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Exhibit 10.39
CONSULTING AGREEMENT
THIS AGREEMENT is made as of the 1st day of November, 1997 by and between Golf
One Industries, Inc, a Delaware corporation, ("Golf One"), and Xxxxxx X. Xxxxx
whose address is 000 Xxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 ("Consultant").
WHEREAS, Consultant has expertise and experience in the administration of
corporate records and development of new business opportunities; and
WHEREAS, Golf One seeks to retain Consultant to administer certain corporate
records, advise Golf One regarding proper record keeping, filings and compliance
with state and federal regulations, review certain corporate contracts and
documents and to develop corporate and member association business contacts for
Golf One during the Term, as defined below, and for the compensation set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained, Golf One and Consultant agree as follows:
1. Term.
(A) The Term of this Agreement shall be for the twelve month
period commencing February 1, 1998 and ending January 31, 1999. Neither party
may terminate this Agreement without the written consent of the other party.
2. Nature and Scope of Services.
(A) During the Term of this Agreement, Consultant will provide
Golf One services with respect to administration and maintenance of certain
corporate records, advise Golf One regarding proper and timely corporate filings
as required under state and federal law, review certain corporate contracts and
documents and to develop group business opportunities for Golf One during the
Term.
Consultant shall have the status of independent contractor. In the fulfillment
of Consultant's responsibilities hereunder, Consultant shall devote such time
and attention to, and use Consultant's best efforts to, manage certain corporate
records and advance the business and welfare of Golf One as Consultant shall
deem reasonably necessary.
(B) It is understood and agreed that the services to be
rendered by Consultant hereunder are nonexclusive.
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3. Compensation.
(A) In consideration of the services to be rendered by
Consultant hereunder, Golf One hereby agrees to pay Consultant compensation as
follows:
(i) Golf One shall pay Sixty Thousand Dollars
($60,000.00) in twenty four (24) equal payments of Two Thousand Five Hundred
Dollars ($2,500.00) each on the fifteenth (15th) and thirtieth (30th) of each
month of the Term commencing on February 15, 1998 and ending on January 30,
1999; and
(ii) Golf One shall pay Twelve Thousand Dollars
($12,000.00) at the closing of Golf One's Initial Public Offering ("IPO"). Such
payment shall be applied against the total $60,000 compensation less any
payments made pursuant to 3.(A)(i) above, with the balance payable in equal
payments on the fifteenth (15th) and thirtieth (30th) of the month from the
closing date of the IPO to the end of the Term.
(B) Because Consultant is an independent contractor,
Consultant shall be responsible for all of his own federal and state income tax
withholding and any other reporting and payment requirements under any federal
or state regulations, other than any requirements of Golf One to file any forms
related to compensation paid to independent contractors.
4. Expenses.
(A) Automobile expenses: During the Term, Golf One shall
provide Consultant, for Consultant's use, a late model luxury automobile and
shall pay the attendant costs related thereto, including but not limited to,
insurance, repairs, lease payments and other related expenses, including
gasoline. Should such an automobile not be provided during any portion of the
Term of this Agreement, Golf One agrees to reimburse Consultant $1,000.00 per
month plus expenses to support operation of his personal vehicle.
(B) Medical and Health Insurance: Golf One shall provide for
Consultant, under COBRA regulations during the entire Term of this Agreement, at
Golf One's expense, medical, accident and health insurance equivalent to, and at
a cost not to exceed that provided and paid for executive officers of Golf One.
In addition, Golf One shall reimburse to Consultant medical expenses of
Consultant not reimbursed by medical insurance, payable monthly in a timely
manner.
(C) Home Office Allowance: Golf One shall pay to Consultant
Two Hundred Fifty Dollars ($250.00) payable on the first day of each month
during the Term for Consultant's maintaining a home office in order to provide
services to Golf One pursuant to this Agreement.
(D) Reimbursable Business Expenses: Golf One shall reimburse
Consultant for all reasonable pre-approved entertaining, promotional and other
expenses incurred by Consultant while performing Consultant's duties hereunder
during the Term of this Agreement, within fifteen (15) days of submission by
Consultant to Golf One of appropriate vouchers or other evidences of such
expenses.
5. Other Conditions.
(A) Mountaingate Country Club Membership: In consideration for
Consultant transferring $7,000.00 of his investment in the membership of
Mountaingate Country Club, which was utilized for the benefit of Golf One, Golf
One shall accept and be responsible for all
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present and future obligations of such membership including assignment and/or
transfer of such interest to Golf One or its representative.
(B) Accrued Salaries: Golf One acknowledges accrued salaries
due from Golf One and it's wholly owned subsidiary Rhino Marketing, Inc. through
January 31, 1998 to Consultant during his tenure as a corporate executive
officer, and agrees to pay fifty percent (50%) of such accrued salaries from the
proceeds of it's anticipated $1 million bridge loan financing. Golf One further
agrees to pay the balance of the accrued salaries at the closing of Golf One's
IPO.
(C) The Indemnification Agreement identified as Exhibit B to
Consultant's prior Employment Agreement with Golf One dated February 27, 1996
shall continue through the Term of this Agreement.
6. General Provisions.
(A) Modification and Waiver of Breach: No waiver or
modification of this Agreement shall be binding unless it is in writing signed
by the parties hereto. No waiver of a breach hereof shall be deemed to
constitute a waiver of a future breach, whether of a similar or dissimilar
nature.
(B) Notices: All notices and other communications required or
permitted under this Agreement shall be in writing and duly addressed to whom
such notice or communication is to be given, in the case of:
Consultant: Xxxxxx X. Xxxxx
000 Xxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Golf One: The Board of Directors of
Golf One Industries, Inc
0000 Xxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
(C) Construction of Agreement/Disputes: This agreement shall
be construed in accordance with, and governed by the laws of the State of
California. All disputes hereunder shall be resolved through binding,
non-appealable arbitration, in Santa Xxxxxxx County, California, according to
the then prevailing rules of the American Arbitration Association.
(D) Complete Agreement: This Agreement contains the entire
agreement between the parties hereto with respect to the transactions
contemplated by this Agreement and supersedes all previous oral and written and
all contemporaneous oral negotiations, commitments, writings and understandings.
(E) Attorney's Fees: Should any litigation be commenced
between the parties hereto concerning this Agreement or the rights and
obligations of Golf One in relation thereto, the party prevailing in such
litigation shall be entitled, in addition to such other relief as may be
granted, to a reasonable sum as and for the attorneys' fees in any such
litigation.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and year first above written.
GOLF ONE INDUSTRIES, INC. CONSULTANT
By: /s/ X.X. Xxxxxxxxx By /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Its: President
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