Unassociated Document


    EXHIBIT
      10.4

     

    CONSULTING
      AGREEMENT

    


    This
      Consulting Agreement (this “Agreement”) dated as of October 3, 2007 (the
“Effective Date”), is by and between Glenn A. Little, with offices at 211 West
      Wall Street, Midland, Texas (“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 Shulin Liu 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.


    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

    

     

    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.


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    


    


    


    (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.


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    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. 

    


    


    VICTORY
      DIVIDE MINING COMPANY

     

    
      	 	 	 	 	 
	By:	/s/ Glenn
              A.
              Little	 	By: 	/s/ Glenn
              A.
              Little
	 	
              
Glenn
              A. Little	 	 	
              
Glenn
              A. Little
	 	Title:
              President
	 	 	 


    

     

    
 

    
      
        
        

      

      
        4