AGREEMENT
AGREEMENT, dated as of January 18, 2000, by and among Xxxx X.
Xxxxxxx ("Xxxxxxx"), Xxxxxx X. Van Herwarde ("Van Herwarde"), Xxxx X. Xxxxxxxx,
Xx. ("Galuchie"), XxxxXxxxxx.xxx, Inc., a Delaware corporation ("GolfRounds"
and, collectively with Xxxxxxx, Van Herwarde and Galuchie, the "GolfRounds
Parties"), each of the parties listed on Schedule A hereto (individually a
"Buyer" and collectively the "Buyers"), and Xxxxxxxx Xxxxxx & Xxxxxx, a law firm
having an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Escrow Agent").
WHEREAS, simultaneously with the execution of this Agreement,
the Buyers are entering into a stock purchase agreement ("Stock Purchase
Agreement") with certain Sellers named therein ("Sellers") pursuant to which the
Sellers are selling to the Buyers an aggregate of 500,000 shares of common
stock, par value $.01 per share ("Common Stock"), of GolfRounds; and
WHEREAS, it is a condition to the closing of the purchase and
sale contemplated by the Stock Purchase Agreement ("Closing") that the parties
hereto enter into this Agreement and take the actions contemplated hereby.
NOW THEREFORE, the parties hereto agree as follows:
1. Press Release. GolfRounds agrees that, promptly after the
execution of this Agreement and the Stock Purchase Agreement, GolfRounds shall
issue a press release in the form attached hereto as Exhibit A ("Press Release")
through the Businesswire, and shall file a report on Form 8-K with the
Securities and Exchange Commission ("SEC"), which report shall be in the form
attached hereto as Exhibit B ("Form 8-K"). The Press Release shall be filed as
an exhibit to the Form 8-K.
2. Board Consent. The GolfRounds Parties hereby represent and
warrant that attached hereto as Exhibit C is a unanimous written consent of the
Board of Directors of GolfRounds ("Consent"), executed by each director of the
Company, that the Consent is in full force and effect and will not be modified,
amended, supplemented or rescinded prior to the effectiveness of the
Resignations (as hereinafter defined) and that it contains resolutions of the
Board:
(a) Approving the purchase of the Purchased
Shares (as defined in the Stock Purchase Agreement) by the Buyers as
contemplated by the Stock Purchase Agreement;
(b) Appointing Xxxx X. XxXxxxxx, III, Xxxxx
Xxxxxxxx and Xxxxxx X. Xxxxxxx (collectively, the "New Directors") to the Board,
conditioned upon the Closing and effective on the tenth day following the date
the 14(f) Statement (as hereinafter defined) has been mailed to the stockholders
of GolfRounds;
(c) Approving the issuance of the Press Release
and the filing of the Form 8-K with the SEC; and
(d) Approving the filing by GolfRounds with the
SEC of an information statement ("14(f) Statement") conforming to the
requirements of Section 14(f) of the Securities Exchange Act of 1934 ("Exchange
Act") and Rule 14f-1 thereunder.
3. Resignations. Simultaneously with the execution of this
Agreement, Xxxxxxx, Van Herwarde and Galuchie shall deposit with the Escrow
Agent letters containing their irrevocable resignations from the Board of
Directors of GolfRounds ("Resignations"), which Resignations shall be
conditioned upon the Closing and effective on the tenth day following the date
on which the 14(f) Statement is mailed to the stockholders of GolfRounds. At the
Closing, the Escrow Agent shall release the Resignations to the Buyers. In the
event the Closing does not occur on or before January 21, 2000, the Resignations
shall be void and the Escrow Agent shall destroy them.
4. 14(f) Statement. GolfRounds shall file the 14(f) Statement
with the SEC and cause its transfer agent to mail the 14(f) Statement to its
stockholders simultaneously with the Closing. The 14(f) Statement shall be in a
form satisfactory to GolfRounds and the Buyers and their respective counsel.
5. No Actions Outside the Ordinary Course. Each of the
GolfRounds parties hereby covenants and agrees that from and after the date
hereof he or it shall not take any actions with respect to GolfRounds outside
the ordinary course of business of GolfRounds or that require the approval of
GolfRounds' board of directors.
6. Bank Account Signatories. Prior to the Closing, the
GolfRounds Parties shall take all necessary steps to cause their control over
all bank accounts held by GolfRounds to be terminated, and control over such
accounts to be transferred to Xxxxxx X. Xxxxxxx, in each case effective on the
tenth day after the 14(f) Statement is mailed to GolfRounds' stockholders.
7. Books and Records. The GolfRounds Parties shall
cause all of the books and records of GolfRounds to be delivered to the Escrow
Agent within 10 days after the Closing.
8. Indemnification.
(a) GolfRounds agrees to indemnify and hold
harmless each of Xxxxxxx, Van Herwarde and Galuchie (each a "Resigning Director"
and collectively the "Resigning Directors") and each of the Sellers (each
Resigning Director and each Seller is hereinafter referred to as an "Indemnified
Party") against any and all losses, claims, damages, costs, liabilities and
expenses (including, without limitation, attorneys' fees and expenses and the
costs of investigation incurred by each Indemnified Party in or for any action
or proceeding between such Indemnified Party and any third party or otherwise)
("Damages") to which such Indemnified Party may become subject, insofar as such
Damages (or actions in respect thereof) arise or are based upon (i) any untrue
statement or alleged untrue statement of a material fact relating to the New
Directors or the Buyers contained in, or omission or alleged omission of a
material fact relating to the New Directors or the Buyers from, the Press
Release, Form 8-K or 14(f) Statement made in reliance upon and in conformity
with written information that is furnished to GolfRounds by the Buyers or those
acting on their behalf for inclusion in the Press Release, Form 8-K or 14(f)
Statement, or (ii) any liability or claim, contingent or direct, known or
unknown, matured or unmatured (including but not limited to liabilities for
taxes) arising in any way from any services rendered, or action taken by, or
relating to the operations of, GolfRounds commencing from the date of
resignation of the Resigning Directors and thereafter.
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(b) Notwithstanding the indemnification
obligations of GolfRounds set forth in subsection (a) above, from and after the
date hereof for a period of six years, except for amendments or modifications
required by law, GolfRounds shall not amend or modify any rights to
indemnification now existing in favor of the present and former directors,
officers and employees of GolfRounds provided in the Certificate of
Incorporation and Bylaws of GolfRounds in a manner adverse to any such director,
officer or employee, and the resignation of each Resigning Director shall not
diminish the obligations of GolfRounds to indemnify each Resigning Director.
(c) If any claim is asserted against any
Indemnified Party, or any Indemnified Party is made a party defendant in any
action or proceeding, and such claim, action or proceeding involves a matter
that is subject of this indemnification, then such Indemnified Party shall give
prompt written notice to GolfRounds of such claim, action or proceeding, and
GolfRounds shall have the right to join in the defense of said claim, action or
proceeding at GolfRound's own cost and expense and, if GolfRounds agrees in
writing to be bound by and to promptly pay the full amount of any final judgment
from which no further appeal may be taken and if such Indemnified Party is
reasonably assured of GolfRounds' ability to satisfy such agreement, then at the
option of such Indemnified Party, GolfRounds may take over the defense of such
claim, action or proceeding, except that, in such case, the Indemnified Party
being indemnified shall have the right to join in the defense of said claim,
action or proceeding at its own cost and expense.
(d) The Indemnified Parties shall have no
liability to GolfRounds or the Buyers for the sale of the Purchased Shares to
the Buyers except for (i) any breach of any of the Resigning Directors' and
Sellers' representations, warranties and covenants or undertakings in this
Agreement or the Stock Purchase Agreement and (ii) any claims relating to the
accuracy or completeness of any information provided to the Buyers that is in
conformity with written information contained in reports filed by GolfRounds
under the Exchange Act.
(e) At the Closing, the Buyers shall deliver to
the Sellers a copy of a written consent of the New Directors, effective upon the
effectiveness of the New Directors' appointment as directors of GolfRounds,
ratifying GolfRounds' obligations pursuant to this Section 8.
(f) At the Closing, the Buyers shall deliver to
the Sellers an agreement in the form of Exhibit D hereto, signed by each of the
New Directors, pursuant to which each of the New Directors shall agree to
indemnify Xxxxxxx, Van Herwarde and Galuchie as set forth therein.
9. Office Space. Xxxxxxx represents that the office space
presently occupied by GolfRounds at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx is
currently owned by Kent Financial Services, Inc. ("Kent"), an entity controlled
by Xxxxxxx. Xxxxxxx agrees that GolfRounds and its directors, officers and
employees shall be entitled to continue to occupy and utilize such space in the
same manner as GolfRounds and its directors, officers and employees currently
occupy and utilize such space until March 31, 2000, except that GolfRounds shall
pay a pro rata portion of the rent and other reasonable expenses payable by Kent
with respect to such space for such period. The Sellers acknowledge that such
amounts have been paid by GolfRounds to Kent prior to the date hereof.
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10. Representations and Warranties of the Parties.
(a) Each GolfRounds Party hereby represents as
follows, and each of such representations and warranties shall be deemed to have
been given as of the date hereof and as of the date of the Closing: The
GolfRounds Party has full legal power to execute and deliver this Agreement and
to perform his or its obligations hereunder. All acts required to be taken by
the GolfRounds Party to enter into this Agreement and to carry out the
transactions contemplated hereby have been, or prior to the Closing Date shall
have been, properly taken; and this Agreement constitutes a legal, valid and
binding obligation of such GolfRounds Party, enforceable in accordance with its
terms. The execution, delivery and performance of this Agreement by the
GolfRounds Party in accordance with its terms will not, with or without the
giving of notice or the passage of time, or both, conflict with, result in a
default, right to accelerate or loss of rights under, or result in the creation
of any encumbrance pursuant to, or require the consent of any third party or
governmental authority pursuant to, (i) any provision of the certificate of
incorporation or by-laws, if any, of Seller, or (ii) any franchise, mortgage,
indenture or deed of trust or any material lease, license or other agreement or
any law, regulation, order, judgment or decree to which such GolfRounds Party is
a party or by which such GolfRounds Party (or any of his or its assets,
properties, operations or businesses) may be bound, subject to or affected.
(b) Each Buyer hereby represents as follows, and
each of such representations and warranties shall be deemed to have been given
as of the date hereof and as of the date of the Closing: Buyer has full legal
power to execute and deliver this Agreement and to perform his or its
obligations hereunder. All acts required to be taken by Buyer to enter into this
Agreement and to carry out the transactions contemplated hereby have been, or
prior to the Closing Date shall have been, properly taken; and this Agreement
constitutes a legal, valid and binding obligation of Buyer, enforceable in
accordance with its terms. The execution, delivery and perfor xxxxx of this
Agreement by Buyer in accordance with its terms will not, with or without the
giving of notice or the passage of time, or both, conflict with, result in a
default, right to accelerate or loss of rights under, or result in the creation
of any encumbrance pursuant to, or require the consent of any third party or
governmental authority pursuant to, (i) any provision of the certificate of
incorporation or by-laws, if any, of Buyer, or (ii) any franchise, mortgage,
indenture or deed of trust or any material lease, license or other agreement or
any law, regulation, order, judgment or decree to which Buyer is a party or by
which Buyer (or any of his or its assets, properties, operations or businesses)
may be bound, subject to or affected.
11. Escrow Agent. The parties hereby agree that Escrow Agent
is serving hereunder solely as a convenience to the parties to facilitate the
Closing and Escrow Agent's sole obligation under this Agreement is to act with
respect to the Resignations as described in Section 3 of this Agreement. Escrow
Agent shall not be liable to any party hereto or any other person or entity in
respect of any act or failure to act by Escrow Agent hereunder or otherwise in
connection with serving as Escrow Agent unless Escrow Agent has acted in a
manner constituting gross negligence or willful misconduct. Escrow Agent shall
be indemnified by the parties, jointly and severally, against any claim made
against it (including reasonable attorney's fees) by reason of its acting or
failing to act in connection with this transaction except as a result of its
gross negligence or willful misconduct. Each of the GolfRounds Parties
acknowledges that Escrow Agent is serving as counsel to the Buyers in this
transaction and its services as the escrow agent to facilitate the Closing shall
not prevent or disqualify Escrow Agent from serving as counsel to any of the
Buyers now or in the future.
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12. Miscellaneous.
(a) The warranties, representations, covenants
and indemnities of the parties contained in or made pursuant to this Agreement
shall survive the Closing and shall in no way be affected by any investigation
of the subject matter thereof made by or on behalf of any of the parties.
(b) This Agreement shall be binding upon and
inure to the benefit of each party hereto, and its respective heirs, executors,
legal representatives, successors and assigns. This Agreement constitutes the
entire understanding and agreement between the parties with regard to the
subject matter hereof and may not be amended or modified except by a written
agreement specifically referring to this Agreement signed by all the parties. No
waiver of any breach or default hereunder shall be considered valid unless in
writing and signed by the party giving such waiver, and no such waiver shall be
deemed a waiver of any subsequent breach or default of the same or similar
nature.
(c) This Agreement shall be governed by and
construed under the internal laws of the State of New York, disregarding any
principles of conflicts of laws.
(d) This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) In the event that any provision of this
Agreement would be held to be invalid, prohibited or unenforceable in any
jurisdiction for any reason, unless such provision is narrowed by judicial
construction, this Agreement shall, as to such jurisdiction, be construed as if
such invalid, prohibited or unenforceable provision had been more narrowly drawn
so as not to be invalid, prohibited or unenforceable. If, notwithstanding the
foregoing, any provision of this Agreement would be held to be invalid,
prohibited or unenforceable in any jurisdiction for any reason, such provision,
as to such jurisdiction, shall be ineffective to the extent of such invalidity,
prohibition or unenforceability, without invalidating the remaining portion of
such provision or the other provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(f) Any notice required or permitted under this
Agreement shall be given in writing and shall either be delivered personally or
sent by certified mail, return receipt requested, postage prepaid, or by Federal
Express next business day service with signed receipt required, if to any of the
GolfRounds Parties, addressed to such party c/o XxxxXxxxxx.xxx, Inc., 000 Xxxx
Xxxxxx, X.X. Xxx 00, Xxxxxxxxxx, Xxx Xxxxxx 00000, if to a Buyer, at his or its
address as set forth on Schedule A, and if to the Escrow Agent, to its address
set forth above, attention Xxxxx Xxxx Xxxxxx, Esq., or to such other address as
either shall have specified by notice in writing to the other, and shall be
deemed duly given hereunder when so delivered. A copy of any notice to a Buyer
shall be sent to Xxxxx Xxxx Xxxxxx, Esq., Xxxxxxxx Xxxxxx & Xxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, and a copy of any notice to a GolfRounds
Party shall be sent to Xxx Xxxxxx, Esq. Rosenman & Colin LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
(g) The section headings are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope or intent of any provision of this Agreement.
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(h) This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the parties.
(i) The failure of the Closing to occur and the
return by the Escrow Agent of all documents, monies and other things deposited
with it pursuant to this Agreement and the Stock Purchase Agreement shall not
act as a waiver by any party of any claims such party has against any other
party for any breach of this Agreement or the Stock Purchase Agreement.
[The remainder of this page has been left blank intentionally]
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IN WITNESS WHEREOF, the parties have duly executed and
delivered this Agreement as of the date first above written.
SELLERS: BUYERS:
ASSET VALUE HOLDINGS, INC. THE XXXXXX XXXX XXXXXX 1997 TRUST
DATED 7/9/97
/s/ Xxxx X. Xxxxxxxx, Xx. /s/ Xxxxxxxx Xxxxxxxxxx
By: _____________________________ By:_______________________________
Xxxx X. Xxxxxxxx, Xx. Name: Xxxxxxxx Xxxxxxxxxx
Treasurer Title: Trustee
BRADFORD TRADING COMPANY THE EVAN XXXX XXXXXX TRUST DATED
6/17/97
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxxx Xxxxxxxxxx
By:_______________________________ By:_______________________________
Xxxxxx X. Xxxxxx Name: Xxxxxxxx Xxxxxxxxxx
President Title: Trustee
/s/ Xxxx X. Xxxxxxx
_________________________________ MARTAN & CO.
Xxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
By:_______________________________
SHAMROCK ASSOCIATES Name: Xxxxxxx Xxxxxxxxx
Title: President
/s/ Xxxx X. Xxxxxxx
By:_____________________________
Xxxx X. Xxxxxxx XXXXXXX FUND LIMITED PARTNERSHIP
General Partner Xxxxxxx Capital LLC, General
Partner
/s/ Xxxxxx X. Xxxxxxx
By:_______________________________
SUN EQUITIES CORPORATION Name: Xxxxxx X. Xxxxxxx
Title: Manager, Xxxxxxx Capital
/s/ Xxxx X. Xxxxxxxx, Xx. LLC, General Partner
By:_____________________________
Name: Xxxx X. Xxxxxxxx, Xx. XXXXXXXX & XXXXX XXXXXX FAMILY
Title: Vice President TRUST DATED 12/16/98
/s/ Xxxxxxxx Xxxxxx
/s/ Xxxxxx X. Van Herwarde By:_______________________________
________________________________ Name: Xxxxxxxx Xxxxxx
Xxxxxx X. Van Herwarde Title: Trustee
/s/ W. Xxxxxx Xxxxxxxx
__________________________________
W. Xxxxxx Xxxxxxxx
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XXXXXXXXX FAMILY TRUST DATED
9/24/97
/s/ Xxxxx X. Xxxxxxxxx
By:_______________________________
Xxxxx X. Xxxxxxxxx
Trustee
ESCROW AGENT:
XXXXXXXX XXXXXX & XXXXXX
/s/ Xxxxx Xxxx Xxxxxx
By: ______________________________
Xxxxx Xxxx Xxxxxx, Partner
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Schedule A
Buyers
--------
The Xxxxxx Xxxx Xxxxxx 1997 Trust Xxxxxxxxx Family Trust dated
dated 7/9/97 9/24/97
Xxxxxxxx Xxxxxxxxxx, trustee Xxxxx X. Xxxxxxxxx &
74 Farview Road Xxxxx Xxxxxxxxx, Trustees
Tenafly, New Jersey 07670 X.X. Xxx 0000
SS #: ###-##-#### Xxxxxx Xxxxx Xx, Xxxxxxxxxx 00000
Tax ID #: 00-0000000
The Evan Xxxx Xxxxxx 1997 Trust dated 6/17/97
Xxxxxxxx Xxxxxxxxxx, trustee
00 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
SS #: ###-##-####
Martan & Co.
000 Xxxxxxxxxx Xxxx., 00xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxx, Vice President
Tax ID#: 00-0000000
Xxxxxxx Fund Limited Partnership
Xxxxxxx capital LLC General Partner
000 Xxxxxxx Xxxxxxx, Xxxxxxxx #0
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Tax ID #: 00-0000000
Xxxxxxxx & Xxxxx Xxxxxx Family Trust dated
12/16/98
Xxxxxxxx & Xxxxx Xxxxx Xxxxxx, Trustee
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Tax ID #: ###-##-####
W. Xxxxxx Xxxxxxxx
000 Xxxxx Xxxxxxx
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
SS #: ###-##-####
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