SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release (the "Settlement
Agreement") is made and entered into by and between GolfGear International,
Inc., a Nevada corporation ("GOLFGEAR"), and MC CORPORATION, XXXX XXXX, and
KEIZAIKAI USA, INC. (unless otherwise indicated, these parties are collectively
referred to herein as the "MC CORPORATION parties").
RECITALS
A. Whereas, MC CORPORATION, a Japanese corporation, has commenced an
action against GOLFGEAR in the United States District Court, Central District of
California, Southern Division, Case No. SA-01-1129 AHS (MLGx) (the "Subscription
Agreement lawsuit") in which it contends it is entitled to additional shares of
GOLFGEAR common stock under the reset provisions of a Subscription Agreement
executed in 1999;
B. Whereas, GOLFGEAR has filed an answer in the Subscription Agreement
lawsuit denying the allegations in the Complaint and asserting a counter-claim
against MC CORPORATION for reformation of the Subscription Agreement;
C. Whereas, GOLFGEAR and MC CORPORATION entered into a Distribution
Agreement (the "Distribution Agreement") in 1999, which GOLFGEAR contends has
been breached by MC CORPORATION, and which was terminated on March 5, 2002;
D. Whereas, the trial judge in the Subscription Agreement lawsuit has
given GOLFGEAR to and including May 31, 2002 within which to amend its
counter-claim to allege a breach of the Distribution Agreement by MC
CORPORATION; and
E. Whereas, GOLFGEAR and the MC CORPORATION parties desire to settle
all of their differences on the terms and conditions as described below.
NOW, THEREFORE, FOR THE MUTUAL CONSIDERATION STATED HEREIN, IT IS AGREED BY
GOLFGEAR AND THE MC CORPORATION PARTIES AS FOLLOWS:
1. GOLFGEAR and the MC CORPORATION parties agree to dismiss the
Subscription Agreement lawsuit, including the counter-claim by GOLFGEAR, with
prejudice, with each side bearing its own attorneys' fees and costs.
2. The Distribution Agreement between GOLFGEAR and MC CORPORATION will
be formally terminated upon the execution of this Settlement Agreement by all
parties hereto. GOLFGEAR and MC CORPORATION each waive all damages and claims
that they have against each other pertaining to the Distribution Agreement.
3. MC CORPORATION will terminate its golf operations in Japan with
respect to the sale of golf equipment upon execution of this Settlement
Agreement by all parties hereto. Nothing contained herein shall prevent MC
CORPORATION from engaging in the development and/or operation of golf courses in
Japan in the future. MC CORPORATION hereby represents that it has an
insignificant inventory of GOLFGEAR products remaining in Japan. GOLFGEAR
agrees to assume all warranty obligations for GOLFGEAR products previously sold
in Japan by MC CORPORATION.
4. MC CORPORATION hereby gives up its right to a seat on the Board of
Directors of GOLFGEAR, and Xx. Xxxxxxxxx agrees to resign as a Director of
GOLFGEAR. MC CORPORATION agrees to give up its 14.3% anti-dilution right and
all other rights under the Subscription Agreement. Each of these provisions
becomes effective upon the execution of this Settlement Agreement by all parties
hereto.
5. MC CORPORATION drops its reset claim and all claims against
GOLFGEAR based on the Subscription Agreement. In exchange for the 245,030
shares of Series A Senior Convertible Preferred Stock in GOLFGEAR that are
currently owned by MC CORPORATION, GOLFGEAR will issue to MC CORPORATION
2,450,300 shares of GOLFGEAR common stock. As part of this Settlement
Agreement, GOLFGEAR will issue to MC CORPORATION an additional 549,700 shares of
GOLFGEAR common stock as additional consideration. MC CORPORATION will receive
a total of 3,000,000 shares of GOLFGEAR common stock under this Settlement
Agreement. GOLFGEAR will issue said 3,000,000 shares of common stock to MC
CORPORATION within 15 days after this Settlement Agreement has been executed by
all parties hereto. Such common shares will be unregistered, have no
registration rights, and will bear an appropriate restrictive legend.
6. For a period of 18 months from the date this Settlement Agreement
has been executed by all parties hereto, the MC CORPORATION parties (including
any subsidiary or affiliate of MC CORPORATION which may in the future own such
shares) agree to restrict the sale of their GOLFGEAR common shares in a public
transaction as follows:
(a) For the first 6 months of the 18 month period, MC CORPORATION will
not sell any shares in a public transaction;
(b) For the second 6 months of the 18 month period, MC CORPORATION may sell
GOLFGEAR common shares in an amount up to 50% of the Rule 144 volume limitations
in a public transaction;
(c) For the third 6 months of the 18 month period, MC CORPORATION may
sell GOLFGEAR common shares in an amount up to 100% of the Rule 144 volume
limitations in a public transaction;
(d) Rule 144 stipulates that the common shares sold within a three-month
period shall not exceed the greater of (i) 1% of the outstanding shares of the
Company's common stock, or (ii) the average weekly trading volume for the
Company's common stock on all exchanges and/or reported through NASDAQ during
the four weeks before the sale, or (iii) the average weekly trading volume for
the Company's common stock reported through the consolidated transaction
reporting system during the four weeks before the sale.
(e) There shall be no carryover to future periods of any wholly or
partially unused rights to sell common stock.
(f) All sales of common stock by MC CORPORATION will comply with all
applicable federal and state securities laws and regulations.
7. For a period of 18 months from the date this Settlement Agreement
has been executed by all parties hereto, MC CORPORATION hereby grants to
GOLFGEAR a right of first refusal with respect to any shares of GOLFGEAR common
stock that MC CORPORATION may desire to sell in a private transaction. MC
CORPORATION shall notify GOLFGEAR in writing of any third party's offer, and
shall provide GOLFGEAR with written documentation of the terms and conditions of
such third party's offer. GOLFGEAR shall have 10 business days after receiving
written notice from MC CORPORATION to decide whether to exercise its right of
first refusal, and a further 10 business days to consummate the transaction.
8. All stock options or warrants to acquire GOLFGEAR common stock held
by the MC CORPORATION parties are cancelled as of the date of the execution of
this Settlement Agreement by all parties hereto.
9. GOLFGEAR and the MC CORPORATION parties each release the other
parties, including the other parties' officers, directors, employees, agents,
consultants,
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advisors, representatives, attorneys, accountants, shareholders, affiliates, and
parent or subsidiary corporations, if any, from any and all claims, demands, or
causes of action which GOLFGEAR or the MC CORPORATION parties have against each
other, including, but not limited to, any claims arising out of or related to
the Subscription Agreement, the Subscription Agreement lawsuit, or the
Distribution Agreement, as well as any and all debts or obligations, EXCEPT for
the obligations of each of the parties hereto to perform according to the terms
and conditions of this Settlement Agreement.
10. The parties to this Settlement Agreement agree that this Settlement
Agreement extends to all claims of every nature and kind whatsoever between
them, EXCEPT the duty to perform according to the terms and conditions of this
Settlement Agreement, arising up to and including the date of execution hereof,
whether such claims are known or unknown, suspected or unsuspected, and
accordingly, each of the parties hereto expressly, knowingly, voluntarily and
advisedly WAIVE all rights given them under California Civil Code Sec. 1542,
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which provision reads as follows:
A general release does not extend to 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.
11. This Settlement Agreement supercedes any prior written or verbal
agreements and representations regarding these matters. There shall be no
modification of this Settlement Agreement except in a writing signed by all
parties hereto.
12. This Settlement Agreement constitutes the compromise and settlement
of disputed claims. Nothing contained in this Settlement Agreement shall
constitute, be construed as, or be deemed to be an admission of fault,
liability, or wrongdoing on the part of any party hereto. GOLFGEAR and the MC
CORPORATION parties each expressly deny any fault, liability, or wrongdoing.
13. This Settlement Agreement and the rights and obligations hereunder
shall be governed by, and construed, and be interpreted in all respects in
accordance with the laws of the State of California.
14. In the event that any party to this Settlement Agreement is alleged
to have breached any of the terms of this Settlement Agreement, such dispute
shall be resolved by binding arbitration in Orange County, California in a
proceeding brought under the auspices of the Judicial Arbitration and Mediation
Services, with such rights to discovery as shall be ordered by the retired judge
selected to decide the matter. Each party to this
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Settlement Agreement knowingly waives the right to institute legal proceedings
of any other kind except as just described, and each party understands that this
agreement to submit such disputes to binding arbitration constitutes a waiver of
the right to a trial by jury. The prevailing party in any such dispute shall be
awarded its reasonable attorneys' fees and costs, including the costs of
arbitration and the fees of the arbitrator.
15. Each of the parties hereto acknowledges that this Settlement
Agreement has been entered into and negotiated fairly and in good faith. The
terms of this Settlement Agreement shall not be construed against any party but
rather shall be construed in an evenhanded manner.
16. The parties hereto represent and warrant to each other that they
have the authority and capacity to make the agreements and releases set forth in
this Settlement Agreement, they are the owners of, and have not transferred,
assigned or hypothecated any of the claims, rights, demands or causes of action
they have asserted or released herein, and no other person or entity owns, holds
or has any interest in the claims, rights or causes of action that are being
released herein. Each of the corporate parties signing this Settlement
Agreement represent that this Settlement Agreement has been approved by its
Board of Directors and that the corporation has authorized its signatory below
to execute this document on its behalf.
17. GOLFGEAR and the MC CORPORATION parties each acknowledge that they
have read this Settlement Agreement and fully understand its terms, nature, and
effect, and that they are executing this Settlement Agreement knowingly,
intentionally, and voluntarily.
18. This Settlement Agreement shall be binding upon and for the benefit
of the parties hereto, and each of their successors-in-interest, including heirs
and assigns.
19. The parties hereto agree to execute any additional legal documents
reasonably necessary to accomplish any of the items set forth in this Settlement
Agreement, and that they will cooperate in providing such other information as
may be necessary to promptly carry out the terms of this Settlement Agreement
and its intent.
20. Each of the parties to this Settlement Agreement agrees that time
is of the essence in executing this Settlement Agreement. This Settlement
Agreement may be executed in counterparts and by facsimile signature. Facsimile
signatures shall be as binding and enforceable as originals, and each party
signing by facsimile shall immediately transmit by facsimile its executed
signature page to counsel for each of the other parties hereto. Each party
shall submit its original executed signature page to
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GOLFGEAR'S legal counsel within 15 days of having transmitted a facsimile
signature page. This Settlement Agreement shall be deemed fully executed when
each party hereto has signed and faxed its executed signature page to legal
counsel for the other party. Legal counsel for each party shall retain a
fully-executed copy of this Settlement Agreement.
Dated: May __, 2002
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XXXX XXXX
KEIZAIKAI USA, Inc.
Dated: May __, 2002
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By: XXXX XXXX, President
MC CORPORATION
Dated: May __, 2002
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By: XXXXX XXXXXXXXX, President
GOLFGEAR INTERNATIONAL, INC.
Dated: May __, 2002
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By: Xxxxxx Xxxxxxxx, President
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APPROVED AS TO FORM AND CONTENT
XXXXXX, XXXXXXXXXX &
SUTCLIFFE, LLP
Dated: May __, 2002
-------------------------------
By: XXXXX X. XXXXXX
Attorneys for MC CORPORATION
COTKIN, XXXXXXX & XXXXXXXX
Dated: May __, 2002
-------------------------------
By: XXXXX X. XXXXXXX, XX.
Attorneys for GOLFGEAR
INTERNATIONAL, INC.
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