EXHIBIT 10.11
DESIGN SERVICES MARKETING AGREEMENT
DESIGN SERVICES MARKETING AGREEMENT, made as of this 7th day of June,
1996, by and between NICKLAUS DESIGN, a division of Golden Bear International,
Inc. ("GBI"), a Florida corporation having its principal place of business at
00000 X.X. Xxxxxxx Xxx, Xxxxx 000, Xxxxx Xxxx Xxxxx, Xxxxxxx 00000 ("Designer"),
and GOLDEN BEAR GOLF, INC., a Florida corporation having its principal place of
business at 00000 X.X. Xxxxxxx Xxx, Xxxxx 000, Xxxxx Xxxx Xxxxx, Xxxxxxx 00000
("Golden Bear").
W I T N E S S E T H:
WHEREAS, Designer and its predecessors have established and currently
operate a golf course design and consulting business (the "Business") providing
the personal golf course design services of Xxxx X. Xxxxxxxx ("JWN"), Xxxx X.
Xxxxxxxx XX ("JWN II"), Xxxxxx X. Xxxxxxxx ("SCN"), Xxxx X. Xxxxxxxx ("GTN")
(collectively, the "Nicklaus Family"), and those associated designers employed
by Designer or under contract to serve on its staff (the "Design Associates");
WHEREAS, prior to the date of this Agreement, the Business has been
marketed by Designer worldwide under certain tradenames and service marks owned
by Designer, including "Xxxx Xxxxxxxx Design", "Xxxx Xxxxxxxx Golf Services",
"Golden Bear Design Associates" and "Nicklaus Design";
WHEREAS, as part of a corporate reorganization, Golden Bear has
acquired certain assets, intangible rights and marketing staff formerly utilized
by GBI to assist Designer in the marketing of its Business, and Golden Bear has
undertaken sole responsibility for worldwide brand development and marketing
activities which are complementary to the effective marketing of Designer's
services and the maintenance of its standing and image as a premiere golf course
design company;
WHEREAS, Designer intends to carry on the Business as a professional
design and consulting business, and desires to contract out related sales and
marketing activities to Golden Bear in order to concentrate the efforts of
Designer's staff on the design and implementation of golf course work;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and conditions set forth herein, the parties hereto agree as
follows:
1. APPOINTMENT. Designer hereby appoints Golden Bear as its worldwide
marketing representative and sales agent for the purpose of identifying and
negotiating contracts with developers, owners and/or operators of golf
facilities and potential golf facilities (the "Clients") for Designer's golf
course design and consulting services, including contracts for the design and
redesign of golf courses and parts thereof and for such related consulting
services as may be offered from time to time by Designer in conjunction with its
Business. Designer further retains Golden Bear to provide ongoing liaison and
consulting services and administrative assistance to Designer in connection with
contracts concluded by Designer with such clients, as more particularly
described in Exhibit "A" annexed hereto (the "Contract Support Services").
Without limiting the
foregoing, it is intended by the parties that Golden Bear will market Designer's
standard Golf Course Agreements (as the same may be modified from time to time,
the "Design Agreements") for projects which: (i) require the personal services
of JWN and/or other members of the Nicklaus Family as principal designer(s),
under design agreements which permit the utilization by Clients of the personal
endorsement of the principal designer(s), and (ii) require the personal services
of the Design Associates as the principal designer(s), under design agreements
which permit the utilization by Clients of the Nicklaus Design designation or
other identification of Designer as the source of the design work. The parties
understand that Design Agreements to be marketed under this Agreement will
normally require the Client to develop a full 18 hole championship quality golf
course, although Designer may undertake the original design of other larger or
smaller golf facilities involving multiples of 9 holes and the redesign of golf
holes as circumstances require. By this Agreement, Golden Bear will be
authorized to solicit design work from individuals, corporations and other
entities on a world-wide basis, directly or through affiliates or cooperating
sales representatives, provided that Golden Bear will not be authorized to
commit Designer to any work unless and until the terms of a formal Design
Agreement or other written contract for design work have been reviewed and
approved by Designer, which approval will not be unreasonably withheld provided
that Designer's customary terms and conditions for providing its design and
consulting services are met.
2. EXCLUSIVITY. The parties agree that Golden Bear will be Designer's
exclusive representative during the term of this Agreement, and that Designer
will be required to pay compensation to Golden Bear with respect to all Design
Agreements and other contracts for design and related consulting services
(collectively, with the Design Agreements, the "Client Contracts") concluded
during the term of this Agreement, except as otherwise provided in this
Agreement or otherwise mutually agreed by the parties in writing.
Notwithstanding the foregoing, the parties acknowledge and agree that Designer
shall be free to deal directly with respect to the marketing and negotiation of
contracts, agreements and undertakings to provide any of the following design
services (the "Protected Work"): (i) any design or design consulting services
provided for any entity controlled by, or under common control with, GBI or
Golden Bear, (ii) any design services provided as a courtesy or at Designer's
cost to modify, upgrade or redesign any existing golf course which was designed
or previously redesigned by Designer or its predecessor entities as part of the
Business, (iii) any daily fee golf facility developed by GBI, licensed by GBI to
operate utilizing GBI's trademarks on a royalty basis, or in which GBI, JWN or
other members of the immediate family of JWN acquire a controlling equity
interest (a "Daily Fee Golf Project"), or (iv) any golf facility developed as
part of, or as an amenity serving, a residential community developed by GBI,
licensed by GBI to operate utilizing GBI's trademarks on a royalty basis, or in
which GBI, JWN or other members of the immediate family of JWN acquire a
controlling equity interest (a "Residential Community Project"). Golden Bear
shall not be required to represent Designer exclusively, and Designer agrees
that Golden Bear may participate as a marketing representative, consultant and
liaison in connection with the promotion, sale, negotiation, contracting
or performance of golf course design work on behalf of other golf course
designers during the term of this Agreement, subject to the further covenants
and conditions of this Section. Golden Bear agrees at all times during the term
of this Agreement to use its best efforts to promote the services of Designer
throughout the world, and to actively encourage all prospective Clients to
utilize the services of Designer, unless (i) Designer has expressly rejected a
Client introduced by Golden Bear under Section 4, below, or (ii) a Client has
contacted Golden Bear for the express purpose of obtaining the services of
another golf course designer. As a condition to Designer's waiver of potential
conflicts of interest which may arise out of Golden Bear's representation of
other golf course designers, Golden Bear acknowledges and agrees that it will
not utilize any confidential information entrusted to Golden Bear by Designer in
connection with this Agreement, its representation activities under this
Agreement, its corporate affiliations with Designer or the Nicklaus Family, or
its licensing relationships with Designer to further the interests of any
competing golf course designer or to imply the endorsement of Designer or the
Nicklaus Family for the services of such a designer, unless such activities have
been expressly approved by Designer in writing.
3. PARTICIPATION IN PROTECTED WORK. Golden Bear shall have the right to
participate as Designer's representative in connection with the negotiation and
management of the Client Contracts developed for any Daily Fee Golf Project or
Residential Community Project which is undertaken by Designer and its affiliates
with an Approved Client introduced by Golden Bear under Section 4, below, and to
earn compensation with respect to such activities as set forth in Section 5,
below. In the event that Designer or its affiliates require Golden Bear to be
substantially involved in the development, negotiation and/or administration of
the Client Contracts relating to a Daily Fee Golf Project or a Residential
Community Project involving a Client generated by Designer or its affiliates
directly or from another source, Golden Bear shall be entitled to receive
reasonable compensation for the services actually required by Designer and its
affiliates from Golden Bear in connection with such project, which services and
compensation shall be determined by mutual agreement of the parties on a
case-by-case basis at the time such services are requested, provided that
Representative shall in any event be entitled to receive an amount sufficient to
cover any out-of-pocket expenses incurred by Representative in connection with
its participation in any Protected Work contracted with its assistance. Designer
shall keep Golden Bear's marketing staff reasonably informed of any Protected
Work negotiated and contracted with parties other than Approved Clients through
the sole efforts of Designer and/or its affiliates during the term of this
Agreement, and shall promptly advise Golden Bear of any exclusive dealing or
territorial restrictions accepted by Designer in conjunction with any such
Protected Work in order to avoid marketing conflicts with prospective Clients
affected by such arrangements.
4. QUALIFICATION OF PROSPECTS. In order to protect the credibility of
the parties in their dealings with prospective Clients, the parties agree that
Designer will have the right to review and approve potential Clients identified
in writing by Golden Bear prior any active solicitation of Design Work from such
persons and that Golden Bear will limit its specific sales and negotiation
activities under this Agreement to those potential
Clients approved by Designer (the "Approved Clients") except as otherwise
expressly requested by Designer under Section 3, above. The parties have annexed
an initial list of Approved Clients to this Agreement as Schedule "1", which
list reflects all current prospects of Designer (other than for Protected Work),
and Designer hereby assigns to Golden Bear the right to pursue the sale and
negotiation of Client Contracts with such Approved Clients pursuant to the terms
of this Agreement. The parties further agree that future prospects identified in
writing by Golden Bear will be added to the list of Approved Clients upon
approval by Designer, which approval will not be unreasonably withheld or
delayed, and that any Client which Designer refers to Golden Bear or which
contacts Designer directly or through other parties shall automatically be
deemed an Approved Client for all purposes other than the contracting of
Protected Work. Designer agrees to provide Golden Bear and the Approved Clients
with reasonable access to Designer's key personnel and facilities in connection
with the marketing of design work to such persons under this Agreement, and
Designer agrees to furnish reasonable cooperation to Golden Bear in connection
with the promotion, marketing and negotiation of Client Contracts, subject only
to Designer's discretion as to the acceptance of particular projects offered by
Clients.
5. COMPENSATION. As compensation for the services to be rendered by
Golden Bear under this Agreement, Designer shall pay Golden Bear a commission at
the rate of ten percent (10%) of the Gross Fees (as defined below) actually
received or deemed received by Designer or its affiliates from all Work in
Process (as defined in Section 13, below) and from any Client Contract hereafter
concluded by Designer with an Approved Client during the term of this Agreement.
For purposes of this Section, the "Gross Fees" shall include: (i) all fees
received by Designer, net of foreign tax withholding and discounts taken, from
an Approved Client for Designer's professional services, plus (ii) the amount of
any foreign income taxes withheld by an Approved Client from such fees, if such
withholding is actually paid and received by the taxing authorities and credited
for the benefit of Designer under applicable tax treaties. The parties agree
that Gross Fees shall not include any other taxes imposed upon the receipts or
income generated from the payments made to Designer by an Approved Client or any
payments made to Designer in addition to agreed fees for expenses advanced or
allocated to a project by Designer which an Approved Client is required to
reimburse under the Client Contract. In the event that a Client Contract or
other related agreement with an Approved Client negotiated by Golden Bear
provides for the payment to Designer of a participation in the revenues or
profits earned from the sale of club memberships, real estate or other rights or
services offered by such Client or its affiliates in connection with a golf
course project, which payment is in addition to Designer's customary fees for
its design services, any additional compensation actually received by Designer
from such participation shall be included in Gross Fees as, if and when
received. Within fifteen (15) days of the end of each calendar month during the
term of this Agreement, Designer will furnish Golden Bear with an accounting for
all Gross Fees received during such month, including its actual cash receipts
and any additions thereto or exclusions therefrom, and shall pay all commissions
due with respect to such Gross Fees at the time such statement is rendered.
Designer shall keep and maintain such books of account as shall be necessary to
record all xxxxxxxx to
and collections from Approved Clients and for the accurate computation of Golden
Bear's compensation with respect thereto pursuant to the terms of this Section,
which books of account shall be open for inspection and copying upon prior
reasonable notice and during reasonable business hours by Golden Bear and its
representatives for at least twenty-four (24) months after the end of the
calendar year to which such books apply. Golden Bear shall have the right to
audit such books and records upon reasonable prior notice to Designer, which
audit shall be performed by certified public accountants to be designated by
Golden Bear at Golden Bear's sole cost and expense. In the event that Golden
Bear negotiates a Client Contract which requires Designer to accept a discounted
cash payment for its services in return for an equity interest in a golf course
project, a payment in kind, or any form of participation interest in the
revenues or earnings of a project, whether such payment is provided under the
Client Contracts, Golden Bear shall (i) receive its agreed percentage of any
participation interest or payment in kind, where such participation interest may
be taken in the name of Representative or such payment in kind divided between
the parties, or otherwise (ii) receive its agreed commissions based upon Gross
Fees received by Designer from the actual payment structure negotiated with the
Approved Client, in which case Golden Bear's guaranteed compensation will be
limited to its commissions on the actual cash payments (if any) received and any
future revenues received by Designer from such arrangements or consideration
will be reported and included in Gross Fees subject to the payments required
hereunder if, as and when actually received, provided however, that Designer's
obligation to make such payment to Golden Bear shall be continued and remain in
effect until the agreed fees are paid in full to Golden Bear notwithstanding any
prior termination of this Agreement. For purposes of determining the Gross Fees
received by Designer with respect to a payment in kind from an Approved Client,
Designer shall report the actual net resale value or net barter credit received
as and when received by Designer from any goods or services accepted by Designer
as barter, and Designer shall report the net fair market value (as reported by
Designer for income tax purposes) of any goods or services accepted by Designer
for its own use at the time such goods or services are actually received.
Notwithstanding the foregoing, the parties shall have the right to negotiate a
fixed fee from such Client Contract based upon Designer's then standard fee
schedules and terms of payment for an all cash deal, in which case such fees
shall be paid in lieu of any commission payments which would otherwise be due
under this Section, and Designer shall not be required to account to Golden Bear
for any gains or profits realized or entitled to receive any rebate of the
agreed fees based on losses sustained as a result of Designer's acceptance of
non-cash consideration for its services.
6. TERM. The term of this Agreement shall commence on the "Effective
Date", which for purposes of this Agreement shall have the same meaning and be
deemed to occur simultaneously with the Effective Date defined in Section 4 of
that certain Agreement and Plan of Reorganization between GBI and Golden Bear of
even date herewith, and shall expire on December 31, 2006, unless renewed or
terminated as provided in this Section.
(a) Either party may terminate this Agreement in the event of a
material breach by the other party on ninety (90) days written notice specifying
the breach, unless the other party has cured the breach to the reasonable
satisfaction of the notifying party within such notice period. Golden Bear shall
have a special right to terminate this Agreement, without cause, at the end of
any calendar year, commencing with the end of calendar year 2000, by giving
written notice to Designer of its intent to terminate not later than July 1 of
the year in which such termination is to be effective. As a condition to such
termination, Golden Bear shall make reasonable efforts to continue its marketing
activities and to arrange for an orderly transition of all sales and marketing
responsibilities with respect to prospects and Approved Clients to Designer or
its designated successor representative(s) prior to the effective date of such
termination, provided that in no event will Golden Bear be required to provide
any further services to GBI or its successor representative(s) after the
effective date of such termination.
(b) This Agreement shall terminate automatically in the event that
either party suffers or commits any of the following acts of default, unless
such default is waived in writing by the non-defaulting party upon such
assurances of cure and future performance as such non-defaulting party may
reasonably request: (1) institutes voluntary proceedings under any bankruptcy or
insolvency law or other law for the benefit of creditors or the relief of
debtors, becomes the subject of involuntary bankruptcy proceedings instituted by
other parties, and such proceedings are not dismissed within sixty (60) days of
the commencement thereof, or is adjudicated bankrupt or insolvent in any legal
proceedings, (2) makes a general composition, assignment for the benefit of its
creditors, or other common-law or statutory arrangement for compromise of its
indebtedness to general creditors, (3) is voluntarily or involuntarily
dissolved, becomes the subject of any seizure or receivership affecting its
ability to perform this Agreement, or ceases its business or materially curtails
any part of the business activities contemplated by this Agreement, or (4)
voluntarily transfers all or a substantial part of the employees, or conveys all
or a substantial part of the assets or intangible rights necessary to perform
this Agreement, without a permitted assignment of this Agreement to the
transferee. Any termination under this subsection shall be without prejudice to
any other right or remedy which the non-defaulting party may have as a result of
such event or events, and shall not release the defaulting party from any damage
claims arising under this Agreement as a result of such default unless otherwise
agreed in writing.
(c) The expiration or earlier termination of this Agreement shall not
affect Golden Bear's right to receive commissions under Section 5, above, with
respect to any Client Contract concluded by Designer (i) prior to the effective
date of such termination, or (ii) within a period of six (6) months after the
effective date of such termination, if such contract is with any Approved Client
actively solicited by Golden Bear during the term of this Agreement.
(d) Upon the expiration of the initial term of this Agreement, Golden
Bear shall have the option to renew this Agreement for successive three (3) year
terms subject to its satisfactory performance of its responsibilities to
Designer under this
Agreement through the effective date of such renewal. Any such option shall be
exercised by Golden Bear in a written notice given to Designer not later than
July 1 of the calendar year in which the initial term or then current renewal
term expires. A renewal shall be effective automatically if due notice is given
unless Designer makes a written objection to such renewal on or before its
effective date, which objection shall state in reasonable detail the reasons for
Designer's dissatisfaction with Golden Bear's performance and the actions
reasonably necessary for Golden Bear to remedy the recited problems. The
delivery of a written objection to renewal by Designer shall, if necessary,
extend the term of this Agreement for a minimum period of ninety (90) days from
the date of such notice, if such period is longer than the remaining stated term
then in force, which extension is made for the purpose of allowing the parties
to resolve the matters raised in such notice to their mutual satisfaction.
7. MARKETING SUPPORT. Designer agrees to provide Golden Bear, without
charge, with reasonable quantities of promotional material and other information
regarding Designer, its principals and the Business for the purpose of Golden
Bear's promotion of the Business and solicitation of Clients. Golden Bear and
Designer will work together to coordinate the production and dissemination of
such promotional material and the development of appropriate updated material
from time to time, which material may be developed "in house" by the parties or
by outside contractors as determined by Designer with the advice of Golden Bear.
Designer will have the final approval of all materials produced by any parties
for the purpose of promoting the Business, and will be responsible for payment
of all printing costs and third party creative fees and set up charges incurred
in development of such materials. In addition to the foregoing materials,
Designer will provide access for Golden Bear's sales staff to its professional
staff for the purpose of providing current information regarding the Business
and answering questions regarding design issues raised by Approved Clients
during the solicitation and negotiation process. In the event that Designer
requires Golden Bear to participate in any trade shows, or to undertake any
extraordinary expenses in connection with business entertainment or promotional
activities other than normal business travel and entertainment or activities
undertaken for the benefit of other businesses maintained by Golden Bear, Golden
Bear shall be entitled to require Designer to pay or reimburse the costs of such
activities as a condition to its participation under this Agreement.
8. CONTRACTING PROCEDURES. Throughout the term of this Agreement,
Designer shall provide Golden Bear with current price lists for standard Design
Agreements, together with schedules of all standard discounts and optional
services if separately priced. Designer shall also provide Golden Bear with its
standard forms of Design Agreement to be used in the solicitation of new golf
course design projects from Approved Clients, which forms may be provided on
computer disk or electronic format as requested by Golden Bear in order to
facilitate its communication and production of documents to prospective Clients.
Golden Bear shall not quote any other pricing or terms for a Design Agreement to
an Approved Client without the prior consent of Designer, and Golden Bear shall
not accept any counteroffer as to pricing or terms made by an Approved Client
unless communicated to and approved by Designer.
Designer reserves the right to refer any negotiations involving terms of a
Client Contract affecting the scope of work or legal responsibility of Designer
to its legal counsel, and Golden Bear's representatives will cooperate with such
counsel as necessary to resolve any such issues to the satisfaction of Designer.
Designer may provide Golden Bear with additional approved forms of Client
Contracts for other design and consulting work from time to time in its
discretion, or Designer may direct Golden Bear to solicit contracts for such
work from Approved Clients for review and approval by Designer. Golden Bear
acknowledges that no agency has been created by this Agreement, and that Client
Contracts negotiated and procured by Golden Bear or its representatives shall
not be binding upon Designer or legally effective as a contract unless and until
accepted in writing by a designated officer of Designer at its principal place
of business in Florida.
9. EXPENSES. As an independent marketing representative, Golden Bear
shall be responsible for all expenses incurred by Golden Bear in the conduct of
its business, including, without limitation, payroll and commission expenses
with respect to its personnel, income and other taxes payable with respect to
commissions earned from Designer, and general overhead and administrative
expenses, except for those out-of-pocket expenses which Designer has agreed to
pay or reimburse under Sections 3 or 7, above. Designer will be responsible for
payment of any expenses incurred by Designer and its staff to support the
marketing and negotiation efforts of Golden Bear under this Agreement, and to
perform all work contracted with Approved Clients.
10. INDEMNIFICATION. Designer hereby agrees to indemnify and hold
Golden Bear harmless from and against any claims, losses or liabilities in the
event that Golden Bear is included as a party in any claim or governmental
proceeding arising out of or relating to (i) the failure of Designer or any
Approved Client to fully perform any Client Contract accepted by Designer, (ii)
the business activities and operations of Designerand the operation of the
Business, including without limitation, any alleged negligence, breach of
contract or product liability lawsuit against Designer, or (iii) the failure of
Designer to comply with any law or regulation applicable to the Business in any
jurisdiction where such Business is conducted by Designer. Golden Bear hereby
agrees to indemnify and hold Designer harmless from and against any claims,
losses or liabilities arising out of or relating to (i) any gross negligence or
willful misconduct by its employees or representatives in the performance of
this Agreement, or (ii) contracts or commitments for golf course design services
made by Golden Bear without the required authorization or approval of Designer.
Such indemnification shall include the indemnified party's expenses and
reasonable attorneys' fees incurred in the defense or settlement of a claim or
proceeding.
11. ASSIGNMENT; SUBCONTRACTING. Golden Bear shall not assign or
sublicense any of its rights or delegate any of its duties hereunder to any
third party, other than a wholly owned subsidiary of Golden Bear, without the
prior written consent of Designer, and any purported assignment or sublicensing
by Golden Bear without such consent shall be of no force or effect.
(a) It is understood and agreed that Golden Bear may, in the normal
course of its business, subcontract with brokers, finders and other parties
having contact with Clients for the purpose of obtaining introductions and sales
assistance in the solicitation and negotiation of Design Agreements for Designer
with such Clients. Such activities shall not be deemed a prohibited assignment
of this Agreement, provided, however, that Golden Bear shall give prior written
notice to Designer of the identity, business address, and scope of the duties of
any broker, finder or representative authorized to solicit Clients and the
Approved Clients to be assigned to such person. Unless Designer makes a
reasonable objection to such a person within fifteen (15) days of such notice,
Golden Bear shall be authorized to enter into a subcontract with such person
consistent with the matters stated in such notice. Golden Bear shall be
responsible for payment of all fees and commission splits required by any
subcontractors retained by Golden Bear under this subsection from the
compensation payable by Designer under Section 5, above, unless the Designer
agrees in writing to pay such compensation at the time such subcontractor's
services are retained. Any direct payments made by Designer with respect to
Client Contracts generated with the participation of subcontractors retained by
Golden Bear under this subsection shall be deducted from the Gross Fees reported
by Designer from such Client Contracts for purposes of computing Golden Bear's
right to payment under Section 5 of this Agreement, unless otherwise expressly
agreed in the writing which evidences Designer's obligation to make such
payments.
(b) Golden Bear acknowledges that any marketing arrangement between
Golden Bear and another marketing or sales representative shall be deemed an
assignment by Golden Bear subject to the requirements of this Section 11 if such
arrangement provides the representative with exclusivity regarding classes of
Clients or defined geographic territories, or delegates all or substantially all
of Golden Bear's obligations to market, sell and negotiate with Approved Clients
within such classes or territories, regardless of the form of such transaction.
No such arrangement shall be developed without the prior consent of Designer,
and Designer shall have the right to approve any agreements between Golden Bear
and the representative documenting such arrangement in order to assure that its
rights under this Agreement are protected.
(c) The parties acknowledge that Designer entered into those marketing
and sales arrangements described in Schedule "2" annexed hereto prior to the
Effective Date with the independent contractors identified in such Schedule, and
Representative agrees that the continuation of such arrangements after the
Effective Date will not be deemed a breach of this Agreement. From and after the
Effective Date, such persons will become approved subcontractors of Golden Bear,
and Golden Bear will assume primary responsibility for managing such
arrangements and coordinating the activities of such subcontractors with Golden
Bear's exclusive marketing and sales activities under this Agreement. Designer
shall remain solely responsible for payment of the fees and commissions of such
persons from and after the Effective Date, and Golden Bear shall not be required
to divide its agreed commissions under this Agreement to compensate such persons
with respect to their participation in Work in Process or future Client
Contracts; provided however, that the parties have agreed that Designer
shall be entitled to deduct any fees and commissions paid under this subsection
from the Gross Fees reported from such Work in Process and Client Contracts for
purposes of computing Golden Bear's right to payment under Section 5 of this
Agreement.
(d) Notwithstanding the approval by Designer of an assignment under
this Section 11, no assignment by Golden Bear of its rights hereunder or
delegation of its duties shall relieve Golden Bear of any of its obligations
hereunder, and any permitted assignee of Golden Bear shall be subject to the
restrictions imposed on Golden Bear under this Section 11 with respect to any
further assignment of its rights or delegation of duties under this Agreement.
(e) Golden Bear shall have the right to subcontract design services to
Designer through Golden Bear's Paragon Golf Construction, Inc. subsidiary or any
successor entity wholly owned and controlled by Golden Bear ("Paragon"), where
such arrangement is requested by an Approved Client or deemed prudent by Golden
Bear in order to provide comprehensive design and construction services for a
golf course project. Golden Bear shall advise Designer of its intention to
subcontract design services for an Approved Client as soon as practicable, and
Golden Bear shall have the right to approve the proposed arrangements, which
approval shall not be unreasonably withheld or delayed. Upon approval by
Designer of a subcontracting arrangement with Paragon, the parties shall
thereafter negotiate in good faith the terms of the design subcontract and
master design/build agreements required to effect such arrangement, which shall
contain in substance those provisions regarding scope of work and liability of
the Designer which are then contained in Designer's standard form of Design
Agreement. The parties acknowledge that any subcontract between Paragon and
Designer will be considered Protected Work for purposes of this Agreement, and
that Paragon will be allowed a discount of ten percent (10%) off from Designer's
normal pricing schedule in lieu of payment by Designer of any compensation or
expenses to Golden Bear with respect to such design services under Section 5 of
this Agreement. The parties agree that such discount is intended to reflect the
full value to Designer of Golden Bear's marketing and sales efforts in the
conclusion of a master design/build contract for the benefit of Paragon.
12. OTHER BUSINESS OPPORTUNITIES. Designer acknowledges that Golden
Bear has been authorized by GBI to explore, develop and promote other business
and licensing opportunities involving Designer's principal, JWN, and related
intangible rights associated with JWN, and that business opportunities outside
of the scope of this Agreement may be presented to or developed by Golden Bear
as an result of its efforts and involvement in the promotion and solicitation of
Client Contracts for Designer's services. In the event that such opportunities
consist of endorsement or personal appearance activities involving personal
services of JWN, other than his endorsement activities as the principal of
Designer under the standard form of Design Agreement, the parties agree that the
commission rates payable and procedures applicable to personal endorsements and
appearances under that certain Personal Services Management Agreement between
GBI and Golden Bear will apply to the negotiation, consummation and management
of such activities. In the event that such opportunities involve the development
of Daily Fee Projects or Residential Community Projects, the provisions of
Section 3 of this Agreement shall govern the rights and obligations of the
parties with respect thereto, unless otherwise agreed in writing in a particular
case. In the event that such opportunities involve any other matter included
within the "Retained Businesses" of GBI (as more particularly described in
Schedule "A" of that certain Trademark License Agreement of even date herewith
between Golden Bear and GBI), Golden Bear agrees to refer such opportunities to
GBI free and clear of any claims for compensation under this Agreement, provided
that Golden Bear shall have a right of first negotiation to furnish any goods or
services available from Golden Bear or its subsidiaries which are reasonably
required in connection with the development and operation of such Retained
Businesses. All other business opportunities generated by Golden Bear in
connection with the performance of its duties under this Agreement shall be for
the sole and exclusive account of Golden Bear, and may be pursued in its sole
discretion without obligation to Designer under this Agreement
13. RESPONSIBILITY FOR WORK IN PROCESS. In addition to its assumption
of responsibility for Designer's worldwide marketing representation under this
Agreement, Golden Bear has agreed to provide Designer with all further Contract
Support Services required by Designer in connection with those contracts and
agreements between Designer and its existing Clients for design services
identified in Schedule "3" annexed hereto (the "Work in Process"), in exchange
for receiving the agreed commissions under Section 5 above with respect to all
Gross Fees collected by Designer from such Work in Process from and after the
Effective Date. It is the intention of the parties that Golden Bear assume all
contracted responsibilities under this Agreement with respect to all Client
Contracts of Designer, except for those contracts where Designer's work has been
completed and all fees have been collected prior to the Effective Date of this
Agreement, and that all such Client Contracts have been reflected in either
Schedule "1" or Schedule "3". The parties agree that all contracts and
arrangements identified in Schedule "3" shall be deemed to be Client Contracts
for all purposes under this Agreement, and that the contracting parties
thereunder shall be deemed Approved Clients under this Agreement where the
context so requires. In the event that Designer concludes a Client Contract with
any of the Approved Clients identified in Schedule "1" prior to the Effective
Date, such event shall not affect the ongoing rights and obligations of the
parties under this Agreement with respect to such Client, it being understood
that such Client Contract shall be automatically treated as Work in Process
subject to the terms hereof from and after the date a final binding agreement is
concluded.
14. MISCELLANEOUS.
(a) CHOICE OF LAW; ARBITRATION. This agreement shall be construed and
enforced in accordance with the internal laws of the State of Florida without
regard to conflicts of laws rules which might otherwise be applied. The parties
agree, except as otherwise expressly set forth herein, that all disputes
involving the construction or enforcement of this Agreement shall be resolved by
binding arbitration before a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association ("AAA") and the
Federal and Florida Arbitration Acts. The parties agree that the location of any
such arbitration shall be at a site selected by the arbitrator in Palm Beach
County, Florida, unless otherwise agreed at the time the dispute is
submitted to the AAA. In accordance with the Federal and Florida Arbitration
Acts, any party may apply to any court of competent jurisdiction to compel
arbitration in accordance with this subsection or to enforce any award rendered
by the arbitrator in a proceeding conducted hereunder in accordance with its
terms. Unless otherwise agreed in writing by the parties, legal action to compel
any arbitration involving the construction or enforcement of this Agreement may
be brought by either party in that State or Federal Court having subject matter
jurisdiction over the cause which is located in Palm Beach County, Florida, and
each of the parties to this Agreement hereby agrees to submit to the personal
jurisdiction of such Courts regardless of the domicile of such party at the time
such action is filed. In any arbitration under this subsection, the arbitrator
shall have the authority to award to the prevailing party attorneys' fees and
expenses in accordance with the provisions of subsection (e) of this Section.
(b) NOTICES. Any notice to be given under this Agreement shall be made
in writing and shall be sent to the address of the intended recipient as set
forth at the beginning of this Agreement or the facsimile number set forth on
the signature page, or to such other address or facsimile number as may be
designated in a written notice meeting the requirements of this subsection.
Notices under this subsection will be effective: (i) if mailed by certified
mail, return receipt requested, three (3) days after the date the notice is
deposited, postage paid with the United States Postal Service, as shown by its
receipt for certified mail; (ii) if sent via courier service or express
delivery, upon the date of actual delivery as endorsed by the carrier or person
accepting such delivery for the recipient of such notice, or (iii) if sent via
facsimile to the telephone numbers given by the recipients of such notice, on
the date of transmission as shown by the confirmation forms printed by the
sending machine showing the recipients' station identification and verification
of error free communication, provided that confirmation copies of the notice are
sent to the recipient via certified mail or courier as provided above not later
than the day following the date of such confirmed facsimile transmission.
(c) ENTIRE AGREEMENT; AMENDMENT. This Agreement and the annexed
schedules constitute the entire agreement of the parties with respect to the
subject matter hereof. This Agreement may not be amended or modified, or any
right or obligation of a party hereunder waived or released, except in a written
document signed by the party to be charged with such amendment, modification,
waiver or release.
(d) COUNTERPARTS. This agreement may be executed simultaneously 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) EXPENSES; ATTORNEYS' FEES. Except as otherwise expressly provided
in this Agreement, each party shall be responsible for payment of its own
expenses (including, without limitation, the fees and expenses of their agents,
representatives, counsel and accountants) incidental to the preparation and
carrying out of this Agreement. In the event any a party is required to retain
the services of an attorney to enforce the rights of such party under this
Agreement, or to require a construction of this Agreement or declaration or
determination of the rights of any party hereunder, the
prevailing party or parties in any subsequent litigation involving such matter
shall be entitled to receive an award of all attorneys' fees incurred by them in
connection with such matter, including any fees incurred for review,
negotiation, settlement, preparation of pleadings, trial or appeal.
(f) SECTION HEADINGS. The section headings are inserted for
convenience of reference only, and shall not affect the interpretation or
construction of any of the express terms of this Agreement.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals as of the date first set forth above.
GOLDEN BEAR INTERNATIONAL, INC. GOLDEN BEAR, INC.
By: _______________________________ By: ___________________________
Name: Name:
Title: Title:
Its Authorized Signatory Its Authorized Signatory
