survive the termination of this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement effective
as of the day and year first above-written.
- 19 -
The Common Seal of DYNAMOTIVE )
ENERGY SYSTEMS CORPORATION was )
affixed in the presence of: )
)
)
Per:___/s/Xxxxxxx Xxxxxxx _____ ) C/S
Authorized Signatory )
)
Per: __/s/Xxxxxxx Lin__________ )
Authorized Signatory )
)
)
)
Signed, Sealed and Delivered by )
the Employee in the presence of: )
)
)
)
__/s/___________________________ ) /s/ Xxxxx Richardson_
Witness (Signature) ) Xxxxx Xxxxxxxxxx
)
)
________________________________ )
Name (please print) )
)
)
________________________________ )
Address )
)
)
________________________________ )
City, Province )
- 20 -
SCHEDULE 1
OUTSTANDING STOCK OPTIONS
Date of Issue Number of Optionee Exercise Original Expiry
Shares (Holder of Price Date of Option
Option) US$
----------------------------------------------------------------------------
May 6, 2003 200,000 Xxxxx Xxxxxxxxxx $0.23 May 6, 2006
August 31, 2003 100,000 Xxxxx Xxxxxxxxxx $0.45 August 30, 2006
March 15, 2004 78,067 Xxxxx Xxxxxxxxxx $0.20 March 14, 2006
January 21, 2005 200,000 Xxxxx Xxxxxxxxxx $0.48 January 21, 2009
----------------------------------------------------------------------------
- 21 -
SCHEDULE 2
STOCK OPTION AGREEMENT
This Agreement effective this 1st day of October, 2005.
BY AND BETWEEN:
XXXXX XXXXXXXXXX, an individual residing at 0000 00xx Xxxxxx, Xxxx
Xxxxxxxxx, XX. X0X 0X0
(hereinafter referred to as the "Employee")
AND:
DYNAMOTIVE ENERGY SYSTEMS CORPORATION
000 - 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0
(hereinafter referred to as "DynaMotive")
WHEREAS, the Employee has agreed to continue to serve as an employee of
DynaMotive.
AND WHEREAS, in connection with such employee/employer relationship,
DynaMotive has agreed to grant to the Employee options to purchase common
shares in the capital stock of DynaMotive ("Common Shares").
NOW THEREFORE THE EMPLOYEE AND DYNAMOTIVE AGREE AS FOLLOWS:
1. Stock Option Grant
DynaMotive hereby irrevocably grants to the Employee share purchase options
entitling the Employee to purchase 1,750,000* Common Shares at exercise
prices detailed below per Common Share (the "Options"), which price per
Common Share DynaMotive and the Employee have determined to be the market
value of DynaMotive's Common Shares on the date first above written, or on
the date previously approved by the Company's Board of Directors and which
Options will, in each case but subject to section 10 hereof, have a term of
three years from the date on which they are originally scheduled to Vest, as
set forth in the following table:
*to be released in increments as the Company accrues appropriate number of
options for distribution as required.
- 22 -
Number of Exercise Vesting Termination
Stock Options Price Date Date
200,000 US$0.48 November 1, 2005 November 1, 2008
150,000 US$0.58 November 1, 2005 November 1, 2008
200,000 US$0.48 September 30, 2006 September 30, 2009
150,000 US$0.58 September 30, 2006 September 30, 2009
350,000 US$0.58 September 30, 2007 September 30, 2010
350,000 US$0.58 September 30, 2008 September 30, 2011
350,000 US$0.58 September 30, 2009 September 30, 2012
2. Vesting Provisions
Notwithstanding the foregoing:
(a) Vest and Vesting Date with regard to a particular Option granted
hereby shall mean the date set forth in the above table following which
that Option may be exercised, provided that the 350,000 Options which
shall vest November 1, 2005 shall not be exercised until after actual
execution of this Stock Option Agreement; and
(b) If the Employee's employment with DynaMotive is terminated or
otherwise ends prior to the end of the term of the Confidential
Employment Agreement between DynaMotive and the Employee, made with
effect October 1, 2005 (the "Employment Agreement"), other than for
"cause" within the meaning of section 5.3 of the Employment Agreement,
or by the Employee acting voluntarily within the meaning of that
agreement other than under subsection 5.2(d) thereof, then all of the
Options granted to the Employee hereunder, will Vest immediately upon
such termination, provided that such early Vesting will not affect the
above-listed Option Termination Dates.
3. In order to exercise the Options, the Employee shall, subject to
Section 4 and 10 hereof, no later than the close of business (Vancouver time)
on the applicable Option Termination Date set out above, give written notice
to DynaMotive of his intention to exercise the then-vested Options in whole
or in part, such notice to specify the number of Options that the Employee
wishes to exercise and be accompanied by cash, bank draft or certified
cheque, payable to "DynaMotive Energy Systems Corporation" in the amount
required to pay for the Common Shares then being purchased by the Employee at
the exercise price of US $0.58 per Common Share. Promptly after receipt of
each such notice and payment, DynaMotive shall issue a Treasury Order to its
Registrar and Transfer Agent calling for the issuance of the required number
of Common Shares and will deliver a duly and validly issued certificate
representing such shares to the Employee within five business days.
Following delivery of such share certificates to the Employee, but not
before, DynaMotive shall be entitled to keep and retain, for its own use, the
purchase price paid to it by or on behalf of the Employee.
4. The Options shall survive the cessation of the employment of the
Employee by DynaMotive and shall be in full force and effect and exercisable
- 23 -
until the Termination Date for the particular Options set forth in section 1
hereof and following which, if not exercised, the Options shall lapse and be
of no further force or effect.
5. The Options granted hereunder are personal to the Employee and may be
assigned or transferred in whole or in part to any company controlled by the
Employee or to the Employee's immediate family, or to a family trust.
6. The exercise of the Options or any amendments to this Agreement may be
subject to the prior approval, where necessary, under 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 Options shall be deemed to have
been exchanged by DynaMotive for new options to purchase a number of Common
Shares at an exercise price which is adjusted appropriately (the "New
Options") such that the amount by which the total value of the Common Shares
under the New Options exceeds the total price to acquire such shares under
the New Options, immediately after such a material change, is not greater
than nor materially less than such an amount would have been under the
original Options, immediately prior to such material change. The adjusted
terms of the New Options 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 Employee will thereafter receive, upon
the exercise of the Options, the securities or property to which a holder of
the number of Common Shares then deliverable upon the exercise of the Options
would have been entitled to upon such amalgamation, consolidation, or merger,
and DynaMotive will take any and all steps in connection with such
amalgamation, consolidation, or merger as may be necessary to ensure that the
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 Options granted herein.
9. In the event of a change of control of DynaMotive as defined in the
Employment Agreement, or a sale of all or substantially all of the assets of
DynaMotive, then, immediately prior to the date of such an event, all of the
Options granted to the Employee hereunder will Vest, provided that such early
Vesting will not, subject to section 4 and 10 hereof, affect the above-listed
Option Termination Dates.
10. 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
heirs, executors, administrators and legal personal representatives of the
Employee; provided that any of the Options which have not been exercised
before the Employee dies or his employment is terminated at a time when the
Employee is disabled, may notwithstanding section 4 hereof be exercised by
the Employee's heirs, executors, administrators or legal personal
representatives at any time before the later of the Termination Date for the
Options and one year after the date of death of the Employee.
- 24 -
11. 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.
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 )
ENERGY SYSTEMS CORPORATION )
was hereunto affixed in the )
presence of: ) C/S
)
___/s/Desmond Radlein_________ )
)
)
)
__ /s/Xxxxxxx Xxx __________ )
)
SIGNED, SEALED AND DELIVERED )
by the Employee in the presence )
of: )
)
______________________________ )
Name ) __/s/ Xxxxx Richardson_
) Xxxxx Xxxxxxxxxx
)
______________________________ )
Address )
)
)
______________________________ )
)
______________________________ )
Occupation )
- 25 -
SCHEDULE 3
STOCK OPTION AGREEMENT
This Agreement effective this day of , 200_ .
BY AND BETWEEN:
XXXXX XXXXXXXXXX, an individual residing at 0000 00xx Xxxxxx, Xxxx
Xxxxxxxxx, XX. X0X 0X0
(hereinafter referred to as the "Employee")
AND:
DYNAMOTIVE ENERGY SYSTEMS CORPORATION
000 - 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0
(hereinafter referred to as "DynaMotive")
WHEREAS, the Employee has agreed to continue to serve as an employee of
DynaMotive;
AND WHEREAS, in connection with such employee/employer relationship,
DynaMotive has agreed to grant to the Employee options to purchase common
shares in the capital stock of DynaMotive ("Common Shares").
NOW THEREFORE THE EMPLOYEE AND DYNAMOTIVE AGREE AS FOLLOWS:
1. Bonus/Remuneration Stock Option Grant
DynaMotive hereby irrevocably grants, to the Employee, share purchase options
entitling the Employee to purchase Common Shares at an exercise price of
one-tenth of one cent in Canadian currency (CDN $0.001) per Common Share (the
"Options"), which Options will, in each case, have a term of 3 years from the
effective date of the agreement of the Company to issue such Common Shares if
the option is exercised by the Employee.
2. Exercise of Bonus Stock Option
In order to exercise the Options, the Employee shall, no later than the close
of business (Vancouver time) on the termination date of the Options granted
by this Agreement, give written notice to DynaMotive of his intention to
exercise the Options in whole or in part, such notice to specify the number
- 26 -
of Options that the Employee wishes to exercise (not being less than for
25,000 Common Shares, or the balance of the Common Shares that the Employee
is entitled to purchase pursuant to this Agreement) and be accompanied by
cash, bank draft or certified cheque, payable to "DynaMotive Energy Systems
Corporation" in the amount required to pay for the Common Shares then being
purchased by the Employee at the exercise price of CDN $0.001 per Common
Share. Promptly after receipt of each such notice and payment, DynaMotive
shall issue a Treasury Order to its Registrar and Transfer Agent calling for
the issuance of the required number of Common Shares and will deliver a duly
and validly issued certificate representing such shares to the Employee
within 5 business days. Following delivery of such share certificates to the
Employee, but not before, DynaMotive shall be entitled to keep and retain,
for its own use, the purchase price paid to it by or on behalf of the
Employee.
3. Termination of Employment
The Options shall survive the cessation of the employment of the Employee by
DynaMotive and shall be in full force and effect and exercisable until the
termination date applicable to the Options provided herein.
4. Assignment
The Options granted hereunder are personal to the Employee and may be
assigned or transferred in whole or in part to any company controlled by the
Employee or to the Employee's immediate family, or to a family trust.
5. Required Approvals
The exercise of the Options or any amendments to this Agreement may be
subject to the prior approval, where necessary, under certain securities
legislation or jurisdictions.
6. Adjustments for Material Changes
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 Options shall be deemed to have
been exchanged by DynaMotive for new options to purchase a number of Common
Shares at an exercise price which is adjusted appropriately (the "New
Options") such that the amount by which the total value of the Common Shares
under the New Options exceeds the total price to acquire such shares under
the New Options, immediately after such a material change, is not greater
than nor materially less than such an amount would have been under the
original Options, immediately prior to such material change. The adjusted
terms of the New Options shall be effective and binding for all purposes of
this Agreement.
7. Adjustments for mergers
In the event that DynaMotive shall amalgamate, consolidate with, or merge
into another corporation, the Employee will thereafter receive, upon the
exercise of the Options, the securities or property to which a holder of the
- 27 -
number of Common Shares then deliverable upon the exercise of the Options
would have been entitled to upon such amalgamation, consolidation, or merger,
and DynaMotive will take any and all steps in connection with such
amalgamation, consolidation, or merger as may be necessary to ensure that the
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 Options granted herein.
8. Enurement
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 heirs,
executors, administrators and legal personal representatives of the Employee;
provided that any of the Options which have not been exercised before the
Employee dies or his employment is terminated at a time when the Employee is
disabled, may notwithstanding section 3 hereof be exercised by the Employee's
heirs, executors, administrators or legal personal representatives at any
time before the later of the termination date for the Options and one year
after the date of death of the Employee.
9. Governing Law
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.
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 )
ENERGY SYSTEMS CORPORATION )
was hereunto affixed in the )
presence of: ) C/S
)
___/s/Xxxxxxx Xxxxxxx ___ )
)
)
___/s/Xxxxxxx Lin_____________ )
)
SIGNED, SEALED AND DELIVERED )
by the Employee in the presence )
of: )
)
___Brian Richardson___________ )
Name ) _/s/ Xxxxx Richardson_
) Xxxxx Xxxxxxxxxx
)
______________________________ )
Address )
)
)
______________________________ )
Occupation )
