EXHIBIT 10.1
Xxxxxxx Settlement Agreement
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AMENDED AND RESTATED SETTLEMENT AGREEMENT
This Amended and Restated Settlement Agreement ("Agreement") is entered
into on this 10th day of March, 2000, by and between Divot Golf Corporation
("Divot") a Delaware corporation, and Xxxxxx Xxxxxxx, ("Claimant"), a resident
of the State of New York.
RECITALS
I. WHEREAS, Claimant has a contractual claim or claims against Divot
for damages stemming from the failure of the Divot Board of Directors
to timely issue common shares of Divot for which the Claimant had paid
(the "Claim");
II. WHEREAS, this Agreement is intended to supersede and render void
all previous discussions and agreements concerning the settlement of the
Claim;
III. WHEREAS, Divot is willing to issue to Claimant six million (6,000,000)
shares of Divot common stock, which the parties agree is in excess of the
amount of shares to which Claimant was originally entitled in settlement
of the Claim, and Claimant is willing to accept such common stock in
consideration for a complete discharge of Divot of any liability
associated with the Claim, all in accordance with the terms and conditions
of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants of the parties as
set forth herein, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
AGREEMENTS
1. Issuance of Shares: As soon as practicable following the execution of this
Agreement, Divot shall cause 6,000,000 shares of its common stock, .001
par value, to be issued to Claimant in settlement of the Claim (the
"Settlement Shares"), which represent the shares to which Claimant was
entitled to receive. When so issued, the Settlement Shares shall be fully
paid and non-assessable, and shall be represented by a certificate or
certificates in a form standardized by Divot for representation of its
shares.
2. Acceptance of Shares and Release: Claimant shall accept the Settlement
Shares in full and complete satisfaction of any amounts collectible by
Claimant under the Claim, and in full settlement of any additional claim
Claimant may have against Divot as of the date of this Agreement,
even though such additional claim may be unanticipated, unexpected,
and unknown. In consideration of the issuance of the Settlement
Shares, Claimant shall release and forever discharge Divot, its
successors, officers, administrators, and assigns, from and against
any and all claims, charges, complaints, demands, actions or causes of
action of any kind in any forum, which Claimant may have against Divot as
of the date of this Agreement.
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3. Entire Agreement: This Agreement constitutes the entire agreement
between the parties hereto, and supersedes and renders void all
prior and contemporaneous agreements, arrangements, negotiations, and
understandings between the parties hereto relating to the subject
matter hereof. There are no other understandings, statements,
promises or inducements, oral or otherwise, contrary to the terms of this
Agreement. No representations, warranties, covenants, or conditions,
express or implied, whether by statute or otherwise, other than as set
forth herein have been made by any party hereto..
4. No Admission of Liability: The parties agree that nothing contained in
this Agreement shall constitute or be treated as an admission of liability
or wrongdoing by any party or its heirs, executors, administrators,
attorneys, successors, agents, or assigns.
5. Confidentiality: Neither the parties to this Agreement nor their attorneys
shall disclose or publicize, either to the media, the courts, or any other
third party, informally or in any way, the terms of the settlement set
forth herein, unless required by this Agreement or otherwise by law.
6. Disclaimer: Each party has: (i) carefully read this Settlement Agreement
and Release, together with the exhibits attached hereto; (ii) has
discussed its legal effects with their respective attorneys; (iii) fully
understands the contents hereof; and (iv) executes the same of their own
free will and accord without duress, coercion, or undue influence. Each
party agrees that this Agreement shall be binding upon their respective
successors, heirs, personal representatives, and assigns.
7. Binding Agreement: This Agreement shall be binding upon and inure to
the benefit of each of the parties hereto and their respective heirs,
executors, administrators, successors, and assigns. It shall be
construed and enforced in accordance with the laws of the State of New
York.
8. Counterparts: This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
9. Titles and Captions: All article and section titles or captions in this
Agreement are for convenience only. They shall not be deemed a part of
this Agreement, and in no way define, limit, extend, or describe the scope
or intent of any of its provisions. The recital clauses set forth in this
Agreement are hereby incorporated into and are made a part of this
Agreement.
10. Amendments: No supplement, modification, or amendment of any term,
provision, or condition of this Agreement shall be binding or enforceable
unless executed in writing by the party against whom enforcement is sought
as to such supplementary or modified or amended term or condition.
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11. Waiver: No waiver of any term, provision, or condition of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be
deemed to be, or shall constitute, a waiver of any other provision hereof,
whether or not similar, nor shall any such waiver constitute a continuing
waiver, and no waiver shall be binding unless executed by the party making
such waiver.
12. Further Documents: Each party hereto further agrees to execute such
documents and take such other steps as may be necessary to accomplish the
purposes herein.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first set forth above.
DIVOT GOLF CORPORATION CLAIMANT (Xxxxxx Xxxxxxx)
By: ___________________________ By_______________________
Name: Xxxxxx X. Xxxxxxx
Title: Chairman and C.E.O.
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