EXHIBIT 10.16
SETTLEMENT AGREEMENT AND GENERAL RELEASE
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THIS SETTLEMENT AGREEMENT AND RELEASE (hereinafter referred to as "the
Agreement") is made and entered into as of January 31st, 2000 by and among
DIVOT GOLF CORPORTION, ("Divot") a Delaware corporation, and XXXXXXXX X. XXXXXXX
("Xxxxxxx") an individual and resident of the State of Florida, both of whom
collectively shall hereinafter be referred to as the "Parties."
R E C I T A L S:
A. WHEREAS, Xxxxxxx was and is employed by Divot pursuant to that certain
Employment Agreement dated September 2, 1997 (the "Employment
Agreement");
B. WHEREAS, Divot desires to terminate Xxxxxxx'x employment with Divot,
and Xxxxxxx has agreed to such termination, and to fully and completely
release Divot from any and all liability associated with Xxxxxxx'x
employment and the termination thereof, in consideration of the
covenants of Divot as set forth in this Agreement;
C. WHEREAS, Divot has agreed to pay to Xxxxxxx, and Xxxxxxx has agreed to
accept, the sum of One Hundred Thousand Dollars ($100,000.00) in cash,
and 5,300,000 shares of Divot common stock, in full and complete
satisfaction of all debts, obligations, and existing and potential
claims and causes of action Xxxxxxx may have against Divot as a result
of or arising out of Divot's employment of Xxxxxxx, the termination of
that employment, the Employment Agreement, and any other agreement
between Xxxxxxx and Divot.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in consideration of the mutual covenants and
agreements contained herein, the Parties hereby agree as follows:
A G R E E M E N T S:
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1. COVENANTS OF DIVOT: Divot does hereby agree to the following:
(a) CASH PAYMENT: Within ninety (90) days following the execution of
this Agreement, Divot shall pay to Xxxxxxx the sum of $100,000
(the "Cash Payment as evidenced by the Promissory Note of this
date.").
(b) ISSUANCE OF SHARES TO XXXXXXX: Within thirty (30) days following
the execution of this Agreement, Divot shall issue to Xxxxxxx
5,300,000 fully paid and non-assessable shares (the "Shares") of
its Common Stock, .001 par value, which shares shall be evidenced
by a Divot standard stock certificate issued in the name of
Xxxxxxx. As to the Shares, Xxxxxxx shall be granted all the rights
and privileges afforded to other stockholders of Divot.
Additionally, the Shares issued will provide for demand
registration rights and piggyback registration rights.
(i) SHARES TO BE INCLUDED IN REGISTRATION STATEMENT: Divot
shall cause the Shares to be listed in the earlier filing
of the Form S-8 or Form SB-2 Registration Statement that
Divot is preparing to file with the Securities and
Exchange Commission concurrently with the execution of
this Agreement. Upon the successful filing of the S-8 or
Registration Statement, the Shares shall be registered
(such that the Shares issued to Xxxxxxx shall become
freely tradable to the public).
2. COVENANTS OF XXXXXXX: By execution hereof, Xxxxxxx agrees to accept the
Cash Payment and the Shares in full and complete satisfaction of any
and all potential claims against Divot which Xxxxxxx may have that
arise by virtue of Divot's employment of Xxxxxxx, Divot's actions
and/or inactions associated with Xxxxxxx'x employment, the termination
of Xxxxxxx'x employment, the Employment Agreement, and any other
agreement between Divot and Xxxxxxx. Xxxxxxx further agrees to the
following:
(a) RELEASE: Upon payment of Cash and delivery of Shares, Xxxxxxx, and
all his heirs, beneficiaries, settlors, trustees, and personal
representatives, and anyone else claiming under or through Xxxxxxx
does hereby release and forever discharge Divot, including its
successors, officers, administrators, attorneys, agents, and
assigns, and anyone else acting by or through Divot, from and
against any and all claims, charges, complaints, demands, actions
or causes of action of any kind in any federal, state, or other
court, arbitral forum, or federal, state, or other administrative
agency, whether known or not now known, which Xxxxxxx may have
against Divot in connection with or arising from Divot's
employment of Xxxxxxx, Divot's actions and/or inactions associated
with Xxxxxxx'x employment, the termination of Xxxxxxx'x
employment, the Employment Agreement, and any other agreement
between Divot and Xxxxxxx.
(i) FUTURE DAMAGES: Inasmuch as the injuries, damages, and losses
resulting from the matters described herein may not be fully
known and may be more numerous or more serious than it is now
understood or expected, Xxxxxxx agrees, as a further
consideration of this Agreement, that this Release applies to
any and all injuries, damages, and losses resulting from
Divot's employment of Xxxxxxx, Divot's actions and/or
inactions associated with Xxxxxxx'x employment, the
termination of Xxxxxxx'x employment, the Employment
Agreement, and any other agreement between Divot and Xxxxxxx,
even though now unanticipated, unexpected, and unknown.
(b) REPRESENTATIONS: Xxxxxxx represents that no additional claims are
contemplated against any other party potentially liable for the
losses, damages,
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and injuries for which this Release is given. In the event any
additional claim is made which directly or indirectly results in
additional liability exposure to Divot for the losses, injuries,
and damages for which this Release is given, Xxxxxxx covenants and
agrees to indemnify and save Divot harmless from all such claims
and demands, including reasonable attorney's fees and all other
expenses necessarily incurred.
3. COVENANTS COMMON TO BOTH PARTIES:
(a) 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.
(b) 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.
(c) 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.
4. ENTIRE AGREEMENT: This Agreement contains the entire agreement among
the parties relating to the subject matter of this Agreement,
supersedes any and all oral or written understandings or agreements
relating to its subject matter, and may not be altered or amended
except by an instrument in writing signed by the party or parties to be
charged.
5. 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.
6. NOTICES: Any notices required by this Agreement shall be sent to the
Party's address as follows: (i) IF TO DIVOT: Xxx Xxxxx Xxxxxx Xxxxx,
Xxxxx 00-X, Xxx Xxxx, XX 00000; (ii) IF TO XXXXXXX: 00000 Xxxxxxxxx
Xxxxx, Xxxxx, Xxxxxxx 00000.
7. 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.
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8. SIGNATURE BY FACSIMILE: The parties agree that this Agreement will be
considered signed when the signature of a party is delivered by
facsimile transmission. Such facsimile signature shall be treated in
all respects as having the same effect as an original signature.
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.
11. ENTIRE AGREEMENT AND WAIVER: This Agreement constitutes the entire
agreement between the parties hereto, and supersedes 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. 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.
13. INDEMNITY: The parties agree that the Indemnity Agreement dated
August 1, 1997 by and between both parties shall continue in full force
and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first set forth above.
DIVOT GOLF CORPORATION XXXXXXXX X. XXXXXXX
A Delaware Corporation
By: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx Xxxxxxxx X. Xxxxxxx
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