4.1
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is to be effective as of the 1st day of
August by and between Victor Industries, Inc., ("Company"), with offices located
at 4810 North Wornath Road, Missoula, Montana 59804, and Josh Gager
("Consultant"), an individual, having his principal address at P.O. Box 400,
Milltown, Montana 59851 .
WITNESSETH
WHEREAS, the Company desires to retain the services of Consultant relating
specifically to strategic planning, business development and other investment
banking services in connection with its business; and
WHEREAS, Consultant is qualified and willing to provide the Company with the
aforementioned services;
WHEREAS, the Company wishes to induce Consultant to provide these consulting
services to the Company; and
NOW, THEREFORE, in consideration of the mutual covenants hereinafter stated, it
is agreed as follows:
1. APPOINTMENT.
-----------
The Company hereby engages Consultant and Consultant agrees to render
services to the Company as a consultant upon the terms and conditions
hereinafter set forth.
2. TERM.
----
The term of this Consulting Agreement began as of the date of this
Agreement, and shall terminate 100 days hence, unless terminated or extended in
accordance with a valid provision contained herein, or unless extended by a
subsequent agreement between the parties.
3. SERVICES.
--------
During the term of this Agreement, Consultant shall provide advice to
undertake for and consult with the Company concerning management of sales and
marketing resources, consulting, strategic planning, corporate organization and
structure, financial matters in connection with the operation of the businesses
of the Company, expansion of services, mergers and acquisitions and other
business opportunities. Consultant agrees to provide on a timely basis the
following enumerated services plus any additional services contemplated thereby:
(a) The implementation of short-range and long-term strategic planning
to fully develop and enhance the Company's assets, resources, products and
services;
(b) The implementation of a marketing program to enable the Company to
broaden the markets for its services and promote the image of the Company and
its products and services; and
(c) The identification, evaluation, structuring, negotiating and
closing of joint ventures, strategic alliances, mergers and acquisitions and
advice with regard to the ongoing managing and operating of such acquisitions
upon consummation thereof.
4. DUTIES OF THE COMPANY.
------------------------
The Company shall provide Consultant, on a regular and timely basis, with
all approved data and information about it, its subsidiaries, its management,
its products and services and its operations as shall be reasonably requested by
Consultant, and shall advise Consultant of any facts which would affect the
accuracy of any data and information previously supplied pursuant to this
paragraph. The Company shall promptly supply Consultant with full and complete
copies of all financial reports, all fillings with all federal and state
securities agencies; with all data and information supplied by any financial
analyst, and with all brochures or other sales materials relating to its
products or services.
5. COMPENSATION
Upon the execution of this Agreement, Company agrees to pay Consultant the
following as consideration for the services rendered under this Agreement:
(a) Non-Option Shares. Consultant shall receive 8,000,000 shares of the
Company's common stock.
(b) The Compensation outlined in Section 5(a) above shall be
conveyed through an effective S-8 registration of common shares. Company agrees
to exercise it's Best Efforts to provide Consultant, it's agent or any other
party charged to file the subject S-8 Registration Statement with any and all
information, documentation and related assistance required to make the S-8
Registration Statement effective within 5 days of the date of the execution of
this Agreement.
(c) Within 3 days of the effectiveness of the S-8 Registration
Statement, Company shall execute a written request to its transfer agent to
prepare and deliver to Consultant, or it's agent, one common stock certificates
for 8,000,000 freely tradable, non-legend, shares of the Company's common stock.
5.5 COSTS AND EXPENSES
--------------------
(a) Miscellaneous Costs.
--------------------
Subject to the prior approval of the Company, Consultant in providing the
Foregoing services, shall not be responsible for any out-of-pocket costs,
including, without limitation, travel, lodging, telephone, postage and Federal
Express charges. Consultant shall provide the Company with a detailed accounting
of monthly expenses related to the Agreement. Payment for these expenses shall
be made to Consultant within 15 days after submission to the Company.
6. REPRESENTATION AND INDEMNIFICATION.
------------------------------------
(a) Company. Company agrees to indemnify, defend, and shall hold
harmless Consultant and/or his agents, and shall defend any action brought
against said parties with respect to any claim, demand cause of action, debt or
liability, including reasonable attorneys' fees to the extent that such action
is based upon a claim that: (i) is true, (ii) would constitute a breach of any
of Company representation, warranty, or agreement hereunder, or (iii) arises out
of the negligence or willful misconduct of Company.
(b) Consultant. Consultant agrees to indemnify, defend, and shall
hold harmless Company, its directors, employees and agents, and defend any
action brought against same with respect to any claim, demand, cause of action,
or liability, including reasonable attorneys' fees, to the extent that such an
action arises out of the gross negligence or willful misconduct of Consultant.
(c) Notice. In claiming indemnification hereunder, the indemnified party
shall promptly provide the indemnifying party with written notice of any claim,
which the indemnified party believes falls within the scope of the foregoing
paragraphs. The indemnified party may, at its expense, assist in the defense if
it so chooses, provided that the indemnifying party shall control such defense,
and all negotiations relative to the settlement of any such claim. Any
settlement intended to bind the indemnified party shall not be final without the
indemnified party's written consent, which shall not be unreasonably withheld.
6.5 COMPLIANCE WITH SECURITIES LAWS.
----------------------------------
The Company understands that any and all compensation outlined in Section 5
shall be paid solely and exclusively as consideration for the aforementioned
investment banking efforts made by Consultant on behalf of the Company as an
independent contractor. Any monies transferred to Company by Consultant to pay
for the exercise of stock options provided to Consultant herein is not made with
the intent to raise capital or provide Company with capital. Consultant has been
engaged to provide the Company with traditional investment banking and related
business services. Consultant's engagement does not involve the promotion or
marketing of the Company's securities.
7. MISCELLANEOUS.
-------------
(a) Termination: Subsequent to and no less than 30 days after the
execution of this Agreement, this Agreement may be terminated by either Party
upon written notice to the other Party for any reason and shall be effective
five (5) business days from the date of such notice. Termination of this
Agreement shall cause Consultant to cease providing services under this
Agreement; however, termination for any reason whatever, shall not decrease or
eliminate the compensatory obligations of the Company as outlines in Section 5
of this Agreement.
(b) Modification: This Consulting Agreement sets forth the entire
understanding of the Parties with respect to the subject matter hereof. This
Consulting Agreement may be amended only in writing signed by both Parties.
(c) Notices: Any notice required or permitted to be given hereunder
shall be in writing and shall be mailed or otherwise delivered in person or by
facsimile transmission at the address of such Party set forth above or to such
other address or facsimile telephone number as the Party shall have furnished in
writing to the other Party.
(d) Waiver: Any waiver by either Party of a breach of any provision of
this Consulting Agreement shall not operate as or be construed to be a waiver of
any other breach of that provision or of any breach of any other provision of
this Consulting Agreement. The failure of a Party to insist upon strict
adherence to any term of this Consulting Agreement on one or more occasions will
not be considered a waiver or deprive that Party of the right thereafter to
insist upon adherence to that term of any other term of this Consulting
Agreement.
(e) Assignment: The Options under this Agreement are assignable at the
discretion of the Consultant.
(f) Severability: If any provision of this Consulting Agreement is
invalid, illegal, or unenforceable, the balance of this Consulting Agreement
shall remain in effect, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other persons and
circumstances.
(g) Counterparts; Facsimile Signatures. This Agreement may be executed
in any number of counterparts, each of which may be executed by less than all of
the parties to this Agreement, each of which shall be enforceable against the
parties actually executing such counterparts, and all of which together shall
constitute one and the same agreement. The parties shall be entitled to rely
upon and enforce a facsimile of any authorized signature as if it were the
original.
(h) be performed solely within the State of California. In the event
any dispute is arbitrated, the prevailing Party (as determined by the
arbiter(s)) shall be entitled to recover that Party's reasonable attorney's fees
incurred (as determined by the arbiter(s)).
(i) Execution of Agreement. Company has the requisite corporate power
and authority to enter into and carry out the terms and conditions of this
Agreement, as well as all transactions contemplated hereunder. All corporate
proceedings have been taken and all corporate authorizations and approvals have
been secured which are necessary to authorize the execution, delivery and
performance by Company of this Agreement. This Agreement has been duly and
validly executed and delivered by Company and constitutes the valid and binding
obligations of Company, enforceable in accordance with the respective terms.
(j) Effect of Agreement. The consummation by Company of the
transactions herein contemplated, including the execution, delivery and
consummation of this Agreement, will comply with all applicable law and will not
conflict with or result in a breach of any of the unwaived terms of any
agreement or instrument to which Company is bound, or constitute a default
thereunder.
(k) Consummation. Upon the execution and delivery of this Agreement,
Company will have all requisite power to enter into this Agreement and to
consummate the transactions contemplated hereunder. Thereafter, this Agreement,
and the other agreements referred to herein, will constitute the valid and
binding obligations of Company, and will be enforceable in accordance with their
respective terms.
SIGNATURE PAGE
IN WITNESS WHEREOF, this Consulting Agreement has been executed by the
Parties as of the date first above written.
Victor Industries, Inc. CONSULTANT
/s/ Carson Coleman /s/ Josh Gager
- -------------------- ----------------
Carson Coleman Josh Gager
CEO & President