ASSUMPTION AGREEMENT AND MUTUAL RELEASE
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THIS ASSUMPTION AGREEMENT AND MUTUAL RELEASE ("Agreement") is entered into
by and between GOLFGEAR INTERNATIONAL, INC. (the "Company") on the one hand and
U.S. PRECISION, INC. ("USPI"), XXXXXX XXXXXXX and the ESTATE OF XXXXXXXX XXXXXXX
(collectively referred to as "MAEMOTO") on the other hand, on this 24th day of
April, 2000, based on the following recitals, covenants, conditions and
premises.
WHEREAS,on or about October 1, 1999, the Company entered into an agreement
entitled "Agreement for Sale and Purchase of Assets" with Bel Air Golf Company,
which was subsequently amended and re-titled "Amended and Restated Agreement for
Sale and Purchase of Assets between Bel Air Golf Company and GolfGear
International, Inc." dated April 11, 2000 (hereinafter collectively referred to
as the "Asset Purchase Agreement");
WHEREAS, in conjunction with the Asset Purchase Agreement, the Company
agreed to assume no more than Fifty Thousand Dollars ($50,000) of liability in
favor of USPI and Maemoto relating to and arising out of a settlement and
release agreement by and between USPI, Maemoto and Bel Air Golf Companies dated
July 6, 1999;
WHEREAS, the Company wishes to fulfill its obligation under the Asset
Purchase Agreement to Bel Air Golf Company;
NOW THEREFORE, in consideration of the mutual promises contained herein,
and for other good and valuable consideration, receipt of which is hereby
acknowledged, the Parties agree as follows:
1. Incorporation of Recitals. The above-stated recitals and
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documents referred to are hereby expressly made a part of this Agreement.
2. Payment by the Company. The Company agrees to pay to USPI and
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Maemoto, jointly and severally, the following amounts:
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a. Fifty Thousand Dollars ($50,000) represented by a promissory note
bearing interest at eight percent (8%) per annum, with interest payable
quarterly, all due and payable March 31, 2003, in the form attached hereto as
Exhibit "A". The first interest payment of One Thousand Dollars ($1,000) shall
be due upon execution of this Agreement;
b. Common stock warrants to acquire up to twenty five thousand (25,000)
shares of common stock of the Company exercisable at the price of One Dollar
Fifty Cents ($1.50) per share. This warrant shall expire March 31, 2003.
3. Release. Upon payment of the consideration pursuant to Paragraph
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2, including the monies described in subparagraph 2.a above, USPI and Maemoto,
for themselves and each of their respective agents or partners, joint venturers,
subsidiaries, servants, and employees and attorneys, past and present,
successors, heirs, executors, administrators, assigns, transferees, co-owners
and predecessors in interest, and each of them do hereby acknowledge full and
complete satisfaction of, and hereby relieve and discharge the Company and each
of the Company's respective subsidiaries, agents, officers, directors, partners,
joint venturers, distributors, servants, licensees, employees and attorneys,
past and present, successors, heirs, executors, administrators, assigns,
transferees, co-owners and predecessors in interest and each of them from any
and all claims, demands, damages, costs, attorneys' fees, liabilities,
obligations, expenditures, predecessors, rights to arbitration, liens and causes
of action of whatever kind or nature, whether known or unknown, suspected or
unsuspected, which they now own or hold against the company, arising out of, or
in connection with, the subject of this Agreement.
4. Waiver of Section 1542. This is a full and final release
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applying to all unknown and unanticipated injuries, expenses, or damages,
arising out of the agreements, dealings or relationships between the various
parties, as well as to those known or disclosed, the undersigned waives all
rights and benefits which the undersigned now has or in the future may have
under the terms of Section 1542 of the Civil Code of California, which Section
reads as follows:
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"A general release does not extend to the claims which the
creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him must
have materially affected his settlement with the debtor."
5. Good Faith Settlement. The undersigned understand and represent
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that this settlement was entered into in good faith and not the result of any
coercion (economic or otherwise) and furthermore there was not threat,
intimidation or other coercion by any party which suggested that the undersigned
would receive more if the case went to trial, but this would take longer and
therefore the undersigned should accept a lessor sum now.
6. No Misrepresentation. The undersigned understands and
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represents that, no party to this action, misrepresented any fact to the other
party, its attorneys or insurance carrier, nor was any person or party compelled
by any other person and/or party.
7. No Adverse Claims. There are no liens, or claim of liens, or
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assignments in law or equity, or otherwise, of, or against the claim or cause of
action of the undersigned herein; further, the undersigned is fully entitled to
give this complete release and discharge.
8. Indemnity. The undersigned will indemnify and save harmless the
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Parties herein released from any loss, claim, expense, demand or cause of action
of any kind or character through the assertion by any party or stranger hereto
of a claim or claims connected with the subject matter of this Release and from
any loss incurred directly or indirectly by reason of the falsity or inaccuracy
of any representation herein by the undersigned.
9. Entire Agreement. This Agreement contains the entire agreement
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between the Parties hereto. The terms of this Release are contractual and not a
mere recital. The undersigned have carefully read and understands the contents
of this Release, and signs the same as his/her own free act. Each party shall
bear their own costs and attorneys' fees.
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10. Arbitration. In the event any dispute arises with regards to
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the interpretation or enforcement of this Release, the Parties agree to handle
said dispute in accordance with the rules and regulations of the American
Arbitration Association. Said arbitration is to be binding upon the Parties.
The prevailing party to such arbitration shall be entitled to costs and
reasonable attorneys' fees.
11. Representation by Counsel. Each Party to this Agreement has been
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represented by their own counsel in the drafting, negotiation and review of all
matters that are the subject of this Agreement.
12. Additional Documents. To the extent that it is necessary or
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appropriate to prepare and execute any additional documents in order to
effectuate this Agreement, the Parties agree to do so in a timely manner.
13. Authority. Any Party signing this Agreement on behalf of an
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entity or other than themselves, hereby represents and warrants that such Party
has authority to sign on behalf of the indicated entity.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
effective the day and year first above written. The undersigned hereby warrant
that they are legally authorized and entitled to settle and to release every
claim herein released and to give a valid, full and final acquittance therefor.
DATED: April 24, 2000 GOLFGEAR INTERNATIONAL, INC.
By:
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Xxxxxx X. Xxxxxxxx
Its: President
DATED: April 24, 2000 U.S. PRECISION, INC.
By:
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Its:
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DATED: April 24, 2000 THE ESTATE OF XXXXXXXX XXXXXXX
By:
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Its:
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DATED: April 24, 2000 By:
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Xxxxxx Xxxxxxx, an Individual
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