1
EXHIBIT 10.68
December 5, 1997
PERSONAL AND CONFIDENTIAL
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. and Xxx. Xxxxxxx X. Xxxxx
Xx. Xxxxxxx X. Xxxxx, as custodian
for Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx,
minor children
0000 Xxxxxx xx Xxxxx
Xxxxx, XX 00000
Re: Stock Purchase Agreement
Dear Xx. Xxxxx:
Pursuant to the terms and conditions of the Stock Purchase Agreement
entered into on the ____ day of November, 1997 with Brassie Golf Corporation,
Brassie Golf Corporation and/or its assigns hereby notifies and directs you to
deliver common and preferred shares of stock in the Brassie Golf Corporation
owned either by you jointly with your wife, Charlotte, or held by you as
custodian for your two (2) minor children, Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx,
in the following amounts and at the previously agreed upon terms:
503,617 shares of common stock at $.15 per share
281,250 shares of preferred stock at $.75 per share
The aggregate sale price for the above designated shares shall be
$286,480.05.
You are hereby directed to deliver to Brassie Golf Corporation and/or
its assigns at ___________ a.m./p.m. on the ______ day of _______________, at
BRASSIE GOLF CORPORATION's principal place of business at Xxx Xxxxx Xxxx Xxxxxx,
Xxxxx 0000, Xxxxx, Xxxxxxx 00000, the Certificates representing the shares of
stock indicated hereinabove, duly endorsed in blank or with duly endorsed stock
powers attached, all in form suitable for the transfer of the shares to the
Brassie Golf Corporation and/or its assigns.
You are further directed to deliver to the BRASSIE GOLF CORPORATION an
executed Letter of Resignation and an executed General Release, both in the
forms set forth in Exhibits "B" and "C," respectively, of the Stock Purchase
Agreement entered into between the parties.
Upon delivery of said stock certificates, the Brassie Golf Corporation
and/or its assigns will tender to you a check in the amount of the aggregate
sale price as indicated hereinabove, together with an executed Indemnification
Agreement in the form
2
attached to the Stock Purchase Agreement as Exhibit "D".
BRASSIE GOLF CORPORATION
By:
-------------------------------
Xxxxxx X. Xxxxxxx
Its: President
3
December 12, 1997
Board of Directors
Brassie Golf Corporation
Xxx Xxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Re: Letter of Resignation
To the Board of Directors of Brassie Golf Corporation:
Effective as of the date written above, I hereby resign as a director
and officer of the Brassie Golf Corporation and each of its subsidiaries and
affiliated companies.
Sincerely,
Xxxxxxx X. Xxxxx
Exhibit "B"
4
Exhibit "C"
GENERAL RELEASE
KNOW ALL MEN BY THESE PRESENTS THAT: XXXXXXX X. XXXXX, (hereinafter
"Xxxxx"), for and in consideration of the sum of Ten Dollars ($10.00) Dollars
and other good and valuable consideration, received from or on behalf of BRASSIE
GOLF CORPORATION, a Delaware corporation, its officers, agents, or
representatives (hereinafter "Brassie"), the receipt and sufficiency of which is
hereby acknowledged;
DOES HEREBY remise, release, acquit, satisfy, and forever discharge
Brassie, individually and collectively, jointly and severally, and including any
of its agents, officers, directors, partners, employees or representatives,
including sureties, and any of their parent or subsidiary companies or
affiliated business entities (together with their officers, directors, employees
and agents) and each of their successors and assigns (collectively, the
"Released Parties"), of and from all, and all manner of, action and actions,
cause and causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, liens (mechanics', equitable,
or otherwise), contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, executions, claims and demands whatsoever, in
law or in equity, which Xxxxx ever had, now has, or which any personal
representative, successor, heir or assignee of Xxxxx hereafter can, shall, or
may have, against the Released Parties, for, upon, or by reason of Xxxxx'x
employment with Xxxxxxx or an other of the Released Parties, including, but
5
Exhibit "C"
not limited to, relief in any administrative proceedings or plenary action
injuries suffered to any federal, state or local law. I specifically release and
forever waive any and all claims which I ever had, now have, and which I or my
heirs or executors, administrators or assigns, or any of them, hereafter can,
shall, or may have for any matter or thing, known or unknown. Without limitation
to the foregoing, I hereby acknowledge the immediate termination of my
employment with Xxxxxxx and any Released Party and consent hereby to the
immediate termination of any and all employment and/or consulting agreements
between me and Brassie or any Released Party, including that certain Employment
Agreement between me and Brassie dated June 5, 1995. 1 further acknowledge that,
except as specifically provided in that certain Stock Purchase Agreement dated
November _, 1997, and except as specifically provided in that certain
Indemnification Agreement dated November _, 1997, I am not entitled to, and
hereby waive any right to, any payment or compensation of any kind from Brassie
and all Released Parties, including, but not limited to, back pay, vacation pay,
severance, reimbursements, bonuses, and the cash value of any insurance
policies.
IN WHEREOF, we have hereunto set our hands and seals effective this
____ day of ______________, 1997.
Signed, sealed and delivered
in the presence of:
By:
----------------------------------- ---------------------------
Signature of Witness #1 Xxxxxxx X. Xxxxx
-----------------------------------
Typed or printed name of Witness #1
6
Exhibit "C"
------------------------------
Signature of Witness #2
-------------------------------
Typed or printed name of Witness #2
STATE OF FLORIDA
COUNTY OF _____________________
The foregoing instrument was acknowledged before me this ___ day of
___________ 1997, by Xxxxxxx X. Xxxxx, who is personally known to me or who has
produced _______________________________ (type of identification) as
identification.
-----------------------------------
Signature of Person Taking
Acknowledgment
-----------------------------------
Name of Acknowledger Typed,
Printed or Stamped
(NOTARY SEAL)
Notary Public, State of ______
-----------------------------------
Notarial Serial Number
7
Exhibit "C"
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is made and entered
into this ____ day of __________, 1997, by and between BRASSIE GOLF CORPORATION,
a Delaware corporation ("Brassie") and XXXXXXX X. XXXXX ("Xxxxx").
Background
Xxxxx has served as a director, officer and agent of Brassie since June
5, 1995. Effective as of the date hereof, and by way of separate letter Xxxxx
has resigned in all capacities in exchange for which Xxxxxxx hereby agrees to
indemnify him and hold him harmless from liability associated with his service
in such capacities for Xxxxxxx to the maximum extent permitted by law.
A majority of the disinterested directors of Brassie have approved the
execution of this Agreement at a special meeting of the directors called for
that purpose on November 10, 1997.
1. In consideration of the service of Xxxxx to Brassie, and
subject to the terms of this Agreement, Xxxxxxx hereby agrees to indemnify and
hold Xxxxx harmless from:
(a) Any and all liability, cost and damage sustained by him in
any civil or criminal action or threat of action by reason of his being an
officer, director, employee or agent of Brassie or by reason of his office,
status or service as an officer, director, employee or agent of another
corporation or legal entity or enterprise at the request of Xxxxxxx or his
8
Exhibit "C"
actions while performing in any such capacity, all so long as Xxxxx acted in
good faith and in a manner he reasonably believed to be in the best interests of
Xxxxxxx.
(b) Any amount paid in settlement of any claim or demand based
upon the service or action described in Section l(a) above.
(c) Any reasonable advancement, cost and expense associated
with defending or opposing any claim of demand described in Section l(a) above,
including, without limitation, all reasonable attorney's fees and court costs,
whether or not assessable in the court action, and including any such attorney's
fees and costs incurred in appellate proceeding or alternative dispute
resolution proceeding.
2. To the extent permitted by law, Xxxxxxx hereby remises,
releases, and forever discharges, Xxxxx of and from all, and all manner of
action and actions, cause and causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
executions, claims and demands whatsoever, in law, or in equity, which it may
have against Xxxxx arising out of his being an officer, director, employee or
agent of Xxxxxxx or by reason of his office, status or service as an officer,
director, employee or agent of another corporation or legal entity or enterprise
at the request of Xxxxxxx or his actions while performing in any such capacity,
including, without limitation, the development or exploitation of
9
Exhibit "C"
any business concept or idea, whether fully or partially developed while Xxxxx
was performing in any such capacity, pursuant to the Employment Agreement
entered into between Xxxxx and BRASSIE on June 5, 1995, from the beginning of
the world to the day of the date of these presents.
3. The foregoing indemnification and release shall not apply to
any claim or demand for any act which Xxxxx:
(a) did not act in good faith;
(b) was opposed to the best interests of Xxxxxxx;
(c) which constituted a criminal act, unless Xxxxx had no
reasonable cause to believe that such act was unlawful;
(d) engaged in willful misconduct or conscious disregard for
the best interest of Xxxxxxx; or,
(e) derived an improper personal benefit.
4. Any indemnification under Section 1, unless pursuant to a
determination by a court, shall be made by Xxxxxxx only as authorized in the
specific case upon a determination that indemnification of Xxxxx as officer,
director, employee or agent of Brassie is proper in the circumstances because he
has met the applicable standards of conduct set forth in Sections 1 and 3.
Such determination shall be made:
(a) By the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to any such proceeding; or
(b) By independent legal counsel selected by the Board of
Directors prescribed in Paragraph 4(a); or
10
Exhibit "C"
(c) By the Shareholders by a majority vote of a quorum
consisting of shareholders who were not parties to any such proceeding or, if no
such quorum is obtainable, by a majority vote of shareholders who were not a
party to any such proceeding.
5. Evaluation of the reasonableness of expenses and authorization
of indemnification shall be made in the same manner as the determination that
indemnification is permissible as set out in Section 4 hereinabove.
6. In the event that Xxxxx determines that he is entitled to
indemnification under Section 1 of this Agreement, he shall give Xxxxxxx written
notice of his demand for indemnification, with sufficient documentation, to the
extent available to Xxxxx, to enable Brassie to determine whether or not the
claim is barred by the application of Section 3 of this Agreement. If Xxxxxxx
determines that the right to indemnification for the claim is barred by the
operation of Section 3 of this Agreement, it shall give Xxxxx written notice of
such objection ("Objection to Claim") within twenty (20) days of the date of the
demand by Xxxxx specifying the reason for such objection. If the objection is
not timely given, Brassie shall be conclusively presumed to have waived its
right to object. If Xxxxxxx makes the Objection to Claim timely, Xxxxx, unless
the parties can promptly agree to an alternative form of dispute resolution,
shall be entitled to have a court of competent jurisdiction determine by
declaratory decree whether or not his right to indemnification for the claim is
barred by Section 3 of this Agreement. If the right to
11
Exhibit "C"
indemnification for the claim is not barred by Section 3, Xxxxx shall be
entitled to the indemnification provided in Section 1.
7. As a condition precedent to the indemnification provisions
contained in paragraph I above, Xxxxx shall be obligated to follow the following
procedure: Upon receiving any communication placing Xxxxx on notice that a claim
has or may be asserted against him for which he might be entitled to
indemnification hereunder, whether by letter, service of process, other writing,
or orally, Xxxxx shall communicate same to Xxxxxxx (and, in the case of any
written communication, immediately provide a copy of same to Brassie). Xxxxx
shall not thereafter offer to compromise or settle any such claim without
Xxxxxxx's prior written consent. Any violation of this provision shall result in
the nullification of the indemnification provisions of this Agreement, In the
event a lawsuit is filed against Xxxxx, Xxxxxxx shall have the right, but not
the obligation, to: (1) provide counsel of Xxxxxxx's choice to Xxxxx, for which
Xxxxxxx will bear all costs and expenses (subject to Xxxxx'x obligation to
reimburse same if a determination is made that Xxxxx'x actions were not subject
to indemnification by Brassie hereunder); or (2) assume the cost of Xxxxx'x
defense by counsel of Xxxxx'x choosing (once again, subject to a reservation of
rights and Xxxxx'x obligation to reimburse as provided above. In the event
Brassie does not notify Xxxxx of its desire to select either of the options
described above, Xxxxx shall retain its own counsel, and pay for same, subject
to the indemnification rights contained
12
Exhibit "C"
herein. Consistent with the above, Xxxxx shall not offer to compromise or settle
any lawsuit without Xxxxxxx's prior written consent (the violation of which
shall result in a nullification of the indemnification provisions of this
Agreement).
8. The indemnification provided in this Agreement is in addition
to, and not in limitation of any other indemnification provided by Brassie under
any agreement or right indemnification provided by law.
9. In any legal action or proceeding, including alternative
dispute resolution proceedings, relating to the enforcement or interpretation of
this Agreement, the prevailing party shall be entitled to recover, in addition
to any other relief, such parties reasonable attorney's fees and costs,
including those incurred in any appellate proceeding.
10. The parties agree that this Agreement shall be construed,
interpreted and enforced in accordance with the laws of the State of Florida.
The venue for any legal action to enforce or interpret the rights or obligations
of any party to this Agreement shall be located in Hillsborough County, Florida
and each of the parties consents to such action being maintained in the Circuit
Court Thirteenth Judicial Circuit sitting in such county.
11. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, their heirs, successors in interest and assigns
as applicable.
Signed in the presence of: BRASSIE GOLF CORPORATION,
a Florida corporation
13
Exhibit "C"
By:
--------------------------------
Xxxxxx X. Xxxxxxx
Its: President
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
(Type or Print Name) (Type or Print Address)
-----------------------------------
-----------------------------------
(Type or Print Name)
Signed in the presence of:
-----------------------------------
XXXXXXX X. XXXXX
----------------------------------- -----------------------------------
----------------------------------- -----------------------------------
(Type or Print Name) (Type or Print Address)
-----------------------------------
-----------------------------------
(Type or Print Name)
14
Exhibit "C"
STOCK PURCHASE AGREEMENT
THIS AGREEMENT made this 13th day of November, 1997 by and between
BRASSIE GOLF CORPORATION, a corporation organized and existing under the laws of
the State of Delaware, having its principal place of business at Xxx Xxxxx Xxxx
Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, hereinafter referred to as the
"CORPORATION", and/or its assigns, and XXXXXXX X. XXXXX and XXXXXXXXX XXXXX,
husband and wife, and XXXXXXX X. XXXXX, as custodian for both XXXXXX X. and
XXXXXXX X. XXXXX, minor children, all residing at 0000 Xxxxxx xx Xxxxx, Xxxxx,
Xxxxxxx 00000, hereafter collectively referred to as the "SELLERS".
WITNESSETH:
WHEREAS, the CORPORATION, and/or its assigns, are desirous of obtaining
outstanding shares of its stock in order to assist the CORPORATION in securing
additional prospective financing for the CORPORATION in its future development
and profitability; and
WHEREAS, XXXXXXX X. XXXXX, former President and CEO of the CORPORATION,
has indicated a desire and willingness to sell to the CORPORATION, and/or its
assigns, all shares of the outstanding common and preferred stock in the
CORPORATION, owned either by himself jointly with his wife, XXXXXXXXX XXXXX, or
held by XXXXXXX X. XXXXX as custodian for his two minor children, Xxxxxx X.
Xxxxx and Xxxxxxx X. Xxxxx, and;
WHEREAS, the total shares of common and preferred stock presently owned
by XXXXXXX X. XXXXX jointly with his wife, XXXXXXXXX XXXXX, or held by XXXXXXX
X. XXXXX as custodian for his two minor children, Xxxxxx X. Xxxxx and Xxxxxxx X.
Xxxxx, are as follows:
Xxxxxxx X. & Xxxxxxxxx Xxxxx 361,417 common shares
Xxxxxxx X. & Xxxxxxxxx Xxxxx 281,250 preferred shares
Xxxxxxx X. Xxxxx as custodian
for Xxxxxx X. Xxxxx, a minor
child 71,100 common shares
Xxxxxxx X. Xxxxx as custodian
for Xxxxxxx X. Xxxxx, a minor
child 71,100 common shares
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The above recitals are true and correct and are herein
15
Exhibit "C"
incorporated herein by reference.
2. The CORPORATION, and/or its assigns, shall purchase from the
SELLERS, subject to the terms and conditions set forth in this Agreement, and
the SELLERS agree to sell to the CORPORATION, and/or its assigns, all shares of
common and preferred stock in the corporation as set out hereinabove
(collectively, the "Shares") which are currently owned by XXXXXXX X. XXXXX and
XXXXXXXXX XXXXX, or maintained by XXXXXXX X. XXXXX as custodian for the benefit
of his minor children, Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx.
3. The purchase price for the common stock shall be Fifteen Cents
($.15) per share, and the purchase price for the preferred stock shall be
Seventy-Five Cents ($.75) per share, for a combined purchase price of $75,542.55
for 503,617 common shares and $210,937.50 for the 281,250 preferred shares.
4. The parties agree that the CORPORATION, and/or its assigns,
shall purchase, and the SELLERS shall sell all shares of the common and
preferred stock described in Paragraph 2 hereinabove on or before December 15,
1997 and that the transaction shall take place at the CORPORATION's principal
place of business at Xxx Xxxxx Xxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000.
5. Not less than ten (10) days prior to December 15, 1997, the
CORPORATION, and/or its assigns, shall mail to the Sellers by Certified Mail at
their address contained hereinabove, written notice of the closing date
(including the time). A copy of said written notice to be sent is attached
hereto and incorporated herein as Exhibit "A". The date designated shall be
referred to hereafter as the "Closing Date," and the event anticipated to occur
shall be referred to as the "Closing."
6. At the closing, the SELLERS shall deliver: (i) the
certificates representing the Shares either duly endorsed in blank or with duly
endorsed Stock Powers attached, all in a form suitable for the transfer of the
Shares to the CORPORATION; (ii) the letter of resignation of Xxxxxxx X. Xxxxx in
the form attached hereto as Exhibit "B; " and (iii) the General Release of
Xxxxxxx X. Xxxxx in the form attached hereto as Exhibit "C." The CORPORATION
shall deliver to the SELLERS at the Closing ready funds in the amount of the
aggregate purchase price described in Paragraph 3 above, and the Indemnification
Agreement in the form attached hereto as Exhibit "D".
7. So long as this Agreement shall remain in effect, the SELLERS
agree that they shall not sell, assign, transfer, pledge, mortgage, alienate,
hypothecate, or in any way encumber or dispose of any of the Shares of the
CORPORATION described in Paragraph 2 except as herein provided. SELLERS
represent and
16
Exhibit "C"
warrant that none of the Shares have heretofore been sold, assigned,
transferred, pledged, mortgaged, alienated, hypothecated, or otherwise
encumbered or disposed of in any manner prior to the date hereof.
8. This Agreement shall be binding on and inure to the benefit of
the CORPORATION, and/or its assigns, and the SELLERS and their respective heirs,
executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer as set out in Paragraph 7 of this
Agreement.
9. The SELLERS agree that so long as this Stock Purchase
Agreement remains in full force and effect, including any modifications or
amendments to the terms and duration of said Agreement which may be properly
executed between the parties hereto, that they shall not disclose, communicate,
or permit to be disclosed or communicated in any manner whatsoever to any other
person or entity, the terms, conditions or other information contained within
this Stock Purchase Agreement. Said provision shall not apply to any
communications the SELLERS may have with either their legal counsel or Xx. Xxxxx
XxXxxxx, so long as no other third parties are present at the time of said
communications. A violation of this provision shall give rise to a cause of
action for damages on behalf of the CORPORATION and/or its assigns.
10. Time is of the essence in the performance of this Agreement.
The parties agree that the damages to be incurred by each party in the event of
default by the other will be difficult to establish and calculate and therefore
the parties agree that if either party fails to perform their obligations within
the time limits provided above, the other party ma@ at its option pursue the
remedy of specific performance or abandon such claim and take such action as
they deem appropriate without the restrictions imposed by this Agreement.
11. RULES OF CONSTRUCTION.
(a) This Agreement constitutes the entire agreement between
the parties and supersedes any and all prior negotiations, preliminary
agreements, and all prior and contemporaneous discussions and understandings of
the parties related to the subject matter of this Agreement.
(b) This Agreement may be amended or modified only by a
written instrument executed by both the CORPORATION, and/or its assigns, and the
SELLERS.
(c) This Agreement shall be construed, interpreted, and
enforced in accordance with the laws of the State of Florida. The venue for any
legal action to enforce the rights or
17
Exhibit "C"
obligations of any party to this Agreement shall be located in Hillsborough
County, Florida.
(d) The parties mutually acknowledge that the terms of this
Agreement have been negotiated and that each party has had the benefit of legal
counsel. Accordingly, this Agreement shall not be construed against either party
hereto based upon any inconsistencies or ambiguities which appear herein.
(e) If all or any part of this Agreement be enforced in a
court of law, the prevailing party to any such cause of action shall be entitled
to recover all costs, including reasonable attorney's fees.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals this 13th day of November, 1997 at Tampa, Hillsborough County, Florida.
Witnesses: BRASSIE GOLF CORPORATION, a
Delaware corporation
/s/ Xxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------- --------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxxx Xxxxx Xxx: President
-----------------------------------
/s/ Xxxx X. Xxxx /s/ Xxxxxxx X. Xxxxx
----------------------------------- -----------------------------------
XXXXXXX X. XXXXX
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------
/s/ Xxxx X. Xxxx /s/ Xxxxxxxxx Xxxxx
----------------------------------- -----------------------------------
XXXXXXXXX XXXXX
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------
/s/ Xxxx X. Xxxx /s/ Xxxxxxx X. Xxxxx
----------------------------------- -----------------------------------
XXXXXXX X. XXXXX as custodian
/s/ Xxxxxx Xxxxxxxxx for the benefit of his minor
----------------------------------- children, Xxxxxx X. Xxxxx and
Xxxxxxx X. Xxxxx
