CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made as of December 1, 1997 by and
between Golf Ventures, Inc. (the "Company"), a Utah corporation, and XXXXXXXX
XXXXX ("Consultant").
RECITALS
WHEREAS, the Company desires to obtain the benefit of the experience,
knowledge and services of Consultant upon the terms and conditions hereinafter
set forth;
WHEREAS, the Consultant is willing to render such consulting services
to the Company upon the following terms;
WITNESSETH:
NOW, THEREFORE, in consideration of the foregoing and of the mutual
payments and covenants contained herein, the parties hereto, each intending to
be legally bound, agree as follows:
1. Nature of Consulting Services. The Company agrees to retain the
Consultant to provide non-exclusive management consulting services in connection
with the business of the Company and Consultant agrees to provide such
consulting services upon request. Consultant shall perform such consulting
services by rendering business, financing and shareholder advice to the Company
in connection with the business activities of the Company as well I as
partnership issues, tax and legal, especially for the foreign investors.
2. Term and Effectiveness. The term of this Agreement shall extend for a
one-year period commencing on December 1, 1997 (the "Initial Term"). After the
Initial Term, this Agreement shall be renewed automatically for successive terms
of one (1) year each (a "Renewal Term"), unless prior to the end of the Initial
Term or any Renewal Term either party shall have given to the other party at
least three months prior written notice of termination of this Agreement. If a
termination notice is given by either party, the Company shall have the
obligation to pay the agreed upon consulting fees to which Consultant is
entitled hereunder through the end of the Initial Term or any Renewal Term, as
the case may be. This Agreement becomes immediately effective upon execution of
this Agreement between the Company and the Consultant.
3. Consideration. The Company shall pay to the Consultant for all
consulting services performed by Consultant for the Company during the first
seven (7) months of the initial Term, as compensation for the additional efforts
required following the merger transaction and to assist the Company in
stabilizing its finances, a consulting fee in the amount of $15,000.00 per
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month. Thereafter, for the remainder of the Initial Term and for subsequent
Renewal Terms, a consulting fee of $8,333.00 per month, to be delivered pursuant
to instructions from the Consultant.
4. Titles and Duties. The Consultant retained by the Company solely for
the purposes set forth in this Agreement and his relation to the Company during
the Initial Term or subsequent Renewal Terms of this Agreement shall be that of
an independent contractor solely responsible for the manner and means by which
he carries out his duties hereunder. He shall not have the power to obligate,
commit or bind the Company in any manner whatsoever without the express written
permission of the Company. He shall not represent to any third party that he has
such powers. He shall not be construed for any purpose to be an employee subject
to the control and direction of the Company. In the performance of his duties
hereunder, the Consultant shall I not represent himself to any person or entity
as an officer, agent or employee of, or use the title of an officer, agent or
employee of, the Company. For purposes of his personal disclosures in connection
with obtaining credit, or entering into any employment, consulting or a similar
contractual relationship and not for any purpose in connection with the business
of the Company or for any other purpose, the Consultant may represent himself as
an Independent Advisor to the Company.
5. Time Requirements. During the term of this Agreement, the Consultant
shall devote such time and attention to his duties hereunder as are reasonably
required to provide satisfactory consulting services pursuant to this Agreement.
The Consultant shall be free to undertake employment or to engage in
self-employment during the term of this Agreement, subject to paragraphs 9, 10,
and 11 hereinafter, and the Company shall not be entitled to any offset or
credit against the consulting fee based upon the Consultant's other earnings.
6. Expenses. The Consultant shall be reimbursed by the Company for all
reasonable expenses specifically and directly related to the performance of his
duties hereunder. The Consultant shall promptly provide the Company with a
reasonable accounting for such business expenses. The Consultant shall be
reimbursed for such expenses within the customary policy for reimbursement of
such expenses.
7. Indemnification, Subject to compliance with the Company's Articles of
Incorporation and By-Laws and applicable state laws, the Company agrees to
indemnify the Consultant and defend and hold him harmless of and from any and
all liabilities, claims, damages, costs and expenses (including attorney fees)
incurred by Consultant as a result of performance by Consultant of services
under this Agreement. Indemnification does not apply in cases of Consultant's
material breach of any obligations under this Agreement, nor Consultant's gross
negligence, willful misconduct, gross misfeasance or malfeasance.
8. No Termination. The parties hereto expressly acknowledge that neither
the death or disability of Consultant, nor the cessation of the need of
consulting services, shall relieve the Company of any of its obligations
hereunder. On the death or disability of Consultant, Company shall continue
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payment of Consultant fee to Consultant's estate through the end of the Initial
Term, or for a minimum of three (3) months if death or disability occurs during
a Renewal Term.
9. Non-Competition. During the Initial Term and subsequent Renewal Terms,
and for a period of one (1) year thereafter, without the prior written consent
of the Board of Directors, the Consultant shall not, directly or indirectly,
become or act as an employee, consultant, officer, director, owner, or principal
shareholder of any company "in competition" with the current business activities
of the Company.
As used herein, the term "in Competition", when used with reference to
any business, means that (1) not less than 20% of the consolidated revenues of
that business are provided by one or more classes of services provided and/or
products manufactured and sold by such business (the "Common Classes") that, in
the aggregate, provide not less than 20% of the Company's consolidated revenues
and (2) at least one of the Common Classes individually provides not less than
10% of the consolidated revenues of that business and of the Company.
However, nothing herein shall prevent Consultant from investing in a
company "in Competition" as a non-controlling investor or shareholder if his
interest is less than ten percent of the voting control of such company. Also,
Consultant has the right to retain (or exercise his right to acquire and
thereafter retain) any investment that Consultant owned (or had the ad the
contractual right to acquire) as of the date of commencement of this Agreement.
10. Company Property. All non-public, confidential and proprietary
information of the Company regarding its (i) sales and marketing plans, goals,
analyses and techniques, (ii) management information reports, (iii) invoices,
(iv) cost and pricing models, (v) business operation plans, policies, procedures
and acquisition targets or financing programs in effect or known to the
Consultant, (vi) trade secrets and techniques, (vii) legal and accounting
policies, procedures and materials, are and shall remain the sole and
confidential property of the Company.
11. Confidentiality. During the consulting term(s) and at all times
thereafter, the Consultant shall not use for his personal benefit, or disclose,
communicate or divulge to, or use for the direct or indirect benefit of any
person, firm, association or company other than the Company, any non-public
material described in Section 10 above, made known to the Consultant or learned
or acquired by the Consultant while in the employ of the Company, provided that
this provision shall not be construed to restrict the use or disclosure of any
information which (i) is publicly known at the time of its disclosure to, or use
by, the Consultant; (ii) is lawfully received by the Consultant from a third
party not bound in a confidential relationship to the Company, or (iii) is
disclosed by the Consultant to employees of the Company bound by similar
confidentiality agreements in order to permit them to perform their duties.
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12. General.
(a) Authority. The Company has the power and authority, under its
Articles of Incorporation, By-Laws and applicable law, to enter into and perform
this Agreement.
(b) Binding Effect. The rights and obligations of the parties under
this Agreement shall inure to the benefit of and shall be binding upon the
parties and their respective heirs, legal representatives, successors and
assigns. This Agreement may not be assigned by either party, however, without
the prior written consent of the other.
(c) Entire Agreement - Modifications. This instrument sets forth the
entire understanding of the parties with respect to the management consulting
services to be provided by the Consultant and no other modifications, additions
or undertakings shall be enforceable unless contained in a concurrent or
subsequent written agreement assigned by the parties hereto.
(d) Enforceabilily. In the event any portion or portions of this
Agreement are declared to be void for illegality, the remaining portions of the
Agreement shall remain and shall be valid and binding, unless the purpose and
intent of the Agreement is substantially distorted by the deletion of the void
portion or portions, in which event the entire Agreement shall be void.
(e) Notices. Any and all notices referred to herein shall be in
writing and shall be deemed to have been given when personally delivered,
receipt acknowledged by the relevant party, or when mailed, registered or
certified mail, postage pre-paid and return receipt requested, to the following
addresses:
To Consultant:
Xx. Xxxxxxxx Xxxxx
itterfeld 4B or 000 0xx Xxxxxx
X-00000 Tutzing X.X. Xxx 000
Xxxxxxx Xxxxxxxxxx, XX 00000
Phone: 000-00-0000-0000 Ph: 407/000-0000
Fax: 000-00-0000-0000 Fax: 407/000-0000
To Company:
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 407/000-0000
Fax: 407/245-7585
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Each party to this Agreement, by notice to the other parties, specify
any other address for the receipt of such instruments or communications.
(f) Legal Fees. If Consultant or Company commits a default under this
Agreement, the non-defaulting party shall be entitled to collect reasonable
attorney's fees from the defaulting party as a result of such default.
(g) Governing Laws. This Agreement shall be construed under and shall
be governed by the laws of the State of Florida.
(h) Duration. Notwithstanding the termination of the Consulting
Term(s), this Agreement shall continue to bind the parties for as long as any
obligations remain under this Agreement.
(i) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHERE OF, the parties have executed this Consulting
Agreement as o day and year first written above.
COMPANY: Golf Ventures, Inc.
By: /s/ Xxxx Xx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxx Xx Xxxxxx, Xxxxxx X. Xxxxxxxxx, President
Exec. Vice President
As of As of
Dated: December 1, 1997 Dated: December 1, 1997
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CONSULTANT
XXXXXXXX XXXXX
/s/ Xxxxxxxx Xxxxx
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Signature
As of
Dated: December 1, 1997
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TAX ID# ###-##-####
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