Exhibit 4.14
============
CONFIDENTIAL EMPLOYMENT AGREEMENT
Made this1 17th day of May, 2004
TABLE OF CONTENTS
Page
PART 1 INTERPRETATION 2
INTERPRETATION 2
PART 2 EMPLOYMENT, TERMS AND DUTIES 2
EMPLOYMENT 3
TERM 3
TITLE 3
PARTICULAR DUTIES 3
GENERAL DUTIES 3
PART 3 COMPENSATION 4
SALARY AND BONUS 4
OTHER BENEFITS 4
STOCK OPTION 4
REVIEW 4
HOLIDAYS 4
PART 4 EMPLOYEE'S ADDITIONAL COVENANTS 5
CONFIDENTIAL INFORMATION 5
NO DISCLOSURE 5
NO COMPETITION 6
NOTICE OF CONFLICT 6
EXCEPTIONS 7
COMPANY'S PROPRIETARY RIGHTS 7
SPECIAL REMEDIES 8
PART 5 TERMINATION 8
TERMINATION FOR JUST CAUSE AND OTHER EVENTS OF EARLY TERMINATION 8
EFFECT ON TERMINATION UNDER PARAGRAPH 5.1 9
RETURN OF PROPERTY 9
RESIGNATION OF OFFICER 9
PART 6 GENERAL 10
FURTHER ASSURANCES 10
ASSIGNMENT 10
SEVERABILITY 10
WAIVER AND CONSENT 10
NOTICE 11
BINDING EFFECT 11
GOVERNING LAW 11
TIME OF ESSENCE 12
COUNTERPARTS 12
ENTIRE AGREEMENT 12
SURVIVAL OF TERMS 12
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CONFIDENTIAL EMPLOYMENT AGREEMENT
THIS AGREEMENT dated for reference and made effective the 17th day of
May, 2004 (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 Suite 105, 1700 West 75th Avenue, Vancouver, BC V6P 6G2
(the "Company")
OF THE FIRST PART
AND:
Jan Barynin of 110-2211, 19th Street N.E., Calgary, AB T2E 4Y5
(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. 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 economically
convert them into a renewable and environmentally friendly
fuel;
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:
PART 1
INTERPRETATION
Interpretation
1.1 For all purposes of this Agreement, excepts as otherwise
expressly provided or unless the context otherwise requires,
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"this Agreement" means this agreement of employment as from time to
time supplemented or amended by one or more agreements entered into
pursuant to the applicable provisions hereof,
The words "hereof" and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular paragraph,
subparagraph or other subdivision,
all references to currency means Canadian currency,
A reference to entity includes any entity that is a successor to such
entity,
The headings are for convenience only and are not intended as guide to
interpretation of this Agreement or any portion hereof,
A reference to an entity includes any entity that is a successor to
such entity,
The headings are for convenience only and are not intended as a guide
to interpretation of this Agreement or any portion hereof,
A reference to a statute includes all regulations made pursuant
thereto, all amendments to statute or statute or regulations in force
from time to time, and any statute or regulation which supplements or
supersedes such statute or regulations, and
"Board" means the board of directors of the Company as from time to
time constituted.
PART 2
EMPLOYMENT, TERMS AND DUTIES
Employment
2.1 The Company hereby employs Employee and the Employee hereby
undertakes employment by the Company on a full-time basis by June 1,
2004, upon and subject to the terms and conditions of this Agreement.
Term
2.2 The Employee shall commence employment hereunder on June 1, 2004.
Employment shall continue for a period of three years from commencement
date, renewable thereafter for a one year period subject to mutually
agreed terms between the Company and the Employee, until terminated
pursuant to Part 5.
Title
2.3 The Employee shall have title of --------------------------------
- ------------------- and shall report directly and be responsible to the
Company's Chief Executive Office.
Particular Duties
Employee's responsibilities shall be discussed and agreed with the
Company's Chief Executive Officer and shall be attached as a schedule
to this agreement.
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General Duties
2.4 During the term of this Agreement, the Employee will
Diligently perform his duties arising under this Agreement to the best
of his skill and ability, and
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 and Bonus
3.1 The Company will pay the Employee an annual salary of
CDN$140,000.00 (the "Salary") payable bi-monthly in arrears, subject to
customary amounts held back pursuant to income tax and social
securities legislation.
The Company will pay Employee a one time bonus payment of
$20,000.00 upon successful commissioning of the Company's first
commercial plant (milestone). Milestone shall be successfully achieved
to merit this one-time payment.
Benefits
3.2 In addition to the other compensation set out in this Agreement,
the Employee shall be able to participate in such health, medical,
insurance or other benefit plans established by the Company from time
to time and made available to staff and officers of the Company.
Stock Option
3.3 The employee shall, on the Effective Date, participate in the
Company's stock option plan to the extent of an annual grant of not
less than 150,000 stock options which shall be exercisable at US$.45
per share. The exercise price of stock options for years 2005 and 2006
shall remain at US$.45 per share.
Review
3.4 At the end of the first year of employment, 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 CEO's review to be
presented to the Compensation Committee and Board for approval.
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Holidays
3.5 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. Without the prior approval of the Board, the Employee may
not carry-over more than two weeks annual vacation from one calendar
year to the following calendar year.
Relocation Expenses
3.6 The Company shall be responsible for part of reasonable moving
costs (upon presentation of receipts by the Employee to the Company)
from Calgary, AB to Vancouver, BC and Employee shall be entitled to a
housing allowance of up to $800.00 per month to a maximum period of six
months.
Other
3.7 The Employee shall be provided up to _____ hours per week during
the first three months of employment to provide limited assistance to
the Employee's previous employer, Nexterra Energy Corp., if so
requested by Nexterra, with the understanding that if such time
requests conflict with DynaMotive's requirements, DynaMotive's needs
shall prevail and take precedence. Such time taken, if any, shall be
recorded and shall reduce Employee's holiday entitlement or be
otherwise made up for in a manner satisfactory to the Company.
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 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 maintain the utmost
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.
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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 course of his employment
by the Company with relation to the business and affairs of the Company
or its affiliates except:
with the prior written authorization of the Company,
as required to carry out the purposes of this Agreement,
as otherwise permitted under this Agreement, or
where the Confidential Information is in or comes into the public
domain through no act or omission of the Employee.
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 twelve months
thereafter, 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
securities of publicly held corporations) which can be reasonably seen
as a direct competitor of the Company and which is involved in the
business of researching or commercializing applications associated with
the Company's BioOil technology and applications in areas that are
being pursued by the Company during or prior to the term hereof or
which the Company has expended significant resources in anticipation of
future activity and will not at any time after termination hereof:
interfere with the contractual arrangements between the Company and any
of its employees, Employees, contractors, suppliers, agents and any one
else in a contractual or fiduciary relationship with the Company and
will not recruit, hire, assist others in recruiting or hiring any
employee of the Company, or
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
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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 10 days, or such
longer period as the Company agrees upon, after receipt of notice,
discontinue the activity, and
certify in writing to the Company that he has discontinued the
conflicting activity including where appropriate by sale or other
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 Part 4 will operate to prevent the Employee from
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;
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;
serving as an officer or director, or be involved in, or receive 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 Notwithstanding anything else in this Agreement, it is expressly
acknowledged and understood by the Employee that all the work product
of the Employee while employed full time by the Company pursuant to the
terms hereof (except work product relating to activities described in
paragraph 4.5) shall belong to the Company absolutely, and
notwithstanding the generality of the foregoing, all patents,
inventions, improvements, notes, documents, correspondence, produced by
the Employee during the term of employment hereunder shall be the
exclusive property of the Company. 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.
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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 therefore. 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
to institute and prosecute proceedings either at law or in equity in
any court of competent jurisdiction,
to obtain damages for the conduct,
to enforce specific performance,
to enjoin Employee, any principal, partner, agent, servant, employer
and employee of Employee, and any other person acting for, on behalf of
or in conjunction with Employee Employee from the conduct, or
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
Termination for Just Cause and Other Events of Early Termination
5.1 The Employee's employment (and any office held by him) by the
Company may be terminated by the Company without a notice period prior
to the expiration of the then current term of this Agreement upon the
first to happen of the following:
(a) the death of the Employee;
(b) the physical or mental incapacity of the Employee and as a result
of which the Employee is unable to perform his duties under this
Agreement for a period in excess of 90 days;
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(c) the receipt by the Employee of written notice from the Company
terminating his employment for just cause where "just cause" means any
of the following events:
(i) any material or persistent breach by the Employee of the terms of
this Agreement;
(ii) conviction of a felony or of any crime involving moral turpitude,
fraud or misrepresentation, or money or property to the Company or any
affiliate of the Company,
(iii) a willful failure or refusal by the Employee to satisfy his
obligations to the Company under this Agreement including without
limitation, specific lawful directives, reasonably consistent with this
Agreement, of the Board of Directors,
(iv) any grossly negligent or willful conduct of the Employee that
directly results in substantial loss or injury to the Company; however
no termination is deemed to be for just cause under this Agreement,
except for termination for a conviction under subparagraph 5.1(c)(ii),
or an act constituting just cause which has already occurred and which
is ascertained to have caused the Company a financial loss or loss of
good will, unless the Board first gives written notice to the Employee
advising of the acts or omissions that constitute 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 on Termination under Paragraph 5.1
5.2 If the Company terminates the Employee's employment under
paragraph 5.1, then he is not entitled to receive and the Company will
not pay any salary, damages or other sums as a consequence of the
termination except for salary and unpaid and reimburseable expenses
accrued but unpaid to the effective termination date and the Employee
shall resign from any office with the company or an affiliate which the
Company can not by itself lawfully terminate.
Effect on Termination not under Paragraph 5.1
5.3 On the effective date of termination, the Company will pay as
liquidated damages in lieu of the balance of the amounts otherwise
payable hereunder, had the Employee continued to perform services for
the balance of the term, equal to 100% of such amounts, payable monthly
until the expiry of the Employee's contract under paragraph 2.2.
Return of Property
5.4 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.
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Resignation of Officer
5.5 Upon termination hereof the Employee will resign as an officer of
the Company and of any subsidiaries of affiliates, 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 intent 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 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 Employee or the Company.
Waiver and Consent
6.4 No provision of this Agreement may be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in
writing and signed by 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.
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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 delivered
in person to the Employee either by certified mail or courier so that a
delivery receipt is obtained, or
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 paragraph.
Any notice delivered or sent in accordance with this paragraph will be
deemed to have been given and received
(a) if delivered, then on the day of delivery,
(b) if mailed, on the earlier of the day of receipt and the 7th
business day after the day of mailing, or
(c) if sent by telex, telegram, facsimile or other similar form of
written communication, on the first business day following the
transmittal date.
(d) 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.
Binding Effect
6.6 This Agreement will enure to the benefit of and be binding upon
the 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 pursuant to paragraph 6.2, 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.
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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 for
any matter and supersedes and replaces all prior negotiations, written
or oral understandings, agreements made between the parties.
Survival of Terms
6.11 The provisions of Section 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7,
4.8, 5.1, 5.2, 5.3 and 5.4 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.
The Common Seal of DYNAMOTIVE )
ENERGY SYSTEMS CORPORATION )
was hereunto affixed in the )
presence of: ) C/S
)
Per:__/s/R. Andrew Kingston___ )
Authorized Signatory )
)
)
SIGNED, SEALED AND DELIVERED )
by the Employee in the presence of: )
)
___/s/________________________ )
Witness (Signature) ) _/s/Jan Barynin_
) JAN BARYNIN
______________________________ )
Name (please print) )
______________________________ )
Address )
______________________________ )
City, Province )