FIRE AT THE FLAG™ ASSIGNMENT AGREEMENT
EXHIBIT 10.25
FIRE AT THE FLAG™ ASSIGNMENT
AGREEMENT
THIS FIRE
AT THE FLAG™ ASSIGNMENT AGREEMENT (this “Agreement”) is made as of November __,
2008 by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., an individual with an address ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (“▇▇. ▇▇▇▇▇▇”), Dream Shot, Inc., a company duly
incorporated under the laws of Nevada with its registered office at 1880 – ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇ (“Dream Shot;” Dream
Shot and ▇▇. ▇▇▇▇▇▇ are referred to collectively as the “Assignee”) and GPS
Industries, Inc., a Nevada corporation having an office located at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Assignor”). For
purposes of this Agreement, the term “Assignor” shall also refer to Golf
Academies Ltd., a wholly-owned subsidiary of GPS Industries, Inc.
WHEREAS,
▇▇. ▇▇▇▇▇▇ was the chief executive of the Assignor pursuant to an employment
agreement dated as of December 19, 2006, which employment agreement was
terminated and replaced by that certain “Employment Agreement” dated as of
November 29, 2007 whereby ▇▇. ▇▇▇▇▇▇ resigned as the chief executive and board
chairman and accepted a position as Special Advisor to the Chief Executive
Officer of the Company;
WHEREAS, Concurrently
with the execution of the Employment Agreement, ▇▇. ▇▇▇▇▇▇ and the Assignor
entered into that certain Special Projects Agreement dated as of November 29,
2007 (the “SPA”);
WHEREAS,
pursuant to the terms of the Employment Agreement and the SPA, ▇▇. ▇▇▇▇▇▇ was to
develop that certain business initiative on behalf of the Assignor known as the
Fire at the Flag™ initiative (“FAF” or the “FAF Program”), a plan to partner
with golf courses to place a hole-in-one contests on golf courses worldwide,
whereby golf patrons of partner golf courses pay a fee to attempt to make a
hole-in-one to win cash and/or prizes;
WHEREAS,
▇▇. ▇▇▇▇▇▇ and the Assignor agreed to terminate the Employment Agreement and the
SPA and, as part of that termination, agreed to enter into an agreement whereby
the Assignor would license the FAF initiative to ▇▇. ▇▇▇▇▇▇’▇ entity, Dream
Shot, and to further assign certain of the Assignor’s rights and obligations
under the attached rental agreements referenced below arising out of or in
connection with the FAF initiative;
WHEREAS,
the Assignor presently conducts and operates the FAF Program in Europe through
its wholly-owned subsidiary Golf Academies Ltd. on several golf courses located
predominately in the United Kingdom, Spain and Portugal and in that regard has
certain assets, rights and properties in connection therewith and as set forth
in Schedule “A”, attached hereto;
WHEREAS,
Dreamshot desires to administer and operate the FAF pursuant to the terms and
conditions hereof; and
2
WHEREAS,
subject to the limitations and terms hereof, in consideration of the Release
Agreement entered into contemporaneously herewith by and between the Assignor
and ▇▇. ▇▇▇▇▇▇, the Assignor agrees to assign to Dream Shot certain of its
rights and obligations, under the FAF Program and the Assignor’s existing FAF
agreements (attached) with certain of its golf course customer.
NOW, THEREFORE, in consideration of the
mutual covenants and promises made herein and for other good and valuable
consideration, the parties agree as follows:
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1.
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Definitions.
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a.
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“Course”
shall mean a golf course at a specified
location.
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b.
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“FAF
Program” has a meaning ascribed to it by the recital A of this
Agreement.
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c.
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“Dream
Shot Program” shall mean any and all programs associated with Dream Shot,
Inc.
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d.
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“Territory”
shall mean worldwide territory.
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e.
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“Revenue”
means gross revenue for a calendar month less returns, bad debts, value
added taxes, sales taxes or similar taxes and refunds in regard to that
calendar month.
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2.
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Assignment and
Administration of the FAF
Program.
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a.
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The
Assignor hereby assigns and the Assignee hereby accepts all the rights,
assets and properties under the FAF Program (except for the three Courses
listed in Subsection (g) below) in each country of the Territory to make,
use, sell, operate or license the FAF Program in whole or in part in and
into the Territory.
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b.
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The
Assignee shall have an exclusive right to assign, in whole or in part, the
FAF Program, or to continue to operate or cancel or amend any aspect of
the program or existing installation subject to the terms
hereof. Any future assignee shall be bound by all the terms of
this Agreement and in particular, without limiting the generality of the
foregoing, by section 3(a).
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c.
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Assignee
is, and shall act as, an independent contractor and shall not have any
authority to make any commitments, statements or representations, or incur
any obligations, on behalf of the Assignor, or to bind or commit the
Assignor in any manner, to make, alter, or execute any document or
agreement on behalf of the Assignor save and except circumstances outlined
in Section 11(d). The parties are and shall at all times be and
remain independent contractors with respect to the subject matter of this
Agreement.
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d.
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At
the Assignor’s sole discretion, Assignor may elect to allow its salaried
employees, agents and distributors to sell the Dream Shot
Program. If this occurs, Dream Shot shall use its best efforts
to train the employees of the
Assignor.
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e.
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Dream
Shot will use a standard agreement, which Dream Shot has the right to
modify at its sole discretion, to document any and all Dream Shot Program
sales to any Assignor customer, attached hereto as Exhibit
B.
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f.
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Assignee
will not pay nor offer to pay any Assignor employee, agent or distributor
any compensation, commissions or any remuneration
whatsoever. Further, contact between Assignee and Assignor
employees, distributors and agents will be limited to leads or
introductions made by Assignor to
Assignee.
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g.
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Anything
to the contrary herein or otherwise notwithstanding, in regards to the
three (3) Courses in Europe that have an FAF contract linked to an
Assignor GPS golf course management system agreement, (1) Quinta Do Lago;
(2) Villa Sol; and (3) Mijas, those FAF Programs are not assigned pursuant
hereto and such FAF Programs, as it relates to those three Courses, will
continue to be managed by GPSI until the parties and those three courses
can be transferred pursuant to an agreement acceptable to all three
parties in each case. Both parties hereto acknowledge that the
parties must mutually agree upon a commission/compensation package to
reflect the terms of the original FAF/GPS system agreement; i.e., certain
Courses the leased or purchased a GPS system at a reduced rate in exchange
for Assignor having the ability to operate the FATF program at no cost to
the course. For such Courses, Assignee agrees that the Royalty
paid on such Courses shall correspond with similarly situated Dream Shot
Programs.
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h.
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Assignee
agrees to assume the obligations listed on Exhibit C, including without
limitation the employment of certain mutually agreeable staff employed by
Assignor in Europe and the obligations on the rental agreements attached
hereto.
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i.
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Assignee
shall have the sole discretion to accept or reject Courses for the Dream
Shot Program.
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3.
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Payments to the
Assignor.
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a.
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Fee/Royalty. The
Assignee shall pay the Assignor a fee/royalty (the “Royalty”)
of:
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i.
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Ten
percent (10%) of the revenue generated from the hole in one shot unless
otherwise agreed to in writing by both parties (A) GPSI-installed golf
courses currently operating the FAF Program on a worldwide basis as of the
date of this Agreement, as set forth on Schedule A; and (B) GPSI-installed
golf courses not currently operating the FAF Program which are introduced
to Dream Shot by the Assignor pursuant to the pre-qualification lead sheet
attached hereto as Exhibit D (see Subsection (ii)
below);
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ii.
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Five
percent (5%) of the revenue generated from the hole in one shot unless
otherwise agreed to in writing by both parties, from any Course introduced
to Dream Shot by the Assignor pursuant to the pre-qualification lead sheet
attached hereto as Exhibit D. Such pre-qualification lead sheet
introduction will be defined as a lead sheet sent from Assignor for a
course that has not previously signed any LOI, MOU or other such
documentation with Dream Shot. All introductions will be passed
to Dreamshot by a designated person at Assignor, initially Company COO
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and accepted by Dream Shot at its sole
discretion
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b.
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Double
Taxation Treaties. The Assignor and the Assignee agree
to cooperate to make use of any double taxation treaties that may be
available to enable the Assignee to pay royalties without deduction of
withholding taxes.
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c.
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Payment
Default. Notwithstanding anything to the contrary
herein, Assignee shall have sixty (60) calendar days to cure a payment
default. Such 60-day period shall commence upon the due date of
any Royalty payment and shall not require any notice provision to
commence.
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4.
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Accounting,
Records,
Payment.
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a.
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The
Assignee shall keep accurate records of the number of golf holes and
locations. The Assignee shall pay the Royalty within fifteen
(15) days at the end of each calendar quarter. The Assignee
shall pay interest on the amount of the Royalty past due at a rate of one
percent (1.0%) per month from the actual due date. The Assignee
shall accompany each payment with a report specifying the installed
Courses for the month and the Royalty due. The Assignee and
Assignor shall
keep the contents of each report
confidential.
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b.
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Payment
shall be made by wire transfer directly to an account as directed by
Assignor, presently and until further notice to the following
account:
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GPS
Industries, Inc.--Account Number #526199-070
Beneficiary
Bank - HSBC Bank Canada
▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Swift
Code - ▇▇▇▇▇▇▇▇ Bank Number #016
Transit
Number #10020
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c.
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Assignor
may, upon request annually, inspect the records and facilities of the
Assignee to verify the Assignee’s reports and payments under this
Agreement. Only records and facilities in regard to the
payments under this Agreement may be inspected. The inspection
shall be made on a reasonable notice, during regular business hours and
without interference with the regular business of the
Assignee. The entire cost for such inspection shall be borne by
the Assignor unless the inspection reveals the Assignee’s reports or
payments to be in error by five percent (5%) or more, in which case, the
Assignee shall reimburse the Assignor for the cost of such
inspection.
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5.
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Warranties
and Representations of Assignor. The Assignor
represents, warrants, confirms, to the best of its
knowledge:
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a.
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The
Assignor is a corporation duly organized, validly existing and in good
standing under its laws of incorporation, has all requisite corporate
power and authority to own, lease and operate its properties and the
properties it purports to own and to carry on its business as is now being
conducted, to perform its obligations under all agreements or contracts by
which it is bound and is duly qualified or licensed and is in good
standing to do business in each jurisdiction, in which the nature of its
business or the ownership or leasing of its properties makes such
qualification necessary.
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b.
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The
execution and delivery of this Agreement by the Assignor does not, and the
performance by the Assignor of the transactions contemplated hereby will
not violate, conflict with, or result in any breach of any provision of
the Assignor’s charter documents, contracts with third parties, any order,
writ, judgment, injunction, decree, statute, law, rule or regulation;
invalidate or adversely affect any permit used in the conduct of the
Assignor’s business.
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c.
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Except
as otherwise disclosed herein, no consent of, or registration, declaration
or filing with any governmental entity nor any governmental authorization
is required by or with respect to the Assignor or the FAF Program in
connection with its operation of the business or the execution and
delivery of this Agreement by the Assignor or the consummation of the
transactions contemplated hereby.
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d.
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The
Assignor is the owner, beneficially and of record, of the FAF Program with
good and marketable title thereto, free of any claim, lien, security
interest or encumbrance of any nature or kind, and as such has the
exclusive right and full power to sell, transfer and assign the FAF
Program to the Assignee free of any claim, lien, security interest or
encumbrance of any nature or kind.
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e.
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In
addition, no person has any agreement or any right capable of becoming an
agreement for the purchase of the FAF
Program.
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f.
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There
are no threatened or pending suits, actions or other legal proceedings of
any sort or in any manner, which may restrain or prevent the Assignor from
effectually and legally transferring the FAF Program to the Assignee, free
and clear of all claims, liens, security interests and encumbrances of any
nature or kind.
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g.
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The
execution and delivery of this Agreement by the Assignor as contemplated
herein has been duly authorized by all necessary action and the Assignor
has the legal capacity to enter into this Agreement and to carry out the
transaction contemplated herein and to perform its obligations hereunder
and pursuant to all other agreements required to be delivered
hereunder.
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h.
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This
Agreement has been duly and validly executed and delivered by the Assignor
and constitutes a valid and legally binding agreement, enforceable against
the Assignor in accordance with its terms subject to and affected by the
laws relating to bankruptcy, insolvency, reorganization and creditors’
rights generally and except that a court may or may not order an
injunction, specific performance or other equitable remedies with respect
to any particular provision of this
Agreement.
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i.
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No
representation or warranty by the Assignor contained in this Agreement or
in any exhibit, schedule, written statement, certificate or other document
delivered or to be delivered by the Assignor pursuant to this Agreement or
in connection with the consummation of the transactions contemplated
hereby contains or will contain any untrue statement of a material fact,
or omits or will omit to state any material facts known to the Assignor
necessary, in light of the circumstances under which it was or will be
made, in order to make the statements herein or therein not
misleading.
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j.
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The
golf courses as listed in Schedule A all have duly and validly executed
FAF contracts delivered by the Assignor and any corresponding 3rd
party.
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k.
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The
Assignor is not in material default in any respect of any obligation under
any of the Assumed Contracts to which it is a party or by which it is
bound.
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6.
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Representations
and Warranties of the Assignee. The Assignee represents,
warrants, confirms, to the best of it
knowledge:
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a.
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The
Assignee is a corporation duly organized, validly existing and in good
standing under its laws of incorporation, has all requisite corporate
power and authority to acquire, own, lease and operate its properties and
the properties it purports to acquire, own and to carry on its business as
is now being and will be conducted, to perform its obligations under all
agreements or contracts by which it is bound and will be bound and is duly
qualified or licensed and is in good standing to do business in each
jurisdiction, in which the nature of its business or the ownership or
leasing of its properties makes such qualification
necessary.
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b.
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The
execution and delivery of this Agreement by the Assignee does not, and the
performance by the Assignee of the transactions contemplated hereby will
not violate, conflict with, or result in any breach of any provision of
the Assignee’s charter documents, contracts with third parties, any order,
writ, judgment, injunction, decree, statute, law, rule or regulation;
invalidate or adversely affect any permit used in the conduct of the
Assignee’s business.
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c.
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The
execution and delivery of this Agreement by the Assignee as contemplated
herein has been duly authorized by all necessary action and the Assignee
has the legal capacity to enter into this Agreement and to carry out the
transaction contemplated herein and to perform its obligations hereunder
and pursuant to all other agreements required to be delivered
hereunder.
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d.
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This
Agreement has been duly and validly executed and delivered by the Assignee
and constitutes a valid and legally binding agreement, enforceable against
the Assignee in accordance with its terms subject to and affected by the
laws relating to bankruptcy, insolvency, reorganization and creditors’
rights generally and except that a court may or may not order an
injunction, specific performance or other equitable remedies with respect
to any particular provision of this
Agreement.
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e.
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No
representation or warranty by the Assignee contained in this Agreement or
in any exhibit, schedule, written statement, certificate or other document
delivered or to be delivered by the Assignee pursuant to this Agreement or
in connection with the consummation of the transactions contemplated
hereby contains or will contain any untrue statement of a material fact,
or omits or will omit to state any material facts known to the Assignee
necessary, in light of the circumstances under which it was or will be
made, in order to make the statements herein or therein not
misleading.
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7.
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Indemnification
and
Assumption.
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a.
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The
Assignor shall indemnify and hold harmless the Assignee, its directors,
officers, employees and agents from and against any claims, actions, cause
of action, losses, costs and damages including, without limitation,
reasonable legal and attorney’s fees and costs of every kind and nature
which the Assignee, its directors, officers employees and agents may incur
in respect of the Assignor’s grossly negligent, fraudulent and/or willful
misconduct or material breach of any terms of this
Agreement. However, the Assignor shall not be responsible for
losses arising from a breach of this Agreement as a result of any
fraudulent or negligent act or willful misconduct of the Assignee or any
of its directors, officers, employees or
agents.
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b.
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The
Assignee shall indemnify and hold harmless the Assignor, its directors,
officers, employees and agents from and against any claims, actions, cause
of action, losses, costs and damages including, without limitation,
reasonable legal and attorney’s fees and costs of every kind and nature
which the Assignor, its directors, officers employees and agents may incur
in respect of the Assignee’s negligent, fraudulent and/or willful
misconduct or material breach of any terms of this
Agreement. However, the Assignee shall not be responsible for
losses arising from a breach of this Agreement as a result of any
fraudulent or negligent act or willful misconduct of the Assignor or any
of its directors, officers, employees or
agents.
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c.
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The
Assignee shall assume all the rights of the Assignor under FAF
Program. Furthermore, the Assignee and Assignor shall work
together to address any problems or issues with any FAF Program courses,
without in any manner implying that the Assignee accepts assignment of any
liabilities or obligations in these or any other contract. The
previous notwithstanding, Assignee shall not assume any liabilities of
GPSI under the FAF Program; provided however, that (i) Assignee will
provide accounting for all monies paid to a participating golf course that
has a first monies in or guaranteed contract with GPSI, those courses
listed on Schedule 9(c)(i) attached hereto, and these monies will be
credited towards the Royalty; and (ii) Assignee will assume rental
obligations for courses in Europe contracted under a FAF agreement,
specifically, those courses listed on Schedule 9(c)(ii) attached hereto,
at Dream Shot’s sole discretion.
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8.
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Effective
Date; Termination.
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a.
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This
Agreement shall be effective as of November ____, 2008, the launch date of
the Dream Shot Program, the release of a mutually agreeable press release
regarding the transactions contemplated hereby and commencement of cross
training of each of the party’s
employees.
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b.
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This
Agreement may be terminated:
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i.
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By
the mutual, written agreement of the Assignor and Assignee;
or
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ii.
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In
the event either party defaults or breaches any of the provisions of this
Agreement, the other party may terminate this Agreement by giving the
defaulting/breaching party ninety (90) days written notice thereof;
provided, however, that if the defaulting or breaching party, within the
ninety (90) day period referred to, cures said default or breach,
this Agreement shall continue in full force and effect the same as if such
default or breach had not
occurred.
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c.
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If
a breach of this Agreement is not cured within 90 days as a result of
default by the Assignee the non-competition agreement shall be at an end,
therefore, allowing the Assignor to compete with the Assignee as it sole
remedy.
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9.
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Disputes,
Governing Law, Forum Selection. This Agreement is made
pursuant to the law of the State of Nevada and shall be construed in
accordance with the law of the State of Nevada, excluding the body of law
relating to conflicts of law. The parties hereby consent to the personal
jurisdiction of the courts of the State of Nevada and agree that any
dispute arising out of or in connection with this Agreement or the matters
referenced herein shall be subject to the exclusive venue of the courts
located in Nevada, to the exclusion of any other court or tribunal, and
the parties waive any defenses or claims or objections to such venue,
including without limitation objections based on convenience or personal
jurisdiction. The parties acknowledge that neither party hereto
has agreed to arbitrate any issue or dispute arising out or in connection
with this Agreements and the agreements and transactions contemplated
hereby. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT IT OR THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT.
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10.
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Notices. Any
notice or report made shall be considered proper and effective if mailed
by registered mail addressed as shown below, or delivered in person or in
writing.
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Assignor:
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Attn: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Chief Operating Officer
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▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇
▇▇▇
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▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
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Assignee:
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Dream
Shot, Inc.
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c/▇
▇▇▇▇▇▇ & Company
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Barristers
and Solicitors
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1880
– ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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11.
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General
Provisions.
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a.
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Waiver. Waiver
by either party of any breach or default of any of the terms herein set
forth shall not be deemed a waiver as to any subsequent or any other
breach or default.
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b.
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Modification,
Force Majeure. Any amendment or modification of this
Agreement or any right hereunder shall not be effective unless made in
writing and signed by both of the parties hereto. Neither party
will be liable for delays in performance due to circumstances beyond its
reasonable control.
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c.
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Successors
and Assigns. All terms and provisions of this Agreement
shall be binding upon and inure for the benefit of the parties hereto, and
their successors and assigns and legal
representatives.
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d.
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Further
Assurances. The Assignor authorizes the Assignee to
perform on the Assignor’s behalf any acts and execute any documents
necessary to carry out the intent of the transaction contemplated
herein.
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e.
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Governing
law; Severability. This Agreement shall be governed by
the laws of the State of Nevada, exclusive of any Conflict of Laws
doctrine. If any provisions of the Agreement or the application
of any such provision shall be held to be contrary to law, the remaining
provisions of this Agreement shall continue in full force and
effect.
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f.
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Entire
Agreement. The parties acknowledge that this Agreement
expresses their entire understanding and agreement, and that there have
been no warranties, representations, covenants of understandings made by
either party to the other except such as are expressly set forth
herein.
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g.
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Construction. This
Agreement has been negotiated and reviewed by the parties and their
counsel. Therefore, the language in this Agreement will not be construed
against any particular party as the drafter of such
language.
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IN
WITNESS WHEREOF the parties hereto have duly executed this Agreement as of the
date first above written.
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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By:
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/s/
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇.
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▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Chief
Executive Officer
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DREAM
SHOT, INC.
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇.
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Chief
Executive Officer
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