CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, made this 24th day of January, 1997 by and
between Carlyle Golf, Inc., a Colorado corporation (the "Company"), and
Xxxxxxxx X. Xxxxx (the "Consultant"), (both of whom may be referred to jointly
as the "parties"), is expressly made subject to the following recitals:
RECITALS
WHEREAS, the Company desires to obtain the services of the Consultant and
the Consultant is willing and desires to serve the Company under the terms and
conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and of the
conditions, covenants and agreements set forth below, and other good and
valuable consideration, the parties agree as follows:
1. Engagement. The Company agrees to retain the Consultant and the
Consultant agrees to provide services to the Company upon the terms and
conditions set forth in this Agreement. The Consultant acknowledges that his
relationship with the Company shall, during the period of performance
hereunder, be that of an independent contractor. The Consultant shall be free
to dispose of his time, energy, and skills in such a manner as he sees fit so
long as he performs the duties required of him as provided in paragraph 2.
2. Position, Duties, Best Efforts and Responsibilities. Throughout the
term of this Agreement, the Consultant shall assist, counsel and advise the
Company with respect to the business of the Company, particularly as regards
the manufacture and sale of headwear. In the performance of his services for
the Company, the Consultant shall report to the President of the Company. The
Consultant shall exert his best efforts and shall devote such time as may be
necessary for the conscientious and faithful performance of his services,
duties and responsibilities pursuant to this Agreement, consistent with his
education, training and experience. Notwithstanding anything to the contrary
contained herein, the Consultant shall not be obligated to spend more than
forty (40) hours per month during the first three (3) months of this Agreement
and not more than ten (10) hours per month thereafter in the performance of
services hereunder.
3. Confidential Information. In the performance of his duties
hereunder, the Consultant may receive, have access to or develop information
of a highly confidential nature regarding the Company. The Consultant agrees
that, unless he has the prior written approval of the Company, he will make no
oral or written disclosure of such information either during the term of this
Agreement or for a period of three (3) years following the termination of this
Agreement except to employees of the Company or to persons designated by the
Company to receive such information. Notwithstanding anything to the
contrary, the foregoing covenant shall not apply to any information which (a)
is or becomes public knowledge without breach of this Agreement, (b) is or
becomes publicly available without a confidentiality restriction and without
breach of this Agreement from a source other than the disclosing party, (c)
the recipient can demonstrate was known by the recipient without a
confidentiality restriction at the time of the receipt of such information, or
(d) was independently developed by the recipient by persons who did not have
access to the disclosed information.
4. Restrictive Covenant. During the term of this Agreement, Consultant
shall not, directly or indirectly, participate in any fashion, render any
service of an advisory nature or otherwise to, become an interest holder in or
became employed by, anywhere in the world, an enterprise engaged in the
business of manufacturing and/or distributing or selling headwear (other than
the Company). Nothing herein, however shall prevent the Consultant from
engaging, through Xxxxx Xxxxx & Associates, Inc., in certain activities as
described at Exhibit A hereto or from owning less than ten percent (10%) of
the outstanding capital stock of a public company that is engaged, directly or
indirectly in a business that would violate the foregoing covenant.
5. Compensation. For all services rendered by the Consultant in any
capacity during the term of this Agreement, the Consultant shall be paid
$9,028 per month. As additional consideration, the Consultant will also
receive from the Company a five-year option, in the form set forth as Exhibit
___ attached hereto, to purchase 200,000 shares of the Company's Common Stock
at a strike price of $2.08, representing the average closing ask price of the
Company's Common Stock for the ten (10) trading days beginning five (5)
trading days prior to January 9, 1997. In addition, the Company shall
reimburse the Consultant for the reasonable out-of-pocket expenses incurred by
him in performing consulting services hereunder if such services require the
Consultant to travel more than fifty (50) miles from Fort Worth, Texas,
provided, however, that any such expenses greater than $500 require the prior
written approval of the Company.
6. Term of Engagement. Subject to the provisions for termination, the
term of this Agreement shall be for three (3) years, beginning on January 24,
1997 and ending on January 23, 2000.
7. Termination. This Agreement may be terminated by Consultant at any
time by written notice delivered to the Company. This Agreement may not be
terminated by the Company prior to the end of its stated term. In the event
of the death or Disability of the Consultant during the term of this
Agreement, the Company will continue to make payments pursuant to this
Agreement to the estate of the Consultant for the remaining term of this
Agreement. As used herein, "Disability" shall mean when Optionee is unable to
continue or obtain gainful employment by reason of a medically determined
physical or medical impairment for continuous period of one hundred eighty
(180) days.
8. General Provisions. (a) The Consultant may not assign any right or
interest nor delegate any duty under this Agreement, nor may the Consultant's
beneficiaries or legal representatives assign any right or interest hereunder,
without the Company's prior written consent, which consent shall not be
unreasonably withheld. (b) Any notice required or permitted under the
provisions of this Agreement shall be deemed to have been given when delivered
in person or five (5) business days after being deposited in the United States
mail, certified or registered, return receipt requested, postage prepaid,
addressed to the person to whom the notice is given at the address specified
below or at such other address as may hereafter be designated by a party
pursuant to notice in writing:
To the Company:
Carlyle Golf, Inc.
00000 Xxxx 00xx Xxxxxx, Xxxx X
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, President
To the Consultant:
Xxxxxxxx X. Xxxxx
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxx Xxxxx, Xxxxx 00000
With a copy to:
Xxxxx X. Xxxx, Esq.
Xxxxx, Xxxx & Xxxxxxx, P.C.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000.
(c) In the event any one or more of the provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable, such
illegality, invalidity or unenforceability shall not affect any other
provisions of this Agreement. (d) This Agreement embodies the entire
understanding of the parties and there are no further or other agreements or
understandings, written or oral, in effect between the parties relating to the
subject matter of this Agreement unless expressly referred to in this
Agreement. (e) Any amendment or modification of this Agreement may be made
only by a writing signed by the parties hereto. (f) Any failure by either
party to comply with any of its obligations, agreements, covenants or
indemnities contained in this Agreement may be waived in writing, but not in
any other manner, by the party against which enforcement of the waiver is
sought, and any such waiver or failure to enforce a party's rights hereunder
in one instance shall not be deemed to be a general waiver of that or any
other provision of this Agreement. (g) This Agreement has been executed and
delivered in the State of Colorado and its validity, interpretation,
performance and enforcement shall be governed by the laws of the State of
Colorado. (h) This Agreement shall be binding upon, and inure to the benefit
of, the Consultant and the Company and their respective permitted successors,
heirs and assigns.
IN WITNESS WHEREOF, this Agreement has been executed in duplicate
originals on the day and year stated below.
COMPANY:
CARLYLE GOLF, INC.,
a Colorado corporation
Date: January 24, 1997 By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, President
CONSULTANT:
Date: January 24, 1997 /s/ Xxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
