EX-4.1 3 doc2.txt 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