OPTION AGREEMENT
This Option Agreement ("Option Agreement") is made and entered into as of
this 5th day of May, 1998, at San Diego, California, by CGV, Inc.
("Optionor"), a California corporation, on the one hand, and Saint Xxxxxxx
Golf Corporation, a Nevada corporation (hereinafter referred to as
"Optionee"), on the other hand.
RECITALS
A. Concurrently with the execution of this Option Agreement, Optionor
has purchased all of Optionee's right, title and interest in Optionee's Eighty
Percent (80%) membership interest (the "Membership Interest") in All-American
Golf LLC, a California limited liability company ("All- American Golf")
pursuant to a Membership Interest Purchase Agreement ("Purchase Agreement").
B. Optionor now desires to grant Optionee the right to repurchase the
Membership Interest in All-American Golf on the terms and conditions set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Grant of Option. Optionor hereby grants to Optionee the right to
purchase the Membership Interest at a price and under the terms and
conditions set forth herein. This option may be exercised only once and upon
exercise only for Optionor's entire eighty percent (80%) interest in
All-American Golf.
2. Option Period. Subject to paragraph 6, Optionee may exercise this
Option at any time prior to May 5, 2000. This Option shall expire if not
exercised at midnight May 5, 2000. Nothing contained herein shall be deemed
to obligate Optionee to exercise the Option.
3. Consideration. This Option is granted in consideration of Optionee's
sale of the Membership Interest to Optionor contemporaneous with the execution
of this Option Agreement.
4. Option Price. The option price ("Option Price") shall be the sum of
the following:
4.1 Four Million Five Hundred Twenty Six Thousand One Hundred
Seventy Eight Dollars ($4,526,178);
4.2 Eighty Percent (80%) of any net losses incurred by All-American
Golf between the date of May 5, 1998 and the date of the exercise of the
Option (all net income shall be distributed prior to computation of losses);
4.3 Eighty Percent (80%) of any capital investment made by Optionor
in All-American Golf ("capital investment" shall mean any loans to or capital
contributions made by Optionor to All-American Golf) after the date of this
Option;
4.4 One Hundred Percent (100%) of any Losses, as that term is
defined in section 7.2 of the Purchase Agreement, for which Optionor, Callaway
Golf company ("Callaway Golf"), a California corporation, and All-American
Golf have not been indemnified by Saint Xxxxxxx Golf Corporation, a Nevada
corporation.
5. Retention of Consideration. If for any reason the Option granted
herein is not exercised, all sums paid and services rendered to Optionor by
Optionee shall be retained by Optionor in consideration of the granting of
this Option.
6. Exercise of Option. Optionee may exercise this Option by delivery to
Optionor of written notice of exercise at any time prior to the expiration of
the Option, or provided that at this time of exercise Optionee or Saint
Xxxxxxx Golf Shop, Ltd. is not in breach or default of any their obligations
under (i) this Agreement, (ii) the Covenant not to Compete of even date
herewith, (iii) the Lease Agreement for Retail Operations between All-American
Golf and Saint Xxxxxxx Golf Shop, Ltd. dated December 30, 1997, (iv) the
Purchase Agreement, or (v) any other agreement between Optionee or any of its
subsidiaries or affiliates and Optionor, Callaway Golf, All-American Golf or
any of their subsidiaries or affiliates.
6.1 Payment of Option Price. The Option Price shall be paid by
wire transfer to Optionor within thirty (30) days after notice of exercise of
Option.
7. Transferability of Option. Neither the Option nor this Option
Agreement may be transferred by Optionee without the prior written approval of
Optionor which approval may be withheld for any reason or no reason without
limiting any other condition which may be imposed by Optionor. As a condition
to the exercise of the Option by any permitted transferee, the transferee must
pay off the unpaid balance plus interest, of the loan (the "Loan") by Callaway
Golf to All-American Golf in the original principal amount of Five Million Two
Hundred Fifty Thousand Dollars ($5,250,000) evidence by a Secured Promissory
Note dated June 13, 1997. The amount required to pay off the Loan shall be
tendered with the payment of the Option Price.
8. Rights as Member Upon Exercise of Option. Optionee acknowledges that
the only rights it shall have as a member of All-American Golf after exercise
of the Option and payment of the Option Price shall be the right to:
(i) allocation of eighty percent (80%) of the net income or losses
from All-American Golf;
(ii) distributions of eighty percent (80%) of the cash
distributions from operations and eighty percent (80%) of the net proceeds
from sale of the assets by All-American Golf;
(iii) whatever value it may receive from the sale of its membership
interest to a third party (subject to the restrictions on the transferability
of its membership interest as set forth in the Operating Agreement); and
(iv) right to inspect the books and records of All-American Golf.
By way of example and not by way of limitation, Optionee shall have no right
to:
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(i) manage All-American Golf;
(ii) remove or cause the removal of any manager of All-American
Golf including Optionor (or its designee); or
(iii) vote on any matter or cause a dissolution of All-American
Golf.
9. Optionor's Rights During the Existence of the Option. The existence
of the Option shall not restrict Optionor in any manner in its ownership and
operation of All-American Golf. By way of example and not by way of
limitation, Optionor shall have the right to:
(i) cease or modify operations of All-American Golf;
(ii) designate a new manager of All-American Golf;
(iii) sell all or any portion of the assets of All-American Golf;
(iv) remove the name Callaway Golf, or any variation there of, from
the Golf Center; or
(v) consistent with this Option Agreement, amend or change in any
manner the Operating Agreement of All-American Golf.
10. Transferability of Optionor's Interest. Subject to the provisions
of paragraph 11, nothing contained herein shall be deemed in any manner to
restrict Optionor's ability to transfer its membership interest in
All-American Golf in whole or in part including any pledge thereof.
11. Notice of Sale. In the event Optionor intends to sell its
membership interest in All-American Golf, or any portion thereof, or
substantially all of the assets of All-American Golf, Optionor shall give
Optionee thirty (30) days notice prior to the closing date of the proposed
sale for the purpose of giving Optionee the opportunity to exercise the
Option. If Option is not exercised, the sale shall be free of Option and
Option shall be void and of no further force or effect.
12. Accounting. Within thirty (30) days after the request by Optionee,
Optionor shall provide Optionee with an accounting which sets forth the unpaid
balance of the Loan and the computation of the Option Price. The Option Price
provided by the accounting in this paragraph 12 shall be the Option Price for
a period of thirty (30) days from the date of the accounting. Optionor shall
have no right to request an accounting more often than once every six (6)
months during the term of this Option.
13. Operating Agreement for All-American Golf. As a condition to
becoming a member in All-American Golf, Saint Xxxxxxx must execute an
Operating Agreement (the "Operating Agreement") for All-American Golf. The
Operating Agreement shall be consistent with Optionor's and Optionee's rights
as set forth in this Option Agreement. Optionee acknowledges and agrees that
the Operating Agreement shall contain all restrictions in the transfer of
Optionee's interest as were set forth in the Operating Agreement for
All-American Golf between Callaway Golf and Optionee dated June 13, 1997
including by way of example and not by way of limitation, restriction such as
those that were set forth in Article VII of that Operating Agreement.
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14. Notices. Unless otherwise provided herein, any notice, tender, or
delivery to be given hereunder by either party to the other may be effected by
personal delivery in writing, or by registered or certified mail, postage
prepaid, return receipt requested, and shall be deemed communicated as of
actual receipt, or three (3) days from mailing. Mailed notices shall be
addressed as set forth below, but each party may change his address by written
notice in accordance with this paragraph.
To Optionor: CGV, Inc. c/o
Callaway Golf Company
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxx, President
and Chief Executive Officer
With a copy to: CGV, Inc. c/o
Callaway Golf Company
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. XxXxxxxxx, Executive Vice
President, Licensing, Chief Legal Officer
and Secretary
To Optionee: Saint Xxxxxxx Golf Corporation
0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx, Xxxxx 0
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxx Xxxxxx, President
With a Copy to: Xxxxxx X. Xxxxxxx, Esq.
Gondecki & Del Xxxxxxx
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
15. Binding Effect. This Option Agreement shall bind and inure to the
benefit of the respective heirs, personal representatives, successors, and
assigns of the parties hereto, except as hereinabove expressly provided.
16. Construction. In the interpretation and construction of this Option
Agreement, the parties acknowledge that the terms hereof reflect extensive
negotiations between the parties and that this Option Agreement shall not be
deemed, for the purpose of construction and interpretation, that either party
drafted this Option Agreement.
17. Dispute Resolution.
17.1 Direct Discussion. In the event of any dispute, claim,
question, or disagreement arising out of or relating to this Option Agreement
(a "Dispute"), the Parties involved in such Dispute shall use their best
efforts to settle such Dispute. To this effect, senior management of the
parties involved shall consult and negotiate with each other in good faith to
attempt to reach a just and equitable solution satisfactory to both Parties.
Any dispute which cannot be resolved within thirty (30) days may be submitted
to binding arbitration as provided below.
17.2 Requirement of Arbitration. Any Dispute which cannot be
resolved through mutual consultation and negotiation, shall be settled by
final and binding arbitration conducted by the San Diego office of
JAMS/Endispute. Nothing stated herein, however, shall preclude any party
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hereto from seeking and obtaining immediate injunctive relief (whether
temporary, preliminary, or permanent) to prevent or restrain a breach by
another party or to seek enforcement of this arbitration provision or to seek
or enforce prejudgement or ancillary remedies. In the event JAMS/Endispute is
no longer in existence or unwilling to conduct the arbitration, the
arbitrators shall be appointed and the arbitration shall be conducted and
governed by California Code of Civil Procedure section 1281, et seq.
17.3 Number of Arbitrators. The number of arbitrators shall be
three (3). The three arbitrators shall be selected as follows: (a) within
ten (10) days of delivery of any demand for arbitration, each party shall
submit to the other party the name of three (3) candidates nominated from the
then-current list of retired judges or justices at the San Diego office of
JAMS/Endispute; (b) within five (5) days of delivery of the opposing party's
list, each party shall submit to the other party the names of two (2)
candidates proposed by the opposing party which are to be stricken from the
opposing party's nomination list, with the non-challenged candidates serving
as two (2) of the three (3) arbitrators; (c) the parties will then confer on
the selection of a third arbitrator and, if no agreement can be reached within
five (5) days, JAMS/Endispute shall appoint the third arbitrator from the list
of retired judges or justices at the San Diego office of JAMS/Endispute.
17.4 Location; Commencement; Language. The arbitration shall take
place in San Diego, California, and shall be commenced within thirty (30) days
of the selection of the arbitrator(s), unless otherwise agreed to by the
parties or ordered by the arbitrator(s) for good cause shown. The arbitration
hearing shall last no longer than three (3) days.
17.5 Discovery. It is expressly understood that the parties have
chosen arbitration to avoid the burdens, costs and publicity of a court
proceeding, and the arbitrators are expected to handle all aspects of the
matter, including discovery, in a manner so as to minimize the expense, time,
burden and publicity of the process, while assuring a fair and just result.
The arbitrator shall limit and restrict the scope of discovery (e.g., number
of depositions, document requests, etc.) to only those matters clearly
relevant to the dispute. Subject to this limitation, the provisions of
California Code of Civil Procedure section 1283.05 are incorporated into, made
part of and are applicable to any arbitration conducted pursuant to this
clause.
17.6 Arbitrator's Award. The arbitrator(s) shall issue a written
award within twenty (20) days after the matter is submitted for decision. The
arbitrator(s) shall apply the law of the State of California (excluding
California choice of law provisions.) The arbitrator(s) shall not have the
authority to award punitive or exemplary damages to any party.
17.7 Expenses. The expenses of the arbitration, including the
arbitrators' fees, expert witness fees, and attorney's fees, may be awarded to
the prevailing party, in the discretion of the arbitrators, or may be
apportioned between the parties in any manner deemed appropriate by the
arbitrators. Unless and until the arbitrators decide that one party is to pay
for all (or a share) of such expenses, both parties shall share equally in the
payment of the arbitrators' fees as and when billed by the arbitrators.
17.8 Confidentiality. Except as set forth below, the parties shall
keep confidential the fact of the arbitration, the dispute being arbitrated,
the decision of the arbitrators, and any documents produced by the parties in
the course of the arbitration. Notwithstanding the foregoing, the parties may
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disclose information about the arbitration to persons who have a need to know,
such as directors, trustees, management employees, witnesses, experts,
investors, attorneys, lenders, insurers, and others who may be directly
affected. Once the arbitration award has become final, if the arbitration
award is not promptly satisfied, then the prevailing party may,
notwithstanding the foregoing, disclose information about the arbitration only
to the extent necessary to obtain judicial enforcement of the award.
17.9 Enforcement of Award. The arbitration award shall be final
and shall bind the parties. Any award may be enforced by an action filed in
the San Diego Superior Court or the Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx
of California. For purposes of this arbitration provision, the parties hereby
agree to submit to the jurisdiction of these courts and hereby waive any or
all objections as to personal jurisdiction, subject matter jurisdiction and/or
venue with respect to such courts.
18. Entire Agreement. Modifications. This Option Agreement, together
with exhibits and schedules attached hereto, contains the entire agreement
between the parties hereto with respect to the transactions contemplated
hereby, and contains all of the terms and conditions thereof and supersedes
all prior agreements and understandings relating to the subject matter hereof.
No changes or modifications of or additions to this Option Agreement shall be
valid unless the same shall be in writing and signed by each party hereto.
19. Severability. The provisions of this Option Agreement shall be
deemed severable and the invalidity or unenforceability of any one or more of
the provisions hereof shall not affect the validity and enforceability of the
other provisions hereof.
20. Waivers. No waiver of any of the provisions of this Option
Agreement shall be deemed to be or shall constitute a waiver of any other
provision of this Option Agreement, whether or not similar, nor shall any
waiver constitute a continuing waiver. No waiver of any provision of this
Option Agreement shall be binding on the parties hereto unless it is executed
in writing by the party making the waiver.
21. Governing Law. This Agreement is made and shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
California, without regard to the conflict of laws principles thereof, as the
same apply to agreements executed solely by residents of California and wholly
to be performed within California.
22. Venue; Submission to Jurisdiction. Each of the parties submits to
the jurisdiction of any state or federal court sitting in San Diego County,
California, in any action or proceeding relating to the enforcement of
paragraph 17 of this Option Agreement, and agrees not to bring any action or
proceeding relating to the enforcement of paragraph 17 of this Operating
Agreement in any other court. Each of the parties waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought
and waives any bond, surety, or other security that might be required of any
other party with respect thereto.
23. Authority. Each of the persons executing this Option Agreement
represents and warrants that it is authorized to execute this Option Agreement
and the entity on whose behalf they are signing is bound by the terms hereof.
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24. Expenses. Except as otherwise provided for herein, each party
hereto shall be responsible for its own expenses accrued in connection with
the negotiation, execution and consummation of the transactions contemplated
by this Option Agreement, including fees of his or its respective attorneys,
accountants or consultants.
IN WITNESS WHEREOF, the parties hereto have executed this Option
Agreement the day and year first above written.
OPTIONOR:
CGV, INC., a California corporation
By:/s/ Xxxxxx X. Xxx
Xxxxxx X. Xxx, President and CEO
By:/s/ Xxxxxx XxXxxxxxx
Its: Secretary and Chief Legal Officer
OPTIONEE:
SAINT XXXXXXX GOLF CORPORATION, a Nevada corporation
By:/s/ Xxx Xxxxxx
Xxx Xxxxxx, President
By:/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
Chairman of the Board
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