STOCK PURCHASE AGREEMENT
EXHIBIT
10.1
THIS
STOCK PURCHASE AGREEMENT, dated as of June 1, 2007 (the “Agreement”),
is by
and among Direct Golf Services (the “Company”),
the
shareholders of the Company as listed in Schedule
A
hereto
(collectively, the “Seller”),
and
GPS Industries, Inc., a Nevada corporation (the “Purchaser”).
WITNESSETH:
WHEREAS,
the Seller owns all issued and outstanding shares of capital stock of the
Company (the “Company
Shares”);
and
WHEREAS,
the Seller desires to sell to the Purchaser, and the Purchaser desires to
purchase, the Company Shares on the terms and conditions set forth below;
and
NOW,
THEREFORE, in consideration of the premises and of the mutual representations,
warranties and agreements set forth herein, the parties hereto agree as
follows:
I.
SALE
AND PURCHASE OF SHARES
1.1 Transfer
of Shares.
Subject
to the terms and conditions set forth in this Agreement and in reliance upon
the
representations and warranties of the Seller and the Purchaser herein set forth,
at the Closing, the Seller shall sell, transfer, convey, assign and deliver
to
the Purchaser, and the Purchaser shall purchase from the Seller, by appropriate
bills of sale, assignments and other instruments satisfactory the Purchaser
and
its counsel, good and marketable title in and to the Company
Shares.
II.
PURCHASE
PRICE, PAYMENT AND RELATED MATTERS
2.1 Purchase
Price.
At the
Closing, the Purchasers shall pay to the Seller for the Company Shares the
aggregate sum of US$800,000 (the “Purchase
Price”).
The
Purchase Price shall consist of the following:
(a) US$200,000
cash, payable by certified or cashier’s check or wire transfer of immediately
available funds into a bank account designated in writing by the Seller on
or
prior to the Closing; and
(b) 6,000,000
restricted shares of common stock of Purchaser, $0.001 par
value
per share (“GPS
Shares”).
2.2 Transfer
Taxes.
The
Seller shall be solely responsible for the payment of any and all federal and
state income taxes incident to the sale and transfer of the Company Shares
contemplated herein.
Exhibit
10.1 - 1
III.
THE
CLOSING
3.1 Time
and Place of Closing.
The
closing of the transactions contemplated hereby (the “Closing”)
shall
take place at the offices of Xxxx & Xxxxx Professional Corporation on the
date hereof (the “Closing
Date”)
at
10:00 a.m., it being understood and agreed that the Closing shall be deemed
to
occur as of June 1, 2007.
3.2 Actions
at the Closing.
At the
Closing, the Seller and the Purchaser shall take such action and execute and
deliver such agreements and other documents and instruments as necessary or
appropriate to effect the transactions contemplated by this Agreement in
accordance with its terms and conditions, including, without limitation, the
following:
(a) The
Purchaser shall pay and deliver to the Sellers the Purchase Price payable as
provided in Section 2.1 and issue share certificates to the shareholders as
listed in Schedule A
(b) The
Seller shall deliver to the Purchaser certificates representing all Company
Shares, together with stock powers duly endorsed for transfer of the Company
Shares to the Purchaser;
(c) Seller
shall execute and deliver to the Buyer a general release substantially in the
form of Exhibit A
hereto
(the “General
Release”);
IV.
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
Each
Seller hereby represents and warrants to the Purchaser that:
4.1 Title
to Company Shares.
The
Seller is the sole legal and beneficial owner of the Company Shares, and upon
consummation of the purchase contemplated herein, the Purchaser will acquire
from the Seller good and marketable title to the Company Shares, free and clear
of all liens, claims, encumbrances or restrictions.
4.2 Authority
to Execute and Perform Agreements.
The
Seller has the full right, power and authority to enter into, execute and
deliver this Agreement and to transfer, convey and sell to the Purchaser at
the
Closing the Company Shares.
4.3 Enforceability.
This
Agreement has been duly and validly executed by the Seller and (assuming the
due
authorization, execution and delivery of Purchaser) constitutes the legal,
valid
and binding obligation of the Seller, enforceable in accordance with its terms,
except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally
or by general equitable principles affecting the enforcement of
contracts.
4.4 No
Violation.
The
execution or delivery by the Seller of this Agreement does not violate in any
material respect any applicable law or any judgment, order or decree of any
court, and will not result in the creation or imposition of any lien, charge
or
other encumbrance upon the Company Shares.
Exhibit
10.1 - 2
4.5 Non-Contravention.
Neither
the execution and delivery of this Agreement or the other agreements
contemplated hereby to be executed by the Seller nor the consummation by the
Seller of the transactions contemplated hereby or thereby does or would after
the giving of notice or the lapse of time or both, (i) conflict with, result
in
a breach of, constitute a default under, or violate the charter documents of
the
Company or, (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, amend, modify, cancel or refuse to perform under, or
require any notice under any agreement, contract, commitment, license, lease,
instrument or other arrangement to which either of the Seller or the Company
is
a party or by which either of them is bound; or (iii) result in the
creation of, or give any party the right to create, any lien or other rights
or
adverse interests upon any right, property or asset of the Company or the
Seller.
4.6 Securities
Laws.
The
Company Shares were issued in full compliance with all applicable laws relating
to the issuance or sale of securities, and the Seller has obtained all necessary
permits and other authorizations or orders of exemption as may be necessary
or
appropriate under all applicable laws relating to the issuance or sale of
securities with respect to the transactions contemplated herein.
4.7 No
Adverse Litigation.
The
Seller is not a party to any pending litigation, which seeks to enjoin or
restrict the Seller’s ability to sell or transfer the Company Shares hereunder,
nor is any such litigation threatened against the Seller. Furthermore, there
is
no litigation pending or threatened against the Seller, which, if decided
adversely to the Seller, could adversely affect the Seller’s ability to
consummate the transactions contemplated herein or the Purchaser’s ownership of
the Company shares.
4.8 Representations
with Respect to the Company.
(a) The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of England.
(b) The
Company does not own, directly or indirectly, any capital stock, equity or
interest in any corporation, firm, partnership, joint venture or other
entity.
(c) The
authorized capital stock of the Company consists solely of 1,000 shares of
Ordinary Shares, of which two (2) shares are issued. All of the outstanding
shares of Ordinary Shares have been duly authorized, validly issued, fully
paid
and nonassessable, and have not been issued in violation of any preemptive
right
of stockholders. There is no outstanding voting trust agreement or other
contract, agreement, arrangement, option, warrant, call, commitment or other
right of any character obligating or entitling the Company to issue, sell,
redeem or repurchase any of its securities, and, there is no outstanding
security of any kind convertible into or exchangeable for any shares of the
capital stock of the Company. The Company has not granted registration rights
to
any person.
(d) Except
as
disclosed on the balance sheet of the Company as of June 1, 2007, the Company
does not have any (a) assets of any kind or (b), commitments, liabilities or
obligations, whether secured or unsecured, accrued, determined, absolute or
contingent, asserted or unasserted or otherwise.
Exhibit
10.1 - 3
(e) The
Company has provided true, correct and accurate copies of its balance sheets,
statements of earnings, changes in holders’ equity and cash flow to the
Purchaser, all of which fairly
present the financial position of the Company and the results of earnings and
cash flow thereof, as of the dates indicated for the periods
indicated.
(f) The
Company has filed all tax returns and reports which were required to be filed
on
or prior to the date hereof in respect of all income, withholding, franchise,
payroll, excise, property, sales, use, value-added or other taxes or levies,
imposts, duties, license and registration fees, charges, assessments or
withholdings of any nature whatsoever (together, “Taxes”),
and
has paid all Taxes (and any related penalties, fines and interest) which have
become due pursuant to such returns or reports or pursuant to any assessment
which has become payable, or, to the extent its liability for any Taxes (and
any
related penalties, fines and interest) has not been fully discharged, the same
have been properly reflected as a liability on the books and records of the
Company and adequate reserves therefore have been established.
(g) There
are
no instruments, agreements, indentures, mortgages, guarantees, notes,
commitments, accommodations, letters of credit or other arrangements or
understandings, whether written or oral, to which the Company is a
party.
(h) The
Company has conducted its business in material compliance with all applicable
laws, ordinances, rules, regulations, court or administrative order, decree
or
process (“Applicable
Law”).
The
Company has not received any notice of violation or claimed violation of any
Applicable Law.
(i) There
is
no claim, dispute, action, suit, proceeding or investigation pending or, to
the
knowledge of Seller, threatened, against the Company, or challenging the
validity or propriety of the transactions contemplated by this Agreement, at
law
or in equity or admiralty or before any federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality, nor to
the
knowledge of the Seller, has any such claim, dispute, action, suit, proceeding
or investigation been pending or threatened, during the twelve month period
preceding the date hereof. There is no outstanding judgment, order, writ,
ruling, injunction, stipulation or decree of any court, arbitrator or federal,
state, local, foreign or other governmental authority, board, agency, commission
or instrumentality, against the Company. The Company has not received any
written or verbal inquiry from any federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality concerning
the possible violation of any Applicable Law.
4.9 Interested
Party Transactions.
The
Company is not indebted to the Seller or any of them or to any director, officer
or employee of the Company (except for amounts due as salaries, bonuses,
commissions and reimbursements of expenses in the ordinary course of the
Company’s business), and no such person is indebted to the
Company.
Exhibit
10.1 - 4
4.10 No
Broker.
No
broker, finder, agent or similar intermediary has acted for or on behalf of
Seller or is entitled to a fee or commission in connection with this Agreement
or the transactions contemplated hereby.
4.11 Investment
Purpose.
(a) The
Seller is acquiring the GPS Shares for investment for its own account and not
as
a nominee or agent, and not with a view to the resale or distribution of any
part thereof, and the Seller has no present intention of selling, granting
any
participation in, or otherwise distributing the same. The Seller further
represents that he does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation to such
person or to any third person, with respect to any of the GPS
Shares.
(b) The
Seller understands that the sale of the GPS Shares hereunder is not being
registered under the Securities Act of 1933, as amended (the “Securities
Act”),
on
the ground that the sale is exempt from registration under the Securities Act,
and that the Seller’s reliance on such exemption is predicated, in part, on the
Seller’s representations set forth herein. The Seller is not a “U.S.
person”
as
that
term is defined in Rule 902(k) of Regulation S under the Securities
Act.
4.12 Restricted
Securities.
The
Seller understands that the GPS Shares may not be sold, transferred, or
otherwise disposed of without registration under the Securities Act or an
exemption therefrom, and that in the absence of an effective registration
statement covering the GPS Shares or any available exemption from registration
under the Securities Act, the GPS Shares must be held indefinitely. The Seller
is aware that the GPS Shares may not be sold pursuant to Rule 144 promulgated
under the Securities Act unless all of the conditions of that Rule are met.
Among the conditions for use of Rule 144 may be the availability of current
information to the public about the Seller.
V.
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
The
Purchaser represents and warrants to the Seller that:
5.1 Organization;
Authority; Due Authorization.
The
Purchaser is duly organized, validly existing and in good standing under the
laws of the state of Nevada, and has all requisite corporate power, authority
and approvals required to enter into, execute and deliver this Agreement and
to
perform fully its obligations hereunder. The Purchaser has taken all actions
necessary to authorize it to enter into and perform fully its obligations under
this Agreement and to consummate the transactions contemplated herein. This
Agreement is the legal, valid and binding obligation of Purchaser, enforceable
in accordance with its terms.
5.2 No
Violation.
The
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein will not (a) violate, conflict with, or
constitute a default under any contract or other instrument to which the
Purchaser is a party or by which it or its property is bound, (b) require the
consent of any party to any material contract or other agreement to which
Purchaser is a party or by which it or its property is bound, or
(c) violate any laws or orders to which Purchaser or its property is
subject.
Exhibit
10.1 - 5
5.3 Capitalization.
The
authorized capital stock of Purchaser consists of (i) 1,600,000,000 shares
of
common stock, par value $0.001, of which 376,533,966 shares are outstanding
as
of the date of this Agreement and (ii) 50,000,000 shares of preferred stock,
of
which 3,124,089 shares are outstanding. The GPS Shares have been duly
authorized, validly issued, fully paid and nonassessable, and have not been
issued in violation of any preemptive right of stockholders.
5.4 No
Broker.
No
broker, finder, agent or similar intermediary has acted for or on behalf of
Purchaser or is entitled to a fee or commission in connection with this
Agreement or the transactions contemplated hereby.
VI.
COVENANT
NOT TO COMPETE
6.1 Covenant
Not to Compete.
(a) Subject
to the performance by the Purchaser of its obligations under this Agreement
and
the other agreements contemplated hereby, for a period of two years from and
after the Closing Date, Seller shall not, directly or indirectly, as a partner,
joint venturer, employer, employee, contractor, consultant, shareholder,
director, officer, trustee, principal or agent engage in, control, advise with
respect to, manage, act as a consultant to, receive any economic benefit from
or
exert any influence upon any business or businesses engaged in the business
as
conducted by the Company immediately prior to the Closing (the “Restricted
Business”),
in the
United States, the United Kingdom and the European Community; provided that
the
Seller may, without violating this covenant, become employed or otherwise
engaged by a given entity which engages in one or more businesses in addition
to
the Restricted Business, if such other businesses are separate and distinct
from
the Restricted Business and such Seller (i) is not involved in any way
whatsoever in the Restricted Business either directly or indirectly through
supervision of, administration of, or consultation to those involved in the
Restricted Business, or otherwise and (ii) prior to accepting such employment
or
engagement, notifies such entity in writing that he is subject to this covenant
not to compete, supplies a copy of such covenant to such entity and delivers
a
copy of such notice to the Purchaser; and provided further that the Seller
may,
without violating this covenant own as a passive investment not in excess of
five percent of the securities of a corporation which engages in the Restricted
Business if such securities are regularly and publicly traded on a national
securities exchange or in the over-the-counter market.
(b) Subject
to the performance by the Purchaser of its obligations under this Agreement
and
the other agreements contemplated hereby, for a period of three years from
and
after the Closing Date, Seller shall not engage or participate in any effort
or
act to solicit the Company’s or Purchaser’s clients, associates or employees to
cease doing business, or to cease their employment or association, with the
Company or the Purchaser or interfere in any manner with the contractual or
employment relationship between the Company or the Purchaser and any such
client, associate or employee of the Company or Purchaser.
Exhibit
10.1 - 6
(c) The
Seller acknowledges that the foregoing territorial and time limitations are
reasonable and properly required for the adequate protection of the Purchaser
and that in the event that any such territorial or time limitation is deemed
to
be unreasonable and is then reduced by a court of competent jurisdiction, then,
as reduced, the territorial or time limitation shall be enforced.
(d) The
Sellers acknowledge that the remedy at law for any breach or threatened breach
by them of the agreements contained in this Section 6.1 will be inadequate
and
agree that the Purchaser, in the event of such breach or threatened breach, in
addition to all other remedies available for such breach or threatened breach
(including a recovery of damages), will be entitled to obtain preliminary or
permanent injunctive relief without being required to prove actual damages
or
post bond and, to the extent permitted by applicable statutes and rules of
procedure, a temporary restraining order (or similar procedural device) upon
the
commencement of such action. This Section 6.1 constitutes an independent and
severable covenant and if any or all of the provisions of this Section 6.1
are
held to be unenforceable for any reason whatsoever, it will not in any way
invalidate or affect the remainder of this Agreement which will remain in full
force and effect. The Seller and Purchaser intend for the covenants of this
Section 6.1 to be enforceable to the maximum extent permitted by law, and if
any
reviewing court deems any such covenants to be unenforceable or invalid, the
Seller and the Purchaser authorize such court to reform the unenforceable or
invalid provisions and to impose such restrictions as reformed and the remaining
provisions as it deems reasonable.
VII.
INDEMNIFICATION
7.1 Indemnity
of the Seller.
For a
period of two (2) calendar years following the date of the Closing the Seller
shall indemnify, defend and hold harmless the Purchaser from and against, and
shall reimburse the Purchaser with respect to, all liabilities, losses, costs
and expenses, including, without limitation, reasonable attorneys’ fees and
disbursements (collectively the “Losses”)
asserted against or incurred by such Purchaser by reason of, arising out of,
or
in connection with any material breach of any representation or warranty
contained in this Agreement made by the Seller or in any document or certificate
delivered by the Seller pursuant to the provisions of this Agreement or in
connection with the transactions contemplated thereby.
7.2 Indemnity
of the Purchaser.
The
Purchaser agrees to indemnify, defend and hold harmless the Seller from and
against, and to reimburse the Seller with respect to, all liabilities, losses,
costs and expenses, including, without limitation, reasonable attorneys’ fees
and disbursements, asserted against or incurred by the Seller by reason of,
arising out of, or in connection with any material breach of any representation
or warranty contained in this Agreement or made by the Purchaser or in any
document or certificate delivered by the applicable Purchaser pursuant to the
provisions of this Agreement or in connection with the transactions contemplated
thereby.
7.3 Indemnification
Procedure.
A party
(an “Indemnified
Party”)
seeking indemnification shall give prompt notice to the other party (the
“Indemnifying
Party”)
of any
claim for indemnification arising under this Article VII. The Indemnifying
Party
shall have the right to assume and to control the defense of any such claim
with
counsel reasonably acceptable to such Indemnified Party, at the Indemnifying
Party’s own cost and expense, including the cost and expense of attorneys’ fees
and disbursements in connection with such defense, in which event the
Indemnifying Party shall not be obligated to pay the fees and disbursements
of
separate counsel for such in such action. In the event, however, that such
Indemnified Party’s legal counsel shall determine that defenses may be available
to such Indemnified Party that are different from or in addition to those
available to the Indemnifying Party, in that there could reasonably be expected
to be a conflict of interest if such Indemnifying Party and the Indemnified
Party have common counsel in any such proceeding, or if the Indemnified Party
has not assumed the defense of the action or proceedings, then such Indemnifying
Party may employ separate counsel to represent or defend such Indemnified Party,
and the Indemnifying Party shall pay the reasonable fees and disbursements
of
counsel for such Indemnified Party. No settlement of any such claim or payment
in connection with any such settlement shall be made without the prior consent
of the Indemnifying Party which consent shall not be unreasonably
withheld.
Exhibit
10.1 - 7
VIII.
DELIVERIES
8.1 Items
to be delivered to the Purchasers.
Concurrently herewith, the Seller shall deliver to the Purchaser the
following:
(a) Stock
certificates representing the Company Shares and stock powers duly executed
in
blank; and
(b) Any
other
document reasonably requested by the Purchaser that it deems necessary for
the
consummation of this transaction.
8.2 Items
to be delivered to the Seller.
Concurrently with the Seller’s deliveries to the Purchaser as set forth in
Section 8.1, the Purchaser shall pay and deliver to Seller US$200,000 cash
and
6,000,000 GPS Shares, as called for in Section 2.1.
IX.
MISCELLANEOUS
9.1 Survival
of Representations, Warranties and Agreements.
All
representations and warranties and statements made by a party to this Agreement
or in any document or certificate delivered pursuant hereto shall survive the
Closing Date for two years. Each of the parties hereto is executing and carrying
out the provisions of this Agreement in reliance upon the representations,
warranties and covenants and agreements contained in this Agreement or at the
closing of the transactions herein provided for and not upon any investigation
which it might have made or any representations, warranty, agreement, promise
or
information, written or oral, made by the other party or any other person other
than as specifically set forth herein.
9.2 Further
Assurances.
If, at
any time after the Closing, the parties shall consider or be advised that any
further deeds, assignments or assurances in law or any other things are
necessary, desirable or proper to complete the transactions contemplated herein
or to vest, perfect or confirm, of record or otherwise, the title to any
property or rights of the parties hereto, the parties agree that their proper
officers and directors shall execute and deliver all such proper deeds,
assignments and assurances in law and do all things necessary, desirable or
proper to vest, perfect or confirm title to such property or rights and
otherwise to carry out the purpose of this Agreement, and that the proper
officers and directors of the parties are fully authorized to take any and
all
such action.
Exhibit
10.1 - 8
9.3 Notice.
All
communications, notices, requests, consents or demands given or required under
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered to, or received by prepaid registered or certified mail or
recognized overnight courier addressed to, or upon receipt of a facsimile sent
to, the party for whom intended, as follows, or to such other address or
facsimile number as may be furnished by such party by notice in the manner
provided herein:
|
Attention:
|
|
|
If
to the Seller:
|
Direct
Golf Services
00
Xxxx Xxxxxxx, Xxxxxxxxxx
Xxxx
Xxxxxx XX00 0XX England
Attn:
Xxx Xxxxxx
|
|
If
to the Purchaser:
|
0000
000xx Xxxxxx, Xxxxx 000
Xxxxxx,
X.X. X0X 0X0 Xxxxxx
Attn:
Chief Executive Officer
|
|
With
a copy to:
|
Xxxxx
X. Xxxxxxxx, Esq.
Xxxx
& Xxxxx Professional Corporation
0000
Xxxxxxx Xxxx Xxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
|
9.4 Entire
Agreement.
This
Agreement and any instruments and agreements to be executed pursuant to this
Agreement, sets forth the entire understanding of the parties hereto with
respect to the Agreement’s subject matter, merges and supersedes all prior and
contemporaneous understandings with respect to its subject matter and may not
be
waived or modified, in whole or in part, except by a writing signed by each
of
the parties hereto. No waiver of any provision of this Agreement in any instance
shall be deemed to be a waiver of the same or any other provision in any other
instance. Failure of any party to enforce any provision of this Agreement shall
not be construed as a waiver of its rights under such provision.
9.5 Successors
and Assigns.
This
Agreement shall be binding upon, enforceable against and inure to the benefit
of, the parties hereto and their respective heirs, administrators, executors,
personal representatives, successors and assigns, and nothing herein is intended
to confer any right, remedy or benefit upon any other person. This Agreement
may
not be assigned by any party hereto except with the prior written consent of
the
other parties, which consent shall not be unreasonably withheld.
9.6 Governing
Law.
This
Agreement shall in all respects be governed by and construed in accordance
with
the laws of the State of Nevada applicable to agreements made and fully to
be
performed in the state, without giving effect to any conflicts of law principles
thereof
Exhibit
10.1 - 9
9.7 Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
9.8 Construction.
Headings contained in this Agreement are for convenience only and shall not
be
used in the interpretation of this Agreement. References herein to Articles,
Sections and Exhibits are to the articles, sections and exhibits, respectively,
of this Agreement. As used herein, the singular includes the plural, and the
masculine, feminine and neuter gender each includes the others where the context
so indicates.
9.9 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable by a court
of
competent jurisdiction, this Agreement shall be interpreted and enforceable
as
if such provision were severed or limited, but only to the extent necessary
to
render such provision and this Agreement enforceable.
IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement as
of
the date first set forth above.
|
SELLER:
|
PURCHASER:
|
||
|
EMMA
XXXX XXXXXX
|
GPS
INDUSTRIES INC.
|
||
|
By:
|
|||
|
Name:
|
|||
|
XXXXX
XXXX XXXXX
|
Its:
|
||
Exhibit
10.1 - 10
SCHEDULE
A
HOLDERS
OF ALL OUTSTANDING SHARES
OF
CAPITAL STOCK OF
DIRECT
GOLF SERVICES
|
Shareholder
|
Direct Golf Services
Shares Held
|
GPSI shares
|
Cash receivable
|
|||||||
|
Emma
Xxxx Xxxxxx
|
One
(1) Share
|
3,000,000
|
$
|
100,000
|
||||||
|
Xxxxx
Xxxx Xxxxx
|
One
(1) Share
|
3,000,000
|
$
|
100,000
|
||||||
Exhibit
10.1 - 11
EXHIBIT
A
FORM
OF GENERAL RELEASE OF SHAREHOLDER
This
General Release of Selling Shareholder (this “Release”)
is
being executed and delivered in accordance with Section 3.2(c) of the Stock
Purchase Agreement dated as of June 1, 2007 (the “Agreement”)
by and
among Direct Golf Services (the “Company”),
the
shareholders of the Company as listed in Schedule
A
of the
Agreement (the “Seller”),
and
GPS Industries, Inc., a Nevada corporation (the “Purchaser”).
Capitalized
terms used in this Release without definition have the respective meanings
ascribed to them in the Agreement.
Each
undersigned Seller acknowledges that execution and delivery of this Release
is a
condition to the Purchaser’s obligation to enter into the Agreement and to
consummate the transactions contemplated by the Agreement, and that the
Purchaser is relying on this Release in consummating such
transactions.
The
Seller, for good and valuable consideration the receipt and sufficiency of
which
is hereby acknowledged and intending to be legally bound, in order to induce
the
Purchaser to consummate the transactions contemplated in the Agreement, hereby
agrees as follows:
Except
as
provided below, the Seller, on behalf of himself, herself or itself and each
of
his, her or its respective family members, heirs, trustees, beneficiaries,
or
persons controlled by, controlling or under common control with such Seller
(together, “Related
Persons”),
hereby releases and forever discharges the Company and each of its joint or
mutual, past, present and future directors, officers, employees, agents,
consultants, advisors, representatives, affiliates, stockholders, controlling
persons, subsidiaries, successors and assigns (individually, a “Company
Releasee”
and
collectively, “Company
Releasees”)
from
any and all claims, demands, proceedings, causes of action, orders, obligations,
contracts, agreements, debts and other liabilities whatsoever, whether known
or
unknown, suspected or unsuspected, material or immaterial, absolute or
contingent, direct or indirect or nominally or beneficially claimed or
possessed, both at law and in equity, which the Seller or any of his, her or
its
respective Related Persons now has, have ever had or may hereafter have against
the respective Company Releasees arising contemporaneously with or prior to
the
Closing Date or on account of or arising out of any matter, cause, event, fact,
circumstance or condition occurring or arising contemporaneously with or prior
to the Closing Date and whether or not relating to claims pending on or asserted
after the Closing Date (collectively, “Liabilities”).
Notwithstanding the foregoing, this Release shall not apply to: (i) any
rights or benefits of the Seller or obligations of the Purchaser arising under
or related to the Agreement or the other documents and agreements delivered
at
the Closing or the transactions contemplated thereby, (ii) any rights to
the payment of benefits to which the Seller is entitled on or prior to the
date
of this Release under any health or medical insurance plan or employee benefit
plan maintained by the Company; and (iii) the right to receive earned and
unpaid salary from the Company through the date of this Release (which the
Seller acknowledges has been paid currently through the most recent payroll
period prior to the date hereof).
Exhibit
10.1 - 12
The
Seller hereby irrevocably covenants to refrain from, directly or indirectly,
asserting any claim or demand, or commencing, instituting or causing to be
commenced, any proceeding of any kind against any Company Releasee, based upon
any matter purported to be released hereby. In no event shall the Company
Releasees have any liability to the Seller or any of his, her or its Related
Persons whatsoever for any breaches of the representations, warranties,
agreements and covenants of the Company under the Agreement, and neither the
Seller nor any of the Company Releasees shall in any event seek contribution
from the Company Releasees for any breaches of the Company’s obligations to the
Purchaser or in respect of any other payment required to be made by the Seller
pursuant to the Agreement.
The
Seller expressly acknowledges that he, she or it has received the advice of
counsel prior to signing this Release or that he, she or it has knowingly and
freely decided to waive its right to seek such advice.
The
Seller acknowledges that he, she or it may hereafter discover facts different
from or in addition to those he, she or it now knows or believes to be true
with
respect to the matters released herein. The Selling Shareholder acknowledges
that the releases contained herein shall remain effective in all respects
notwithstanding such different or additional facts.
If
any
provision of this Release is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Release will remain in
full
force and effect. Any provision of this Release held invalid or unenforceable
only in part or degree will remain in full force and effect to the extent not
held invalid or unenforceable.
This
Release may not be changed except in a writing signed by the person(s) against
whose interest such change shall operate. This Release shall be governed by
and
construed under the laws of the State of Nevada without regard to principles
of
conflicts of law.
All
words
used in this Release will be construed to be of such gender or number as the
circumstances require.
IN
WITNESS WHEREOF, the Seller has executed and delivered this Release as of this
1st
day of
June 2007.
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EMMA
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XXXXX
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Exhibit
10.1 - 13
