CONSULTING AGREEMENT
EXHIBIT
10.4
This
Consulting Agreement (this “Agreement”) dated as of October 3, 2007 (the
“Effective Date”), is by and between Xxxxx X. Little, with offices at 000 Xxxx
Xxxx Xxxxxx, Xxxxxxx, Xxxxx (“Consultant”) and Victory Divide Mining Company, a
Nevada Corporation (the “Company”).
RECITALS
A.
The
Company desires to retain the Consultant for the term set forth in this
Agreement to assure itself of the services of the Consultant, and the Consultant
is willing to be retained by the Company for the term on the terms and
conditions set forth below.
B.
The
Consultant desires to provide the services under this Agreement and represents
that he is qualified to perform such services.
NOW,
THEREFORE, in consideration of the mutual promises, covenants and agreements
hereinafter set forth, the parties agree as follows:
1. Retention
of the Consultant.
Subject
to the terms and conditions set forth in this Agreement, the Company hereby
retains the Consultant to perform the services set forth in this Agreement,
and
the Consultant accepts this retention on the terms and conditions set forth
in
this Agreement.
2. Term.
The
term
of this Agreement shall commence on the Effective Date and continue for 12
months from the Effective Date.
3. Scope
of Work.
The
services to be performed by the Consultant under this Agreement (the “Work”)
shall consist of providing advice, information and true and correct copies
of
documents regarding the Company’s historical records and operations to its
auditors, attorneys, officers and directors, and signing such documents, as
they
may reasonably request and providing information to the extent the requested
information is reasonably available to Consultant. The Consultant shall not
be
required to work a specific number of hours during any time period nor shall
the
Consultant be required to travel in connection with the performance of the
Work;
provided, however, the Consultant shall respond within a reasonable amount
of
time after receipt of any such request for information or documents. The Company
shall reimburse the Consultant for all reasonable expenses incurred in
connection with copying and sending documents or other requested
materials.
4. Compensation
and Payment; Conditions.
4.1
In
consideration of Consultant’s agreement to perform the Work, Consultant shall be
paid the sum of five hundred fifty thousand dollars ($550,000); provided,
however, that as a condition to the making of the foregoing payment, Consultant
shall have: (i) delivered to the Company a resignation from all officer
positions with the Company effective upon delivery, (ii) delivered a resignation
as a Director of the Company which shall be effective on the tenth
(10th)
day
after the Company mails a Schedule 14f-1 to its shareholders of record; and
(iii) appointed Xxxxxx Xxx as a Director of the Company and its Chief Executive
Officer and appointed Bode Xu as the Company’s Chief Financial Officer. Said
payment shall be made simultaneously with Consultant’s delivery of his
resignations as provided in sections 4.1 (i) and (ii) above.
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4.2
Whenever
the Company shall propose to file a registration statement under the Securities
Act of 1933, as amended, relating to the public offering of Company common
stock
for sale for cash for its own account, or a re-sale registration statement
for
the sale of stock held by other shareholders or by employees or consultants
to
the Company (a “Registration Statement”), the Company shall give written notice
to Consultant at least fifteen (15) business days prior to the anticipated
filing thereof, specifying the approximate date on which the Company proposes
to
file such Registration Statement and the intended method of distribution in
connection therewith, and advising the Consultant of his right to have any
or
all of the Registrable Securities, as defined below, then held by Consultant
included among the securities to be covered by such Registration Statement
(the
“Piggy-Back Rights”). For the purposes of this Section, “Registrable Securities”
shall mean all
the
399,000 shares
of
Company common stock held by Consultant as of the date of this Agreement.
Consultant hereby agrees that this Section 4.2 shall replace any and all other
agreements between Consultant and the Company regarding the registration for
re-sale of securities held by, or which may be acquired by Consultant and such
prior agreements shall be of no further force or effect.
5. Independent
Contractor.
The
Consultant agrees to perform his services hereunder on a nonexclusive basis
and
as an independent contractor and not as an employee of the Company, its
subsidiaries or affiliates. The Consultant is not granted any right or authority
or responsibility, expressed, implied or apparent, on behalf of or in the name
of the Company to bind, or act on behalf of, the Company.
6.
Confidential
Information.
(a) All
information which the Consultant may now possess, may obtain during or after
the
term of this Agreement, or may create prior to the end of the term of this
Agreement relating to the business of the Company or its subsidiaries or of
any
of their respective customers or vendors (collectively, the Confidential
Information) shall be the property of the Company and shall not be published,
disclosed, or made accessible by it to any other person, firm or corporation
either during or after the term of this Agreement or used by it, except during
the term of this Agreement in the business and for the benefit of the Company
without the prior written consent of the Company. The Consultant shall return
all tangible evidence of such Confidential Information to the Company prior
to
or at the end of the term of this Agreement.
(b)
Section 6(a) does not apply to information that is presently a matter of public
knowledge, which is or becomes available on a non-confidential basis from a
source which is not known to be prohibited from disclosing such information,
or
which was legally in the Consultant’s possession without obligation of
confidentiality prior to disclosure by the Company.
(c)
In
the event that the Consultant is requested or required by legal or regulatory
authority to disclose any Confidential Information, the Consultant shall
promptly notify the Company of such request or requirement prior to disclosure
so that the Company, its subsidiaries or affiliates may seek an appropriate
protective order and/or waive compliance with the terms of this
Agreement.
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(d)
The
Company and the Consultant acknowledge that the Company, its subsidiaries or
affiliates would not have an adequate remedy at law for money damages if the
covenants contained in this provision were breached. Accordingly, the Company,
its subsidiaries or affiliates shall be entitled to an injunction restraining
the Consultant from violating this Section 6.
7.
Modifications.
No
amendment or modification to this Agreement shall be effective unless made
in
writing.
8. Assignment.
This
Agreement and all of the Consultant’s rights, duties and obligations under this
Agreement are personal in nature and shall not be subcontracted, assigned,
delegated or otherwise disposed of by the Consultant without the prior written
consent of the Company.
9. Notice.
All
notices required under this Agreement shall be deemed given when sent by
overnight courier or registered or certified mail, or when sent by telecopy,
telegraph or other graphic, electronic means and confirmed by overnight courier
or registered or certified mail addressed to the address set forth in the
preamble to this Agreement. Either party shall have the right to change the
address or name of the person to whom such notices are to be delivered by notice
to the other party.
10. Law
and Venue.
This
Agreement shall be governed in all respects by and construed in accordance
with
the laws of the State of New York or the State of Texas depending on venue
as
hereinafter set forth, without regard to conflicts of law provisions. Any
litigation between the parties commenced by the Company shall be conducted
in
the appropriate federal or state courts with jurisdiction in Midland, Texas.
Any
litigation between the parties commenced by the Consultant shall be conducted
in
the state or federal courts of the State of New York, County of New York.
11. Waiver
of Trial by Jury.
The
Company and the Consultant hereby knowingly, voluntarily and intentionally
waive
the right to a trial by jury with respect to any litigation based hereon, or
arising out of, under or in connection with this agreement. This provision
is a
material inducement for the parties entering into this agreement.
12. Headings.
The
headings in this Agreement are provided for convenience of reference only and
shall not affect the construction of the text of this Agreement.
13. Non-Waiver.
No
waiver of any provision of this Agreement shall be deemed to be nor shall
constitute a waiver of any other provision, whether or not similar, nor shall
any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
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14. Cumulative
Remedies.
All
rights and remedies of the parties under this Agreement shall be cumulative,
and
the exercise of any one right or remedy shall not bar the exercise of any other
right or remedy.
15. Severability.
If any
provision of this Agreement shall be held or deemed to be invalid, inoperative
or unenforceable, such circumstances shall not affect the validity of any other
provision of this Agreement.
16. Survival.
The
obligations of the parties hereunder which by their nature survive the
termination of this Agreement and/or the completion of the Work hereunder,
shall
survive and inure to the benefit of the parties. Those provisions of this
Agreement which provide for the limitation of or protection against liability
shall apply to the full extent permitted by law and shall survive termination
of
this Agreement and/or completion of the Work.
17. Complete
Agreement.
This
Agreement constitutes the entire and final agreement and supersedes all prior
and contemporaneous agreements, representations, warranties and understandings
of the parties, whether oral, written or implied with respect to the subject
matter hereof. The inclusion of this provision has been a material inducement
for each of the parties to enter into this Agreement.
18. Publicity.
The
Consultant shall not make any public disclosures regarding the Company, its
subsidiaries or affiliates or the project for which he is performing the Work
without the prior approval of the Company.
The
parties have executed this Agreement effective as of the day and year first
above written.
| By: | /s/ Xxxxx X. Little | By: | /s/ Xxxxx X. Little | |
|
Xxxxx X. Little |
Xxxxx X. Little |
|||
| Title:
President |
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