AGREEMENT FOR SALE AND PURCHASE OF ASSETS
BETWEEN ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ AND GOLFGEAR INTERNATIONAL, INC.
1. Preamble. This Agreement for Sale and Purchase of Assets
("Agreement") is made effective May 8, 1998 between ▇▇▇▇▇▇▇ ▇.
▇▇▇▇, an individual (hereinafter referred to as "SELLtR"), and
GOLFGEAR INTERNATIONAL, INC., a Nevada corporation (hereinafter
referred to as ("PURCHASER").
SELLER wishes to sell to PURCHASER, and PURCHASER wishes to
purchase, certain assets of SELLER, relating to SELLER's business
located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as
specified in this Agreement.
THEREFORE, the parties agree as follows:
2. Sale Agreement. SELLER agrees to sell and convey to
PURCHASER, and PURCHASER agrees to purchase upon execution of
this Agreement as specified in Paragraph 1, the properties,
rights and interests enumerated in Paragraph 3.
3. Assets to be Sold. The assets to be conveyed to PURCHASER
("Assets") are:
(a) All SELLER's rights and interest in and to the design of a
golf bag and a golf bag carrying case, identified on Schedules A
and B respectively, which shall include technology know-how, and
all documentation thereto;
(b) The design to all eye-wear which is currently in development;
(c) The name "Executive Trail Blazer Golf Bag";
(d) All books, records and customer and supplier lists used in
SELLER's business;
(e) All SELLER's rights and interest in and to patents,
trademarks, rights under contracts, leases, and claims or causes
of action related to the Assets or SELLER's business, as set
forth in Schedules A and B attached hereto;
(f) All inventory relating to golf bags and sunglasses,
including "in process", "finished" and parts therefor; and
(g) All machinery and equipment relating to the assembly and/or
shipping of the inventory.
4. Purchase Price. In consideration for the sale of the
property described in ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ shall deliver, after
execution of this Agreement, to SELLER the following:
(a) The sum of $10,000.00, prior receipt of which is hereby
acknowledged by SELLER.
(b) Shares of PURCHASER's Common Stock equal to $250,000.00,
which will be valued at the average closing bid price for the
five trading days prior to the execution of this Agreement and
which will be Rule 144 stock subject to no more than a one-year
restriction and subject to "piggyback" registration rights to be
granted to SELLER.
(c) PURCHASER shall pay to SELLER a three percent (3 %) royalty
on gross sales of all SELLER's merchandise and products sold by
PURCHASER after the date of this Agreement; said royalty to be
paid to SELLER on a quarterly basis commencing September 30,
1998.
5. Consulting Agreement. The PURCHASER, or its wholly-owned
subsidiary, shall enter into a consulting agreement with SELLER
in the form attached hereto as Schedule C.
6. SELLERS's Representations and Warranties.
(a) Title to Assets. SELLER represents that he has good and
clear title to all assets being transferred hereunder and that
there are no liens, encumbrances, security interests, threatened
litigation, pending litigation or any other potential title which
would effect the assets in any manner.
(b) Authorization. The execution and delivery of this agreement
by SELLER and the conveyance provided in it have been duly authorized by
all necessary action, and is avalid and binding agreement on SELLER.
(c) Ownership of Assets. SELLER is the owner of the Assets and
has fullpower to transfer the Assets free and clear of all liens,
encumbrances, security interests, equities, options, claims, charges,
and restrictions.
(d) Actions and Proceedings. There are no actions, suits, or
proceedings pending or, to SELLER's knowledge, threatened against
SELLER before any court, administrative agency, or other judicial
body affecting or relating to the Assets.
(e) Technology Know-How. SELLER represents and warrants that he
is and has been the owner of the technological know-how which is
the subject of this Agreement; that he is the developer of the
technology and holds no patents or copyrights on the technology
know-how, and that SELLER knows of no competing patents or
copyrights of others which relate to the technology know-how
covered by this Agreement. However, SELLER has not undertaken
any infringement search and, therefore, makes no warranty or
representation concerning the existence of any such patents or
copyrights. As used herein, "technology know-how" shall mean
confidential software, documentation describing hardware and
software used by SELLER, for the practice of the design and
manufacture of golf bags and sunglasses, the designs and
operating or manufacturing information on such drawings and
related documents, which SELLER represents are the confidential
and proprietary information and property of SELLER and are
subject to copyright protection as unpublished works under Title
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code; and all other information of SELLER in
tangible form which is useful or necessary for the practice of
design and manufacture of SELLER's products.
(f) Covenant Not to Compete. SELLER agrees, for a period of
four (4) years from execution of this Agreement, not to compete
with PURCHASER in the business of manufacture or design of golf
bags, golf travel bags or sunglasses which are the subject of
this Agreement.
(g) Compliance With Laws. Neither the execution and delivery of
this Agreement, nor any instrument or agreement to be delivered
by SELLER to PURCHASER pursuant to this Agreement, nor the
compliance with the terms and provisions thereof by SELLER, will
result in the breach of any applicable statute or regulation
promulgated thereunder, or any administrative or court order or
decree nor will such compliance conflict with, or result in the
breach of any agreement or other instrument to which SELLER is a
party, or by which SELLER is or may be bound, or constitute an
event of default or default thereunder, or with the lapse of time
or the giving of notice or both constitute an event of default
thereunder.
(h) Representation and Warranties. No representation by SELLER
in this Agreement or any documents provided hereunder contains or
will contain any untrue statement or omits or will omit to state
any material fact necessary to make the statements contained
herein not misleading. All representations and warranties made
by SELLER in this Agreement and any documents provided hereunder
are true and correct.
(i) Investment Representations. SELLER acknowledges that
PURCHASER's Common Stock (hereinafter referred to as the
"Securities") to be received in exchange for the sale of SELLER's
Assets has not been registered under the Securities Act of 1933,
as amended (the "1933 Act") or qualified under the California
Securities Law of 1968, as amended (the "California Securities
Law") on the ground that no distribution or public offering of
the SELLER's Securities is to be effected, and that in this
connection PURCHASER is relying in part on the representations of
the SELLER set forth herein.
(1). SELLER is receiving the Securities for its own account for
investment purposes and not as nominee or agent for any other
persons.
(2). By reason of its business or financial experience and/or by
reason of SELLER's pre-existing relationship with PURCHASER,
SELLER has the capacity to protect its own interests in
connection with the transactions contemplated hereunder and is
able to bear the risks of an investment in PURCHASER.
(3). SELLER has acquired sufficient information about PURCHASER
to reach an informed decision to acquire the SELLER's Securities.
(4). SELLER represents that it is acquiring the Securities for
its own account for investment purposes and not with a view to,
or for sale in connection with, any distribution thereof in a
manner contrary to Section 5 of the 1933 Act or of the California
Securities Law and Rules and Regulations of the California
Commission of Corporations thereunder.
(j) Transfer of Securities. None of the Securities to be
acquired by the SELLER pursuant to this Agreement shall be
transferable except upon the conditions specified in this
Paragraph, which conditions are intended to insure compliance with the
provisions of the 1933 Act in respect to the transfer of such Securities.
(k) Legend. Unless and until otherwise permitted by this Paragraph, each
certificate or other document evidencing any of the PURCHASER's Securities
shall be endorsed with a legend substantially in the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 9133, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED UNLESS (A) COVERED BY AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 9133, AS AMENDED,
(B) IN COMPLIANCE WITH RULE 144 UNDER SUCH ACT, OR (C) THE COMPANY HAS
BEEN FURNISHED WITH AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE
COMPANY TO THE EFFECT THAT NO REGISTRATION IS REQUIRED BY SUCH TRANSFER."
(l) Restriction on Transfer. None of the securities shall be
transferred, and PURCHASER shall not be required to register any
such transfer on the books of PURCHASER, unless and until one of
the following events shall have occurred:
(1) PURCHASER shall have received an opinion of counsel, in form
and substance reasonably acceptable to PURCHASER and its counsel,
stating that the contemplated transfer is exempt from
registration under the 1933 Act as then in effect, and the Rules
and Regulations of the Securities and Exchange Commission (the
"Commission") thereunder. Within five business days after
delivery to PURCHASER and its counsel of such an opinion,
PURCHASER either shall deliver to the proposed transferor a
statement to the effect that such opinion is not satisfactory in
the reasonable opinion of its counsel (and shall specify in
detail the legal analysis supporting any such conclusion) or
shall authorize PURCHASER's transfer agent to make the requested
transfer;
(2) PURCHASER shall have been furnished with a letter from the
Commission in response to a written request in form and substance
acceptable to counsel for PURCHASER setting forth all of the
facts and circumstances surrounding the contemplated transfer,
stating that the Commission will take no action with regard to
the contemplated transfer;
(3) The Securities are transferred pursuant to a registration
statement which has been filed with the Commission and has become
effective; or
(4) The Securities are transferred pursuant to and in accordance
with Rule 144 promulgated by the Commission under the 1933 Act.
(m) Registration of Securities. So long as SELLER or its
transferees shall hold any of the Securities of PURCHASER,
PURCHASER agrees that if, at any time after six months from
execution of this Agreement and prior to a date which is twelve
(12) months following the execution, the PURCHASER shall take
action to register any of its securities under the Securities Act
of 1933, as amended, other than on Form S-8 or Form S-4, it will
give SELLER or its transferees written notice promptly of its
intention in that regard, and if registration, other than on Form
S-8 or Form S-4, of any such Securities held by SELLER or its
transferees is then possible under the then applicable laws and
regulations and practices of the Securities and Exchange
Commission, and subject to the approval of the underwriter, and
if SELLER or its transferees shall within 15 days after receipt
of any such notice request PURCHASER to do so, PURCHASER will, at
its own expense, take action to register such Securities which it
shall have been requested to register at the same time, and it
will use its best efforts that such registration of such
Securities shall become effective and to the end that no "Stop
Order" with respect to such registration shall be issued.
Commissions and other Underwriter's costs and expenses, if any,
shall be paid by SELLER on any of the Securities it sells through
the registration.
In addition to the rights above-provided, the PURCHASER will
cooperate with the then holders of the Securities in preparing
and signing any registration statement in addition to the
registration statement discussed above, required in order to sell
or transfer the Securities and will supply all information
required therefor, but such additional registration statement
shall be at the then holders' expense, unless the PURCHASER
elects to register or qualify additional shares of the
PURCHASER's common stock, in which case the cost and expense of
such registration statement will be pro-rated between the
PURCHASER and the holders of the Securities to the aggregate
sales price of all the securities being issued.
7. PURCHASER's Representations and Warranties. PURCHASER
represents and warrants that:
(a) Corporate Organization. PURCHASER is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Nevada and is duly qualified to do business in
the State of California. If PURCHASER forms a corporation to
take title to certain of the Assets, such corporation will be
duly organized, validly existing and in good standing under the
laws of the State of California and the corporation will have
full power and authority to enter into this Agreement and perform
the transactions contemplated herein. The corporation will be
duly qualified to do business in the State of California.
(b) Binding Nature. This Agreement shall be, when duly executed
and delivered, a legal and binding obligation of PURCHASER,
enforceable in accordance with its terms.
(c) Representations and Warranties. No representation or
warranty by PURCHASER in this Agreement contains or will contain
any untrue statement or omits or will omit to state a material
fact necessary to make the statements contained herein not
misleading. All representations and warranties made by PURCHASER
in this Agreement shall be true and correct as of execution of
this Agreement with the same force and effect as if they had been
made on and as of such date.
(d) Compliance With Laws. Neither the execution and delivery of
this Agreement, nor any instrument or agreement to be delivered
by SELLER to PURCHASER pursuant to this Agreement, nor the
compliance with the terms and provisions thereof by SELLER, will
result in the breach of any applicable statute or regulation
promulgated thereunder, or any administrative or court order or
decree nor will such compliance conflict with, or result in the
breach of any agreement or other instrument to which SELLER is a
party, or by which SELLER is or may be bound, or constitute an
event of default or default thereunder, or with the lapse of time
or the giving of notice or both constitute an event of default
thereunder.
(e) Valid Issuance. The common stock to be delivered to SELLER will be,
when issued, duly authorized, validly issued, fully paid and nonassessable.
8. Liabilities.
(a) No Assumption of Liabilities.
(1) SELLER acknowledges that PURCHASER is acquiring SELLER's
Assets hereunder without any assumption of SELLER's liabilities
except to the extent herein expressly provided;
(2) SELLER agrees to hold PURCHASER harmless against any and all
claims, demands and expense of any nature relating to product,
service, and professional liability against PURCHASER arising
prior to execution of this Agreement; and
(3) There are no undisclosed liabilities relating to the Assets
other than as stated in this Agreement or Schedules annexed hereto.
9. Items to be Delivered by SELLER. SELLER hereby delivers to
PURCHASER:
(a) Transfer Documents. Assignments, bills of sale, and such
other instruments in form reasonably satisfactory to PURCHASER,
as ate required to grant PURCHASER title to, or SELLER's interest
in, the Assets as provided in this Agreement.
(b) Records and Customer Lists. All books, records, and customer and
supplier lists used in SELLER's business other than corporate books
and records.
(c) Indemnification. SELLER agrees to indemnify and hold
PURCHASER harmless from and against any loss, cost, claim,
liability, or expense suffered or incurred by PURCHASER from and
after execution of this Agreement arising from or connected with
SELLER's ownership of the Assets or operation of its business
prior to execution of this Agreement.
10. Items to be Delivered by PURCHASER. PURCHASER herewith
delivers to SELLER:
(a) Purchase Price. A check in the amount of $10,000, made
payable to SELLER, receipt of which is hereby acknowledged by
SELLER, together with Certificates of PURCHASER's Common Stock in
the name of SELLER in an amount equal to $250,000.00 pursuant to
the terms and conditions of valuation in Paragraph 4(2) above.
(b) Indemnification. PURCHASER agrees to indemnify and hold
SELLER harmless from and against any loss, cost, claim, liability, or
expense suffered or incurred by SELLER from the execution of this
Agreement arising from or connected with PURCHASER's ownership of
Assets or operation of PURCHASER's business after the execution
of this Agreement.
11. Brokerage. Each party hereto represents and warrants to the
other than no broker is entitled to any commission, or similar
fee, in connection with the making and carrying out of this
Agreement.
12. Effectiveness. This Agreement supersedes any and all
agreements, if any, previously made between the parties relating
to the subject matter hereof, and there are no understandings or
agreements other than those included herein.
13. Notices and Communications. All notices, requests, demands,
and othercommunications under this Agreement shall be in writing and
delivered in person or sent bycertified mail, postage prepaid or by telefax
and properly addressed as follows:
To the SELLER:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax (▇▇▇) ▇▇▇-▇▇▇▇
To the PURCHASER:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
GolfGear International, Inc.
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax (▇▇▇) ▇▇▇-▇▇▇▇
Any party may from time to time change its address for the
purpose of notices to that party by a similar notice specifying a
new address, but no such change shall be deemed to have been
given until it is actually received by the respective party
hereto.
14. Non-waiver. No delay or failure on the part of either party
in exercising any right hereunder, and no partial or single
exercise thereof, will constitute a waiver of such right or of
any other right hereunder.
15. Headings. Headings in this Agreement are for convenience
only and are not to be used for interpreting or construing any
provision hereof.
16. PURCHASER's Designees. PURCHASER intends to cause a
corporation to be organized prior to the execution of this
Agreement to take title to certain of SELLER's Assets. PURCHASER
shall have the right to designate such corporation as the party
to which any of SELLER's Assets shall be conveyed and transferred
by SELLER at the execution of this Agreement, but no such designation
shall relieve PURCHASER of any liabilities and obligations hereunder.
17. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of California against both parties
to this Agreement.
18. Independent Legal Counsel. Each party has had his or its
attorney review this Agreement and/or give advice with respect
to, among other things, the legal and tax consequences of
executing this Agreement and the subsequent transactions
contemplated hereunder. Attorney for Purchaser (▇▇▇▇ ▇. Wykidal)
does not represent Seller and has not given Seller legal, tax or
any other advice with respect to this Agreement or the
transactions contemplated hereunder.
19. Arbitration. Any dispute arising out of or concerning this
Agreement shall be handled in accordance with the Rules and
Regulations of the American Arbitration Association. Said
arbitration shall be held in Orange County, California and shall
be binding. The prevailing party shall be entitled to, among
other relief, attorney fees and costs.
20. Counterparts. This Agreement may be executed in one or more
counterparts, of which may be deemed an original, but all of
which together, shall constitute one and the same instrument.
21. Binding Nature. The provisions of this Agreement shall be
binding upon and inure to the benefit of each of the parties
hereto and their respective successors and assigns.
22. Survival of Representations and Warranties. Except as
otherwise expressly limited in this Agreement or the Schedules
annexed, the representations and warranties of PURCHASER and
SELLER extended hereunder shall survive for a period of twelve
(12) months after the execution of this Agreement. Each party
against whom liability is asserted under the provisions of this
Agreement shall be given the opportunity to participate, directly
or through its authorized representative, at its cost and
expense, in the conduct of any negotiations relating to the
settlements of any liability or any other proceeding instituted
by any third party against either SELLER or PURCHASER, as the
case may be, giving rise to the alleged breach.
23. Expenses. Except as otherwise expressly provided herein,
each party shall pay all of its own expenses incidental to the
negotiation and preparation of the documentation and financial
statements relating to this Agreement and for entering into and
carrying out the terms and conditions of this Agreement and
consummating the transactions, irrespective of whether the
transactions contemplated shall be consummated.
24. Amendment; Successors and Assigns. This Agreement shall not
be altered or otherwise amended except pursuant to any instrument
in writing signed by all of the affected parties hereto. Neither
party may assign any of its rights, obligations, or liabilities
arising hereunder without the prior written consent of the other,
except as otherwise provided herein, any such assignment or
attempted assignment shall be null and void.
25. Third Party Beneficiaries. Except for their proper heirs,
successors, and assigns, the parties hereto intend that no third
party shall have any rights or claims by reason of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed on the date first above-written.
GOLFGEAR INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
SCHEDULE A
(Drawings Showing Design of Golf Bag)
SCHEDULE B
(Drawings Showing Design of Golf Bag Carrying Case)
SCHEDULE C
SELLER CONSULTING AGREEMENT
This Consulting Agreement is made and entered into as of the 8th
day of May, 1998, by and between GOLFGEAR INTERNATIONAL, INC., a
Nevada corporation (the "Company") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, an
individual (the "Consultant").
RECITALS
WHEREAS, the Company has developed certain proprietary technology
relating to the design and manufacturing of golf clubs;
WHEREAS, the Company is in the business of manufacturing and
selling golf clubs and golf accessories (hereinafter collectively
referred to as the "Products");
WHEREAS, Consultant is experienced in the design of golf bags and
related products and wishes to provide consulting services to the
Company with respect to the Company's marketing endeavors;
WHEREAS, the Company desires to utilize the services of
Consultant.
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein, and with reference to the above Recitals, the
parties hereby agree as follows:
1. Services.
a. Design and Marketing Services. Consultant shall provide
services with respect to advising the Company on matters relating
to the marketing and design of the Company and its ▇▇▇▇ bag line
of products. This shall include interfacing with media,
developing an overall marketing plan which shall include
introduction to and coordinating ▇▇▇▇ event promotions and ba-
distribution. These services shall also include attendance at
promotional events. Compensation for actual attendance at
promotional events shall be acreed upon on a case by case basis.
b. General Duties of Consultant. During the term of this
Agreement, Consultant shall have the full and complete obligation
and responsibility for the performance of the duties as
contemplated under this Agreement. Consultant shall devote,
during the term of this Agreement, such of his time, energy and
skill as is necessary in the performance of his duties as
contemplated hereunder. It is anticipated that Consultant will
work no more than eight (8) hours per month in fulfilling
obligations imposed pursuant to this Agreement.
c. Assignment. Consultant may not assign the consulting
obligations hereunder to an entity or person.
2. Compensation. Consultant shall be compensated for services
contemplated pursuant to the consideration paid under the
Agreement for Sale and Purchase of Assets dated the same date
hereof. Additionally consultant shall be compensated as follows:
a. Finder's Fee. In addition to the compensation above, the
Company shall pay Consultant a finder's fee in the amount of ten
percent (10%) of any equity financing received as a result of
introductions made by the direct efforts of Consultant.
b. Compensation for actual attendance at promotional events
shall be agreed upon on a case by case basis.
3. Term of the Agreement. This Agreement shall be effective
until December 31, 1999. At the end of this period, the parties
may renew this Agreement for a one year period (or other agreed
upon period) under mutually agreeable terms and conditions. This
Agreement may be terminated by the Company in the event
Consultant fails to provide services as contemplated herein. hi
such event, the Company shall give Consultant written notice
identifying the reason for proposed termination and allow
Consultant a reasonable opportunity to cure any such breach.
4. Cooperation. The Company agrees that it shall cooperate
with Consultant to the extent that is reasonably necessary to
allow Consultant to perform any of the applicable services set
forth in Paragraph 1 above.
5. No Authority to Bind. It is understood and agreed that
Consultant is not acting as an agent for or on behalf of the
Company and nothing contained in this Agreement shall be
construed as authority for Consultant to bind the Company or
obligate the Company to any agreement or contract.
6. Exclusivity. During the term of this Agreement, Consultant
agrees not to consult with or advise, either formally or
informally, directly or indirectly, with any other golf companies
or golf products that compete with, or tend to compete with, the
Company's Products.
7. Confidentiality/Covenant Not To Unfairly Compete.
Consultant understands that he may, during the relationship as
contemplated under this Agreement, become aware of or develop certain
business and/or marketing practices, business plans, methods of
operations and other similar information which the Company deems proprietary
and confidential. Consultant hereby acknowledges that such
information is in fact proprietary and agrees not to directly or
indirectly disclose this information or compete with the business
of the Company, or the proposed business of the Company that may
exist from time to time without the prior written consent of the Company.
8. Independent Contractor. At all times during the term of this
Agreement, the Consultant is and shall be an independent contractor
in providing the consulting services hereunder, with the sole right to
supervise, manage, operate, control, and direct the performance incident
to such consulting services. Nothing contained in this Agreement shall
be deemed or construed to create a partnership or joint venture, to
create the relationships of employee/employer or principal/agent, or
otherwise create any liability whatsoever as partners, joint
venturers, employer, employee, principal, or agent for either the
Company or the Consultant with respect to the indebtedness, liabilities,
or obligations of each other or of any other person or entity.
9. Responsibility for Payment of Taxes. Consultant shall be
responsible for any and all withholding tax including income tax
or other employment taxes that may be required to be withheld
and/or paid as the result of any cash or non-cash compensation
received under this Agreement.
10. Attorneys' Fees. In the event of any litigation to interpret or
enforce any provisions of this Agreement, a court of competent
jurisdiction may award the prevailing party reasonable attorneys'
fees and costs.
11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of California
applicable to agreements made and to be performed therein.
12. Independent Counsel. Consultant acknowledges that this
Agreement has been prepared by counsel to the Company, and said
counsel does not represent Consultant. Consultant. has been
advised to consult with an independent attorney of his own choice
for the purpose of reviewing this Agreement and giving legal
advice on behalf of Consultant with respect thereto.
13. Arbitration. In the event of any controversy or dispute
arising out of this Agreement including, without limitation, the
interpretation of any of the provisions hereof, any party shall
give a Notice to other parties advising each of them of such
controversy or dispute in reasonable detail. Upon receipt of
such Notice by all of the parties, the parties shall work
together in good faith for thirty (30) days from the date of
receipt of such Notice by each party to resolve such controversy
or dispute. In the event that such controversy or dispute is not
resolved within said time period, such controversy or dispute
shall be submitted to neutral, binding arbitration in Orange
County, California, before the American Arbitration Association
under the commercial arbitration rules then in effect. Any award
or decision obtained from any such arbitration proceeding shall
be final and binding. Any arbitration award or decision and any
judgment thereon may be entered and enforced in any court having
jurisdiction thereof. No action at law or in equity based upon
any claim arising out of or related to this Agreement shall be
instituted in any court except (a) an action to compel
arbitration pursuant to this subsection; or (b) an action to
enforce an award obtained in an arbitration proceeding in
accordance with this section.
14. Severability. The holding of any provision of this Agreement to be
invalid or unenforceable by a court of competent jurisdiction shall not
affect any other provision of this Agreement, which shall remain in full
force and effect.
15. Notices. Any notices required or permitted to be given
hereunder shall be sufficient if in writing, and if delivered by
hand, or sent by certified mail, return receipt requested, to the
addresses set forth below or such other address as either party
may from time to time designate in writing to the other, and
shall be deemed given as of the date of the delivery, or mailing.
IF TO COMPANY: ▇▇▇ ▇▇▇▇▇▇▇▇
GolfGear International, Inc.
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax (▇▇▇) ▇▇▇-▇▇▇▇
IF TO CONSULTANT: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax (▇▇▇) ▇▇▇-▇▇▇▇
16. Waiver or Breach. It is agreed that a waiver by either
party of a breach of any provision of this Agreement shall not
operate, or be construed, as a waiver of any subsequent breach by
that same party.
17. Entire Agreement and Binding Effect. This Agreement,
contains the entire agreement between the parties hereto with
respect to the subject matter hereof and shall be binding upon
and inure to the benefit of the parties hereto and their
respective legal representatives, heirs, distributes, successors
and assigns.
18. Assignment. This Agreement may not be transferred or assigned by
either party without the prior written consent of the other party.
19. Headings. The section headings appearing in this Agreement
are for purposes of easy reference and shall not be considered a
part of this Agreement or in any way modify, amend or affect its
provisions.
20. Amendments. This Agreement may not be amended except by a
writing si-▇▇▇ by all the parties hereto.
21. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all
of which together shall constitute an Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the dateand year written above.
GOLFGEAR INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇