EXHIBIT 10.2
Cellura Trust Settlement Agreement
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AMENDED AND RESTATED
SETTLEMENT AGREEMENT AND GENERAL RELEASE
THIS AMENDED AND RESTATED SETTLEMENT AGREEMENT AND RELEASE (hereinafter
referred to as "the Agreement") is made and entered into as of the _____ day of
March, 2000, by and among DIVOT GOLF CORPORTION, ("Divot") , a Delaware
corporation, and the JOSEPH R. CELLURA TRUST (the "Trust"), a Trust established
for the benefit of Ellee Mae Knight ("Knight"), all of which collectively shall
hereinafter be referred to as the "Parties."
R E C I T A L S:
A. WHEREAS, Knight suffered substantial damage to her person and character as
a result of the failure of the Divot Board of Directors (the "Board") to
undertake certain actions; specifically, the Board failed and refused to
issue shares of Divot common stock to certain shareholders of Divot
Development Corporation, Divot Partners Ltd., and Divot Corporation;
B. WHEREAS, the failure of the Board resulted in various legal actions filed
against Knight in the Federal District Court for the Middle District of
Florida and the Southern District of New York (the "Civil Actions"). The
Civil Actions were filed as a direct result of the failure of the Board to
undertake the Share issuance.
C. WHEREAS, Knight suffered real and substantial damage to her personal
character as a result of the filing of the Civil Actions, and has thus
contemplated the filing of various tort actions against Divot, including
(but not limited) an action sounding in defamation.
D. WHEREAS, the parties entered into that certain Settlement Agreement
providing for a cash payment to Knight in connection with her discharge as
an employee of Divot, which agreement did not intend to compensate Knight
for the full amount of damages she sustained as a result of the Board's
failure to act as set forth above, and the Civil Actions.
E. WHEREAS, Divot has agreed to issue 1,890,000 shares of its common stock,
.001 par value, to the Trust (the "Share Issuance"), and the Trust has
agreed to accept the shares on behalf of Knight in full and complete
satisfaction of all debts, obligations, and existing and potential claims
and causes of action Knight may have against Divot as a result of the
Board's failure to act as set forth above, and the Civil Actions.
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:
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A G R E E M E N T S:
1. Covenants of Divot: As soon as practicable following the execution of this
Agreement, Divot shall issue 1,890,000 shares of its common stock, .001
par value, to the Trust (to which Knight is a beneficiary) in full and
complete satisfaction of any and all existing and potential debts,
obligations, claims, and causes of action, including, but not limited to,
those arising under the Civil Actions and any action or inaction of the
Board associated with the Civil Actions.
2. Covenants of the Trust: By execution hereof, the Trust hereby agrees to
accept the Share Issuance on behalf of Knight, in full and complete
satisfaction of all potential claims against Divot which Knight may have
that arise from the Civil Actions and/or any action or inaction of the
Board associated with the Civil Actions. The Trust further agrees to the
following:
(a) Release: The Trust shall obtain from Knight, and all her heirs,
beneficiaries, settlors, trustees, and personal representatives, and anyone
else claiming under or through Knight, a full and complete release and
discharge, which will 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 Knight may have against Divot in connection with or arising from the
Civil Actions and/or any action or inaction of the Board associated with
the Civil Actions.
(b) 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, the release
shall apply to any and all injuries, damages, and losses resulting from the
Civil Actions, and/or any action or inaction of the Board associated with
the Civil Actions even though now unanticipated, unexpected, and unknown.
(c) Representations and Indemnification: The Trust hereby represents that the
Shares shall be held in trust for Knight, and shall not be issued to Knight
until a full release of Divot is obtained from Knight as described in
Section 2(a) and (b) of this Agreement. The Trust further agrees to fully
indemnify and hold Divot forever harmless from and against any and all
lawsuits, claims, demands, and judgments filed or obtained by Knight
against Divot following the execution of this Agreement, including
reasonable attorney's fees and all other expenses necessarily incurred by
Divot in the defense thereof.
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3. Covenants Common to All 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; (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:
If to Divot:
One Union Square South, Suite 10-J
New York, NY 10003
If to the Trust:
The Joseph R. Cellura Trust
One Union Square South, Suite 10-J
New York, NY 10003
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. 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
9. 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.
10. 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.
11. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first set forth above.
DIVOT GOLF CORPORATION THE JOSEPH R. CELLURA TRUST
By: ___________________________ _____________________________
Joseph R. Cellura, Trustee
Name: ___________________________
Title:___________________________
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