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EXHIBIT 10.64
CROSS CREEK/BRASSIE STOCK 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 XXXXX XxXXXXX, presently residing at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxx 00000, hereinafter referred to as "XxXXXXX".
W I T N E S S E T H:
WHEREAS while previously serving as an officer and member of the Board
of Directors of the CORPORATION, XxXXXXX was involved, on behalf of the
CORPORATION, in the Cross Creek Golf Course Development project, hereinafter
referred to as "Cross Creek' and in doing so, was involved in authorizing the
expenditure of Thirty-Five Thousand and No/100 Dollars ($35,000.00) of the
CORPORATION'S funds in order to provide for engineering studies in furtherance
of "Cross Creek" and,
WHEREAS the CORPORATION is no longer involved in the development of
Cross Creek and XxXXXXX has represented that the CORPORATION will recover the
Thirty-Five Thousand Dollars ($35,000.00) previously expended for the
engineering costs described hereinabove on or before May 15, 1998;
WHEREAS, XxXXXXX presently owns at least 100,000 shares of common stock
in the CORPORATION which may be pledged in part to secure the repayment to the
CORPORATION of the Thirty-Five Thousand Dollars ($35,000.00) described above.
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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 incorporated
by reference.
2. XxXXXXX hereby guarantees to the CORPORATION that on or before May
15, 1998, the CORPORATION will receive a return or repayment of the Thirty-Five
Thousand Dollars ($35,000.00) described above from some or any source whether or
not directly attributable to XxXXXXX; provided however that the enforcement of
this guaranty shall be limited to the rights contained in Paragraph 5 hereof.
3. That to secure the performance of the guaranty contained in
Paragraph 2 above, XxXXXXX agrees to pledge One Hundred Thousand (100,000)
shares of common stock which XxXXXXX owns in his individual capacity in the
CORPORATION and further agrees that so long as this Agreement shall remain in
effect, XxXXXXX will not otherwise sell, assign, transfer, pledge, mortgage,
alienate, hypothecate, or in any way encumber or dispose of said One Hundred
Thousand (100,000) shares of common stock of the CORPORATION, except as herein
provided. XxXXXXX represents and warrants that none of the 100,000 common shares
described herein have heretofore been sold, assigned, transferred, pledged,
mortgaged, alienated, hypothecate, or that he has otherwise encumbered or
disposed of said shares in any manner prior to the date hereof.
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4. The CORPORATION agrees that it will consent to a removal of the
presently existing SEC regulation 144 restrictions from the remaining 728,260
shares of common stock presently owned by XxXXXXX and the CORPORATION shall at
the request of XxXXXXX cause its counsel to issue an opinion that such stock is
free and clear of those restrictions to the extent required to allow the shares
to be freely traded.
5. If on May 15, 1998, the CORPORATION shall not have been paid or
repaid the Thirty-Five Thousand Dollars ($35,000.00) engineering fee described
above, XxXXXXX shall at his option either pay to the CORPORATION the sum of
Thirty-Five Thousand Dollars ($35,000.00) in cash or its equivalent or transfer
and deliver the One Hundred Thousand (100,000) shares, including 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 on or before May 15, 1999.
6. That not less than ten (10) days prior to May 15, 1998, XxXXXXX will
notify the CORPORATION by Certified Mail, at its principal place of business,
whether he shall satisfy his obligation pursuant to this Agreement by payment of
the Thirty-Five Thousand Dollars ($35,000.00) as previously described in
Paragraph 1 or by transfer to the CORPORATION of the 100,000 shares of common
stock as described in Paragraph 3 above.
7. At the execution and delivery of this Agreement, XxXXXXX shall
execute and deliver to the CORPORATION the resignation attached as Exhibit "A"
and the General Release attached as
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Exhibit "B" and the CORPORATION shall execute and deliver to XxXXXXX the
Indemnification Agreement attached as Exhibit "C".
8. This Agreement shall be binding on and inure to the benefit of the
CORPORATION and XxXXXXX and their respective heirs, executors, administrators,
legal representatives, successors, and assigns, subject to the restriction on
transfer as set out in Paragraph 3 of this Agreement.
9. 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 XxXXXXX.
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 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.
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E. If all or any all 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/
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By: /s/ Xxxxxx X. Xxxxxxx
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/s/ Xxxxxx X. Xxxxxxx
---------------------------------- Its: President
/s/ /s/ Xxxxx XxXxxxx
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XXXXX XxXXXXX
/s/
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GENERAL RELEASE
KNOW ALL MEN BY THESE PRESENTS THAT: XXXXX XxXXXXX, (hereinafter
"XxXxxxx"), 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 XxXxxxx ever had, now has, or which any personal
representative, successor, heir or assignee of XxXxxxx hereafter can, shall, or
may have, against the Released Parties, for, upon, or by reason of XxXxxxx'x
employment with Brassie or an other of the Released Parties, including, but not
limited to, relief in any administrative proceedings or plenary action injuries
suffered to
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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 Brassie 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. I further acknowledge that, except as specifically provided in
that certain "Cross Creek" 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 WITNESS WHEREOF, we have hereunto set our hands and seals effective
this 13th day of November, 1997.
Signed, sealed and delivered
in the presence of:
/s/ Xxxx X. Xxxx By: /s/ Xxxxx XxXxxxx
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Signature of Witness #1 Xxxxx XxXxxxx
Xxxx X. Xxxx
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Typed or printed name of
Witness #1
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/s/ Xxxxx X. Xxxxxxx
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Signature of Witness #2
Xxxxx X. Xxxxxxx
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Typed or printed name of
Witness #2
STATE OF FLORIDA
COUNTY OF POLK
The foregoing instrument was acknowledged before me this 13th day of
November, 1997, by Xxxxx XxXxxxx, who is personally known to me or who has
produced __________________________________ (type of identification) as
identification.
/s/ Xxxx X. Xxxx
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Signature of Personal Taking
Acknowledgment
Xxxx X. Xxxx
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Name of Acknowledger Typed,
Printed or Stamped
(NOTARY SEAL)
Xxxxxx Xxxxxx Xxxxx xx Xxxxxxx
XX000000
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Notarial Serial Number
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November 13, 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,
/s/ Xxxxx XxXxxxx
Xxxxx XxXxxxx
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EXHIBIT "B"
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 XXXXX XxXXXXX ("XxXxxxx").
Background
XxXxxxx 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
XxXxxxx has resigned in all capacities in exchange for which Brassie hereby
agrees to indemnify him and hold him harmless from liability associated with his
service in such capacities for Brassie to the maximum extent permitted by law.
A majority of the disinterested directors of Brassie have approved the
execution of this Agreement at a meeting of the directors called for that
purpose on November 10, 1997.
1. In consideration of the service of XxXxxxx to Brassie, and subject
to the terms of this Agreement, Brassie hereby agrees to indemnify and hold
XxXxxxx 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 Brassie or his actions while
performing in any such capacity, all so long as XxXxxxx acted in good faith and
in a manner he reasonably believed to be in the best interests of Brassie.
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b. Any amount paid in settlement of any claim or demand based upon
the service or action described in Section 1(a) above.
c. Any reasonable advancement, cost and expense associated with
defending or opposing any claim of demand described in Section 1(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, Brassie hereby remises, releases,
and forever discharges, XxXxxxx 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 XxXxxxx arising out 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 Brassie or his actions while performing in any such capacity,
including, without limitation, the development or exploitation of any business
concept or idea, whether fully or partially developed while XxXxxxx
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was performing in any such capacity, from the beginning of the world to the date
of the date of these presents.
3. The foregoing indemnification and release shall not apply to any
claim or demand for any act which XxXxxxx:
a. did not act in good faith;
b. was opposed to the best interests of Brassie;
c. which constituted a criminal act, unless XxXxxxx had no
reasonable cause to believe that such act was unlawful;
d. engaged in willful misconduct or conscious disregard for the best
interest of Brassie; 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 Brassie only as authorized in the
specific case upon a determination that indemnification of XxXxxxx 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
c. By the Shareholders by a majority vote of a quorum consisting of
shareholders who were not parties to any such
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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 XxXxxxx determines that he is entitled to
indemnification under Section 1 of this Agreement, he shall give Brassie written
notice of his demand for indemnification, with sufficient documentation, to the
extent available to XxXxxxx, to enable Brassie to determine whether or not the
claim is barred by the application of Section 3 of this Agreement. If Brassie
determines that the right to indemnification for the claim is barred by the
operation of Section 3 of this Agreement, it shall give XxXxxxx written notice
of such objection ("Objection to Claim") within twenty (20) days of the date of
the demand by XxXxxxx 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 Brassie makes the Objection to Claim timely, XxXxxxx, 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 indemnification for the
claim is not barred by Section 3, XxXxxxx shall be entitled to the
indemnification provided in Section 1.
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7. As a condition precedent to the indemnification provisions contained
in paragraph 1 above, XxXxxxx shall be obligated to follow the following
procedure: Upon receiving any communication placing XxXxxxx 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, XxXxxxx shall communicate same to Brassie (and, in the case of any
written communication, immediately provide a copy of same to Brassie). XxXxxxx
shall not thereafter offer to compromise or settle any such claim without
Brassie'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 flied against XxXxxxx, Brassie shall have the right, but not
the obligation, to: (1) provide counsel of Brassie's choice to XxXxxxx, for
which Brassie will bear all costs and expenses (subject to XxXxxxx'x obligation
to reimburse same if a decision is made that XxXxxxx'x actions were not subject
to indemnification by Brassie hereunder); or (2) assume the cost of XxXxxxx'x
defense by counsel of XxXxxxx'x choosing (once again, subject to a reservation
of rights and XxXxxxx'x obligation to reimburse as provided above). In the event
Brassie does not notify XxXxxxx of its desire to select either of the options
described above, XxXxxxx shall retain its own counsel, and pay for same, subject
to the indemnification rights contained herein. Consistent with the above,
XxXxxxx shall not offer to compromise or settle any lawsuit without Brassie's
prior written
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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.
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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
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxx Its: President
--------------------------------- ----------------------------------------
Xxxx X. Xxxx
--------------------------------- ----------------------------------------
(Type or Print Name) (Type or Print Address)
/s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx
----------------------------------
(Type or Print Name)
Signed in the presence of:
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XXXXX XXXXXXX
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(Type or Print Address)
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(Type or Print Name)
----------------------------------
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(Type or Print Name)
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