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EXHIBIT 10.12
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement" ) is made this 28th day of
October, 1999 by and between Xxxxxxx Hills Ltd., a Utah corporation (the
"Company"), having an office at 00 X. Xx. Xxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000
and Xxxxxxxx Xxxxxx ("Xxxxxx") residing at 000 Xxxxx Xxxxx Xxxxx, Xxxxxxxx, XX
00000.
WITNESSETH
WHEREAS, on May 19, 1999 pursuant to a written agreement the Company
hired Xxxxxx to serve as temporary and part-time Chief Executive Officer, and
WHEREAS, Xxxxxx resigned his position with the Company effective July,
1999, and
WHEREAS, Xxxxxx claims that certain compensation due him under the
terms of his employment agreement were not fulfilled; and
WHEREAS, the Parties desire to settle all matters between and among
them (the "Dispute") so as to define and settle the relationship among them and
to avoid the risk, expense and inconvenience of litigation, and without
admitting liability or the merits of any potential claims or defenses;
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
the parties hereto, it is agreed as follows:
1. Settlement of Dispute. The Dispute between Xxxxxx and the Company
shall be, and the same hereby is, settled under the terms and conditions set
forth herein.
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2. Employer/Employee Mutual Release. Xxxxxx represents and warrants as
follows:
(a) That he has the legal capacity to execute this Agreement.
(b) That he is the sole owner and holder of any claims or
potential claims, causes of action or potential causes of action, and of all
right and interest therein, he might have against the Company or any of its
direct or indirect affiliates, investors, partners, directors, officers,
employees, representatives or agents, arising directly or indirectly out of his
employment with the Company, or with respect to any other matter.
(c) Upon execution of this Agreement, Xxxxxx will dismiss with
prejudice the lawsuit pending in the Circuit Court for Sarasota County, Florida,
Case No. 9911761C. That there are no other pending or filed civil proceeding of
any sort before any tribunal, administrative body or arbitral body by Xxxxxx
against the Company or any of the Company's direct or indirect affiliates,
investors, partners, directors, officers, employees, representatives or agents.
(d) That the Company is not liable to Xxxxxx for any accrued
salary, commissions, accrued but unused vacation, personal, sick (and the like)
days or any other compensation or benefits other than $34,000 and expenses in
the amount of $1,516.07, plus other reimbursable business expenses, which amount
is being paid upon execution of this Agreement.
(e) That he is not aware of any facts which to his reasonable
belief could give rise to a past or present claim of any nature against the
Company or any of its affiliates arising out of or relating to his employment
with the Company.
Xxxxxx irrevocably, unconditionally and generally releases and forever
discharges the Company, and each of its direct or indirect affiliates, partners,
officers, directors, partners, employees and agents from any and all claims,
liabilities, demands and causes of action known
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or unknown, fixed or contingent, which Xxxxxx claimed in the past, or now
claims, or may be able to claim in the future against any of them arising
directly or indirectly out of Xxxxxx' employment therewith or the termination of
such employment, including but not limited to all claims which Xxxxxx does not
know or suspect at this time to exist and which, if known, would materially
affect this release; however, this release does not apply to facts not in
existence on the date hereof. Xxxxxx hereby covenants not to file a lawsuit or
demand for arbitration to assert any such claim. This release includes a release
of any and all claims for violation of any federal, state or municipal statute,
including but not limited to claims arising under federal, state, or local laws
prohibiting employment discrimination, Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, (subject to Section 5 below) the Age
Discrimination in Employment Act of 1967 and the Americans with Disabilities
Act. This release does not release any claim Xxxxxx may have against the Company
for a breach of any provision of this Agreement. Xxxxxx acknowledges that the
consideration given for the waiver and release agreements set forth herein and
elsewhere in this Agreement are in addition to anything of value to which Xxxxxx
was already entitled. Notwithstanding the above, Xxxxxx does not release the
Company from its indemnity and insurance obligations provided in paragraphs 3E
and 9 of the attached agreement, and said indemnity and insurance obligations
specifically survive this Agreement.
The Company, on behalf of itself and each of its direct or indirect
affiliates, shareholders, officers, directors, partners, employees and agents
irrevocably, unconditionally and generally releases and forever discharges
Xxxxxx from any and all claims, liabilities, demands and causes of action known
or unknown, fixed or contingent, which the Company claimed in the past, or now
claims, or may be able to claim in the future against Xxxxxx arising directly or
indirectly out of Xxxxxx' employment therewith or the termination of such
employment, including but not
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limited to all claims which the Company does not know or suspect at this time to
exist and which, if known, would materially affect this release. The Company
hereby covenants that there are no pending lawsuits against Xxxxxx and it will
not file a lawsuit or demand for arbitration to assert any such claim against
Xxxxxx. This release does not release any claim the Company may have against
Xxxxxx for a breach of any provision of this Agreement.
Xxxxxx acknowledges that he has been given 21 days to consider waiving
and releasing any right he may have under the Age Discrimination in Employment
Act of 1967 ("ADEA") and the Americans with Disabilities Act ("ADA"), during
which period he has consulted an attorney. Xxxxxx acknowledges that he does so
waive and release such rights, that this waiver and release is knowing and
voluntary and that it does not apply to rights that might arise after the waiver
is signed. Xxxxxx acknowledges that the consideration given for the waiver and
release agreements set forth herein and elsewhere in this Agreement are in
addition to anything of value to which Xxxxxx was already entitled. Xxxxxx
represents and acknowledges that he had twenty-one (21) days prior to the
execution of this Agreement pertaining to this waiver and release to consider
the waiver and release, and will have seven (7) days subsequent to such
execution to revoke this waiver and release. Such revocation is to be made in
writing and mailed, return receipt requested, to the Company, Attention: Xxxxxxx
Xxxxxx at the address set forth in the Notice provisions of this Agreement.
4. Settlement Amount. The Company shall pay Xxxxxx the sum of $34,000
(thirty four thousand dollars) (the "Settlement Amount"), payable within 48
(forty-eight) hours from the execution of this Agreement by wire transfer to the
Xxxxxx & Xxxxxxxxx, P.A. Trust Account.
5. Issuance of Warrant. Simultaneously with the execution of this
Agreement, the Company shall deliver to Xxxxxx & Poliakoff, P.A., as counsel to
Xxxxxx, three Warrants
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aggregating 185,000 Common Stock Purchase Warrants in the form attached hereto
as Exhibit B, C & D.
6. Registration Rights Agreement. Simultaneously with the execution of
this Agreement, the Company shall deliver to Xxxxxx & Poliakoff, P.A., as
counsel to Xxxxxx, the Registration Rights Agreement in the form attached hereto
as Exhibit E.
7. Restrictive Covenant. As part of this Agreement Xxxxxx will be
restrained from soliciting customers or former customers of the Company, and
from engaging in, directly or indirectly, as a principal, employee, officer,
consultant or otherwise, and from receiving any compensation, directly or
indirectly which competes with the Company's golf related businesses, as listed
on Schedule 1, attached hereto, and the Company's internet charity auction
business anywhere in the United States for a period of 6 (six) months from the
date hereof. This Agreement specifically excludes Wcollect (WCLT) from the terms
of this paragraph.
8. Indemnification. The Indemnification provisions set forth in the
employment agreement will survive this Agreement.
9. Non-defamation. No party to this Agreement shall knowingly
authorize, approve or permit any false and defamatory remark to be made about
the other party to this Agreement. The corporate parties hereto agree to use
good faith efforts to effect compliance with this provision by their non-party
employees and agents.
10. Miscellaneous Provisions.
(a) Severability. In the event that any provision of this
Agreement is found to be illegal or unenforceable by any court or tribunal of
competent jurisdiction, then to the extent that such provision may be made
enforceable by amendment to or modification thereof, the parties agree to make
such amendment or modification so that the same shall be made valid and
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enforceable to the fullest extent permissible under existing law and public
policies in the jurisdiction where enforcement is sought, and in the event that
the parties cannot so agree, such provision shall be modified by such court or
tribunal to conform, to the fullest extent permissible under applicable law, to
the intent of the parties in a valid and enforceable manner, if possible and if
not possible, then be stricken entirely from the Agreement by such court or
tribunal and the remainder of this Agreement shall remain binding on the parties
hereto.
(b) Amendment. No amendment or modification of the terms or
conditions of this Agreement shall be valid unless in writing and signed by the
party or parties to be bound thereby.
(c) Governing Law. This Agreement shall be interpreted,
construed, governed and enforced according to the internal laws of the State of
Florida without regard to conflict or choice of law principles of Florida or any
other jurisdiction. This Agreement shall be executed in Florida and is intended
to be performed in Florida. In the event of litigation arising out of this
Agreement, the parties hereto consent to the personal jurisdiction of the State
of Florida, and agree to exclusively litigate said actions, in the state courts,
in any appropriate court of competent jurisdiction located in the County of
Sarasota, State of Florida.
(d) No Waiver. If any party to this Agreement fails to, or
elects not to enforce any right or remedy to which it may be entitled hereunder
or by law, such right or remedy shall not be waived, nor shall such nonaction be
construed to confer a waiver as to any continued or future acts, nor shall any
other right or remedy be waived as a result thereof. No right under this
Agreement shall be waived except as evidenced by a written document signed by
the party waiving such right, and any such waiver shall apply only to the act or
acts expressly waived in said document.
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(e) Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart will, for all purposes, be deemed an
original instrument, but all such counterparts together will constitute but one
and the same Agreement.
(f) Binding Agreement. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, and upon their respective
heirs, successors, assigns and legal representatives.
(g) Counsel. Each of the parties hereto represents that it,
she or he has consulted legal counsel in connection with this Agreement, or has
been given full opportunity to review this Agreement with counsel of his, her or
its choice prior to execution thereof and has elected not to seek such counsel.
The parties hereto waive all claims that they were not adequately represented in
connection with the negotiation, drafting and execution of this Agreement. Each
party further agrees to bear its own costs and expenses, including attorneys'
fees, in connection with the Action and this Agreement.
(h) Notices. All notices and demands permitted, required or
provided for by this Agreement shall be made in writing, and shall be deemed
adequately delivered if delivered by hand or by mailing the same via the United
States Mail, prepaid certified or registered mail, return receipt requested, or
by priority overnight courier for next business day delivery by a nationally
recognized overnight courier service that regularly maintains records of its
pick-ups and deliveries and has daily deliveries to the area to which the notice
is sent, addressed to the parties at their respective addresses as shown below:
If to the Company: Xxxxxxx Hills Ltd.
00 X. Xx. Xxxxxxxx
Xxxxxxxxxx, XX 00000
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with a copy to: Xxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
If to Xxxxxx: Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
with a copy to: Xxxxxxxxx X. Xxxxx, Esq.
Xxxxxx & Poliakoff, P.A.
000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Notices delivered personally shall be deemed communicated as of the
date of actual receipt. Notices mailed as set forth above shall be deemed
communicated as of the date three (3) business days after mailing, and notices
sent by overnight courier shall be deemed communicated as of the date one (1)
business day after sending.
(i) Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and supersedes all prior agreements, promises,
understandings, letters of intent, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any party hereto or
by any related or unrelated third party. All exhibits attached hereto, and all
certificates, documents and other instruments delivered or to be delivered
pursuant to the terms hereof are hereby expressly made a part of this Agreement,
and all references herein to the terms "this Agreement", "hereunder", "herein",
"hereby" or "hereto" shall be deemed to refer to this Agreement and to all such
writings.
(j) Successors and Assigns. As used herein the term "the
Parties" shall include their respective successors in interest, licensees or
assigns.
(k) Documents. At the conclusion of the Action, each Party
shall return to the other all documents and papers produced by the other in
connection with the Action.
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(l) Execution. Each person who signs this Agreement on behalf
of a corporate entity represents and warrants that he has full and complete
authority to execute this Agreement on behalf of such entity. Each party shall
bear the fees and expenses of its counsel and its own out-of-pocket costs in
connection with the Action and this Agreement.
(m) Captions. The captions appearing in this Agreement are for
convenience only, and shall have no effect on the construction or interpretation
of this Agreement.
IN WITNESS WHEREOF, the undersigned, duly authorized in the case of the
Company, have executed this Agreement as of the date first above written.
XXXXXXX HILLS LTD.
[CORPORATE SEAL]
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, Vice President
XXXXXXXX XXXXXX
/s/ Xxxxxxxx Xxxxxx
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ACKNOWLEDGMENTS
Province of British Columbia, Canada
)
) ss:
)
On this 28th day of October, 1999, before me personally came
Xxxxxxxx Xxxxxx, to me known, who being described in and who executed the
foregoing Settlement Agreement, and he acknowledged that he executed the same.
Sworn to before me this 28th day of October, 1999
/s/ Xxxxxxx X. Xxxxxx
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Notary Public
STATE OF GEORGIA )
) ss:
COUNTY OF XXXX )
On the 21st day of October, 1999 before me personally came Xxxxxxx
Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
resides at
that he is the Vice President of Xxxxxxx Hills Ltd., the corporation described
in and which executed the foregoing Settlement Agreement; that he is familiar
with the corporate seal of the aforesaid corporation; and that he signed his
name and affixed the corporate seal thereto by order of the board of directors
of said corporation.
/s/ illegible
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Notary Public
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SCHEDULE 1
1. Golf Shoes Plus - on-line seller of golf shoes and sporting shoes
2. Pro Edge - manufacturer of golf clubs
3. XxxxxxXxxx.Xxx - on-line worldwide tee time reservations, golf apparel
provider and golf related travel and hospitality
4. The Golf Magazine - publisher of a golf magazine
