EXHIBIT 10.15
SEPARATION AGREEMENT
This Separation Agreement (the "Agreement") is entered into by Divot
Golf Corporation, a Delaware corporation formerly known as Brassie Golf
Corporation ("DGC,", "Employer," or the "Company"), and XXXXXXX XXXXX, an
individual ("XXXXX" or "Employee").
BACKGROUND
X. XXXXX has been employed as DGC's Chief Executive Officer and has
been Chairman of the Company's board of directors, pursuant to an Employment
Agreement between DGC and XXXXX dated March 1, 1999, (the "Employment
Agreement").
X. XXXXX and DGC have mutually agreed to the termination of Employee's
positions with the Company, on the terms and conditions set forth below.
THEREFORE, in consideration of the promises, covenants, and conditions
set forth in this Agreement, and for other good and valuable considerations, the
receipt and sufficiency of which are acknowledged, the Company and XXXXX,
intending to be legally bound, agree as follows:
TERMS AND CONDITIONS
1. BACKGROUND. The Background set forth above is true and may be
utilized in interpreting this Agreement, if necessary.
2. TERMINATIONS OF POSITIONS. The parties agree that subject to the
terms and conditions of this Agreement:
x. XXXXX voluntary resignation as Chief Executive Office of
the Company shall be deemed accepted by DGC and effective as
of the close of business on September 1, 1999 (the
"Termination Date");
x. XXXXX voluntary resignation as Chairman and a member of the
board of directors of the Company shall be deemed accepted by
DGC and effective as of the close of business on the
Termination Date; and, therefore
c. All positions held by XXXXX as an employee, officer, and/or
director of DGC, as well as all duties, responsibilities,
covenants, and/or obligations of XXXXX resulting from and/or
relating thereto--including, without limitation, those set
forth in or arising out of the Employment Agreement--shall be
deemed to have ceased, and are hereby terminated, effective as
of the close of business on the Termination Date.
3. FINANCIAL CONSIDERATIONS.
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a. TERMS. The parties agree to the severance payments to
XXXXX, reimbursements of expenses, and other financial terms
and conditions set forth on the attached Exhibit "A" to the
fully vested in XXXXX. The consideration provided to XXXXX by
the Company as described in Exhibit "A" shall be in lieu, and
in full satisfaction, of any other profit sharing, pension,
vacation pay, expense reimbursements, or severance pay
which otherwise may have been due to Employee. (Annexed hereto
and made a part hereof as Exhibit "A" is a letter dated
September 1, 1999, wherein XXXXX agrees to accept Seventy-Five
Thousand Dollars $75,000 such as evidenced by the attached
Promissory Note due June 30, 2000, and 3,500,000 shares of
common stock to be issued immediately.)
b. INDEMNITY. Notwithstanding this or any other provisions of
this Agreement, the Indemnity Agreement DGC and XXXXX dated
March 1, 1999, shall remain in full force and effect in
accordance with its terms. Similarly, the consideration
provided to DGC by XXXXX which is described in Exhibit "A"
shall be in lieu, and in full satisfaction, of any other
reimbursement, repayment, or other obligation which otherwise
my have been due from XXXXX to the Company.
c. CONDITION PRECEDENT. This Agreement, including, without
limitation, the provisions of paragraphs 4 and 5, below, is
expressly contingent upon CRAIG's timely receipt from DGC of
the monies, in collected funds, and other consideration
described in Exhibit "A".
4. RELEASE BY EMPLOYEE. XXXXX, on behalf of himself and his heirs,
executors, attorneys, administrators and assigns, hereby completely, fully,
finally, and forever releases and discharges DGC, as well as DGC's officers,
directors and employees as of the date of execution of this Agreement,
collectively and individually (the "DGC Releasees") from any and all past,
present, or future claims, demands, complaints, actions, causes of action,
suits, judgments, executions, attachments, levies, garnishments, debts,
liabilities, profits, bonuses, reimbursements, obligations, costs, expenses,
sums of money, stock options, shares of stock, severance, profit sharing,
bonuses, salary, wages, accounts, reckonings, bonds, bills, covenants,
contracts, controversies, agreements, promises, trespasses, damages, and/or
compensation, of any nature whatsoever, at law or in equity, whether based on
contract, statute, tort, or strict liability, and whether for compensatory,
special, punitive, statutory, or any other damages or remedies ("Claims"), which
XXXXX now has or may have against the DGC Releasees, collectively or
individually, arising out of or related to any act, omission, matter, or thing
whatsoever, including without limitation, those arising out of or related to
Employee's employment by and/or serve to the Company as a director officer,
employee, or otherwise, and/or Employee's termination of employment with the
Company, and Employee waives all rights with respect thereto. However, nothing
in this provision shall release or otherwise affect any of DGC's duties or
obligations under i) this Agreement, or ii) the Indemnity Agreement between DGC
and XXXXX dated March 1, 1999, which shall remain in full force and effect in
accordance with its terms notwithstanding any term or conditions of this
Agreement, or iii) the consulting arrangement described herein or any future
agreements entered into between XXXXX and DGC.
5. RELEASE BY DGC. DGC, on behalf of itself and its officers,
directors, employees, agents, representatives and assigns hereby completely,
fully, finally, and forever releases and discharges XXXXX, as well as his heirs,
executors, attorneys, administrators and assigns, collectively and individually
(the " XXXXX Releasees") from any and all past, present, or future claims,
demands, complaints, actions, causes of action, suits, judgments, executions,
attachments, levies, garnishments, debts, liabilities, profits, bonuses,
reimbursements, obligations, costs, expenses, sums of money, stock options,
shares of stock, severance, profit sharing, bonuses, salary, wages, accounts,
reckonings, bonds, bills, covenants, contracts, controversies, agreements,
promises, trespasses, damages, and/or compensation, of any nature whatsoever, at
law or in equity, whether based on contract, statute, tort, or
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strict liability, and whether for compensatory, special, punitive, statutory, or
any other damages or remedies ("Claims"), which DGC now has or may have against
the XXXXX Releasees, collectively or individually, arising out of or related to
any act, omission, matter, or thing, whatsoever, including, without limitation,
those arising out of or related to Employee's employment by and/or service to
the Company as a director, officer, employee, or otherwise. This release also
includes DGC's agreement and obligation to expunge, revoke, or otherwise correct
any and all Form 1099s issued to XXXXX for tax years 1998 and 1999, and to
properly amend, modify, or otherwise correct all prior financial statements,
journal entries, or account statements of any kind to reflect that sums owed by
XXXXX to DGC do not exceed the amounts reflected in Exhibit "A". However,
nothing in this provision shall release or otherwise affect any of CRAIG's
duties or obligations under i) this Agreement, or ii) the Indemnity Agreement
between DGC and XXXXX dated March 1, 1999, which shall remain in full force and
effect in accordance with its terms notwithstanding any term or condition of
this Agreement, or iii) the consulting agreement described herein or any future
agreements entered into between XXXXX and DGC.
6. TAXES.
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a. TAX RESPONSIBILITY.
Each party shall be solely responsible for the payment of all
taxes which may be levied or imposed on, or due from that party arising out of
or resulting from the business transactions set forth in this Agreement.
b. INCONSISTENT POSITION.
No party shall take a position in an income tax return or
other document or communication submitted to a governmental agency which is
inconsistent with the provisions of this Agreement.
7. COOPERATION. The parties agree to cooperate with one another in the
defense of any claim that may be brought against another party of which the
cooperating party has knowledge, regardless of whether the party was involved in
the act, conduct, or event pursuant to which such claim arises. Further, the
parties agree to cooperate with one another as may be reasonably necessary for
any legitimate business purpose. After the execution of this Agreement, each
party agrees to execute and acknowledge, if required, any and all other
documents and writings that are reasonably necessary to effectuate and perfect
all the terms and conditions set forth in or imposed by this Agreement and all
Exhibits.
8. NO ADMISSIONS. Nothing in this Agreement shall operate as or be
construed as an indication, inference, presumption, admission, or as evidence
relative to any fact, issue of law, issue of liability, or any other matter on
the part of any party. Each party expressly denies any and all liability to any
other party and relative to any matters or issues addressed in, arising out of,
or related to this Agreement.
9. NONDISAGREEMENT. The parties--for themselves and all affiliated and
related companies and other persons, as well as their officers, directors,
employees, attorneys, representatives, agents, and assigns--agree that they will
not in any way disparage, damage, and/or otherwise impair the other party's
reputation, business dealings, and/or relationships with any former, current, or
prospective customers, employees, agents, business associates, investors,
lenders, and/or any other persons. This
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provision shall be broadly interpreted to include all verbal, written, or other
communication of any type or manner, as well as other acts or conduct.
10. CONFIDENTIALITY. This Agreement shall remain confidential and,
except as otherwise required by law, neither the Company nor Employee shall
disclose the terms or conditions of this Agreement to any person or entity
without the prior written consent of the other. However, this provision shall
not preclude the Company from making disclosures to the Securities and Exchange
Commission where required by law or from making disclosures as may be necessary
to comply, or demonstrate compliance, with any law, including, without
limitation, any tax or employment-related law. Nor shall this provision preclude
either party from disclosing this Agreement for any proper purposes to their
accountant or tax advisor. Similarly, nothing herein, shall preclude either
party from complying with any lawful subpoenas or court order which require
disclosure of the terms or conditions of this Agreement. If Employee becomes
aware of any disclosure or threatened disclosure of the contents of this
Agreement, the Employee shall notify the president of the Company by telephone
and facsimile within 24 hours of his becoming aware of the disclosure or
threatened disclosure. Further, either party shall give the other party
sufficient notice of any threatened judicially ordered disclosure (including a
subpoena), so that the other party may take whatever actions it deems
appropriate to protect the confidentiality of the Agreement, including, without
limitation, the entry of a protective order.
11. SPECIFIC PERFORMANCE. The parties acknowledge that the performance
of their respective obligations under the Agreement is essential to the
consummation of the transactions contemplated by the Agreement. Each of them
further acknowledge that no party will have an adequate remedy at law if any
other party fails to perform its or their obligations under the Agreement. In
such event, each party shall have the right to compel specific performance of
this Agreement. Further, notwithstanding any other provision of this Agreement,
the parties do not waive their right to, and shall be entitled to, any other
remedy at law or equity for a violation of this Agreement including damages.
12. AVOIDANCE OF PAYMENT. If, as a result of the filing of a bankruptcy
petition or other legal proceeding, or any order or ruling therein, or any
statute, regulation, rule, or other law or requirement, or for any other reason,
this Agreement or any of the Company's obligations to Employee hereunder become
unenforceable, or any money or property delivered by Company as consideration
for Employee's obligations hereunder is subsequently avoided in a legal
proceeding or for any other reason cannot be retained lawfully by Employee, then
the release set forth in paragraph 4 of this Agreement shall be void and the
Employee may commence and/or maintain any legal or other action that he may have
had against Employer or otherwise, prior to the effective date of this
Agreement, as well pursue a claim for breach of this Agreement. In the event the
consideration under this Agreement is avoided in a bankruptcy proceeding, the
Company agrees the Employee shall have a post-petition administrative claim to
the extent of any consideration avoided, provided, the payment, in full, of such
an administrative claim will operate to restore the release set forth in
paragraph 4, above. Any statute of limitations period and/or any other time
limitation relating to Employee's right to bring, maintain, or recover on, any
claim subject to the release set forth in paragraph 4 above is hereby tolled
until 5:00 p.m. on the tenth business day after one calendar year from the date
on which any and all charges, claims, or appeals which may affect the
consideration due Employee under this Agreement are legally and finally
determined and resolved in a manner which is binding on the parties and all
others with standing with respect thereto.
13. TIME OF ESSENCE. All times and dates in this Agreement shall be of
the essence.
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14. NOTICES. Any notice or other communication required or permitted to
be given under this Agreement shall be sufficient if in writing, and if hand
delivered, sent by Federal Express or comparable overnight courier, or sent by
registered or certified mail, return receipt requested, to the address of each
party shown below, or to such other address as a party may designate in writing
in accordance with the provisions of this paragraph.
15. ENTIRE AGREEMENT. This Agreement and its exhibits represents the
entire agreement of the parties with respect to the matters set forth herein.
Correspondence, memoranda, notes, discussions, representations, or agreements,
whether written or oral, originating before the date of this Agreement are
replaced in total by this Agreement, except as provided in the succeeding
sentence. Notwithstanding the execution of this Agreement or any terms,
conditions, or other provisions hereof, the Indemnity Agreement between DGC and
XXXXX dated March 1, 1999, shall remain in full force and effect in accordance
with its terms.
16. AMENDMENT. This Agreement may be amended only by a writing signed
by all parties.
17. SEVERABILITY. If any part of this Agreement is determined to be
illegal or unenforceable, all other parts shall be given effect separately and
shall not be affected.
18. NONWAIVER. No assent or waiver, express or implied, of any breach
of any one or more of the covenants, conditions or provisions of this Agreement
shall be deemed a waiver of any subsequent breach, or a waiver of any other
covenant, condition or provision of this Agreement.
19. EXHIBITS. Each Exhibit to this document is an integral part of, and
is incorporated into this Agreement by this reference.
20. INTERPRETATION. Whenever the context of this Agreement so requires,
the masculine, feminine, and/or neuter gender, and the singular or plural
number, shall each include the others. Additionally, titles and headings of the
various sections of this Agreement are intended solely for convenience of
reference and are not intended to explain, modify or place any interpretation
upon any of the provisions of this Agreement. This Agreement and any related
instruments shall not be construed more strictly against any party regardless of
who was more responsible for its preparation, it being recognized that this
Agreement and any related instruments are the product of extensive negotiations
between the parties and that all parties have contributed substantially and
materially to the final preparation of this Agreement.
21. ATTORNEYS' FEES. In the event of litigation arising out of or
relating to this Agreement, the prevailing party shall be entitled to recover
from the other party all reasonable costs and expenses of such litigation,
including reasonable attorneys' fees and costs of appeal. The term "attorneys'
fees" shall include, but not be limited to, fees incurred by attorneys,
paralegals, or other staff members operating under the supervision of an
attorney.
22. GOVERNING LAW, VENUE AND JURISDICTION. This Agreement shall be
construed in accordance with Florida law. The parties agree that personal
jurisdiction over them shall be proper, and conclusive venue for any action
arising out of or related to this Agreement shall be in the Circuit Xxxx of
Hillsborough County, Florida.
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23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an
original, but each counterpart shall together constitute one and the same
instrument. A facsimile copy of this Agreement and any signatures hereon shall
be considered for all purposes as originals.
24. EXECUTORY AND CONDITION SUBSEQUENT. All provisions which involve
obligations which must or may be performed subsequent to the execution of this
Agreement, are otherwise executory, or involve conditions subsequent, shall
survive the execution of this document, closing of any and all transactions set
forth herein, and thereafter shall continue to bind the parties in accordance
with their terms.
25. BINDING EFFECT. This Agreement shall be binding upon the parties
and their respective heirs, devisees, legal representatives, personal
representatives, successors, and assigns.
THE UNDERSIGNED BEING DULY AUTHORIZED TO EXECUTE THIS INSTRUMENT, HAVE
CAREFULLY READ THE FOREGOING AGREEMENT, FULLY UNDERSTAND IT, HAVE RECEIVED THE
ADVICE OF AN ATTORNEY REGARDING THIS MATTER (OR, AFTER BEING ADVISED TO SEEK
COUNSEL, HAVE DECLINED TO DO SO), AND HAVE KNOWINGLY AND VOLUNTARILY ENTERED
INTO THIS AGREEMENT INTENDING TO BE LEGALLY BOUND.
DIVOT GOLD CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
_______________________________ _______________________
XXXXXX X. XXXXXXX XXXXXXX XXXXX
Its: Chief Execute Office
Date: 2/10/00 Date: September 1, 1999
_____________________________
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Exhibit A
Xxx Xxxxx
000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
September 1, 1999
Xxx Xxxxxxx
0000 Xxxxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Subject: Resignation
Dear Xxx Xxxxxxx:
This letter represents our Agreement regarding the terms of my resignation from
Divot Golf Corporation ("Divot") as President and as a member of the Board of
Directors.
It is understood and agreed as follows:
1. Divot will execute a note in my behalf in the amount of
$75,000 due and payable June 30, 2000.
2. Divot will deliver to me or my directive 3,500,000 shares of
non-restricted common stock.
Sincerely,
/s/ Xxx Xxxxx
Xxx Xxxxx
PROMISSORY NOTE
Principal Amount: New York, NY
$75,000.00 February 10, 2000
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FOR VALUE RECEIVED, the undersigned, Divot Golf Corporation
("Borrower"), a Delaware corporation, promises to pay to the order of XXXXXXX
XXXXX ("Lender"), in lawful money of the United States of America, the principal
sum of Seventy Five Thousand and No/100 Dollars ($75,000.00) (the "Principal
Sum").
1. REPAYMENT OF PRINCIPAL SUM: The Principal Sum shall be due and
payable in one (1) installment of Seventy Five Thousand and No/100 Dollars
($75,000.00) on or before June 30, 2000 (the "Maturity Date") (unless this Note
is converted by the Lender in accordance with Section 4 below). If the Maturity
Date should fall on a weekend or national holiday, payment shall be due on the
following business day.
2. INTEREST: Interest shall not accrue on the Principal Sum during the
term hereof. However, should the Borrower fail to repay the Principal Sum in
full on or before the Maturity Date, or otherwise default under the terms of
this Note, interest shall apply on the entire amount of the unpaid Principal Sum
at the rate of twelve percent (12%) per annum. Such interest on the unpaid
Principal Sum shall be calculated as of the date set forth above, and shall
continue to accrue until the Principal Sum and the accumulated interest are paid
in full. Interest on this Note shall be computed on the basis of the actual
number of days elapsed during which the unpaid Principal Sum is outstanding,
divided by a year of three hundred sixty-five (365) days. All payments under
this Note shall be applied first to the payment of accrued and unpaid interest
with the remainder applied to the unpaid Principal Sum in inverse chronological
order.
3. USE OF PROCEEDS: Borrower hereby agrees that the proceeds obtained
from the Lender as represented by this Note shall be applied towards the
settlement of an employment contract.
4. CONVERSION: At the option of the Lender, all principal and interest
represented by this Note shall convert into fully paid and non-
assessable shares of the common stock of the Borrower at the price (the
"Conversion Price") of Twenty Five Cents ($.25) per share. This Note may be
converted in full by the Lender by surrender of this Note with a Subscription
Agreement duly executed by the Lender to the Borrower. Such conversion shall be
deemed to have been effected immediately prior to the close of business on the
date on which this Note shall have been so surrendered to the Borrower; and at
such time the rights of the Lender shall, to the extent of the principal amount
thereof converted, cease, and the person or persons in whose name or names any
certificate or certificates for Common Stock (or other securities) shall be
issuable upon such conversion shall be deemed to have become the holder or
holders of record thereof.
5. REPRESENTATIONS AND WARRANTIES OF BORROWER: Borrower represents and
warrants that:
(a) Borrower is a corporation duly organized and existing under the
laws of the state of Delaware. It has the power to own its
property and to carry on its business as it is now being
conducted;
(b) Borrower has full power and authority (corporate and other) to
borrow the sums provided for in this Note, to execute and
deliver this Note and any other instrument or agreement
required under this Note, and to perform and observe the terms
and provisions of this Note and of all such other notes,
instruments, and agreements;
(c) The officers of Borrower executing this Note are duly and
properly in office and fully authorized to execute it; and
(d) This Note has been duly authorized, executed, and delivered by
Borrower, and is a legal, valid, and binding agreement of
Borrower, enforceable against it in accordance with its terms,
and any other instrument or agreement required under this Note
has been so authorized and, when executed and delivered, will
be similarly valid, binding, and enforceable.
6. EVENTS OF DEFAULT: The occurrence of any of the events set out below
(Events of Default) shall, at the option of the Lender, make all interest and
principal remaining on due under this Note immediately due and payable, without
notice of default, presentment or demand for payment,
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protest or notice of nonpayment or dishonor, or other notices or demands of any
kind, except as specified herein:
(a) Borrower shall fail to pay, within ten (10) days after the date
when due, any payment of principal in accordance with the terms
of this Note;
(b) Any representation or warranty by Borrower in this Note or in
any agreement, instrument, or certificate executed under this
Note shall prove to have been false or misleading in any
material respect when made;
(c) Borrower shall file any petition or action for relief under any
bankruptcy, arrangement, reorganization, insolvency, or
moratorium law, or any other law or laws for the relief of or
relating to debtors, or shall, with respect to any involuntary
petition or action for relief under such law or laws, consent
or fail to timely object to the relief requested in such
petition;
(d) an involuntary petition shall be filed under any bankruptcy
statute against Borrower, or a receiver, trustee, custodian, or
similar officer of the court shall be appointed to take
possession of all or any substantial part of Borrower's
properties, unless such petition or appointment is dismissed or
withdrawn or ceases to be in effect within sixty (60) days from
the date of the filing or appointment.
7. NOTICES: Any communications between the parties or notices provided
for in this Note may be given by mailing them, first class, postage prepaid,
to Lender at ____________________________________________________, and to
Borrower at _______________________________________, or to such other address
as either party may indicate to the other in writing after the date of this
Note.
8. ASSIGNMENT: This Note shall bind and inure to the benefit of the
parties and their respective successors and assigns; provided, however, that
Borrower shall not assign this Note or any of the rights, duties, or obligations
of Borrower under this Note without the prior written consent of Lender.
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9. NO WAIVER: No delay or omission to exercise any right, power, or
remedy accruing to Lender on any breach or default of Borrower under this Note
shall impair any such right, power, or remedy of Lender, nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence in
such breach or default, or waiver of or acquiescence in any similar breach or
default occurring later; nor shall any waiver of any single breach or default be
considered a waiver of any other prior or subsequent breach or default. Any
waiver, permit, consent, or approval of any kind by Lender of any breach or
default under this Note, or any waiver by Lender of any provision or condition
of this Note, must be in writing and shall be effective only to the extent
specifically set forth in that writing. All remedies, either under this Note or
by law or otherwise afforded to Lender, shall be cumulative and not alternative.
10. ATTORNEY'S FEES: In the event of any legal action or suit in
relation to this Note or any note or other instrument or agreement required
under this Note, or in the event that Lender incurs any legal expense in
protecting its rights under this Note or under any security agreement in any
legal proceeding, Borrower, in addition to all other sums which Borrower may be
called on to pay, will pay to Lender the amount of such legal expense and will,
if Lender prevails in such action, pay to Lender a reasonable sum for its
attorney's fees and all other costs and expenses.
11. GOVERNING LAW: This Note shall be interpreted under the laws of the
United States and the State of New York, without giving effect to the conflict
of law principles thereof. Any dispute arising from this Note or the loan
represented thereby shall be subject to the sole jurisdiction of the courts of
the State of New York.
DIVOT GOLF CORPORATION
a Delaware Corporation
By: /s/ Xxxxxx X. Xxxxxxx
__________________________
Name: Xxxxxx X. Xxxxxxx
________________________
Title: Chairman & CEO
_______________________
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