EXHIBIT 10.21
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT, dated as of the 15th day of July, 1996,
between and among Xxxx X. Xxxxxxxx ("JWN"), and Xxxx X. Xxxxx, Xxxxxx X. Xxxxxx,
Xxxx Xxxxxxxx, and Xxxxxxx X. Xxxxxxxxx (each a "Shareholder" and collectively
the "Shareholders"), and GOLDEN BEAR GOLF, INC. a Florida corporation (the
"Company").
WITNESSETH:
WHEREAS, the Shareholders are currently the owners and holders of Class
"A" voting common stock of Golden Bear Golf Centers, Inc. ("GBGC"), and are
parties to that certain Shareholders' Agreement of GBGC dated as of December 7,
1992, as amended by Amendment dated June 6, 1996 (the "Old Shareholders'
Agreement") which contains certain restrictions upon transferability and
authorizes JWN to exercise all voting rights appurtenant to such common stock of
GBGC;
WHEREAS, the Shareholders have agreed, pursuant to an Agreement and
Plan of Reorganization dated June 6, 1996, to exchange the shares of GBGC Class
"A" common stock owned and held by them for shares of the Class "A" voting
common stock of the Company (the "Shares");
WHEREAS, under the Old Shareholders' Agreement, the Shareholders have
agreed with JWN that, as a condition to JWN's approval of any corporate
reorganization, they would enter into a restrictive agreement providing for
continuation of the voting arrangements under the Old Shareholders' Agreement
and for continuing restrictions upon the transfer of any shares received or
receivable in exchange for the Class "A" common stock of GBGC held under the Old
Shareholders' Agreement;
WHEREAS, in contemplation of the effectuation of the public offering
contemplated by the Agreement and Plan of Reorganization, the Shareholders, JWN
and the Company have entered into this Agreement with respect to the rights of
the Shareholders to vote and transfer the Shares, such Agreement to be effective
as provided below and to continue thereafter as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
herein, and intending to be legally bound, the parties agree as follows:
1. EFFECTIVE DATE. This Agreement shall become effective only upon the
issuance by the Company of the Shares to the Shareholders pursuant to the
Agreement and Plan of Reorganization, and such effectiveness shall be a
simultaneous condition to the delivery of such Shares to the Shareholders. If
the Reorganization is not consummated and the Agreement and Plan of
Reorganization is terminated as provided therein, then this Agreement shall be
null and void and of no further force and effect.
2. RESTRICTION ON TRANSFER. Except as otherwise provided in this
Agreement, no Shareholder shall assign, encumber, pledge, transfer, or otherwise
dispose of any of the Shares to any person without first receiving the written
consent of the other Shareholder(s) for the greater of two (2) years or the
applicable holding period under Rule 144 promulgated by the Securities and
Exchange Commission, or any subsequent securities regulation which expressly
supersedes such Rule. The restriction on transfer set forth in this Section 2,
shall not apply to: (i) the delivery of the Shares by a Shareholder to JWN as
substitute collateral security for a loan from JWN to such Shareholder evidenced
by a Promissory Note and Security Agreement dated as of June 6, 1996 (the
"Loan(s)"), or (ii) any assignment, conveyance or disposition of Shares to JWN
or a party designated by JWN to hold or receive a security interest in such
Shares, provided that such transfer is made in full compliance with all
applicable securities regulations.
3. RIGHT OF FIRST REFUSAL TO JWN. Following the expiration of the
period set forth in Section 2, above, no Shareholder shall assign, encumber,
pledge, transfer, or otherwise dispose of any of his Shares to any person
without first making an offer to sell such Shares to JWN in accordance with the
provisions of this Section, unless such right of first refusal is waived in a
written document signed by JWN. Notwithstanding the foregoing, the option rights
set forth in this Section 3 shall not apply to any assignment, encumbrance,
pledge, transfer or other disposition of the Shares to any of the holders of the
Class "B" common stock of the Company, provided that such person shall
acknowledge and agree to be bound by this Agreement as a holder or potential
holder of such Shares prior to the time record ownership or a security interest
in such Shares is conveyed to such person.
(a) Any Shareholder desiring to enter into a transaction subject to
this Section (a "Transferor") shall give written notice of such intention (the
"Notice") to JWN, which Notice shall set forth the name and address of the
prospective purchaser or lienor, the number of Shares involved in the proposed
transaction, and the terms of such proposed transaction. Any Notice given under
this subsection shall constitute an offer to sell to JWN all of the Shares
identified in such Notice, at the option of JWN as set forth in subsection (b),
below.
(b) JWN shall have the option, which option shall be exercised within
ten (10) days after his receipt of the Notice, to purchase all, but not less
than all, of the Shares identified in the Notice from the Transferor at a
purchase price determined in accordance with subsection (c), below. Any notice
of exercise given by JWN shall specify a date for the closing of the purchase of
Shares that shall not be more than fifteen(15) days after the date such notice
is given by JWN. Unless JWN exercises his option to purchase by giving written
notice of his acceptance of the offer to sell the Shares to the Transferor
within the required ten (10) day period, the Transferor shall be free to
consummate the transaction identified in the Notice. If the Transferor fails to
consummate the proposed transaction within thirty (30) days following the
expiration of
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such period, the Shares shall again become subject to all the restrictions of
this Agreement.
(c) If the proposed transaction is a private sale to a third party at a
negotiated price, the purchase price payable by JWN for the Shares to be
acquired from the Transferor and the terms of payment of such price shall be, at
the option of JWN: (i) the purchase price (net of broker's commissions) and
terms negotiated by the Transferor for such Shares as set forth in the Notice,
or (ii) the "Market Price" of the Shares, which except as otherwise provided
below shall be a per Share price equal to the average closing price of the
Company's Class "A" common stock on NASDAQ or any other recognized securities
market on which such stock is actively traded for the ten (10) day period
immediately preceding JWN's exercise of his election to purchase the Shares,
which Market Price shall be payable in cash at closing. The purchase price
payable by JWN for the Shares to be acquired from the Transferor in connection
with any proposed transaction subject to this Section other than a negotiated
sale shall be the Market Price, and shall be payable in cash at closing. If the
Company's Class "A" common stock is no longer actively traded on NASDAQ or any
other recognized securities market, then the Market Price shall be an amount per
Share equal to the average between the most recent bid and offer price quoted
for the Class "A" common stock on a Qualifying Electronic Quotation System
recognized by the Securities and Exchange Commission, or if no such quotations
are available, an amount equal to the fair market value of such Shares as of the
Company's most recent quarterly financial statements preceding the date of JWN's
acceptance of the offer as determined by a valuation to be prepared by an
independent appraiser agreed upon by the parties.
4. PURCHASE OPTION UPON INCAPACITY. Upon the "Incapacity" of any
Shareholder, which shall be defined as the death, declaration or adjudication of
personal bankruptcy, or legal declaration of incompetency of any Shareholder,
JWN shall have the option to purchase all Shares then held by such Shareholder,
and/or his legal representatives, heirs or distributees as the case may be (the
"Incapacity Shares"), as set forth in this Section 4.
(a) Upon the Incapacity of any Shareholder, JWN shall have the first
option to purchase all of the Incapacity Shares from the holders thereof at the
Market Price, payable in cash at closing unless otherwise mutually agreed, which
option shall be exercised by written notice given within the last to expire of:
(i) thirty (30) days after JWN's receipt of written notice of appointment or
qualification of the legal representative(s) of the deceased, bankrupt, or
incapacitated Shareholder, or (ii) sixty (60) days after the date such
incapacity is legally declared. Such option shall be exercised by written notice
to such legal representatives, which notice shall constitute a legally binding
agreement on the part of JWN to purchase all of the Incapacity Shares at the
Market Price.
(b) If JWN fails or declines to exercise such option rights with
respect to any of the Incapacity Shares, such action shall be deemed an election
to allow the holders
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of such Incapacity Shares to be substituted for the Shareholder subject to
Incapacity under this Shareholders' Agreement, and the holders of such
Incapacity Shares shall thereafter hold such Shares subject to all of the rights
and obligations of the original Shareholder under this Agreement, including
without limitation, the restrictions upon further transfer of such Shares set
forth in Sections 2 and 3, above. In the event any party is so substituted, the
Company may require such party to furnish written evidence of his intention to
be bound by this Agreement as a condition to receiving any rights or benefits
with respect to the Shares.
(c) Notwithstanding any of the foregoing, any Shares held by a
Shareholder, which at the time of his Incapacity are subject to a binding
commitment of purchase or sale pursuant to another Section of this Agreement,
shall be purchased pursuant thereto. Any other Shares held by a Shareholder at
the time of his Incapacity, whether or not the subject of any offer not accepted
at the time of such Incapacity, shall be deemed Incapacity Shares and disposed
of in accordance with the provisions of this Section.
5. CLOSINGS. The closing of any purchase or sale of Shares contemplated
by this Agreement shall take place at the office of the Corporation's legal
counsel at the time selected by JWN, subject to the terms of this Agreement.
Except as otherwise provided in clause (i) of subsection 3(c), above, the
purchase price shall be paid in cash by JWN at closing in exchange for the
tender and conveyance of the Shares. In the event that JWN has exercised his
option under such clause to accept the terms of sale by a Transferor as set
forth in the Notice given under Section 3, above, JWN shall make such payment at
closing as may be called for under the payment terms set forth in such Notice
and deliver such other consideration to the Transferor in exchange for such
Shares as may reasonably be required in order to meet such terms. At closing,
the balance of any Loan which remains outstanding, including unpaid principal
and interest accrued through the closing date, shall be offset against the
purchase price due from JWN, and JWN shall be required only to pay the net
amount due to the Shareholder after application of such offset or the
Shareholder shall receive credit against the Loan to the full amount of the
purchase price, as the case may be. The Shareholder shall tender a legal
conveyance of his Shares to JWN at closing by endorsement of his certificate(s)
for such Shares or by separate stock power, and shall provide JWN and the
Company with such other documents and instruments as are necessary to convey all
right, title and interest in the Shares to JWN, free and clear of any liens or
encumbrances other than the pledge securing the Loan to such Shareholder, if
such Loan remains outstanding. Unless the Loan has been previously discharged,
JWN in turn will provide the Shareholder with a receipt for payment against the
Loan in the amount of the purchase price credited as a result of the foregoing
offset, together with any instruments or documents necessary to document the
satisfaction and discharge of the remaining obligations of the Shareholder with
respect to the pledge of the Shares. If the purchase price offset due from JWN
is sufficient to fully pay and discharge the Loan, JWN will return the original
Non-Negotiable Promissory Note and Security
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Agreement reflecting such Loan to the Shareholder at closing marked paid in
full, and otherwise the Loan shall continue as an unsecured debt until the
balance becomes due and payable in accordance with the terms of the Promissory
Note.
6. GRANT OF VOTING RIGHTS TO JWN. The Shareholders owning and holding
any shares of Class "A" voting common stock hereby assign to JWN all of their
right to vote the Shares on any and all corporate matters on which the
Shareholders are entitled to vote, including without limitation, the election of
directors, the sale of all or substantially all of the assets of the Company,
and any merger or consolidation with another company. The Shareholders, upon
demand by JWN, shall deliver appointment forms to JWN, irrevocably appointing
him as a proxy to vote at all meetings and upon all matters subject to vote by
the Shareholders, such proxy being coupled with an interest as set forth in
Florida Statute 607.0722(5)(e). The Shareholders acknowledge that their
relinquishment of all of their right to vote the Shares is a material inducement
to their admission as shareholders of the Company and their obligations
hereunder may be specifically enforced by JWN.
7. ENDORSEMENT OF CERTIFICATES. All of the Shares shall bear
the following endorsement:
"This certificate is transferable only upon compliance with the
provisions of an agreement dated June 6, 1996 among the holder and
others, a copy of which is on file in the office of the Secretary of
the issuer."
All certificates for Shares hereafter issued to the Shareholders shall bear the
same endorsement.
8. APPLICABILITY TO OTHER STOCK HELD BY SHAREHOLDERS. It is understood
and agreed that the provisions of this Agreement shall be deemed to apply to the
Shares held by the Shareholders, and to any other securities hereafter received
or receivable by the Shareholders during the term of this Agreement with respect
to the Shares, including, without limitation, any securities received as a
result of a share dividend or other distribution of securities or as a result of
any recapitalization, reorganization or exchange transaction involving such
Shares. This Agreement shall not apply to any other shares of the Company's
Class "A" common stock acquired by the Shareholders after the date of this
Agreement, or any other securities hereafter received or receivable by the
Shareholders with respect to such shares of the Company, including, without
limitation, any shares acquired as a result of the exercise by a Shareholder of
any options or warrants granted by the Company to such Shareholder or as a
result of the purchase of such shares on the open market.
9. SPECIFIC PERFORMANCE. The Shareholders agree that they would be
irreparably damaged if the terms of this Agreement were not capable of being
specifically enforced. For this reason the Shareholders agree that the terms of
this Agreement shall be specifically enforceable. The Shareholders further agree
that any
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sale or disposition, including an involuntary transfer or a transfer by
operation of law, that does not strictly comply with the terms and conditions of
this Agreement may be specifically restrained.
10. FURTHER ASSURANCES. The Shareholders agree that upon
the issuance of the Shares by the Company, each Shareholder shall do all things,
and execute and deliver all papers, instruments and documents and perform any
further acts necessary to carry out the provisions of this Agreement.
11. MISCELLANEOUS.
(a) NOTICES. Any and all notices, designations, consents, offers,
acceptances, or any other communications provided for herein shall be given in
writing by certified mail or recognized commercial courier service, which shall
be addressed to the Company at its principal offices and to JWN and the
Shareholders at the addresses given by them on the signature page of this
Agreement, or to such other address as may be designated by a party in a written
notice meeting the requirements of this Section. Any notice given under this
Section shall be deemed effective three (3) days following the date of its
deposit with the United States Postal Service, if sent by mail, or on the date
of its confirmed receipt at the address of the recipient if sent by courier
service.
(b) SEVERABILITY. If any provision of this Agreement is held to be
unenforceable or invalid by any court of competent jurisdiction, the validity
and enforceability of the remaining provisions shall not be affected thereby.
(c) CONSTRUCTION. Whenever used herein, the singular number shall
include the plural, and the plural number shall include the singular, and use of
any gender shall include all genders. The Section headings in this Agreement are
for convenience of reference only and shall not be used as an aid in the
construction of any provision. This Agreement shall be deemed to have been
prepared by each of the parties and there shall be no canon of construction
applied hereto for or against any party by reason of the preparation hereof.
(d) GOVERNING LAW. This Agreement has been executed in and
shall be governed by and construed in accordance with the internal laws of the
State of Florida, notwithstanding conflicts of laws rules which might otherwise
be applied.
(e) SUCCESSORS AND ASSIGNS. Subject to the restrictions against
transfer or assignment as herein contained, the provisions of this Agreement
shall inure to the benefit of and shall be binding on the assigns, successors in
interest, personal representatives, estates, heirs, and legatees of each of the
parties. Each Shareholder agrees that he will not attempt or purport to grant
any beneficial interest in his Shares, or hypothecate or otherwise create or
permit to exist any lien, claim, or encumbrance
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upon any of the Shares at any time subject to this Agreement, other than the
encumbrances created by this Agreement or an encumbrance permitted hereby.
(f) ENTIRE AGREEMENT; WAIVER AND AMENDMENT. This Agreement contains the
entire understanding between the parties concerning the subject matter contained
herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between or among the parties relating to the
subject matter of this Agreement that are not fully expressed herein. This
Agreement cannot be changed or modified except in a written document signed by
all of the parties which recites the intention of the parties to amend this
Agreement and sets forth the specific changes and modifications to be made
thereby. No waiver of any right granted or release of any obligation imposed by
this Agreement shall be effective unless made in a writing signed by the party
sought to be charged therewith.
(g) COUNTERPARTS. This Agreement may be executed in one or more
identical counterparts, and in making proof of this Agreement it shall not be
necessary to produce or account for more than one fully executed counterpart
hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
Attest: GOLDEN BEAR GOLF, INC.
___________________________ BY:
Secretary Xxxxxxx X. Xxxxxxxxx
President
SHAREHOLDERS:
Xxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
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Xxxx X. Xxxxx
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