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EXHIBIT 10.26
CLOSING AGREEMENT
MADE this 9th day of October, 1999, by, between and among XXXXXXX HILLS, LTD., a
Utah corporation having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxx 000X-000, Xxxxxxxx, Xxxxxxx, 00000 X.X.X. ("BHL"); XXXX XXXXXXXXX, whose
address is 0 Xxxxxxxxx Xxxx, Xxxxx, Xxxxxxxx Xxxxxxx XX000XX ("Xxxxxxxxx"); XXXX
X'XXXXXXXX, whose address is 00 Xxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxx, Xxxxxxxx
Xxxxxxx BT476AT ("X'Xxxxxxxx"); XXXX XXXXX, whose address is Inishowen,
Xxxxx-Xx-Xxx Xxxx, Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx ("Boyle"); and NOVATECH LTD.,
a Northern Ireland company having its principal place of business at Xxxx Xxxx,
Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx Xxxxxxx ("Novatech"). Xxxxxxxxx, X'Xxxxxxxx,
Boyle and Novatech are collectively referred to herein as the "Sellers". FOCUSED
MEDIA LTD., a Republic of Ireland company having its registered address c/o M.D.
White, Solicitor, Carndonagh, County Donegal, Ireland, is referred to herein as
"Focused Media"; and GLOBAL GOLF LTD., a Northern Ireland company having its
principal place of business at Unit 27, Templemore Business Park, Xxxxxxxxx
Xxxx, Xxxxx, Xxxxxxxx Xxxxxxx XX000XX is referred to herein as "Global Golf".
WITNESSETH:
WHEREAS, all of the issued and outstanding shares of Global Golf were heretofore
owned of record by various individuals, as hereinafter more particularly
specified; and
WHEREAS, all of the issued and outstanding shares of Focused Media were
heretofore owned of record by the Sellers, as hereinafter more particularly
specified; and
WHEREAS, Xxxxxxxxx, acting individually and as the authorized agent for and on
behalf of Focused Media, Global Golf and their respective shareholders, and BHL,
heretofore entered into a certain Acquisition Agreement made and dated March 3,
1999 (the "Acquisition Agreement"), a copy of which is attached hereto as
Exhibit "A"; and
WHEREAS, pursuant to the Acquisition Agreement, the parties agreed, inter alia,
that BHL would acquire all of the issued and outstanding shares of Focused
Media, which was or would at the time of such acquisition be the owner and
holder of all of the issued and outstanding shares of Global Golf, and that, in
exchange therefor, BHL would, among other things (a) cause certain shares of BHL
stock to be issued to the Sellers, (b) provide up to $300,000 in operating
capital to Global Golf and (c) pay to Xxxxxxxxx $100,000 U.S. in order to enable
him to liquidate certain minority interests in and/or claims against Global
Golf; and
WHEREAS, as of the date of this Closing Agreement, the obligations of the
parties pursuant to the Acquisition Agreement have been partially but not fully
performed; and
WHEREAS, BHL and the Sellers have amicably adjusted, compromised and reached a
mutual agreement as to what further payments and deliveries shall be made, and
what further acts shall be performed, in order to fulfill the intended purposes
of the Acquisition Agreement and satisfy any and all of their obligations to one
another pursuant thereto, and intend this Closing Agreement to confirm and
document their mutual agreement, in its entirety, with regard thereto;
NOW, THEREFORE, in consideration of the premises, the covenants and undertakings
made and exchanged herein, and other good and valuable consideration the receipt
and legal sufficiency of
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which are hereby acknowledged both by BHL and by each of the Sellers, the
parties hereby agree as follows:
1. Xxxxxxxxx represents to BHL, with respect to the stock of Global Golf, as
follows:
(a) The former owners and holders of all of the issued and outstanding
stock of Global Golf were: Xxxxxx Xxxx, Certificate No. 1, 2,785 shares;
International Business Group, Inc., Certificate No. 2, 50,543 shares; Xxxx
Xxxxxxxxx, Certificate No. 3, 23,209 shares; Xxxx Xxxxx, Certificate No. 4,
10,728 shares; Xxxxx Xxxxx, Certificate No. 5, 5,570 shares; and Novatech
Limited, Certificate No. 6, 10,315 shares; total number of shares issued and
outstanding: 103,150.
(b) The Sellers were advised by International Business Group and are of the
belief that Certificate No. 2 has been lost; but International Business Group
has in any event executed a stock transfer form or other document transferring
its 50,543 shares to Xxxx Xxxxx and indemnifying him against any claims in
relation to the lost certificate. Xxxxxxxxx represents that he will (a) within
five (5) days from the date of this Agreement, furnish to BHL or its attorney
copies of all relevant documents heretofore executed, and (b) promptly upon
BHL's request, procure from International Business Group any and all such
affidavits and/or other executed documents as may be necessary to substantiate
that the subject stock certificate was lost, and that neither International
Business Group nor any other party (other than BHL) has, or hereafter will,
claim to have any interest in any of the subject 50,543 shares.
a. Xxxxxx Xxxx duly transferred 30 shares to Xxxx Xxxxxx, and the executed
stock transfer form with respect thereto was duly filed in the Inland Revenue
Stamp Office in Belfast. Xxxx Xxxxxx thereafter duly transferred the said 30
shares to Xxxx Xxxxx, and the executed stock transfer form with respect thereto
was likewise duly filed in the Inland Revenue Stamp Office in Belfast.
b. Xxxxx Xxxxx duly transferred his 5,570 shares to Xxxx Xxxxx, and the
executed stock transfer form with respect thereto was duly filed in the Inland
Revenue Stamp Office in Belfast.
c. Xxxxxx Xxxx duly transferred his 2,755 shares to Xxxx Xxxxx, and the
executed stock transfer form with respect thereto was duly filed in the Inland
Revenue Stamp Office in Belfast.
d. On July 22, 1999, Global Golf's accountants, Xxxxxx & Company, forwarded
to the Inland Revenue Stamp Office in Belfast stock transfer forms in favor of
Focused Media, duly executed by Xxxx Xxxxx, for 69,626 shares; by Xxxx
Xxxxxxxxx, for 23,209 shares; and by Novatech Limited, for 10,315 shares. The
Inland Revenue Stamp Office has advised that a tax is due thereon (in the
approximate amount of (pound)600), and is holding those transfer forms pending
remittance of the tax.
e. By virtue of all of the foregoing, and subject only to payment to Inland
Revenue of the aforementioned tax, Focused Media is the lawful owner and holder
of 103,150 shares of Global Golf stock, constituting all of the issued and
outstanding stock of that company.
2. Xxxxxxxxx is delivering to BHL herewith original stock transfer forms in
favor of BHL, duly executed by Xxxx X'Xxxxxxxx, for 12,135 shares of Focused
Media; by Xxxx Xxxxxxxxx, for 1 share of Focused Media; and by Novatech Ltd.,
for 4,854 shares of Focused Media.
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3. Xxxxxxxxx is also delivering to BHL copies of stock transfer forms which
were heretofore duly executed in favor of BHL by Xxxx Xxxxx for 17,718 shares of
Focused Media, and by Xxxx Xxxxxxxxx for 86,645 shares of Focused Media.
Xxxxxxxxx represents that the originals of said executed stock transfer forms,
although not in his possession at the time of the execution of this Closing
Agreement, will be delivered to BHL or its attorney within five (5) days from
the date hereof.
4. BHL is delivering to Xxxxxxxxx herewith Stock Certificate No. 1247 of BHL,
for 214,200 shares of BHL common stock which have been issued in the name of
Xxxxxxxxx; Stock Certificate No. 1249 of BHL, for 43,801 shares of BHL common
stock which have been issued in the name of Xxxxx; and Stock Certificate No.
1250 of BHL, for 12,000 shares of BHL common stock which have been issued in the
name of Novatech. Xxxxxxxxx is receiving Certificate Nos. 1249 and 1250 on
behalf of Xxxxx and Novatech, respectively, and represents that he will promptly
deliver said certificates to those parties. BHL is also delivering to X'Xxxxxxxx
herewith Stock Certificate No. 1248 of BHL, for 29,999 shares of BHL common
stock which have been issued in the name of X'Xxxxxxxx. Each of said
certificates has been legended to reflect that the shares represented thereby
have not been registered under the Securities Act of 1933, and may not be sold
or otherwise transferred unless the shares are registered or determined to be
exempt from registration, or unless sold pursuant to Rule 144 . By virtue of all
of the foregoing, X'Xxxxxxxx, and Xxxxxxxxx, individually and on behalf of Xxxxx
and Novatech, acknowledge the receipt of a total of 300,000 shares of BHL
restricted common stock, and that each Seller has thereby received such Seller's
correct pro rata share of the 300,000 total, based on each Seller's former
ownership of shares in Focused Media.
5. X'Xxxxxxxx and Xxxxxxxxx, individually and on behalf of Xxxxx and Novatech,
accept the aforementioned 300,000 shares of BHL restricted common stock in full
settlement and satisfaction of each Seller's entitlement to shares of BHL stock
pursuant to the Acquisition Agreement.
6. Xxxxxxxxx represents that Global Golf is presently indebted to various
individuals for sums loaned to Global Golf or advanced on its behalf by those
individuals and/or or for deferred salaries earned by those individuals, all of
which sums were loaned, advanced, or earned and deferred since the execution of
the Acquisition Agreement, to wit: Xxxx Xxxxxxxxx, $23,100; Xxxx X'Xxxxxxxx,
$17,900; Xxxxxxx Xxxxxxxxx, $6,400; Xxxxx Xxxxxx, $6,400; Xxxx Xxxxx, $28,000;
Xxxx Xxxxxx, $25,000; and Xxxxx XxXxxx, $5,000. Xxxxxxxxx further represents
that said individuals have agreed to accept repayment of the sums owed to them
in the form of promissory notes of Global Golf, guaranteed by BHL and payable in
full and without interest, and shares of BHL restricted common stock valued for
purposes hereof at $5.00 per share, as follows: Xxxx Xxxxxxxxx, $11,500
promissory note and 2,310 shares; Xxxx X'Xxxxxxxx, $8,950 promissory note and
1,790 shares; Xxxxxxx Xxxxxxxxx, $3,200 promissory note and 640 shares; Xxxxx
Xxxxxx, $3,200 promissory note and 640 shares; Xxxx Xxxxx, $14,000 promissory
note and 2,800 shares; Xxxx Xxxxxx, $25,000 promissory note; and Xxxxx XxXxxx,
$5,000 promissory note. The promissory notes have been prepared, and signed by
Xxxx Xxxxxxxxx as Managing Director of Global Golf; and the forms of Guarantee
by BHL with respect thereto have been signed by Xxxxxxx Xxxxxxxx, as Vice
President of BHL, on facsimile copies; and copies of said notes have been
delivered Xxxxxxxxx on behalf of the payees. The original notes, bearing both
original signatures, shall be delivered to Xxxxxxxxx for delivery to the
intended holders, as appropriate, within five (5) days from the date of this
Closing Agreement. The certificates representing the
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shares of BHL's restricted common stock shall be delivered to Xxxxxxxxx, for
delivery to the intended owners, as appropriate, within thirty (30) days from
the date of this Closing Agreement.
7. Xxxxxxxxx represents that Global Golf is presently indebted to the
following parties, in the amounts indicated: Telesis Ltd., $32,000; Xxxxxxx
Xxxxxx, $64,000; Xxxx Xxxxxx, $40,000; and Xxxx Xxxxx, $4,800.00, and that each
of said parties has agreed to accept shares of BHL restricted common stock,
valued for such purposes at $5.00 per share, in full settlement and satisfaction
of the sums owed to them. BHL agrees to cause said shares to be issued and
delivered to Xxxxxxxxx for further delivery to those creditors within thirty
(30) days from the date of this Closing Agreement, and Xxxxxxxxx agrees to
obtain from those parties, in exchange for said certificates, appropriate forms
of receipt and release, which shall be prepared by BHL's counsel and provided to
Xxxxxxxxx for such purpose.
8. In accordance with the parties' agreement, BHL shall issue to Xxxxxxxxx
warrants for the purchase of up to 100,000 shares of BHL (restricted) common
stock at $2.00 per share at any time within a period of eighteen (18) months
from the date of issuance. The warrants shall be prepared by BHL's designated
securities counsel, and shall be in form and content to the reasonable
satisfaction of BHL and its said counsel, giving due regard for all applicable
securities laws, rules and regulations.
9. Xxxxxxxxx has on this date delivered to BHL the original Company Register
of Focused Media. Xxxxxxxxx shall deliver the original Company Register of
Global Golf to BHL within five (5) days from the date of this Closing Agreement.
10. BHL and the Sellers each agree to execute and deliver any and all such
further instruments and documents, and to do all such other things, as may be
necessary or appropriate in order to effectuate or give full effect to the
provisions and intents of this Closing Agreement, promptly upon the request of
any of said parties or their legal representatives.
11. This Closing Agreement contains the entire agreement of the parties with
respect to the Acquisition Agreement, the transactions which were contemplated
by the parties in entering into that agreement, and the rights and obligations
of BHL, Global Golf, Focused Media and each of the Sellers arising out of or in
connection with, or in any manner relating to that agreement and those
transactions. No representations or promises have been made by BHL to the
Sellers or any of them, or by the Sellers to BHL, which are not expressly stated
in this Agreement.
12. This Closing Agreement supercedes any conflicting provisions of the
Acquisition Agreement. From and after the execution of this Closing Agreement,
and in the absence of any further written agreement between BHL and the Sellers,
executed in the case of BHL by a corporate officer of BHL thereunto duly
authorized, the rights and obligations of BHL and the Sellers with respect to
all such matters shall be solely those expressly set forth in or contemplated by
this Closing Agreement.
13. This Closing Agreement shall not be modified or modifiable except in a
writing signed by BHL, by a corporate officer thereunto duly authorized, and by
all of the Sellers.
14. This Closing Agreement shall be binding upon and enure to the benefit of
BHL, its successors and assigns, and the Sellers and their respective heirs,
executors, administrators, personal representatives, successors and assigns.
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15. This Closing Agreement shall be governed by and construed in accordance
with the laws of the Republic of Ireland, regardless of the domicile or
residence of any party elsewhere, except that the fulfillment of any provisions
of this Agreement respecting the transfer of any shares of Global Golf, or
respecting the registration of any such transfer or the determination and
payment of any tax payable thereon, shall be governed by the laws of Northern
Ireland.
16. Any dispute arising under or relating to this Closing Agreement may be
resolved by proceedings in any court of competent jurisdiction. The prevailing
party or parties in such proceedings, as determined by the court, shall be
entitled to recover the reasonable attorney's fees and litigation costs actually
incurred by such party or parties, in addition to any and all other forms of
relief awarded.
17. Xxxxxxxxx represents to the other parties hereto that he is authorized to
execute this Closing Agreement on behalf of Xxxxx and Novatech as well as on his
own behalf, and that Xxxxx and Novatech will be fully bound by this agreement.
Xxxxxxxxx agrees to obtain written confirmation of the foregoing from Xxxxx and
Novatech, and furnish the same to BHL within five (5) days from the date of this
agreement.
IN WITNESS WHEREOF, the parties have entered into this Closing Agreement as of
the day and year first above written.
Xxxxxxx Hills, Ltd., a Utah corporation
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, Vice President
/s/ Xxxx X'Xxxxxxxx
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Xxxx X'Xxxxxxxx
/s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, Individually and as
authorized agent for and on behalf of
Xxxx Xxxxx and Novatech Ltd.
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