CONSULTING AGREEMENT
THIS
AGREEMENT, made, entered into this 14th day of February , 2007 (the “Effective
Date”), by and between Galway Holdings, LLC a Delaware limited liability Company
with a principal place of business located at 000 Xxxx Xxxxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (hereinafter referred to as "Consultant"), and Armitage Mining
Corp.., a Nevada corporation, with its principal place of business at
0000
Xxxx Xxxxx Xxxxxx, Xxxxx 0000 (hereinafter referred to as
"Corporation").
WITNESSETH:
WHEREAS,
Consultant desires to provide consulting services for the Corporation as an
independent contractor, with the understanding that Consultant shall not be
required to devote its full time to the business of the Corporation and shall
be
free to pursue other personal and business interests.
NOW,
THEREFORE,
in
consideration of the premises, the mutual covenants of the parties herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by each of the parties hereto, it is agreed
as
follows:
1. CONSULTING
ARRANGEMENT.
The
Corporation hereby contracts for the services of Consultant and Consultant
agrees to perform such duties and responsibilities and to render advice and
consulting as may be requested by the Corporation from time to time during
the
term of this consulting arrangement in connection with the Corporation's
business throughout the United States and world wide, including but not limited
to in China ("Consulting Arrangement"). Said consulting services shall include,
but not be limited to, business advisory services and services related to
structuring acquisitions for the Corporation. Consultant shall use its best
efforts to keep the Corporation informed of all corporate business opportunities
which shall come to its attention and appear beneficial to the Corporation's
business so that the Corporation can obtain the maximum benefits from
Consultant's knowledge, experience, and personal contacts.
2. RELATIONSHIP
BETWEEN PARTIES.
During
the term of the Consulting Arrangement, Consultant shall be deemed to be an
independent contractor. The Corporation shall not withhold any taxes in
connection with the compensation due Consultant hereunder, and Consultant will
be responsible for the payment of any such taxes and hereby agrees to indemnify
the Corporation against nonpayment thereof.
3. COMPENSATION
FOR THE CONSULTING ARRANGEMENT.
As
consideration for the services to be rendered under the Consulting Arrangement
by Consultant and as compensation for the income Consultant could have otherwise
earned if Consultant had not agreed to keep itself available to the Corporation
hereunder, the Corporation shall (a) pay the Consultant a total of $425,000
which shall be paid within ten days of the Effective Date in accordance with
wire instructions provided by the Consultant to the Corporation and (b) on
the
Effective Date, the Corporation shall issue Consultant a Warrant to purchase
1,000,000 shares of the Corporation’s common stock at $1.00 per share in the
form attached hereto as Exhibit “A”.
4. TERM
OF CONSULTING ARRANGEMENT.
The
Consulting Arrangement shall begin effective as of the Effective Date and shall
continue for a period of three months (3) months from the Effective Date (the
"Consulting Period").
5. CONFIDENTIALITY
COVENANTS.
5.1 Acknowledgments
by the Consultant.
The
Consultant acknowledges that (a) during the Consulting Period and as a part
of his Consulting Arrangement, the Consultant will be afforded access to
Confidential Information (as defined below); (b) public disclosure of such
Confidential Information could have an adverse effect on the Corporation and
its
business; (c) because the Consultant possesses substantial technical
expertise and skill with respect to the Corporation's business, the Corporation
desires to obtain exclusive ownership of each Consultant Invention (as defined
below), and the Corporation will be at a substantial competitive disadvantage
if
it fails to acquire exclusive ownership of each Consultant Invention;
(d) the provisions of this Section 5 are reasonable and necessary to
prevent the improper use or disclosure of Confidential Information and to
provide the Corporation with exclusive ownership of all Consultant
Inventions.
5.2 Agreements
of the Consultant. In
consideration of the compensation and benefits to be paid or provided to the
Consultant by the Corporation under this Agreement, the Consultant covenants
as
follows:
(a) Confidentiality.
(i) During
and following the Consulting Period, the Consultant will hold in confidence
the
Confidential Information and will not disclose it to any person except with
the
specific prior written consent of the Corporation or except as otherwise
expressly permitted by the terms of this Agreement.
(ii) Any
trade
secrets of the Corporation will be entitled to all of the protections and
benefits under any applicable law. If any information that the Corporation
deems
to be a trade secret is found by a court of competent jurisdiction not to be
a
trade secret for purposes of this Agreement, such information will,
nevertheless, be considered Confidential Information for purposes of this
Agreement. The Consultant hereby waives any requirement that the Corporation
submit proof of the economic value of any trade secret or post a bond or other
security.
(iii) None
of
the foregoing obligations and restrictions applies to any part of the
Confidential Information that the Consultant demonstrates was or became
generally available to the public other than as a result of a disclosure by
the
Consultant.
(iv) The
Consultant will not remove from the Corporation's premises (except to the extent
such removal is for purposes of the performance of the Consultant's duties
at
home or while traveling, or except as otherwise specifically authorized by
the
Corporation) any document, record, notebook, plan, model, component, device,
or
computer software or code, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items"). The Consultant recognizes that, as
between the Corporation and the Consultant, all of the Proprietary Items,
whether or not developed by the Consultant, are the exclusive property of the
Corporation. Upon termination of this Agreement by either party, or upon the
request of the Corporation during the Consulting Period, the Consultant will
return to the Corporation all of the Proprietary Items in the Consultant's
possession or subject to the Consultant's control, and the Consultant shall
not
retain any copies, abstracts, sketches, or other physical embodiment of any
of
the Proprietary Items.
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(b) Consultant
Inventions.
Each
Consultant Invention will belong exclusively to the Corporation. The Consultant
acknowledges that all of the Consultant's writing, works of authorship, and
other Consultant Inventions are works made for hire and the property of the
Corporation, including any copyrights, patents, or other intellectual property
rights pertaining thereto. If it is determined that any such works are not
works
made for hire, the Consultant hereby assigns to the Corporation all of the
Consultant's right, title, and interest, including all rights of copyright,
patent, and other intellectual property rights, to or in such Consultant
Inventions. The Consultant covenants that he will promptly:
(i) disclose
to the Corporation in writing any Consultant Invention;
(ii) assign
to
the Corporation or to a party designated by the Corporation, at the
Corporation's request and without additional compensation, all of the
Consultant's right to the Consultant Invention for the United States and all
foreign jurisdictions;
(iii) execute
and deliver to the Corporation such applications, assignments, and other
documents as the Corporation may request in order to apply for and obtain
patents or other registrations with respect to any Consultant Invention in
the
United States and any foreign jurisdictions;
(iv) sign
all
other papers necessary to carry out the above obligations; and
(v) give
testimony and render any other assistance in support of the Corporation's rights
to any Consultant Invention.
5.3 Disputes
or Controversies. The
Consultant recognizes that should a dispute or controversy arising from or
relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy of
Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be maintained
in
secrecy and will be available for inspection by the Corporation, the Consultant,
and their respective attorneys and experts, who will agree, in advance and
in
writing, to receive and maintain all such information in secrecy, except as
may
be limited by them in writing.
5.4 Definitions.
(a) For
the
purposes of this Section 5, "Confidential Information" shall mean any and
all:
(i) trade
secrets concerning the business and affairs of the Corporation, product
specifications, data, know-how, formulae, compositions, processes, designs,
sketches, photographs, graphs, drawings, samples, inventions and ideas, past,
current, and planned research and development, current and planned manufacturing
or distribution methods and processes, customer lists, current and anticipated
customer requirements, price lists, market studies, business plans, computer
software and programs (including object code and source code), computer software
and database technologies, systems, structures, and architectures (and related
formulae, compositions, processes, improvements, devices, know-how, inventions,
discoveries, concepts, ideas, designs, methods and information, and any other
information, however documented, that is a trade secret;
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(ii) information
concerning the business and affairs of the Corporation (which includes
historical financial statements, financial projections and budgets, historical
and projected sales, capital spending budgets and plans, the names and
backgrounds of key personnel, personnel training and techniques and materials,
however documented; and
(iii) notes,
analysis, compilations, studies, summaries, and other material prepared by
or
for the Corporation containing or based, in whole or in part, on any information
included in the foregoing.
(b) For
the
purposes of this Section 5, "Consultant Invention" shall mean any idea,
invention, technique, modification, process, or improvement (whether patentable
or not), any industrial design (whether registerable or not), any mask work,
however fixed or encoded, that is suitable to be fixed, embedded or programmed
in a semiconductor product (whether recordable or not), and any work of
authorship (whether or not copyright protection may be obtained for it) created,
conceived, or developed by the Consultant, either solely or in conjunction
with
others, during the Consulting Period, or a period that includes a portion of
the
Consulting Period, that relates in any way to, or is useful in any manner in,
the business then being conducted or proposed to be conducted by the
Corporation, and any such item created by the Consultant, either solely or
in
conjunction with others, following termination of the Consultant's Consulting
Arrangement with the Corporation, that is based upon or uses Confidential
Information.
6. NON-INTERFERENCE
6.1 Reserved
6.2 Covenants
of the Consultant. In
consideration of the compensation and benefits to be paid or provided to the
Consultant by the Corporation, the Consultant covenants that he may
not,
directly or indirectly at any time disparage the Corporation or any of its
shareholders, directors, officers, employees, or agents. If the foregoing
covenant is held to be unreasonable, arbitrary, or against public policy, such
covenant will be considered to be divisible with respect to scope, time, and
geographic area, and such lesser scope, time, or geographic area, or all of
them, as a court of competent jurisdiction may determine to be reasonable,
not
arbitrary, and not against public policy, will be effective, binding, and
enforceable against the Consultant.
The
period of time applicable to any covenant in this Section 6.2 will be extended
by the duration of any violation by the Consultant of such
covenant.
7. NOTICES.
All
notices, consents, waivers, and other communications under this Agreement must
be in writing and will be deemed to have been duly given when (a) delivered
by hand (with written confirmation of receipt), (b) sent by facsimile (with
written confirmation of receipt), provided that a copy is mailed by registered
mail, return receipt requested, or (c) when received by the addressee, if
sent by a nationally recognized overnight delivery service (receipt requested),
in each case to the appropriate addresses and facsimile numbers first set forth
above (or to such other addresses and facsimile numbers as a party may designate
by notice to the other parties or that the Corporation has on record for the
Consultant).
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8. BINDING
EFFECT.
This
Agreement shall extend to, shall inure to the benefit of and shall be binding
upon all the parties hereto and upon all of their respective heirs, successors
and representatives.
9. ENTIRE
AGREEMENT. This
Agreement, including the agreements incorporated by reference, contains the
entire Agreement among the parties hereto with respect to the matters
contemplated hereby and supersedes all prior agreements and undertakings between
the parties with respect to such matters. This Agreement may not be amended,
modified or terminated in whole or in part, except in writing, executed by
each
of the parties hereto.
10. INDEMNIFICATION.
Consultant
hereby agrees to hold harmless and indemnify Corporation from and against any
and all loss, damage, expense, and cost (including reasonable attorneys' fees
incurred in connection with the same) incurred by Corporation as a result of
Consultant's breach of any covenant or agreement made herein.
11. COUNTER
PARTS/EXECUTION. This Agreement may be executed in any number of counterparts
and by different signatories hereto on separate counterparts, each of which
when
so executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument This Agreement may be executed by
facsimile signature and delivered by facsimile transmission.
12. SEVERABILITY.
Should
any part of any provision of this Agreement be declared invalid by a court
of
competent jurisdiction, such decision or determination shall not affect the
validity of any remaining portion of such provision or any other provision
and
the remainder of the Agreement shall remain in full force and effect and shall
be construed in all respects as if such invalid or unenforceable provision
or
portion thereof were not contained herein. In the event of a declaration of
invalidity, the provision or portion thereof declared invalid shall not
necessarily be invalidated in its entirety, but shall be observed and performed
by the parties to the Agreement to the extent such provision is valid and
enforceable.
13.
SECTION HEADINGS.
The
section headings contained herein are for convenience of reference only and
shall not be considered any part of the terms of this Agreement.
14. CHOICE
OF LAW.
This
Agreement shall be interpreted and performed in accordance with the laws of
the
State of New York, and the parties agree, notwithstanding the principles of
conflicts of law, that the internal laws of the State of New York shall govern
and control the validity, interpretation, performance, and enforcement of this
Agreement. Any
action brought by either party against the other concerning the transactions
contemplated by this Agreement shall be brought only in the state courts of
New
York or in the federal courts located in the state of New York. The parties
and
the individuals executing this Agreement and other agreements referred to herein
or delivered in connection herewith on behalf of the Company agree to submit
to
the jurisdiction of such courts and waive trial by jury. The prevailing party
shall be entitled to recover from the other party its reasonable attorney's
fees
and costs.
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IN
WITNESS WHEREOF,
Consultant has hereunto put his hand, and the Corporation has caused this
instrument to be executed in its corporate name by its duly authorized officer,
all as of the day and year first above written.
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CONSULTANT:
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Galway
Holdings LLC
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(Name)
(Title)
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CORPORATION:
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| By: | ||
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(Name)
(Title)
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