EXHIBIT 10.4
Xx. Xxxxxx X. Xxxxxx
December 15, 1998
December 15, 1998
Xx. Xxxxxx X. Xxxxxx
00000 X.X. Xxxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Re: CONSULTING AGREEMENT
Dear Xxx:
This will confirm our mutual agreements and understandings regarding your
retention as an independent consultant to Golden Bear Golf, Inc. ("GB Golf"),
after the effective date of the resignation of your employment, as follows:
0.Xx this Agreement, GB Golf hereby retains your services during the term (as
set forth in section 5, below) as a consultant and independent contractor to
provide your personal knowledge, experience and expertise to the staff of GB
Golf and its subsidiary corporations on a non-exclusive basis. It is understood
that your services under this agreement will not require your full time and
attention, and that you will be free to accept other employment or business
opportunities during the term, provided that you notify the Board of Directors
of GB Golf at the time you agree to engage in such other activities and make
reasonable efforts to perform those services required by GB Golf under this
agreement within a mutually agreeable time frame. Duties delegated to you under
this agreement may include assisting the legal counsel and accounting firms
retained by the Company in connection with their preparation of the Company's
defense to litigation involving the Company and the Company's response to
investigative proceedings involving alleged securities law violations during the
term of your employment and other reasonable projects which utilize your
personal services to provide historical background or resolve operational issues
arising out of the business of GB Golf or its affiliates, including those
services set forth in the Cooperation Agreement annexed hereto as Schedule "1",
which Agreement shall be executed and delivered simultaneously with the
execution of this Agreement. It is contemplated that your services will be
rendered from your home or the offices of GB Golf in Palm Beach County, Florida,
provided however, that your participation in off-site meetings and judicial or
administrative proceedings may require you to travel on reasonable advance
notice, subject to GB Golf's payment of your reasonable expenses for such travel
as provided below.
0.Xx compensation for your services under this agreement, you will be entitled
to receive a consulting fee in the amount of seventy-five thousand dollars
($75,000) per year, which fee will
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December 15, 1998
be paid in equal semi-monthly installments at the time of payment of GB Golf's
normal payroll to its employees. You will not be required to record the time
spent by you on work assigned to you under this Agreement, and the agreed
consulting fee will be paid in full as a retainer for your services regardless
of the number of hours actually devoted by you to the business of GB Golf.
0.Xx an independent contractor, you will be responsible for independently
managing your business under this Agreement, and for payment of all overhead and
general and administrative expenses incurred by you in performing services
hereunder unless otherwise expressly agreed to in advance by GB Golf with
respect to a particular project which requires substantial resources other than
your personal services and normal home office equipment and services. GB Golf
will pay any out-of-pocket expenses required for your business travel or third
party services if required in connection with services requested from you, and
you will not be required or permitted to incur any payment obligations for such
expenses on behalf of GB Golf or to obtain reimbursement for such expenses
without the prior express written consent of the person requesting you to
provide the services which require such expenses. You will be solely responsible
for timely reporting and payment of any and all taxes based upon the
compensation due to you under this Agreement including, but not limited to,
federal and state income taxes, and for meeting the requirements of xxxxxxx'x
compensation laws and any local occupational licensing ordinances applicable to
your consulting business.
0.Xxx acknowledge that you will be acting as an independent contractor at all
times with respect to the duties delegated to you by GB Golf hereunder, and GB
Golf shall not be responsible for the methods or means utilized by you to
perform your duties or for any liabilities arising out of your actions, errors
or omissions in the performance of such duties. You agree that you shall not
represent yourself or hold yourself out to any party as an employee, agent,
partner or joint venturer with GB Golf with respect to any of the projects
assigned to you, nor shall you purport to otherwise act on behalf of GB Golf or
its affiliates unless expressly authorized to do so in writing by an officer of
the party giving such authorization.
5.The term of this agreement shall be for two (2) years, commencing on the
"Effective Date" of the resignation of your current employment under that
certain letter agreement of even date between you and GB Golf, unless otherwise
terminated as provided herein. Either party shall have the right to terminate
this Agreement on at least thirty (30) days prior written notice to the other
party in the event of a material breach by such other party, unless the breach
identified in such notice is cured within the thirty (30) day notice period. In
the event of any early termination of this agreement, you will have no
obligation to furnish any further consulting services to GB Golf or its
subsidiaries, and you will be entitled to a final compensation payment for the
month in which such termination occurs prorated according to the number of days
elapsed since your last regular fee payment.
6.If any term, provision or section of this agreement is held unenforceable or
invalid under any applicable law or regulation by any court or competent
governmental authority having jurisdiction, the unenforceability or invalidity
of such term, provision or section shall not preclude the effectiveness of any
other term, provision or section unless the effectiveness thereof
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December 15, 1998
would result in unjust enrichment or extreme hardship to either of the parties
hereto or would otherwise frustrate the basic intent of any material part of the
bargain represented hereby. This provision shall not prevent either party from
seeking reformation or rescission in any appropriate case in order to prevent an
inequitable application of this agreement.
7.This Agreement represents the entire agreement of the parties with respect to
the retention of consultant as an independent contractor to GB Golf after the
termination of his current employment and the agreed compensation for his
services in that capacity, supersedes all previous writings and communications,
and may be modified, enlarged or amended only by a writing signed by both
parties to this Agreement and any other parties to be charged with such
modification, enlargement or amendment.
8.The parties hereto agree that the specific terms and details of this Agreement
are strictly confidential and that each party will make every effort to ensure
that such information is not disclosed to any outside persons or entities
without the prior consent of the other party. Notwithstanding the foregoing, the
parties acknowledge that GB Golf may be required to make financial disclosures
regarding this agreement as required under applicable securities laws and
regulations, and that such disclosures shall not be deemed a violation of this
section. You agree that you will maintain the confidentiality of all non-public
information provided to, or generated or obtained by, you in connection with
your consulting services under this agreement, including information privileged
from disclosure, confidential business information and other non-public
information concerning GB Golf and its affiliates disclosed to, or reviewed
with, you as a consultant, unless required to do so by subpoena, court order,
deposition, or otherwise as required by law; provided, however, that you shall
give the Company sufficient notice of any deposition subpoena or court order in
order to allow the Company to oppose or object to same. Without the prior
written consent of the Board of Directors of GB Golf, you will not disclose, nor
attempt to disclose any such information to any person, unless required to do so
by subpoena, court order, deposition, or otherwise as required by law; provided,
however, that you shall give the Company sufficient notice of any deposition
subpoena or court order in order to allow the Company to oppose or object to
same, or to use such information for any business or personal purposes. You
acknowledge that GB Golf and its affiliates may be irreparably harmed by a
violation of this section, and that GB Golf will be entitled to obtain
restraining orders and other injunctive relief to prevent or limit the effects
of any violation pending arbitration and to recover the expenses of any such
action from you, including attorneys' fees.
9.This agreement shall be construed and enforced in accordance with the internal
laws of the State of Florida without regard to conflicts of laws rules which
might otherwise be applied. The parties agree, except as otherwise expressly set
forth herein, that all disputes involving the construction or enforcement of
this agreement shall be resolved by binding arbitration before a single
arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association ("AAA") and the Federal and Florida Arbitration Acts.
The parties agree that the location of any such arbitration shall be North Palm
Beach, Florida, unless otherwise agreed at the time the dispute is submitted to
the AAA. In accordance with the Federal and Florida Arbitration Acts, any party
may apply to any court of competent jurisdiction to compel arbitration
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December 15, 1998
in accordance with this subsection or to enforce any award rendered by the
arbitrator in a proceeding conducted hereunder in accordance with its terms.
Unless otherwise agreed in writing by the parties, legal action to compel any
arbitration involving the construction or enforcement of this agreement may be
brought by either party in that State or Federal Court having subject matter
jurisdiction over the cause which is located in Palm Beach County, Florida, and
each of the parties to this agreement hereby agrees to submit to the personal
jurisdiction of such Courts regardless of the domicile of such party at the time
such action is filed.
10.This Agreement shall terminate and be of no further force or effect in the
event that Company files a voluntary petition under any Chapter of the United
States Bankruptcy Code or similar insolvency law with any jurisdiction or
proposes a dissolution or liquidation or Company has filed against it any
petition under any Chapter of the United States Bankruptcy Code, or similar
insolvency laws of any jurisdiction, and such petition is not dismissed within
one hundred and eighty (180) days.
We trust that the foregoing letter accurately reflects your understanding of our
agreement regarding your retention as a consultant to GB Golf. Please sign and
return one counterpart of this letter as evidence of your understanding of the
above points of agreement and your agreement to be bound thereby. We look
forward to continuing our working relationship in the future under the terms
outlined above.
ACCEPTED AND AGREED TO:
Xxxxxx X. Xxxxxx
Date:
