EXHIBIT 10.4: Executive Compensation Agreement - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
EXECUTIVE COMPENSATION AGREEMENT
Between
NUTEK OIL INC
and
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This Agreement is made this 1st day of April, 2004, by and between NUTEK
OIL INC, a Nevada corporation ("NUTEK OIL"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("EXECUTIVE").
WHEREAS, NUTEK OIL is engaged in the business of oil and gas exploration
and development; and
WHEREAS, NUTEK OIL desires to retain the services of the EXECUTIVE in the
capacity of its VICE PRESIDENT - OPERATIONS.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION 1. EMPLOYMENT.
1.1 EXECUTIVE EMPLOYMENT. NUTEK OIL appoints EXECUTIVE and EXECUTIVE
accepts the appointment as Vice President - Operations until March 31, 2005.
1.2 ADVISORY PERIOD. If EXECUTIVE's Employment is terminated as
provided in paragraph (1.1) above, or in any other manner, he shall
nevertheless be retained thereafter by NUTEK OIL as an advisor and consultant
until March 31, 2006 (Advisory Period).
SECTION 2. DUTIES. EXECUTIVE shall serve as Vice President - Operations
of NUTEK OIL, with such duties as are customarily associated with such position
in public corporations and specifically as set out in the By-Laws of NUTEK OIL.
SECTION 3. EXTENT OF SERVICES. EXECUTIVE shall devote his best efforts,
attention, and energies to the performance of his duties as set out above. The
duties shall be rendered at the NUTEK OIL offices, or at such other place or
places and at such times as the needs of NUTEK OIL may from time-to-time
dictate.
Nothing in this Agreement shall preclude EXECUTIVE from conducting other
business or holding official positions or directorships in other entities, the
activities of which do not directly conflict with EXECUTIVE's duties and
responsibilities as Chief Financial Officer of NUTEK OIL.
SECTION 4. TERM. The term of this Agreement shall begin on April 1, 2004
(the "Effective Date"), and shall continue for a one year period. The parties
presently anticipate that the employment relationship may continue beyond this
one-year term.
SECTION 5. EXECUTIVE COMPENSATION.
5.1 BASE SALARY. NUTEK OIL will pay to EXECUTIVE a base salary for
the first year in the amount of Eighteen Thousand Dollars ($18,000), payable in
accordance with NUTEK OIL's standard payroll procedures but no less frequently
than monthly for the cash portion, at the election of EXECUTIVE. The base
salary will be payable as Six Thousand Dollars ($6,000) in accordance with
NUTEK OIL's standard payroll procedures and Twelve Thousand Dollars ($12,000),
payable in Nutek Oil Restricted Stock payable quarterly based on the average
monthly stock price, calculated by adding the closing share price for each day
of the month and dividing by the number of days in the month. The minimum
conversion price for the restricted stock is to be $0.10 per share. This base
salary will be payable throughout the term serving in the EXECUTIVE or advisory
capacity, as defined in Section 1.1 (Executive Employment) and 1.2 (the
Advisory Period).
5.2 SUPPLEMENTAL SALARY.
(a) EXECUTIVE's Base Salary at the rate of $18,000 plus 25% in
cash and restricted stock per annum will be paid beginning from the first day
of the month following the quarter in which NUTEK OIL achieves annualized gross
revenues of at least $300,000.
(b) If NUTEK OIL achieves first fiscal year $300,000 in gross
revenues, EXECUTIVE will be entitled to a 50% increase in base salary over and
above any quarterly increases. This newly calculated Base Salary will then
become the Base Salary for the second year of employment.
(c) EXECUTIVE's increased Base Salary plus 25% in cash and
restricted stock per annum will be paid beginning from the first day of the
month following the quarter in which NUTEK OIL achieves annualized gross
revenues of at least $500,000.
(d) If NUTEK OIL achieves second year $500,000 in gross
revenues, EXECUTIVE will be entitled to a 50% increase in base salary over and
above any quarterly increases. This newly calculated Base Salary will then
become the Base Salary for the third year of employment.
(e) The same procedure will be followed for determining
EXECUTIVE's compensation in the third through the fifth years of employment,
with the gross revenue thresholds for quarterly and annual increases negotiated
with the Board of Directors prior to the beginning of the third, fourth and
fifth years of this Agreement, except that at no time will EXECUTIVE's Base
Salary be less than that determined at the beginning of the third year of
employment. Said supplemental salary shall be effective throughout the
executive period and the advisory period of employment.
(f) Notwithstanding the goals set out above, in the event that
NUTEK OIL has substantially advanced toward its goals and objectives during any
quarter, and other advances have been made such as acquisition of businesses or
properties, EXECUTIVE shall be entitled to a supplemental salary amount for the
following quarter and/or lump sum bonus in an amount set by the Board of
Directors.
(g) During any period of the contract in which EXECUTIVE
provides consulting services relating to NUTEK OIL which are outside those
services normally provided by a Vice President - Operations, he shall be
entitled to separate and supplemental compensation in amounts reasonably
associated with such services, in addition to other compensation provided for
under this agreement.
(h) EXECUTIVE shall be entitled to a lump sum supplement,
consisting of options to purchase 50,000 shares of NUTEK OIL common stock at a
strike price of $0.50 per share at the time NUTEK OIL'S common stock is
accepted for trading on the Over the Counter Bulletin Board, NASDAQ (small
cap), American Stock Exchange or other recognized stock exchange.
5.3 BONUSES. EXECUTIVE shall be eligible to receive a discretionary
bonus for each year (or portion thereof) during the term of this Agreement and
any extensions thereof, with the actual amount of any such bonus to be
determined in the sole discretion of the Board of Directors based upon its
evaluation of EXECUTIVE's performance during such year.
SECTION 6. STOCK AND STOCK OPTIONS
6.1 It is acknowledged that EXECUTIVE owns a number of shares of
common stock in NUTEK OIL and further, that
(a) NUTEK OIL shall register for public trading with the
Securities and Exchange Commission at least ten percent (10%) of the shares
owned by EXECUTIVE per year for each year of the contract beginning with the
second year of the contract or the first offering of securities, whichever
shall occur first.
(b) In the event a voluntary termination by EXECUTIVE and NUTEK
OIL, NUTEK OIL shall register the balance of the stock owned by EXECUTIVE pro-
rata over five (5) years following such termination in the event such stock is
not sooner sold.
(c) In the event of involuntary termination or an offer is made
by a single purchaser or group of purchasers and accepted by NUTEK OIL for 51%
or more of the outstanding common stock of NUTEK OIL, all remaining shares of
stock owned by EXECUTIVE shall be registered for public trading immediately.
6.2 EXECUTIVE is entitled to receive stock distributions of fully
paid and non-assessable common stock of NUTEK OIL, in addition to any other
stock options EXECUTIVE may be entitled to, as described in Exhibit A to this
Agreement, entitled "Executive Stock Option Agreement".
SECTION 7. TERMINATION.
7.1 Termination For Cause. Termination For Cause may be effected by
NUTEK OIL at any time during the term of this Agreement and shall be effected
by written notification to EXECUTIVE. Provided, however, EXECUTIVE shall be
given 30 days from date of delivery of such notification to cure the defect set
out in the notice. Upon Termination For Cause, Employee shall promptly be paid
all accrued salary, bonus compensation to extent earned, vested deferred
compensation (other than pension or profit sharing plan benefits which will be
paid in accordance with the applicable plan), any benefits under any plans of
NUTEK OIL in which EXECUTIVE is a participant to the full extent of EXECUTIVE's
rights under such plans, accrued vacation pay and any appropriate business
expenses incurred by EXECUTIVE in connection with his duties hereunder, all to
the date of termination, along with a severance payment equal to six-months
base salary.
7.2 Termination Other Than For Cause. Notwithstanding anything else
in this Agreement, NUTEK OIL may effect a Termination Other Than For Cause at
any time upon giving written notice to EXECUTIVE of such termination. Upon any
Termination Other Than For Cause, EXECUTIVE shall promptly be paid all accrued
salary, bonus compensation to extent earned, vested deferred compensation
(other than pension or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of NUTEK OIL
in which EXECUTIVE is a participant to the full extent of EXECUTIVE's rights
under such plans, (including accelerated vesting, if any, of awards granted to
EXECUTIVE under NUTEK OIL's stock option plan), accrued vacation pay and any
appropriate business expenses incurred by EXECUTIVE in connection with his
duties hereunder, all to the date of termination. Thereafter, EXECUTIVE will be
retained as an advisor and consultant during the Advisory Period in accordance
with Paragraph 1.2.
7.3 Voluntary Termination. In the event of a Voluntary Termination,
EXECUTIVE shall promptly be paid all accrued salary, bonus compensation to
extent earned, vested deferred compensation (other than pension or profit
sharing plan benefits which will be paid in accordance with the applicable
plan), any benefits under any plans of NUTEK OIL in which EXECUTIVE is a
participant to the full extent of EXECUTIVE's rights under such plans, accrued
vacation pay and any appropriate business expenses incurred by EXECUTIVE in
connection with his duties hereunder, all to the date of termination.
Thereafter, EXECUTIVE will be retained as an advisor and consultant during the
Advisory Period in accordance with Paragraph 1.2.
7.4 Termination Upon A Change of Control. In the event of a
Termination Upon A Change of Control, EXECUTIVE shall promptly be paid all
accrued salary, bonus compensation to extent earned, vested deferred
compensation (other than pension or profit sharing plan benefits which will be
paid in accordance with the applicable plan), any benefits under any plans of
NUTEK OIL in which EXECUTIVE is a participant to the full extent of EXECUTIVE's
rights under such plans, accrued vacation pay and any appropriate business
expenses incurred by EXECUTIVE in connection with his duties hereunder, all to
the date of termination. Thereafter, EXECUTIVE will be retained as an advisor
and consultant during the Advisory Period in accordance with Paragraph 1.2.
7.5 Notice of Termination. NUTEK OIL may effect a termination of this
Agreement pursuant to the provisions of this Section upon giving 30 days
written notice to EXECUTIVE of such termination. EXECUTIVE may effect a
termination of this Agreement pursuant to the provisions of this Section upon
giving 30 days written notice to NUTEK OIL of such termination.
SECTION 8. CONFIDENTIALITY.
EXECUTIVE acknowledges that he will develop and be exposed to
information that is or will be confidential and proprietary to the NUTEK OIL.
The information includes oil and gas prospects, engineering and geological
information, exploration and development plans, and other intangible
information. Such information shall be deemed confidential to the extent not
generally known within the trade. EXECUTIVE agrees to make use of such
information only in the performance of his duties under this Agreement, to
maintain such information in confidence and to disclose the information only to
persons with a need to know.
SECTION 9. MISCELLANEOUS PROVISIONS.
9.1 WAIVER. NUTEK OIL's waiver of the EXECUTIVE's breach of any
provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by the EXECUTIVE. EXECUTIVE's waiver of NUTEK OIL'S
breach of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach by NUTEK OIL.
9.2 NOTICES. Any notices permitted or required under this Agreement
shall be deemed given upon the date of personal delivery or forty-eight (48)
hours after deposit in the United States mail, postage fully prepaid, return
receipt requested, addressed to NUTEK OIL at:
NUTEK OIL INC
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addressed to EXECUTIVE at:
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or at any other address as any party may, from time to time, designate by
notice given in compliance with this Section.
9.3 LAW GOVERNING. This Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada.
9.4 TITLES AND CAPTIONS. All section titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the
context nor effect the interpretation of this Agreement.
9.5 ENTIRE AGREEMENT. This Agreement contains the entire
understanding between and among the parties and supersedes any prior
understandings and agreements among them respecting the subject matter of this
Agreement.
9.6 NON-TRANSFERABILITY. Neither EXECUTIVE, his wife, nor their
estates shall have any right to commute, anticipate, encumber, or dispose of
any payment hereunder, which payment and the rights thereto are expressly
declared nonassignable and nontransferable, except as other wise specifically
provided herein.
9.7 AGREEMENT BINDING. This Agreement shall inure to the benefit of
and be binding upon NUTEK OIL, its successors and assigns, including, without
limitations, any persons, partnership, company or corporation which may acquire
substantially all of NUTEK OIL'S assets or business or with or into which NUTEK
OIL may be liquidated, consolidated, merged or otherwise combined, and shall
inure to the benefit of and be binding upon EXECUTIVE, his heirs, distributees
and personal representatives. If payments become payable to the surviving widow
of EXECUTIVE and he shall thereafter die prior to January 1, 2006, such
payments shall nevertheless continue to be made to his estate until such date.
9.8 COMPUTATION OF TIME. In computing any period of time pursuant to
this Agreement, the day of the act, event or default from which the designated
period of time begins to run shall be included, unless it is a Saturday,
Sunday, or a legal holiday, in which event the period shall begin to run on the
next day which is not a Saturday, Sunday, or legal holiday, in which event the
period shall run until the end of the next day thereafter which is not a
Saturday, Sunday, or legal holiday.
9.9 PRONOUNS AND PLURALS. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular, or
plural as the identity of the person or persons may require.
9.10 ARBITRATION. If at any time during the term of this Agreement
any dispute, difference, or disagreement shall arise upon or in respect of the
Agreement, and the meaning and construction hereof, every such dispute,
difference, and disagreement shall be referred to a single arbiter agreed upon
by the parties, or if no single arbiter can be agreed upon, an arbiter or
arbiters shall be selected in accordance with the rules of the American
Arbitration Association and such dispute, difference, or disagreement shall be
settled by arbitration in accordance with the then prevailing commercial rules
of the American Arbitration Association, and judgment upon the award rendered
by the arbiter may be entered in any court having jurisdiction thereof.
9.11 PRESUMPTION. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
9.12 FURTHER ACTION. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement.
9.13 PARTIES IN INTEREST. Nothing herein shall be construed to be to
the benefit of any third party, nor is it intended that any provision shall be
for the benefit of any third party.
9.14 SEVERABILITY. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby, and shall remain in full force and effect.
NUTEK OIL INC.
a Nevada corporation
by: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
its: Chairman, President and Chief Executive Officer
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
its: Chief Financial Officer
by: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Individually