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EXHIBIT 10.34
CONSULTING AGREEMENT
This Consulting Agreement is made and entered into as of the 1st day of
April, 1997 by and between Golf One Industries, Inc. (the "COMPANY"), Xxxxxx
Management Group ("CONSULTANT") and Xxxxx Xxxxxx ("XXXXXX") with reference to
the following facts:
A. Consultant is owned and operated by Xxxxxx.
B. Upon the terms and subject to the conditions of this Agreement, the
Company desires to employ the consulting services of Xxxxxx through Consultant
to promote the Company and the marketing, sale and distribution of Company's
golf clubs and related products ("PRODUCTS").
NOW, THEREFORE, with reference to the foregoing facts, the Company and
Consultant agree as follows:
1. Consulting Services. From time to time upon request from the
Company, Consultant will make available the services of Xxxxxx (and Xxxxxx
agrees to be available) to promote the Company and its Products.
2. Term. The term of this Agreement will be April 1, 1997 through March
31, 1998; provided, however, that either party may terminate this Agreement
based on a breach or default by the other party, which breach or default is not
cured within 30 days of written notice thereof.
3. Compensation. In consideration of Consultant performing its services
pursuant to this Agreement, Company shall pay to Consultant $2,500 per month,
payable on the 1st day of each month in advance, commencing April 1, 1997.
4. Stock. In consideration in entering into this Agreement, the Company
has offered to Consultant the right to buy 12,000 shares (the "SHARES") of
Common Stock for $.01 per share (or an aggregate purchase price of $120.00).
Consultant accepts such purchase, and concurrently herewith delivers to the
Company a check in the amount of $120.00. In connection with its purchase of the
Shares, Consultant makes the representations, warranties and agreements set
forth on Exhibit "A".
5. Registration Rights. The Company grants to Consultant registration
rights with respect to the Shares as set forth in Exhibit "A" to this Agreement.
6. Agreement Not to Compete. Consultant and Xxxxxx agree not to
represent any other person or entity engaged in the manufacture, marketing, sale
or distribution of golf clubs or related equipment during the term of this
Agreement.
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7. Miscellaneous.
(a) NOTICES. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission or
by United States first class, registered or certified mail, postage prepaid,
addressed to the party at the address set forth on the signature page of this
Agreement. Any Notice, other than a Notice sent by registered or certified mail,
shall be effective when received; a Notice sent by registered or certified mail,
postage prepaid return receipt requested, shall be effective on the earlier of
when received or the third day following deposit in the United States mails. Any
party may from time to time change its address for further Notices hereunder by
giving notice to the other party in the manner prescribed in this Section.
(b) ASSIGNMENT. Neither Consultant nor Xxxxxx may assign this
Agreement, and any attempted or purported assignment or any delegation of such
party's duties or obligations arising under this Agreement to any third party or
entity shall be deemed to be null and void, and shall constitute a material
breach by such party of its duties and obligations under this Agreement. This
Agreement shall inure to the benefit of and be binding upon any successors of
each party by way of merger, consolidation or transfer of all or substantially
all of the assets of such party, and any parent, subsidiary or affiliate of such
party to which each party may transfer its rights under and pursuant to this
Agreement.
(c) GOVERNING LAW. This Agreement has been made and entered into in the
State of California and shall be construed in accordance with the laws of the
State of California without giving effect to the principles of conflicts of law
thereof.
(d) SPECIFIC PERFORMANCE. Consultant and Xxxxxx acknowledge that (i)
the Company is engaging Xxxxxx as a consultant pursuant to this Agreement
because Xxxxxx and Consultant have represented that they are not presently
representing or promoting any other person or entity engaged in the manufacture,
marketing, sale or distribution of golf clubs or related equipment; and (ii) the
Company would have extreme difficulty in attempting to prove the actual damages
suffered by it as a result of a breach by Consultant or Xxxxxx of any of its or
his obligations under Section 6 of this Agreement, and that therefore, in
addition to any other remedy at law or in equity, the Company shall be entitled
to seek and receive specific performance and temporary, preliminary and
injunctive relief from any violation of the provisions of this Agreement from
any court of competent jurisdiction without the necessity of proving the actual
amount of damages resulting from such breach.
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IN WITNESS WHEROF, this Agreement has been made and entered into as of
the date and year above written.
Golf One Industries, Inc.
By: /s/ illegible
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Its: President
Xxxxxx Management Group
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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EXHIBIT "A"
Representations and Registration Rights.
I. Representations, Warranties and Agreements
(a) It is an "accredited investor" within the meaning of Regulation D
under the Securities Act of 1933, as amended (the "SECURITIES ACT").
(b) It understands an investment in the Shares involves a high degree of
risk, and it is able to bear the risk of an entire loss of the investment; it
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of an investment in the Shares.
(c) It understands that the Shares have not been registered under the
Securities Act or under any state securities laws. It is familiar with the
provisions of the Securities Act and Rule 144 thereunder and understands that
the restrictions on transfer placed on the Shares may result in it being
required to hold the Shares for an indefinite period of time.
(d) It is acquiring the Shares for the its own account and not as a nominee
or agent for others, and not with a view to resale or distribution of any part
thereof, and it has no present intention of selling or distributing the Shares.
(e) It believes that it has received all the information it considers
necessary or appropriate for deciding whether to purchase the Shares, and it has
had an opportunity to ask questions and receive answers from Company and its
officers and directors regarding the business, prospects and financial condition
of the Company.
(f) It agrees not to sell, assign, transfer or other dispose of
(collectively, "TRANSFER") any of the Shares except pursuant to an effective
registration statement under the Securities Act or an exemption from
registration. As a further condition to any such Transfer, except in the event
that such Transfer is made pursuant to an effective registration statement under
the Securities Act, if in the reasonable opinion of counsel to the Company any
Transfer of the Shares by the contemplated transferee thereof would not be
exempt from the registration and prospectus delivery requirements of the
Securities Act, the Company may require the contemplated transferee to furnish
the Company with an investment letter setting forth such information and
agreements as may be reasonably requested by the Company to ensure compliance by
such transferee with the Securities Act.
EXHIBIT "A" - 1
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(g) Each certificate evidencing the Shares will bear the following legend:
"THE SHARES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, ASSIGNED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE ISSUER AND THE
ORIGINAL PURCHASER OF THE SHARES, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL EXECUTIVE OFFICE OF THE ISSUER."
II. Registration Rights
(a) If the Company shall determine to register any Common Stock under the
Securities Act for sale in connection with a public offering of Common Stock for
cash, the Company will give written notice thereof to Consultant and will use
its best efforts to effect the registration under the Securities Act of all of
the Shares which Consultant may request in a writing delivered to the Company
within 15 days after the notice given by the Company; provided, however, if the
representative of the underwriters of the offering shall refuse in writing to
include in such offering all of the shares requested by the Company and others,
the shares to be included shall be allocated first to the Company and then among
the others based on the respective number of shares of Common Stock held by such
persons. If the Company decides not to, and does not file a registration
statement with respect to such registration, or thereafter determines to
withdraw the same before the effective date thereof, the Company will promptly
so inform Consultant, and the Company will not be obligated to complete the
registration of the Shares.
(b) Consultant agrees not to effect any public sale or distribution of
Common Stock (regardless of whether any Shares are included in the registration)
during the period beginning ten days prior to and ending 180 days (or such
shorter period as may be permitted by the representatives of the underwriters)
after the effective date of any registration statement filed by the Company for
a public offering of any of its securities (except as part of such
registration).
(c) Consultant may not include Shares in any registration statement unless
(a) if the offering is being underwritten, it agrees to sell such Shares on the
basis provided in any underwriting arrangement approved by the Company and (b)
it completes and executes all questionnaires, powers of attorney, indemnities
and underwriting agreements, and furnishes to the Company such information, as
the Company or the underwriter may require from it for inclusion in the
registration statement (and the prospectus included therein).
(d) The Company agrees to pay all expenses incurred in effecting any
registration pursuant to this Exhibit 5, including, without limitation, all
registration and filing fees, printing expenses, expenses of compliance with
blue sky laws, fees and disbursements of counsel for the Company and expenses of
any audits incidental to or required by any such registration; provided,
however, that Consultant agrees to pay any legal expenses for its own counsel
and underwriting discounts or broker commissions relating to its sale of Shares.
EXHIBIT "A" - 2
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(e) The Company shall not be obligated to offer to you the right to include
Shares in a registration statement more than one time; provided, however, that
it shall be deemed that the Company has not made such an offer if either (a)
Consultant has requested that the Shares be included in a registration statement
and the representative of the underwriters has not permitted the inclusion of
all of such Shares or (b) the registration statement related to such Shares
shall not become effective.
EXHIBIT "A" - 3
