AGREEMENT
FOR
SALE AND PURCHASE OF ASSETS
BETWEEN
GOLFGEAR INTERNATIONAL, INC.
AND
LEADING EDGE, LLC
AUGUST 30, 2000
AGREEMENT FOR SALE AND PURCHASE OF ASSETS
-----------------------------------------
This Agreement for Sale and Purchase of Assets (the "Agreement") is made
effective August 30, 2000, between GOLFGEAR INTERNATIONAL, INC., a Nevada
corporation (the "PURCHASER"), and LEADING EDGE, LLC, a California limited
liability company (hereinafter referred to as "SELLER"), and
WHEREAS, SELLER is in the business of the manufacture, assembly and
distribution of
a line of putters ("putters");
WHEREAS, SELLER wishes to sell to PURCHASER, and PURCHASER wishes to
purchase certain assets of SELLER, relating to SELLER's business;
THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. SALE OF ASSETS. SELLER agrees to sell and convey to PURCHASER at
the Closing, and PURCHASER agrees to purchase at the Closing of this Agreement,
the properties, rights and interests enumerated in Paragraph 2.
2. ASSETS TO BE SOLD. The assets to be conveyed to PURCHASER
("Assets") to the extent they are in SELLER's actual possession or control are
in their AS IS, WHERE IS, WITH ALL FAULTS condition and PURCHASER will pick up
such assets at PURCHASER'S sole cost and expense and bear the risk of any loss
in connection therewith. Items are at 0000 Xxxxx Xxxxxx, Xxxxx X, Xxx Xxxxxxxx,
Xxxxxxxxxx 00000 and Public Storage at 00000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
00000:
(1) All of SELLER's rights and interest in and to the design of its
line of putters, which shall include technology know-how design
documentation relating thereto;
(2) All inventory on hand, whether assembled or in parts, including
packaging supplies, as identified on Schedule 1 (subject to a
margin of error not to exceed 10%) and subject to Paragraph 8
hereof;
(3) Customer and supplier lists used in SELLER's business as listed
on Schedules 1(a) and 1(b);
(4) All office equipment, furniture, computers and supplies as
identified on Schedule 2;
Page 1 of 13
(5) All SELLER's rights and interest in and to patents, trademarks,
copyrights, likeness of trademarks and trade names, including but
not limited to, the name "Leading Edge" together with their
related logos or other identifying marks, which are used in the
sale, promotion, or licensing of products and services by SELLER
or which relate to the conduct of the business, including
SELLER's rights to any and all registrations of these trademarks
and logos throughout the world, including those listed on the
Schedule of Trademarks and Trade Names attached hereto as
Schedule 3 and as further identified on the Assignment of
Trademarks attached hereto as Schedule 3(a). All Patents and
Patents Pending shall be identified on Schedule 4 and further
identified on the Assignment of Patents and Patents Pending on
Schedule 4(a);
(6) All tooling, molds, and dies subject to Paragraph 8 and its
subparagraphs and Schedules 5 and 5(a) hereof;
(7) Any sales orders pending, rights under contracts, leases in
effect at the Closing and subject to Paragraph 8 and its
subparagraphs and Schedules 5 and 5(a) hereof;
3. CLOSING DATE. The Closing date for this Agreement shall be
August 30, 2000, or such later day as mutually agreed to in writing by SELLER
and PURCHASER (hereinafter the "Closing").
4. CONSIDERATION.
a. PURCHASE PRICE. In consideration for the sale of the property
described in Xxxxxxxxx 0, XXXXXXXXX shall deliver to SELLER, or SELLER's
nominee(s), on Closing, after execution of this Agreement, or shall have
previously delivered to SELLER the following:
i. 200,000 shares of its Common Stock, $.001 par value.
ii. A warrant to purchase 150,000 shares of Common Stock,
exercisable at $1.00 per share, for a period of four (4)
years from Closing. This warrant shall have standard
anti-dilution provisions.
iii. All securities issued hereunder shall be those of GolfGear
International, Inc. All warrants issued hereunder shall not
have cash-less exercise provisions. All securities issued
hereunder shall be restricted securities as that term is
defined pursuant to Rule 144 of the Securities Act of 1933,
as amended.
iv. PURCHASER shall provide liability insurance with respect to
the Assets and the putters for all claims occurring after
Closing. Additionally, PURCHASER shall indemnify, defend and
hold harmless SELLER against all claims, costs and expenses
that may be brought or incurred by or against SELLER arising
out of any claim or liability associated with the design,
manufacture, assembly, marketing, sale or use of the putters
occurring after Closing. SELLER shall be an additional
insured under such policy.
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b. ATTENDANCE AT GOLF SHOWS. Xx. Xxxxxxx Xxxxxx agrees to,
and PURCHASER shall give him the right to, attend golf shows or events as
requested from time to time by PURCHASER, subject to Xx. Xxxxxx' availability.
PURCHASER shall pay Xx. Xxxxxx Five Hundred Dollars ($500) per day with a three
(3) day maximum per show or event. Additionally, PURCHASER will also issue a
Common Stock warrant to purchase up to one thousand (1,000) shares of Common
Stock of PURCHASER exercisable at the then current market price which shall have
an expiration of three (3) years from date of issuance. PURCHASER shall also pay
Xx. Xxxxxx reasonable travel and out-of-pocket expenses equivalent to the cost
of transportation and accommodations at the same rate and level as then being
paid to executive employees of PURCHASER. PURCHASER agrees that Xx.Xxxxxx shall
have the right to attend the annual International PGA Merchandise Golf Show in
Orlando, Florida in 2001 and 2002 under the same availability and reimbursement
policy.
c. ACCOUNTS RECEIVABLE COLLECTION. In the event PURCHASER hires
SELLER's office administrator, PURCHASER shall use its best effort to collect
SELLER's accounts receivable. PURCHASER shall be entitled to receive a fee
equal to ten percent (10%) of the amount actually collected. PURCHASER shall
provide SELLER with a monthly report summarizing the status of all accounts
collected. PURCHASER, except for its fee, has no interest of any kind in the
collections and further shall keep all funds collected in a separate account and
shall not be co-mingled with other funds of PURCHASER. SELLER shall have the
right to terminate this collection practice by giving five (5) days prior
written notice to PURCHASER. See Schedule 4(c).
d. ASSISTANCE WITH TOUR PROFESSIONALS. Xx. Xxxxxx agrees
that he will assist PURCHASER in communicating and negotiating with PGA
professionals currently playing the Leading Edge putter, subject to Xx. Xxxxxx'
availability. Xx. Xxxxxx shall be entitled to reimbursement of reasonable
travel and accommodation expenses in this regard as defined in Paragraph 4(b)
above. Notwithstanding, PURCHASER shall have the sole discretion to decide the
terms and conditions of any compensation to be paid (cash or non-cash) to any
such PGA touring professionals currently playing the Leading Edge putter.
5. SELLER'S REPRESENTATIONS AND WARRANTIES.
a. TITLE TO ASSETS. SELLER represents that it has good and
clear title to all Assets being transferred hereunder and that there are no
liens, encumbrances, security interests, threatened litigation, pending
litigation or any other potential title claims which would affect the Assets in
any manner unless otherwise stated on Schedule 5(a).
b. MEMBER/SHAREHOLDER APPROVAL. The execution and delivery of
this Agreement by SELLER and the conveyance provided in it have been duly
authorized by all necessary action including, but not limited to, each Member
and/or Board of Director approval of SELLER and is a valid and binding agreement
on SELLER.
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c. OWNERSHIP OF ASSETS. SELLER is the owner of the Assets and has
full power to transfer the Assets free and clear of all liens, encumbrances,
security interests, equities, options, claims, charges, and restrictions, other
than as stated on Schedule 5(a).
d. ACTIONS AND PROCEEDINGS. There are no actions, suits, or
proceedings pending or, to SELLER's knowledge, threatened against SELLER before
any court, administrative agency, or other judicial body affecting or relating
to the Assets except as stated in Schedule 5(a).
e. TECHNOLOGY KNOW-HOW. SELLER represents and warrants that it
is, and has been, the owner of the patent for the putter head identified on
Schedule 4, and the trademarks and trade names as listed on Schedule 3, and that
SELLER has no actual knowledge of any competing trademarks, trade names,
patents or copyrights of others which relate to the putters. SELLER has not
undertaken any infringement search and, therefore, makes no warranty or
representation concerning the existence of any such trademarks, trade names,
patents or copyrights or claims or disputes with respect to any thereof. As
used herein, "technology know-how" shall mean SELLER's confidential software, if
any, documentation, if any, describing hardware and software used by SELLER, for
the design and manufacture of its line of putters and any related products, the
designs and operating or manufacturing information on such putters, which
SELLER represents are the property of SELLER and other information of SELLER
in tangible form which is useful or necessary in the design and manufacture of
SELLER's products.
f. COMPLIANCE WITH LAWS. Neither the execution and delivery of
this Agreement, nor any instrument or agreement to be delivered by SELLER to
PURCHASER pursuant to this Agreement, nor the compliance with the terms and
provisions thereof to SELLER, will result in the breach of any applicable
statute or regulation promulgated thereunder, or any administrative or court
order or decree nor will such compliance conflict with, or result in the breach
of any agreement or other instrument to which SELLER is a party, or by which
SELLER is or may be bound, or constitute an event of default or default
thereunder, or with the lapse of time or the giving of notice or both
constitute an event of default thereunder.
g. REPRESENTATION AND WARRANTIES. No representation by SELLER in
this Agreement or any documents provided hereunder contains or will contain any
untrue statement or omits or will omit to state any material fact necessary to
make the statements contained herein not misleading. All representations and
warranties made by SELLER in this Agreement and any documents provided hereunder
are true and correct.
h. SALES TAX. SELLER shall be responsible for payment of all
sales tax, if any, associated with the execution of this Agreement and the
receipt of consideration therefrom.
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6. REPRESENTATION CONCERNING ACQUISITION OF PURCHASER'S SECURITIES.
For purposes of this Paragraph 6, including sub-parts, "SELLER" shall include
Xx. Xxxxxxx Xxxxxx and his spouse in their individual capacity.
a. INVESTMENT REPRESENTATIONS. SELLER acknowledges that
PURCHASER's Common Stock and all warrants as well as the underlying Common
Stock (hereinafter referred to as the "Securities") to be received in exchange
for the sale of SELLER's Assets have not been registered under the Securities
Act of 1933, as amended (the "1933 Act") or qualified under the California
Securities Law of 1968, as amended (the "California Securities Law") on the
grounds that no distribution or public offering of the SELLER's Securities is to
be effected, and that in this connection PURCHASER is relying in part on the
representations of the SELLER set forth herein.
i. SELLER is receiving the Securities for its own account for
investment purposes and not as nominee or agent for any
other persons.
ii. By reason of its business or financial experience and/or by
reason of SELLER's pre-existing relationship or through the
business or financial experience of its professional advisor
with PURCHASER, SELLER has the capacity to protect its own
interests in connection with the transactions contemplated
hereunder and is able to bear the risks of an investment in
PURCHASER.
iii. SELLER has acquired sufficient information about PURCHASER
to reach an informal decision to acquire the SELLER's
Securities.
iv. SELLER represents that it is acquiring the Securities for
its own account for investment purposes and not with a view
to, or for sale in connection with, any distribution thereof
in a manner contrary to Section 5 of the Securities Act of
1933, as amended (the"Act") or of the California Securities
Law and Rules and Regulations of the California Commission
of Corporations thereunder.
b. RISKS. SELLER represents and warrants to PURCHASER that it
is experienced in evaluating and investing in high risk companies such as
PURCHASER and, by reason of their business and financial experience, or through
the business and financial experience of its professional advisors, have the
capacity to protect their own interest in connection with the transactions
contemplated by this Agreement and have the ability to bear the economic risk of
its investments, including those represented by the Securities.
c. TRANSFER OF SECURITIES. None of the Securities to be acquired
by the SELLER pursuant to this Agreement shall be transferable by the SELLER
except upon the conditions specified in this Paragraph, which conditions are
intended to insure compliance with the provisions of the Act in respect to the
transfer of such Securities.
Page 5 of 13
i. LEGEND. Unless and until otherwise permitted by this
Paragraph, each certificate or other document evidencing any
of the PURCHASER's Securities shall be endorsed with a
legend substantially in the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A) COVERED BY AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, (B) IN COMPLIANCE WITH RULE 144 UNDER SUCH
ACT, OR (C) THE COMPANY HAS BEEN FURNISHED WITH AN OPINION
OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY TO THE
EFFECT THAT NO REGISTRATION IS REQUIRED BY SUCH TRANSFER OR
PURSUANT TO ANY OF PARAGRAPHS 6(c)(ii) or 6(e)."
ii. RESTRICTION ON TRANSFER. None of the Securities shall be
transferred, and PURCHASER shall not be required to register
any such transfer on the books of PURCHASER, unless and
until one of the following events shall have occurred:
(a) PURCHASER shall have received an opinion of counsel, in
form and substance reasonably acceptable to PURCHASER
and its counsel, stating that the contemplated transfer
is exempt from registration under the Act as then in
effect, and the Rules and Regulations of the Securities
and Exchange Commission (the "Commission") thereunder.
Within ten (10) business days after delivery to
PURCHASER and its counsel of such an opinion, PURCHASER
either shall deliver to the proposed transferor a
statement to the effect that such opinion is not
satisfactory in the reasonable opinion of its counsel
(and shall specify in detail the legal analysis
supporting any such conclusion) or shall authorize
PURCHASER's transfer agent to make the requested
transfer;
(b) PURCHASER shall have been furnished with a letter from
the Commission in response to a written request in form
and substance acceptable to counsel for PURCHASER
setting forth all of the facts and circumstances
surrounding the contemplated transfer, stating that the
Commission will take no action with regard to the
contemplated transfer;
(c) The Securities are transferred pursuant to a
registration statement which has been filed with the
Commission and has become effective;
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(d) The Securities are transferred pursuant to and in
accordance with Rule 144 promulgated by the Commission
under the Act or an exemption therefrom; or
(e) Notwithstanding the above, and subject to applicable
federal or state securities laws, such shares may be
transferred as part of any dissolution or liquidation
of SELLER and for any holder's estate planning or
charitable gift purposes. Any further transfer shall be
subject to the same restrictions and exceptions.
d. AGREEMENT TO LOCK UP. Xx. Xxxxxx and his spouse may sell or
transfer any Securities issued hereunder as long as such sale or transfer is in
compliance with applicable state and federal securities laws, including Rule 144
or an exception or exemption to any thereof. Notwithstanding the above, Xx.
Xxxxxx and his spouse agree not to sell more than 66,667 shares of Common Stock
in any given calendar quarter (as adjusted for any stock splits) with an
increase in said amount based on a proportionate increase in the amount of
PURCHASER's Common Stock weighted average shares outstanding.
e. REGISTRATION OF SECURITIES. So long as SELLER or its
transferees shall hold any of the Securities of PURCHASER, PURCHASER agrees that
if, at any time after execution of this Agreement , PURCHASER shall take action
to register any of its Securities under the Act other than on Form S-8 or Form
S-4, it will give SELLER or its transferees written notice promptly of its
intention in that regard, and if registration, other than on Form S-8 or Form
S-4, of any such Securities held by SELLER or its transferees is then possible
under the then applicable laws and regulations and practices of the Securities
and Exchange Commission, and subject to the reasonable approval of the
investment banker or underwriter, if any, and in this regard PURCHASER will
actively support SELLER's request to sell Securities, and if SELLER or its
transferees shall within fifteen (15) days after receipt of any such notice
request PURCHASER to do so, PURCHASER will, at its own expense, take action to
register such Securities which it shall have been requested to register at the
same time, and it will use its best efforts that such registration of such
Securities shall become effective. Commissions and direct costs of sale by
SELLER, if any, shall be paid by SELLER on any of the Securities it sells
through the registration.
7. PURCHASER'S REPRESENTATIONS AND WARRANTIES. PURCHASER represents
and warrants that:
a. CORPORATE ORGANIZATION. PURCHASER is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and is duly qualified to do business in the State of California. If
PURCHASER forms a corporation to take title to certain of the Assets, such
corporation will be duly organized, validly existing and in good standing under
the laws of the State of California and the corporation will have full power and
authority to enter into this Agreement and perform the transactions contemplated
herein. The corporation will be duly qualified to do business in the State of
California.
Page 7 of 13
b. BINDING NATURE. This Agreement has been approved by all
required corporate action and shall be, when duly executed and delivered, a
legal and binding obligation of PURCHASER, enforceable in accordance with its
terms.
c. REPRESENTATIONS AND WARRANTIES. No representation or warranty
by PURCHASER in this Agreement contains or will contain any untrue statement or
omits or will omit to state a material fact necessary to make the statements
contained herein not misleading. All representations and warranties made by
PURCHASER in this Agreement shall be true and correct as of execution of this
Agreement with the same force and effect as if they had been made on and as of
such date.
d. COMPLIANCE WITH LAWS. Neither the execution and delivery of
this Agreement, nor any instrument or agreement to be delivered by SELLER to
PURCHASER pursuant to this Agreement, nor the compliance with the terms and
provisions thereof by SELLER, will result in the breach of any applicable
statute or regulation promulgated thereunder, or any administrative or court
order or decree nor will such compliance conflict with, or result in the breach
of any agreement or other instrument to which SELLER is a party, or by which
SELLER is or may be bound, or constitute an event of default or default
thereunder, or with the lapse of time or the giving of notice or both constitute
an event of default thereunder.
e. VALID ISSUANCE. The Common Stock to be delivered to SELLER
will be, then issued, duly authorized, validly issued, fully paid and
non-assessable.
f. ACTIONS AND PROCEEDINGS. There are no actions, suits, or
proceedings pending or, to PURCHASER's knowledge, threatened against PURCHASER
before any court, administrative agency, or other judicial or quasi-judicial
body affecting or relating to this transaction or which could prohibit it from
entering into this Agreement.
8. LIABILITIES.
a. NO ASSUMPTION OF LIABILITIES.
i. SELLER acknowledges that PURCHASER is acquiring SELLER's
assets hereunder without any assumption of SELLER's
liabilities except to the extent herein expressly provided
and as identified on Schedule 5 and/or 5(a);
Page 8 of 13
ii. Notwithstanding anything contained or implied herein to the
contrary, PURCHASER agrees to assume service and warranty
obligations with respect to any Leading Edge putters sold
prior to Closing, except as provided below. After Closing,
any inventory returned by customers shall be the sole
property of PURCHASER. In the event that said customer has
an outstanding receivable balance with SELLER at the time of
the return, PURCHASER shall no further obligation to attempt
to collect such amount (except as stated under Paragraph 4).
In the event a customer has already paid SELLER upon return
of the inventory, PURCHASER shall have the obligation to
negotiate and issue credit, replace inventory or refund to
the customer and shall be solely responsible for any such
costs. For any putters returned to PURCHASER after Closing
through December 31, 2000, for which SELLER has an
outstanding receivable balance, and as long as such return
is for an aggregate of 10 or more pieces, such inventory
shall remain the property of SELLER. SELLER may either
negotiate terms under which PURCHASER shall acquire such
inventory, or may donate it to a charitable cause, but
SELLER may not resell such inventory.
iii. Except as otherwise provided, including, but not limited to,
subparagraphs and Paragraphs 4(a)(iv) and 8(a), SELLER and
SELLER's Member agree to hold PURCHASER harmless against any
and all claims, demands and expense of any nature relating
to any unpaid liability of SELLER, except for debt or claims
expressly assumed under this Paragraph and its subparagraphs
and Schedules 5 and 5(a) existing or arising on or before
Closing, and for any product, service, and professional
liability against PURCHASER arising prior to execution of
this Agreement; and
iv. There are no undisclosed liabilities actually known to
SELLER relating to the Assets other than as stated in this
Agreement or Schedules annexed hereto.
9. ITEMS TO BE DELIVERED BY SELLER. At Closing, SELLER will deliver
to PURCHASER:
a. TRANSFER DOCUMENTS. Assignments, bills of sale, and such
other instruments in form and substance satisfactory to PURCHASER and to the
United States Department of Commerce/Patent and Trademark Office, as are
required to grant PURCHASER title to, or SELLER's interest in, the Assets as
provided in this Agreement.
b. RECORDS, CUSTOMER LISTS AND ACCOUNTING RECORDS. The customer
and supplier lists regularly used in SELLER's business; and access to all
accounting records.
c. INDEMNIFICATION. Except as otherwise provided herein, Xx.
Xxxxxx agrees to be personally responsible for paying, satisfying or settling
debt incurred by SELLER prior to Closing, and SELLER and Xx. Xxxxxx agree to
indemnify and hold PURCHASER harmless from and against any loss, cost, claim,
liability, or expense suffered or incurred by PURCHASER from and after execution
of this Agreement arising from or connected with SELLER's ownership of the
Assets or operation of its business prior to August 30, 2000.
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10. ITEMS TO BE DELIVERED BY PURCHASER. At Closing, PURCHASER herewith
delivers to SELLER:
a. COMMON STOCK. PURCHASER shall deliver to Xx. Xxxxxx, or his
nominee(s), 200,000 shares of Common Stock.
b. WARRANTS. PURCHASER shall deliver to Xx. Xxxxxx, or his
nominee(s), a warrant to purchase 150,000 shares of Common Stock, exercisable
at $1.00 per share, for a period of four (4) years from Closing. This warrant
shall have anti-dilution provisions.
c. BROKERAGE. Each party hereto represents and warrants to the
other than no broker is entitled to any commission, or similar fee, in
connection with the making and carrying out of this Agreement.
d. INDEMNIFICATION. PURCHASER agrees to indemnify and hold SELLER
harmless from and against any loss, cost, claim, liability, or expense suffered
or incurred by SELLER arising from this Agreement or the acquisition of the
assets and sale of putters arising therefrom after Closing.
11. EFFECTIVENESS. This Agreement supersedes any and all agreements,
if any, both written and verbal, previously made between the parties relating to
the subject matter hereof, and there are no understandings or agreements other
than those included herein.
12. NOTICES AND COMMUNICATIONS. All notices, requests, demands, and
other communications under this Agreement shall be in writing and delivered in
person or sent by certified mail, postage prepaid or by telefax and properly
addressed as follows:
To the SELLER:
Xxxxxxx X. Xxxxxx, M.D.
Leading Edge, LLC
00000 Xxxxxxxx Xxxx.
Xxxxxxxxx 0
Xxx Xxxxxxx, XX 00000
Telephone (000)000-0000
Telefax (000)000-0000
Page 10 of 13
with a copy to:
Xxxxxx X. Xxxx
000 X. Xxxxxxxx Xx.
Xxxxxxx Xxxxx, XX 00000
To the PURCHASER:
-------------------
Xxxxxx X. Xxxxxxxx, President
GolfGear International, Inc.
00000 Xxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Telephone (000)000-0000
Telefax (000)000-0000
Any party may from time to time change its address for the purpose of
notices to that party by a similar notice specifying a new address, but no such
change shall be deemed to have been given until it is actually received by the
respective party hereto.
13. NON-WAIVER. No delay or failure on the part of either party in
exercising any right hereunder, and no partial or single exercise thereof, will
constitute a waiver of such right or of any other right hereunder.
14. HEADINGS. Headings in this Agreement are for convenience only and
are not to be used for interpreting or construing any provision hereof.
15. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of California against both parties to
this Agreement.
16. INDEPENDENT LEGAL COUNSEL. Each party has had his or its attorney
review this Agreement and/or give advice with respect to, among other things,
the legal, securities and tax consequences of executing this Agreement and the
subsequent transactions contemplated hereunder.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which may be deemed an original, but all of which
together, shall constitute one and the same instrument.
18. BINDING NATURE. The provisions of this Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and their respective
successors and assigns.
19. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Except as otherwise
expressly limited in this Agreement or the Schedules annexed, the
representations and warranties of PURCHASER and SELLER extended hereunder shall
survive for a period of twelve (12) months after the Closing. Each party
against whom liability is asserted under the provisions of this Agreement shall
be given the opportunity to participate, directly or through its authorized
representative, at its cost and expense, in the conduct of any negotiations
relating to the settlements of any liability or any other proceeding instituted
by any third party against either SELLER or PURCHASER, as the case may be,
giving rise to the alleged breach.
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20. EXPENSES. Except as otherwise expressly provided herein, each
party shall pay all of its own expenses incidental to the negotiation and
preparation of the documentation and financial statements relating to this
Agreement and for entering into and carrying out the terms and conditions of
this Agreement and consummating the transactions, irrespective of whether the
transactions contemplated shall be consummated.
21. AMENDMENT; SUCCESSORS AND ASSIGNS. This Agreement shall not be
altered or otherwise amended except pursuant to any instrument in writing signed
by all of the affected parties hereto. Neither party may assign any of its
rights, obligations, or liabilities arising hereunder without the prior written
consent of the other, except as otherwise provided herein, any such assignment
or attempted assignment shall be null and void.
22. THIRD PARTY BENEFICIARIES. Except for their proper heirs,
successors, and assigns, the parties hereto intend that no third party shall
have any rights or claims by reason of this Agreement.
23. ATTORNEY FEES. In the event that any action or proceeding is
brought arising out of or in connection with this Agreement, or to enforce any
of its terms, conditions or obligations, the prevailing party to such proceeding
shall be entitled to, in addition to any other relief, costs and reasonable
attorney fees.
24. SCOPE OF INDEMNITY. Indemnity as contemplated pursuant to
Paragraphs 4(a), 1(b) and 10(d) shall include the members, officers and
directors of SELLER, including their spouses. The parties providing such
indemnity shall have the right to choose counsel and control the litigation,
claim or demand and will not settle litigation, claim or demand if it requires
an admission of liability against the indemnified party and, in a later case,
the indemnified party will not unreasonably withhold or delay its consent to a
settlement of such litigation, claim or demand.
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25. BREACH AND CURE. In the event that any party to this Agreement
alleges a breach hereof, prior to bringing any claim for said breach, said party
shall give written notice to the other party, who shall then have a ten (10)
business day period to cure any such alleged breach, failing which the claimant
may proceed.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above-written.
PURCHASER: PURCHASER:
GolfGear International, Inc. GolfGear International, Inc.
------------------------------- ----------------------------------
By: Xxxxxx X. Xxxxxxxx By: Xxxxxx X. Xxxxxxxxxx
Its: President Its: Chief Financial Officer
SELLER:
Leading Edge, LLC
_________________________________
By: Xxxxxxx X. Xxxxxx, M.D.
Its:________________________
_________________________________
Xxxxxxx X. Xxxxxx, M.D.
an individual
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