EXHIBIT 10.4
CONSULTING AGREEMENT
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THIS AGREEMENT, entered into as of the 30th day of April, 1997 between
National Golf Properties, Inc., a Maryland corporation (the "Company") and
Xxxxxx X. Xxxxx, an individual (the "Consultant"):
RECITALS
WHEREAS, the Consultant has, concurrently with the execution hereof,
resigned his position as Chief Financial Officer and Executive Vice President of
the Company to accept a position at American Golf Corporation ("AGC") as its
Executive Vice President-Finance; and
WHEREAS, the Consultant remains a member of the Company's board of
directors (the "Board") and has been appointed Chairman of the Financial
Committee of the Board; and
WHEREAS, the Consultant has extensive experience and knowledge with respect
to the capital raising, budgeting, financial reporting, acquisitions, corporate
governance and strategic planning aspects of the business now conducted by the
Company, and desires and is willing to act as a consultant to the Company on the
basis and to the extent provided herein; and
WHEREAS, the Company desires to retain the Consultant in order to obtain
the benefit of his services and advice form time to time on the basis and to the
extent provided xxxxx.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements of the parties hereto, it is agreed as follows:
1. Retention of Consultant. On the terms and subject to the conditions set
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forth herein, the Company hereby retains the Consultant to provide the
consulting services described in section 2, and the Consultant hereby agrees to
provide such consulting services to the Company.
2. Consulting Services.
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(a) During the Term (as defined in Section 5(b), the Consultant will assist
the Company from time to time at the request of the Board in the following areas
of the Company's business: capital raising, budgeting, financial reporting,
acquisitions, corporate governance and strategic planning (the "Consulting
Areas"). For so long as the Consultant is an employee of AGC the Consultant
shall not consult with, or in any manner provide services or advice to, the
Company with respect to any matters which relate to AGC (including, without
limitation, leasing issues). The Consultant will perform such duties with
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respect to the Consulting Areas as the Board or the President of the Company may
prescribe from time to time, and shall report to, and shall be subject to
supervision by, the President of the Company. The Consultant shall be available
to render services to the Company hereunder for at least five hours per month.
(b) The Company recognizes that the Consultant has primary
responsibilities to AGC as its Executive Vice President-Finance, and that the
Consultant's employment agreement with AGC allows him to engage in other work
activities (including matters for the Company) as long as such other work does
not impair his ability to function effectively as an officer of AGC.
3. Compensation. In consideration for the services to be provided
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by the Consultant hereunder, the Company will pay to the Consultant a consulting
fee at a rate of $200 per hour for services rendered. Such fees shall be payable
to the Consultant on the last business day of the month following the month in
which consulting services were rendered. The Consultant shall submit an invoice
of his consulting hours, itemized in reasonable detail, to the Company not later
than the 10th business day of the month following the month in which services
were rendered hereunder.
4. Expenses.
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Subject to the further provisions of this section 4, the Company will
reimburse the Consultant for all reasonable out-of-pocket expenses incurred by
the Consultant in connection with the performance by the Consultant of his
services in accordance with section 2. Such expenses shall be payable only
against itemized reports thereof prepared consistent with good business
practices.
5. Term: Early Termination.
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(a) The initial term of the Consultant's employment pursuant to this
Agreement (the "Initial Term") shall commence on the date of this Agreement and
shall continue until the first anniversary of the date of this Agreement,
subject to early termination as provided in this section 11.
(b) At the expiration of the Initial Term and each anniversary
thereafter, the term of this Agreement shall automatically be extended for an
additional year (the "Extension Term"), subject to early termination as provided
in this Section 11, unless either party shall have given written notice to the
other party at least thirty (30) days prior to the end of the Initial Term or
the Extension Term, as the case may be, that it does not desire to extend the
term of this Agreement. References herein to the "Term" of this Agreement shall
refer to both such Initial Term and any Extension Term.
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(c) The Term shall terminate immediately upon delivery by the Company
to the Consultant of written notice of termination (except in the case of death
of the Consultant, which shall result in automatic termination) if:
(i) the Consultant ceases, or is unable, to perform his duties under
this Agreement by reason of death or permanent disability; or
(ii) the Consultant commits a material breach of the terms,
conditions, undertakings, obligations or agreements contained in this
Agreement; or
(iii) the Consultant engages in serious misconduct injurious to the
Company.
(d) The Company may terminate the Consultant's employment hereunder
with or without cause upon 30 days written notice to the Consultant, and the
Consultant may resign his employment with or without cause upon 30 days written
notice to the Company. The Consultant's employment hereunder may be terminated
by mutual agreement of the Consultant and the Company at any time.
6. Employment Status. The Consultant shall be an employee of the
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Company, and shall be obligated to adhere to all Company policies applicable to
similarly situated employees.
7. Headings. The headings of this Agreement are inserted for
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convenience only and shall not affect the meaning or interpretation of this
Agreement.
8. Amendment. The Agreement may be altered, modified or amended
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only by an agreement in writing signed by the parties hereto.
9. Notices. Any notice, request, claim, demand, document and other
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communication hereunder to any party shall be effective upon receipt (or refusal
of receipt) and shall be in writing and delivered personally or sent by telex,
telecopy, or certified or registered mail, postage prepaid, as follows:
(a) If to the Company, addressed to its principal offices to the
attention of Xxxxx X. Xxxxxxxx, at National Golf Properties, Inc.; 0000 00xx
Xxxxxx, Xxxxx 0000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000.
(b) If to the Executive, to his attention at American Golf
Corporation, 0000 00xx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000;
or at any other address as any party shall have specified by notice in writing
to the other parties.
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10. Entire Agreement. This Agreement constitutes the entire
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agreement and understanding between the parties hereto with respect to the
subject matter hereof.
11. Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed an original, and all of which
taken together shall constitute one and the same instrument.
12. Severability. If any provision of this Agreement shall be
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declared invalid or unenforceable because of its scope or duration, such
provision shall be reduced in scope or duration or otherwise modified and shall
be enforced to the extent permitted by law. If any provision of this Agreement
shall be declared invalid, illegal or unenforceable altogether, such provision
shall be severed. In any event, all other remaining provisions of this Agreement
shall continue in full force and effect.
13. Governing Law. This Agreement shall be governed in all respects
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by and construed and enforced in accordance with the laws of the State of
California.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
NATIONAL GOLF PROPERTIES, INC.,
a Maryland corporation
By: /s/ Xxxxx X. Xxxxx
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CONSULTANT
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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