DEEP WELL OIL & GAS, INC. INDEPENDENT CONTRACTOR AGREEMENT
Exhibit
10.4
DEEP
WELL OIL & GAS, INC.
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1.
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THIS
AGREEMENT, made this 8 day of June, 2004 between, Deep Well Oil
& Gas, Inc.; hereinafter referred to as “Company”, located at Suite
1804, Sun Life Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
and ▇▇▇▇▇
▇▇▇▇▇, an individual; hereinafter referred to as “Independent Contractor”,
collectively referred to as the “Parties”.
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RECITALS
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2.
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Independent
Contractor is engaged in providing professional business services,
with
their principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇. Independent Contractor represents that he or she has complied
with all, Federal, Provincial and/or State, and local laws regarding
business permits, sales permits, licenses, reporting requirements,
tax
withholding requirements, and other legal requirements of any kind
that
may be required to carry out said business and the Scope of Work
which is
to be performed as an Independent Contractor pursuant to this Agreement.
Independent Contractor is or remains open to conducting similar
tasks or
activities for entities other than the Company and holds himself
or
herself out to the public to be a separate business
entity.
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3.
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Company
desires to engage and contract for the services of independent
Contractor
to perform certain tasks as set forth below. Independent Contractor
desires to enter into this Agreement and perform as an independent
contractor for the company and is willing to do so on the terms
and
conditions set forth below.
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NOW,
THEREFORE, in consideration of the above recitals and the mutual
promises
and conditions contained in this Agreement, the Parties agree as
follows:
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STATUS
OF INDEPENDENT CONTRACTOR
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4.
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This
Agreement does not constitute a hiring by either party. It is the
parties
intention that Independent Contractor shall have an independent
contractor
status and not be an employee for any purposes, including, but
not limited
to, the application of the Federal Insurance Contribution Act,
the Social
Security Act, the Federal Unemployment Tax Act, the provisions
of the
Internal Revenue Code, the State Revenue and Taxation Code relating
to
income tax withholding at the source of income, the Workers’ Compensation
Insurance Code 40 1(k) and other benefit payments and third party
liability claims. Independent Contractor shall retain sole and
absolute
discretion in the manner and means of carrying out their activities
and
responsibilities under this Agreement. This Agreement shall not
be
considered or construed to be a partnership or joint venture, and
the
Company shall not be liable for any obligations incurred by Independent
Contractor unless specifically authorized in writing. Independent
Contractor shall not act as an agent of the Company, ostensibly
or
otherwise, nor bind the Company in any manner, unless specifically
authorized to do so in writing.
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TASKS,
DUTIES, AND SCOPE OF WORK
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5.
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Independent Contractor agrees to devote as much time, attention, and energy as necessary to complete or achieve the following: | |
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a.
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To
provide a Geological Assessment and Economic Analysis Report and
Presentation hereinafter referred to as “Report” suitable for the
presentation to the Investment Banking Community.
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b.
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The
specific property referred to in the Report shall be define those
lands
found within the Sawn Lake Oil Sands Project, Alberta, Canada and
controlled by Mikwec Energy Canada Ltd. subject to the terms and
conditions of Attachment A, “The Area of Exclusion”.
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c.
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To
present the Report and to represent the Company with reference
to the
technical content of the Report at such meetings and demonstrations
as may
be held from time to time and presented to representatives of the
Investment Community as may be required, including those meetings
that may
occur overseas.
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d.
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To
improve upon and to update the Report as required from time to
time, as
economic conditions and/or the Company situation change as the
case may
be.
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6.
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The
above item 5 to be referred to in this Agreement as the “Scope of Work.”
It is expected that the Report contained within the Scope of Work
will be
substantially completed by June 30, 2004. Further effort by the
Independent Contractor on behalf of the Company executing the Scope
of
Work including such travel time as may be required shall be invoiced
to
the company on a per incident basis.
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7.
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Independent
Contractor shall additionally perform any and all tasks and duties
associated with the Scope of Work set forth above, including but
not
limited to, work already being performed or related change orders.
Independent Contractor shall not be entitled to engage in any activities
which are not expressly set forth by this Agreement.
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8.
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Other
Projects, Properties and/or Prospects may, from time to time, be
appended
to the Independent Contractor’s Tasks, Duties, and Scope of Work by way of
execution of a separate Independent Contractor
Agreement.
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9.
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The
books and records related to the Scope of Work set forth in this
Agreement
shall be maintained by the Independent Contractor at the Independent
Contractor’s principal place of business and open to inspection by Company
during regular working hours. Documents to which Company will be
entitled
to inspect include, but are not limited to, any and all contract
documents, change orders/purchase orders and work authorized by
Independent Contractor or Company on existing or potential projects
related to this Agreement.
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10.
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Independent
Contractor shall be responsible to the management and directors
of
Company, but Independent Contractor will not be required to follow
or
establish a regular or daily work schedule, Independent Contractor
shall
supply all necessary equipment, materials and supplies. Independent
Contractor will not rely on the equipment or offices of Company
for
completion of tasks and duties set forth pursuant to this Agreement.
Any
advice given to Independent Contractor regarding the Scope of Work
shall
be considered a suggestion only, not an instruction. Company retains
the
right to inspect, stop, or alter the work of Independent Contractor
to
assure its conformity with this Agreement.
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COMPENSATION
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11.
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Independent Contractor shall be entitled to compensation for performing those tasks and duties related to the Scope of Work as follows: | |
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a.
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Such
compensation of CAN$800.00 per day shall become due and payable
to
Independent Contractor upon receiving an invoice upon completion
of the
Report.
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b.
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Such
compensation as may be necessary for further tasks and duties related
to
the Scope of Work after completion of the Report shall become due
and
payable to Independent Contractor upon receiving an invoice at
a rate of
CAN$800.00 per day.
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c.
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The
minimum per diem invoice-able is one half day.
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d.
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While
providing such services as described above in the Scope of Work,
Independent Contractor shall be entitled to receive, subject to
all
applicable corporate and regulatory approvals and compliance with
any
conditions to such approval, options to purchase up to 900,000
common
shares of Company exercisable three (3) years from the date of
grant at an
exercise price per common share equal to US$.75 subject to standard
vesting and anti-dilution provisions set forth below.
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e.
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Those
Options received above shall become vested at a rate of not greater
than
1% of 900,000 per calendar quarter for the first 36 months, the
first
quarter commencing no sooner than first day of the month following
the
signing date of this Independent Contractor Agreement. After the
completion of the 36 month vesting period and if the Independent
Contractor Agreement has not been terminated, the remaining unexercised
options shall become fully vested.
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f.
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The
Independent Contractor acknowledges that the common shares of Company
issued upon exercise of vested stock options shall be subject to
any
resale restrictions under applicable United States Securities Laws,
and
including applicable law in Alberta.
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g.
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The
Independent Contractor shall be entitled to be reimbursed for any
expenses
and disbursements as may be incurred in providing the services
to Company
that have been approved in advance by the President or Vice President
of
Company.
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NOTICE
CONCERNING WITHHOLDING OF TAXES
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12.
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Independent
Contractor recognizes and understands that it will receive an IRS
1099
statement and related tax statements, and will be required to file
corporate and/or individual tax returns and to pay taxes in accordance
with all provisions of applicable Federal and Provincial and/or
State
laws. Independent Contractor hereby promises and agrees to indemnify
Company for any damages or expenses, including attorney’s fees, and legal
expenses, incurred by Company as a result of independent contractor’s
failure to make such required payments.
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AGREEMENT
TO WAIVE RIGHTS TO BENEFITS
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13.
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Independent
Contractor hereby waives and foregoes the right to receive any
benefits
given by Company to its regular employees, including, but not limited
to,
health benefits, vacation and sick leave benefits, profit sharing
plans,
such as 40 1(k) plans. This waiver is applicable to all non-salary
benefits which might otherwise be found to accrue to the Independent
Contractor by virtue of their services to Company, and is effective
for
the entire duration of Independent Contractor’s agreement with Company.
This waiver is effective independently of Independent Contractor’s
employment status as adjudged for taxation purposes or for any
other
purpose.
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TERMINATION
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14.
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This
Agreement may be terminated at will prior to the completion or
achievement
of the Scope of Work by either party giving 30 days written notice.
Such
termination shall not prejudice any other remedy to which the terminating
party may be entitled, either by law, in equity, or under this
Agreement.
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NON-DISCLOSURE
OF TRADE SECRETS, CUSTOMER LISTS AND OTHER PROPRIETARY
INFORMATION
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15.
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Independent
Contractor agrees not to disclose or communicate, in any manner,
either
during or after Independent Contractor’s agreement with Company,
proprietary information about Company, its operations, clientele,
or any
other proprietary information, that relate to the business of Company
including, but not limited to, the names of its customers, its
marketing
strategies, operations, or any other information of any kind which
would
be deemed confidential, a trade secret, a customer list, or other
form of
proprietary information of Company. Independent Contractor acknowledges
that the above information is material and confidential and that
it
affects the profitability of Company. Independent Contractor understands
that any breach of this provision, or that of any other Confidentiality
and Non-Disclosure Agreement, is a material breach of this Agreement.
To
the extent Independent Contractor feels they need to disclose confidential
information, they may do so only after obtaining written authorization
from the President or Vice President of the Company.
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NON-SOLICITATION
COVENANT
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16.
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Independent
Contractors shall not, during the Agreement and for a period of
one year
immediately following termination of this Agreement, either directly
or
indirectly, call on, solicit, or take away, or attempt to call
on,
solicit, or take away, any of the customers or clients of the Company
on
whom Independent Contractor called or became acquainted with during
the
terms of this Agreement, either for their own benefit, or for the
benefit
of any other person, firm, corporation or organization.
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NON-RECRUIT
COVENANT
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17.
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Independent
Contractor shall not, during this Agreement and for a period of
one year
immediately following termination of this agreement, either directly
or
indirectly, recruit any of Company’s employees for the purpose of any
outside business.
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RETURN
OF PROPERTY
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18.
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On
termination of this Agreement, or whenever requested by the parties,
each
party shall immediately deliver to the other party all property
in its
possession, or under its care and control, belonging to the other
party to
them, including but not limited to, proprietary information, customer
lists, trade secrets, intellectual property, computers, equipment,
tools,
documents, plans, recordings, software, electronic data records
and all
related records or accounting ledgers.
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EXPENSE
ACCOUNTS
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19.
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Independent
Contractor and the Company agree to maintain separate accounts
in regards
to all expenses related to performing the Scope of Work. Independent
Contractor is solely responsible for payment of expenses incurred
pursuant
to this Agreement unless provided otherwise in writing by the President
or
Vice President of the company. Independent Contractor agrees to
execute
and deliver any agreements and documents prepared by Company and
to do all
other lawful acts required to establish document and protect such
rights.
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WORKS
FOR HIRE
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20.
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Independent
Contractor agrees that the Scope of Work, all tasks, duties, results,
inventions and intellectual property developed or performed pursuant
to
this Agreement are considered “works for hire” and that the results of
said work is by virtue of this Agreement assigned to the Company
and shall
be the sole property of Company for all purposes, including, but
not
limited to, copyright, trademark, service ▇▇▇▇. patent. and trade
secret
laws.
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LEGAL
COMPLIANCE
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21.
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Independent
Contractor is encouraged to treat all company employees, customers,
clients, business partners and other affiliates with respect and
responsibility. Independent Contractor is required to comply with
all
laws, ethical codes and company policies, procedures, rules or
regulations, including those forbidding sexual harassment, discrimination,
and unfair business practices.
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LICENSING,
WORKERS’ COMPENSATIONAND GENERAL LIABILITY
INSURANCE
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22.
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Independent
Contractor agrees to immediately supply the Company with proof
of any
licensing status required to perform the Scope of Work pursuant
to this
Agreement, Workers’ Compensation Coverage where required by law and
General Liability Insurance, upon request of the
Company.
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PERSONS
HIRED BY INDEPENDENT CONTRACTOR
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23.
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All
persons hired by Independent Contractor to assist in performing
the tasks
and duties necessary to complete the Scope of Work shall be the
employees
of Independent Contractor unless specifically indicated otherwise
in an
agreement signed by all parties. Independent Contractor shall immediately
provide proof of Workers’ Compensation insurance and General Liability
insurance covering said employees, upon request of the
Company.
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NOTICES
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24.
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Any
notice to be given hereunder by any party to the other may be affected
either by personal delivery in writing, or by mail, registered
or
certified, postage pre-paid with return receipt requested. Mailed
notices
shall be addressed to the parties at the addresses appearing in
the
introductory paragraphs of this Agreement, but each party may change
their
address by written notice in accordance with this paragraph. Notices
delivered personally shall be deemed communicated as of actual
receipt;
mailed notices shall be deemed communicated as of five (5) days
after
mailing. Independent Contractor agrees to keep Company current
as to their
business and mailing addresses, as well as telephone, facsimile,
e-mail
and pager numbers.
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ATTORNEY’S
FEES AND COSTS
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25.
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If
any action at law or in equity is necessary to enforce or interpret
the
terms of this Agreement, the prevailing party shall be entitled
to
reasonable attorney’s fees, costs and necessary disbursements incurred
both before or after judgment in addition to any other relief to
which
such party may be entitled.
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MEDIATION
AND ARBITRATION
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26.
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Any
controversy between the parties to this Agreement involving the
construction or application of any of the terms, provisions, or
conditions
of this Agreement, shall on written request of either party served
on the
other, be submitted first to mediation and then if still unresolved
to
binding arbitration. Said mediation or binding arbitration shall
comply
with and be governed by the provisions of the American Arbitration
Association for Commercial Disputes unless the Parties stipulate
otherwise. The attorneys’ fees and costs of arbitration shall be borne by
the losing party, as set forth in paragraph 24 above, unless the
Parties
stipulate otherwise, or in such proportions, as the arbitrator
shall
decide.
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INDEMNIFICATION
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27.
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Independent
Contractor shall defend, indemnify, hold harmless, and insure Company
from
any and all damages expenses or liability resulting from or arising
out
of, any negligence or misconduct on Independent Contractor’s part, or from
any breach or default of this Agreement which is caused or occasioned
by
the acts of Independent Contractor. Independent Contractor shall
insure
that its employees and affiliates take all actions necessary to
comply
with the terms and conditions set forth in this Agreement. Independent
Contractor shall name Company as an additional insured on all related
insurance policies including workers compensation, and general
liability.
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CONTAINMENT
OF ENTIRE AGREEMENT
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28.
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This
Agreement is an independent document and supersedes any and all
other
Agreements, either oral or in writing, between the parties hereto,
except
for any separately signed Confidentiality, Trade Secret, Non-Compete
or
Non-Disclosure Agreements to the extent that these terms are not
in
conflict with those set forth herein.
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REPRESENTATION
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29.
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Each
party of this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by
any party
hereto, or anyone acting on behalf of any party hereto, which are
not
embodied herein, and that no other agreement, statement or promise
not
contained in this Agreement shall be valid or binding. Any modification
of
this Agreement shall be effective only if it is in writing, signed
and
dated by all parties hereto.
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PARTIAL
INVALIDITY
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30.
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If
any provision of this Agreement is held by a Court of competent
jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect
without
being impaired or invalidated in any way.
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LAWS
OF NEVADA
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31.
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The
Parties agree that this Agreement shall for all purposes be construed
and
interpreted according to the laws of the State of Nevada, and that
the
courts having jurisdiction with respect to matters relating to
this
Agreement shall be the courts of said State, to the jurisdiction
of which
courts the parties by their execution of this Agreement do hereby
submit.
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COUNTERPART
EXECUTION
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32.
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This
Agreement may be executed by the parties in counterpart and when
each
party has executed a counterpart, all counterparts taken together
shall
constitute one agreement.
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Executed
this 18th day of June, 2004, at Calgary, Alberta.
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Independent
Contractor
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| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
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| ▇▇▇▇▇ ▇▇▇▇▇ | ||
| Deep Well Oil & Gas, Inc. | ||
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ | |
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▇▇▇▇▇▇
▇▇▇▇▇
President/CEO
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