Exhibit 10.2 - Employment Agreement - Jacquelin Dery
EMPLOYMENT AGREEMENT entered into on February 12, 2002, in the City of Montreal,
province of Quebec.
BETWEEN: JACQUELIN DERY, domiciled and residing at 663 McEachran Avenue,
Outremont, Quebec, H2V3C6;
(hereinafter referred to as the "Employee")
AND: EXPERTS CONSEILS DERMOND INC., a corporation duly incorporated under the
Canada Business Corporations Act, having its registered office at 663 McEachran
Avenue, Outremont, Quebec, H2V 3C6, represented herein by Gary L. Westerholm,
director, duly authorized as he so declares;
(hereinafter referred to as "Dermond")
WHEREAS as of the date hereof, the Employee sold all of his shares in the share
capital of Dermond to McKenzie Bay International Ltd. ("MKBY");
WHEREAS Dermond wishes to retain the Employee;
WHEREAS the Employee and Dermond are desirous of entering into an agreement for
the Employee's employment, all subject to the terms and conditions set forth in
this Agreement;
NOW IT IS HEREBY AGREED:
1. INTERPRETATION
1.1 Definitions
In this Agreement, the following words and expressions have the respective
meanings ascribed to them below:
(a) "Affiliate" with respect to a Person means a Person that
controls, is controlled by or under common control with such
Person. For purposes of this definition, "control" when used
with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise, and the terms "controlling" and "controlled" have
meaning collative to the foregoing;
(b) "Agreement" means this employment agreement;
(c) "Board of Directors" means the board of directors of Dermond;
(d) "Business" means the fabrication, sale or lease of the Dermond
Wind Generator and related technology;
(e) "Cause" shall include, but not be limited to the following, as a
basis for termination of employment, (i) wilful misconduct
involving bad faith by the Employee in respect of his
obligations under this Agreement, which misconduct causes or is
intended by the Employee to cause significant injury to Dermond,
(ii) gross malfeasance, (iii) conduct by Employee which
constitutes a breach of the Employee's fiduciary duty or (iv)
repeated refusal by the Employee to perform reasonable and
lawful job assignments which are not materially inconsistent
with his duties and responsibilities under this Agreement and
such failure continues for a period of ten (10) days after
Dermond has given the Employee written notice of such failure
and requested the Employee to remedy such failure.
(f) "Commencement Date" means February12, 2002;
(g) "Disability" shall mean, with respect to the Employee, being
physically or mentally disabled, whether totally or partially,
so that he is substantially unable to perform his duties under
this Agreement for a longer period than twelve (12) consecutive
months, or if he shall be disabled at different times for more
than twelve (12) months (whether working days or not) in any one
period of eighteen (18) consecutive months;
(h) "Discoveries and Works" includes by way of example but without
limitation, intellectual property, trade secrets and other
confidential information, patents and patent applications,
trademarks and trademark registrations and applications, service
marks and service mark registrations and applications, trade
names, copyrights and copyright registrations and applications;
(i) "Employment Year" means the period beginning on February12, 2002
and ending on February11, 2003, and each consecutive twelve-
month period;
(j) "Parties" means Dermond and the Employee and "Party" means one
or the other as the case may be;
(k) "Person" means any individual, corporation, proprietorship,
firm, partnership, limited partnership, limited liability
company, trust, association or other entity;
(l) "Restriction Period" means the period of time covering the Term
plus a period equivalent to eighteen (18) months following
Employee's Termination Date;
(m) "Subsidiary" means a corporation controlled by Dermond, or by
another subsidiary of Dermond;
(n) "Term", "Initial Term", and "Additional Term" shall have the
meaning set forth in Section 4;
(o) "Termination Date" means the effective date of the Employee's
termination of employment with Dermond, regardless of the
reason;
(p) "Territory" means the world.
2. EMPLOYMENT
Dermond hereby employs the Employee as President of Dermond as well as to:
(a) provide technical expertise in furthering the development of the
Dermond Wind Generator;
(b) provide technical expertise in developing off-grid power system
technology; and
(c) provide technical expertise to potential and actual customers,
vendors and partners of Dermond and its Affiliates and
Subsidiaries, as well as other duties Dermond may from time to
time request, without additional compensation. The Employee
hereby accepts employment from Dermond to perform the duties
described above upon the terms and conditions set forth in this
Agreement.
3. DUTIES AND RESPONSIBILITIES
3.1 During the Term of this Agreement, the Employee shall devote his full
time and efforts to the performance of his duties and responsibilities
under this Agreement and to the business and affairs of Dermond, its
Subsidiaries and Affiliates, in general, and the Employee shall use his
best efforts to promote the interests thereof and shall faithfully and
to the best of his ability serve as the President of Dermond.
3.2 It is expressly understood and agreed that the Employee shall not engage
in any other business or business opportunity, whether or not such
business activity is pursued for gain, profit or other pecuniary
advantage, provided however that:
(a) the Employee may engage in personal, charitable, professional
and investment activities to the extent such activities do not
conflict or interfere with the Employee's duties and obligations
under this Agreement or Employee's ability to perform his duties
and responsibilities under this Agreement; and
(b) the Employee shall not be prevented from investing his assets in
such form or manner as will not require any substantial amount
of time or services on the part of the Employee in the operation
of the affairs of the enterprises in which such investments are
made.
3.3 The Employee shall be subject to the direction of, and report only to,
the Board of Directors.
3.4 The Employee shall also perform duties commensurate with his position
and such specific duties and services as the Board of Directors shall
reasonably request consistent with the Employee's position.
3.5 It is contemplated that the Employee will be obliged from time to time
and for reasonable period of time to travel in the performance of his
duties and obligations under this Agreement. However, the principal
place of employment of the Employee which the Employee shall report for
work will be at the Montreal, QuEbec office of Dermond.
4. TERM
Unless sooner terminated as provided for in this Agreement, the terms of
the Employee's employment shall commence on February12, 2002 and shall
continue for five (5) year(s) (the "Initial Term"), provided, however,
that the Initial Term of the Employee's employment under this Agreement
shall automatically be extended for additional periods of twelve (12)
months each (an "Additional Term") unless and until either Dermond or
the Employee shall have given the other notice, not less than three (3)
months prior to the expiration of the Initial Term or any subsequent
Additional Term, of the termination by the notifying party of the
Employee's employment effective as of the next succeeding anniversary
date of the expiration of the Initial Term or Additional Term (the
Initial Term and any Additional Term(s) are collectively referred to as
the "Term" in this Agreement).
5. COMPENSATION
During the Term of this Agreement, Dermond shall pay to the Employee an
annual base salary of sixty-five thousand Canadian dollars ($65,000
CDN). Such salary shall be paid to the Employee in monthly instalments
of $5,416.67 CDN (less applicable taxes and other deductions at source),
on the first business day of each month. However, upon the completion of
the first sale of a Dermond Wind Generator by MKBY, Dermond or any of
its Subsidiaries, the Employee's salary will increase to eighty-five
thousand Canadian dollars ($85,000 CDN) per year, paid in monthly
instalments, less any applicable taxes or deductions at source. The
compensation committee of the Board of Directors shall review the annual
base salary of the Employee each year and as a result of such review
shall increase the annual base salary, effective as of the commencement
of each successive Employment Year, to such greater amount as the Board
of Directors may deem reasonable in the light of the then business and
financial affairs of Dermond and such other factors as in the then
circumstances of Dermond may be appropriate.
6. EXPENSES
Dermond shall reimburse the Employee for all necessary and reasonable
expenses incurred by him in the performance of his duties under this
Agreement. The Employee shall, on being so required, provide Dermond
with vouchers or other evidence of actual payment of the said expenses
in a form satisfactory to Dermond.
7. BENEFITS
7.1 Employee Plans
During the Term of this Agreement, the Employee shall participate in all
employee benefit and insurance plans or programs established by Dermond
in its full discretion and from which he is not excluded from
participating by reason of the terms and conditions in the respective
plans or programs.
7.2 Vacation
The Employee shall be entitled to four (4) weeks paid vacation in each
Employment Year to be taken at such times as may be appropriate having
regard to the requirements of Dermond's business. The Employee shall not
be entitled to carry forward from one year to another untaken vacation
time unless expressly agreed between Dermond and the Employee.
8. RETURN OF DOCUMENTS AND PROPERTY
Upon the termination of Employee's employment with Dermond, or at
anytime upon the request of Dermond, Employee (or his heirs or personal
representatives) shall deliver to Dermond (a) all documents and
materials (including without limitation, computer files) containing
trade secrets or other confidential information relating to the business
and affairs of Dermond, and (b) all documents, materials and other
property (including, without limitation, computer files) belonging to
Dermond, which in either case are in the possession or under the control
of Employee (or his heirs or personal representatives).
9. DISCOVERIES AND WORKS
All Discoveries and Works made or conceived by Employee during his
employment by Dermond, jointly or with others, that relate to the
present or anticipated activities of Dermond, or are used or usable by
Dermond shall be owned by Dermond. Employee shall (a) promptly notify,
make full disclosure to, and execute and deliver any documents requested
by Dermond to evidence or better assure title to Discoveries and Works
in Dermond, as so requested, (b) renounce any and all claims, including
but not limited to claims of ownership and royalty, with respect to all
Discoveries and Works and all other property owned or licensed by
Dermond, (c) assist Dermond in obtaining or maintaining for itself at
its own expense Canadian and foreign patents, copyrights, trade secret
protection or other protection of any and all Discoveries and Works, and
(d) promptly execute, whether during his employment with Dermond or
thereafter, all applications or other endorsements necessary or
appropriate to maintain patents and other rights for Dermond and to
protect the title of Dermond thereto, including but not limited to
assignments of such patents and other rights. Any Discoveries and Works
which, within six (6) months after the Termination Date, are made,
disclosed, reduced to a tangible or written form or description, or are
reduced to practice by Employee and which pertain to the business
carried on or products or services being sold or developed by Dermond at
the time of such termination shall, as between Employee and Dermond be
presumed to have been made during Employee's employment by Dermond.
10. DEATH
The Employee's employment under this Agreement shall terminate upon his
death. In the event of the termination of the Employee's employment as a
result of his death, Dermond shall promptly pay to any one or more
beneficiaries designated by the Employee pursuant to a notice to Dermond
or, failing such designation, to the Employee's estate, the annual base
salary provided for in this Agreement through the conclusion of the
month in which such termination occurs.
11. DISABILITY
The Employee's employment under this Agreement may be terminated as a
result of Disability at the option of Dermond by notice to the Employee,
such termination to be effective upon the receipt by the Employee of
such notice. In the event of the termination of the Employee's
employment as a result of Disability, Dermond shall pay the Employee two
(2) times his full annual base salary less any credit for sick pay or
other benefits received by the Employee deriving from any private
medical insurance or other similar arrangements entered into by Dermond.
12. TERMINATION FOR CAUSE BY DERMOND
The Employee's employment under this Agreement may be terminated by
Dermond for Cause. In the event that the Employee's employment under
this Agreement shall validly be terminated by Dermond for Cause pursuant
to this Section 12, Dermond shall promptly pay accrued but unpaid salary
and reimburse or pay any other accrued but unpaid amounts due under this
Agreement as of the date of termination, and thereafter Dermond shall
have no further obligations under this Agreement.
13. TERMINATION WITHOUT CAUSE
Dermond may terminate the Employee's employment at any time or any
reason other than those specified in Sections 10, 11 and 12 hereof or
for no reason whatsoever, by paying the Employee, in lieu of applicable
notice, the amount equivalent to his salary for the remaining months of
the Term, on a prorated basis, which is to be no less than a minimum of
three (3) months of salary and no more than a maximum of twenty-four
(24) months salary, in effect at the time of Employee's termination, to
be paid within forty-five (45) days after the Termination Date.
14. CONFLICT OF INTEREST
During the Term of this Agreement, the Employee shall not, either
directly or in conjunction with any person, firm, association,
syndicate, company or corporation as principal, agent, shareholder, or
in any other manner whatsoever, carry on or be engaged in, or advise,
lend money to, guarantee the debts or obligations of, or permit his name
or any part of it to be used or employed by any person, firm,
association, syndicate, company or corporation engaged in any business
in competition with the business then carried on by Dermond or a
Subsidiary, provided that the holding of not more than two per cent (2%)
of the issued shares of a public company listed on any recognized stock
exchange in Canada or traded in the Canadian over-the-counter market,
shall not be deemed a breach of this covenant.
15. CONFIDENTIALITY
During the Term of this Agreement and for a period of two (2) years
thereafter, the Employee shall keep secret and retain in strictest
confidence, and shall not use for his benefit or for the benefit or
others, directly or indirectly, any and all confidential information
relating to Dermond and its Subsidiaries of which the Employee shall
obtain knowledge by reason of his employment under this Agreement,
including, without limitation, trade and business secrets or any other
non-public or proprietary information concerning the business, customer
lists, financial plans or projections, pricing policies, marketing plans
or strategies, business acquisition or divestiture plans, new personnel
acquisition plans, technical processes, inventions and other research
projects, and except in connection with the performance of his duties
under this Agreement, he shall not disclose any such information to
anyone outside Dermond and any of its Subsidiaries, except as required
by law (provided prior written notice is given by the Employee to
Dermond) or except with the prior written consent of Dermond, unless
such information is known generally to the public or the trade through
sources other than the unauthorized disclosure by the Employee.
16. NON-COMPETITION AND NON-SOLICITATION
16.1 The Employee acknowledges and understands that (i) he is entering into
this Agreement and specifically agreeing to the provisions of this
Section16 contemporaneously with a transaction in which the Employee's
shares in Dermond, and one of the material assets represented in the
value of said share purchase, was the goodwill of Dermond, (ii) he has
access to Dermond's clients, channels for developing clients and
recruiting executives for employment, and other confidential information
of Dermond, (iii) he has direct substantial responsibility to maintain
Dermond's business relationship with clients of Dermond whose affairs he
handles, (iv) the non-competition and non-solicitation provisions set
forth in this Section16 constitute a material part of the consideration
received by Dermond under this Agreement, (v) due to the specific nature
and limited market for Dermond's activities, the definition of Territory
as set forth in subsection 1.1p) hereof is reasonable and justified,
(vi) it would be unfair to Dermond if the Employee were to appropriate
for himself or for others the benefits of Dermond's many years of
developing such business relationships, especially when the Employee
enjoys a relationship with clients of Dermond as a result of his being
introduced to the client's personnel as the representative of Dermond,
(vii) it would be unfair to Dermond if the Employee were to appropriate
for himself or for others the benefits of the business, personnel and
other confidential information which Dermond has developed in the
conduct of its business, and (viii) it is therefore fair that reasonable
restrictions as set forth below should be placed on certain activities
of the Employee after his employment with Dermond terminates.
16.2 The Employee shall not, without the prior written consent of Dermond, at
any time during the Restriction Period, either individually or in
partnership or jointly or in connection with each other or any Person,
as principal, agent, consultant, lender, contractor, employer, employee,
investor or shareholder, or in any other manner, directly or indirectly,
anywhere within the Territory:
(a) advise, manage, carry on, establish, acquire control of, work
for, perform, render, or engage in, any business or service or
activity that is similar to or competitive with the Business or
any portion of the Business; or
(b) invest in or lend money to, or guarantee the debts or
obligations of, any business or service or activity, or any
Person engaged in any business or service or activity, that is
similar to or competitive with the Business or any portion of
the Business; or
(c) permit the Employee's name or any part thereof to be used or
employed by any Person that operates, is engaged in or has an
interest in any business or service or activity that is similar
to or competitive with the Business or any portion of the
Business. Without limiting the effect of the foregoing,
competing with or competitive with the Business, includes
without limitation, directly or indirectly, engaging in or
permitting the solicitation or sale of any products or services
of the type included within the meaning of term Business as of
the termination of the Employee's employment with Dermond.
16.3 The Employee shall not during the Restriction Period, without the
written consent of Dermond, directly or indirectly (as owner, principal,
agent, partner, officer, employee, independent contractor, consultant,
stockholder, or otherwise), (i) solicit any Client (as this term is
defined below) for a purpose or objective of providing to such Client,
or obtaining an engagement from such Client to provide, any services,
businesses or activities included within the term or (ii) solicit for
employment or otherwise induce any employee employed by Dermond or any
of its Affiliates at the date of termination of the Employee's
employment with Dermond to leave such employ or offer to employ or
employ such employee. The term "Client" shall mean one or more of the
following:
(a) any current or former client or customer of Dermond or its
Affiliates;
(b) any current client or current customer of Dermond or its
Affiliates if at any time since the Commencement Date the
Employee had contact with such client or customer, or personally
solicited such client or customer, or rendered services to such
client or customer, or otherwise developed any relationship with
such client or customer, or
(c) any former client or former customer of Dermond or its
Affiliates who was, during the thirty-six (36) months preceding
the Termination Date, a client or customer of Dermond or its
Affiliates, if at any time since the Commencement Date the
Employee had contact with such client or customer, or solicited
such client or customer, or rendered services to such client or
customer, or otherwise developed any relationship with such
client or customer.
16.4 Upon the termination of the Employee's employment for whatever reason,
the Employee shall deliver to Dermond all documents, papers, records,
accounts of all and any description relating to the affairs of Dermond
within his possession or under his control, it being the intention of
the Employee and Dermond that all such notes or memoranda made by the
Employee during the course of his employment under this Agreement shall
be the property of Dermond and shall be left at its registered office or
principal place of business upon the termination of the Employee's
employment.
17. WITHHOLDING
Dermond shall be entitled to withhold from any and all amounts payable
to the Employee under this Agreement such amounts as from time to time
be required to be withheld pursuant to applicable tax laws and
regulations.
18. GENERAL PROVISIONS
18.1 Further Assurances
Each of the parties upon the request of any other party, whether before
or after the date hereof, shall do, execute, acknowledge and deliver or
cause to be done, executed, acknowledged or delivered all such further
acts, deeds, documents, assignments, transfers, conveyances, powers of
attorney and assurances as may be reasonably necessary or desirable to
effect complete consummation of the transactions contemplated by this
Agreement.
18.2 Successors in Interest
This Agreement and the provisions hereof shall enure to the benefit of
and be binding upon the Parties and their respective successors and
assigns.
18.3 Notices
Any notice, direction or other instrument required or permitted to be
given hereunder shall be in writing and given by delivery or sent by (i)
registered or certified mail, (ii) reputable overnight courier, (iii)
personal delivery, (iv) telecopier or similar telecommunication device
and addressed:
(a) in the case of Dermond at:
Experts Conseils Dermond Inc.
c/o McKenzie Bay International, Ltd.
3362 Moraine Drive
Brighton, Michigan
U.S.A. 48114
Attention: Mr. Gary L. Westerholm
Telecopier: (810) 220-4823
(b) in the case of the Employee at:
Jacquelin Dery
663 McEachran Street,
Outremont, Quebec
H2V 3C6
Telecopier: (514) 274-4858
Any notice, direction or other instrument given as aforesaid
shall be deemed to have been effectively given and received, if
sent by mail on the fourth (4th) business day following such
mailing, if sent by telecopier or similar telecommunications
device on the next business day following such transmission or,
if delivered, to have been given and received on the date of
such delivery. Any party may change its address for service by
written notice given as aforesaid.
18.4 Amendments
This agreement may not be amended except by written instrument duly
executed by or on behalf of all parties hereto.
18.5 Language
The Parties hereby acknowledge that they have requested that this
Agreement and all related documents be drawn up in the English language.
Les parties aux presentes reconnaissent qu'elles ont exige que la
presente convention et tous les documents qui s'y rattachent soient
rediges en anglais.
18.6 Governing Laws
This Agreement shall be governed by and construed in accordance with the
Laws of the Province of Quebec and the Laws of Canada applicable
therein. The Parties agree to submit to the jurisdiction of the Courts
of Quebec, District of Montreal.
18.7 Gender
Any reference in this Agreement to any gender shall include all genders
and words used herein importing the singular number only shall include
the plural and vice versa.
18.8 Headings
The division of this Agreement into articles, sections, subsections and
other subdivisions and the insertion of headings are for convenience of
reference only and shall not affect or be utilized in the construction
or interpretation hereof.
18.9 Severability
Any article, section, subsection or other subdivision of this Agreement
or any other provision of this Agreement which is, or becomes, illegal,
invalid or unenforceable shall be severed herefrom and shall be
ineffective to the extent of such illegality, invalidity or
unenforceability and shall not affect or impair the remaining provisions
hereof, which provisions shall be severed from any illegal, invalid or
unenforceable article, section, subsection or other subdivision of this
Agreement or any other provision of this Agreement.
18.10 Waiver
No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar) nor
shall such waiver constitute a continuing waiver unless otherwise
expressly provided in a written document duly executed by the party to
be bound thereby.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
EXPERTS CONSEILS DERMOND INC.
per: /s/ Gary L. Westerholm, Director
Witness /s/ JACQUELIN DERY