EXHIBIT 10.13
REFERRAL, PARTICIPATION AND NONCOMPETE AGREEMENT
This Referral, Participation and Noncompete Agreement ("AGREEMENT") is
made and entered into as of the 18th day of December, 1998, by and among (1)
Xxxx Xxxxxxxx, an individual ("NICKLAUS"); (2) Golden Bear International, Inc.,
a Florida corporation ("GBI"); (3) Golden Bear Golf, Inc., a Florida corporation
("GBG"); (4) The Xxxxx Company, Inc., an Iowa corporation ("XXXXX"); and (5)
Xxxxx Golf International, L.L.C., an Iowa limited liability company ("XXXXX
GOLF").
RECITALS:
A. WHEREAS, Xxxxx has established Xxxxx Golf to act as general
contractor or construction manager or in such other construction capacity as
shall be designated by owners for golf related construction projects; and
B. WHEREAS, effective January 1, 1998, GBG secured a ten year exclusive
commitment from GBI to market GBG's (through its wholly-owned subsidiary,
Paragon Construction International, Inc.) golf course construction services to
Nicklaus Design clients and prospects, as set forth in that certain letter
agreement between GBI and GBG and Paragon Construction International, Inc. dated
as of July 1, 1998 ("COMMITMENT"); and
C. WHEREAS, GBG is willing to transfer its rights and opportunities
under such Commitment, to Xxxxx Golf, and GBI and Nicklaus are willing to affirm
and consent to such transfer and to the other agreements set forth herein, on
the terms and conditions hereinafter set forth.
NOW THEREFORE, for sufficient and valuable consideration the parties
agree as follows:
AGREEMENT
1. REFERRALS. Nicklaus, GBI and GBG (hereinafter collectively sometimes
referred to as "GOLDEN BEAR") will, for the term of this Agreement, exercise its
best efforts to recommend and refer exclusively to Xxxxx Golf the right and
opportunity to act as general contractor or construction manager or in such
other construction capacity as shall be designated by the owners (collectively
hereinafter referred to as a "CONSTRUCTION CAPACITY") of all golf related
construction projects (meaning, golf course construction and/or vertical
construction related to golf course construction) over which Golden Bear has the
right or opportunity to recommend or designate the entity to perform in a
Construction Capacity, including without limitation all new golf related
construction projects developed by GBI (Nicklaus Design) and "Bear's Best"
developments. Golden Bear will exercise its best efforts to assist Xxxxx Golf to
obtain a Construction Contract (as hereinafter defined) with respect thereto;
provided, that the performance by GBI of those activities for design clients as
reserved under paragraph 6(a) of this Agreement will not be deemed a violation
of this commitment, including without limitation the recommendation by
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Nicklaus Design of experienced golf course shapers capable of meeting its
shaping standards. In the event that GBI (Nicklaus Design) operates in a
geographic area not served by Xxxxx Golf, Golden Bear's agreement to promote
Xxxxx Golf in such area shall be subject to the prior good faith commitment of
Xxxxx Golf to extend the operation of its business to such area to meet the
reasonable requirements of GBI (Nicklaus Design) prospects.
2. CONSTRUCTION CONTRACTS. Xxxxx Golf will diligently attempt to
negotiate and enter into a construction contract (each a "Construction Contract"
and collectively the "CONSTRUCTION CONTRACTS") with respect to each Construction
Capacity opportunity referred to Xxxxx Golf pursuant to paragraph 1 above and
with respect to any other Construction Capacity opportunities developed
independently by Xxxxx Golf. Xxxxx Golf, in its sole discretion, may decline to
enter into a Construction Contract with respect to any potential golf related
construction project if the terms and conditions of such proposed Construction
Contract are not acceptable to Xxxxx Golf. If Xxxxx Golf declines to enter into
a proposed Construction Contract with respect to a Construction Capacity
opportunity referred to Xxxxx Golf pursuant to paragraph 1 above, Xxxxx Golf
shall give prompt notice of its decision to Golden Bear together with a written
statement of the basis of its decision, and Xxxxx Golf shall thereafter have no
right to act in a Construction Capacity with respect to the particular golf
related construction project involved in such proposed Construction Contract;
provided, however, that if the Construction Capacity opportunity relating to
such golf related construction project is thereafter again made available by the
project owner on terms and conditions which become known to Golden Bear and
which obviate the basis for rejection set forth in the Xxxxx Golf written
statement, then Golden Bear shall again exercise its best efforts to recommend
and refer such revised Construction Capacity opportunity exclusively to Xxxxx
Golf. Construction Contracts may be entered into and performed by a division of
Xxxxx to be designated the "Xxxxx Golf International Division", or by one or
more direct or indirect subsidiaries of Xxxxx including the name "Xxxxx Golf
International", all as determined by Xxxxx.
3. PARTICIPATION. Nicklaus and GBI will provide technical assistance to
Xxxxx Golf as reasonably requested by Xxxxx Golf from time to time, including
but not limited to the identification, location and purchase of specialized and
other equipment needed by Xxxxx Golf for the performance of the Construction
Contracts, providing access to historical cost data for golf related
construction projects, the identification of personnel with expertise in the
construction of golf courses which may be employed by Xxxxx Golf, and otherwise
generally with respect to golf course construction. Xxxxx Golf agrees to
consider the purchase or lease from GBG or any entity designated by Golden Bear,
of any such used equipment identified by Golden Bear, at its fair market value
and on customary market terms.
4. COORDINATING COMMITTEE. (a) Golden Bear shall designate two
representatives and Xxxxx shall designate three representatives to serve as
members ("MEMBERS") of a committee (the "COORDINATING COMMITTEE"), which shall
oversee the administration of this Agreement. The Coordinating Committee shall
meet not less frequently than quarterly, and on such other occasions as any
Member of the Coordinating Committee shall request. Each year the Coordinating
Committee shall receive and review the Annual Business Plan prepared by the
Managers of Xxxxx Golf, and each quarter the Coordinating Committee shall
receive and review
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the prior period's financial operating results.
(b) Members of the Coordinating Committee shall be natural persons. The initial
Members of the Coordinating Committee shall be Xxxxxxx X. Xxxxxx, Xxxxx X. Xx
Xxxxxxx and Xxx Xxxxxxxx (the Xxxxx designees), and Xxxxxxx X. Xxxxxxxx and Xxx
X. Xxxxxx (the Golden Bear designees). Either Xxxxx or Golden Bear may at any
time remove a Member of the Coordinating Committee designated by it, and fill
any vacancies in the positions it is entitled to designate.
(c) A quorum for a meeting of the Coordinating Committee shall consist of a
majority of its Members. At all meetings of the Coordinating Committee, a quorum
being present, the act of a majority of the Members present at the meeting shall
be the act of the Coordinating Committee, except for actions requiring unanimous
approval as hereinafter set forth. Any action to be taken at any meeting of the
Coordinating Committee may be taken without a meeting if the action is taken by
all of the Members and if one or more consents in writing describing the action
so taken shall be signed by each Member and included in the minutes or filed
with the Company's records reflecting the action taken. Any such written action
shall be effective when the last Member signs the consent, unless the consent
specifies a different effective date. Members may participate in and hold a
meeting by means of conference telephone or similar communications equipment by
means of which all Members participating in the meeting can hear each other, and
participation in such meeting shall constitute attendance and presence in person
at such meeting, except where a Member participates in the meeting for the
express purpose of objecting to the transaction of business.
(d) Notwithstanding the foregoing, the following actions shall require unanimous
approval of all Members of the Coordinating Committee:
(i) the amendment of this Agreement;
(ii) a change in the number of Members of the Coordinating Committee;
(iii) the merger or consolidation of Xxxxx Golf with another entity,
other than another entity controlled directly or indirectly by
Xxxxx;
(iv) any action which may result in or lead to a material change in
the nature of the business of Xxxxx Golf; or
(v) the extension of the term of this Agreement.
5. REFERRAL AND PARTICIPATION FEE; NO PARTNERSHIP. (a) For the period
beginning on October 1, 1998 and ending December 31, 2007, Xxxxx Golf shall pay
to GBG with respect to each Construction Contract entered into by Xxxxx Golf
during such period, a fee (the "REFERRAL AND PARTICIPATION FEE") of forty
percent (40%) of the Net Profits, as hereinafter defined, received by Xxxxx Golf
pursuant to such Construction Contracts. For the period beginning on January 1,
2008 and until the expiration or earlier termination of this Agreement, Xxxxx
Golf shall pay the Referral and Participation Fee earned with respect to each
Construction Contract entered into by
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Xxxxx Golf during such period to such person or entity as may be designated by
Nicklaus and approved by GBI, subject to the limitations of paragraph 8 of this
Agreement (the "DESIGNATED SUCCESSOR"). The Referral and Participation Fee shall
be paid within 60 days after the close of each fiscal quarter of Xxxxx Golf
during the term of this Agreement.
(b) "NET PROFITS" shall mean cumulative net income before income taxes as
determined (except as hereinafter provided) under generally accepted accounting
principles, and received by Xxxxx Golf through the fiscal quarter pursuant to
Construction Contracts as reflected in the Xxxxx Golf consolidated financial
statements. Net Profits received by Xxxxx Golf pursuant to Construction
Contracts shall be determined after first deducting interest on any loans
provided by Xxxxx to Xxxxx Golf, and a bonding capacity fee paid to Xxxxx of
0.5% of the principal sum of any bonds or other credit paper provided in
connection with the Construction Contracts (to be charged as a job cost if
possible), and Xxxxx and Xxxxx Golf overhead allocable to the Construction
Contracts, all as determined under the standard procedures used by Xxxxx in
allocating interest on related party receivables from and in allocating overhead
to its several business units. Such standard procedures are attached as EXHIBIT
A. Provided, however, that notwithstanding the foregoing allocation of Xxxxx
overhead costs for Xxxxx administrative services, if an identified Xxxxx
administrative service is instead directly provided or otherwise obtained by
Xxxxx Golf at its own cost then that Xxxxx administrative service cost will be
excluded from the Xxxxx overhead costs otherwise allocable to the Construction
Contracts.
(c) Golden Bear shall not be responsible for any loss incurred by Xxxxx Golf.
Xxxxx Golf does not guarantee the receipt of any Net Profits with respect to the
Construction Contracts. Xxxxx Golf and Golden Bear are separate and independent
contractors under this Agreement and are not partners for any purpose under this
Agreement.
(d) The parties acknowledge that GBI will not receive any compensation for
marketing or technical services provided to Xxxxx Golf under this Agreement, and
that GBI shall retain its independent rights and obligations to review and
approve on an impartial basis any construction work provided to a design client
by Xxxxx Golf in accordance with the standards imposed by Nicklaus Design's
design agreement. It is understood that Nicklaus Design shall not be required to
incur any travel, entertainment, promotional or other out-of-pocket expenses for
business development under this Agreement in addition to those business
development expenses normally expended to promote its design business unless
such expenses are paid or reimbursed by Xxxxx Golf and/or GBG under such
procedures as may be agreed by the parties from time to time.
6. SPECIAL NATURE OF RELATIONSHIP; AGREEMENTS NOT TO COMPETE. (a) Golden
Bear acknowledges that Xxxxx Golf will be engaged in obtaining Construction
Contracts with persons or entities with whom Golden Bear has a relationship, and
that Xxxxx Golf is depending on the development and continuation of such client
relationships. Golden Bear further acknowledges that its services to be rendered
hereunder are of a special and unusual character that have a unique value to
Xxxxx Golf, the loss of which cannot be adequately compensated by damages in an
action at law. Because of the unique value to Xxxxx Golf of the services of
Golden Bear for which Xxxxx Golf has contracted hereunder, and as a material
inducement to Xxxxx Golf to enter into this Agreement, Golden Bear and each of
its constituents agrees and covenants that during
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the term of this Agreement he or it will not, directly or indirectly, for his or
its own account or as a partner, participant, joint venturer, employee, agent,
principal, consultant, representative, salesman, independent contractor,
advisor, shareholder, officer, director, trustee, or the like, enter into,
engage in, contribute his or its knowledge to, participate in, or cause others
to engage in the business of acting in a Construction Capacity in connection
with golf related construction projects. Xxxxx Golf acknowledges and agrees that
the foregoing restriction does not include golf course design, and in no way
restricts the right of GBI to engage in the business of golf course design,
including: (i) to consult with clients regarding the availability of services
from other construction service providers where requested, (ii) assist clients
in the review of bids and contract proposals received from other providers as
required under GBI (Nicklaus Design) standard form of design agreement, and
(iii) work with other construction service providers who are contracted to
perform work on GBI (Nicklaus Design) projects in the event that Xxxxx Golf was
not retained to perform such services. In the event of a breach or threatened
breach by Golden Bear of this paragraph 6(a), Xxxxx Golf shall be entitled to an
injunction restraining Golden Bear and each of its constituents from such
breach. Nothing herein shall be construed as prohibiting Xxxxx Golf from
pursuing any other remedies available for such breach or threatened breach,
including the recovery of damages.
(b) As a material inducement to Golden Bear to enter into this
Agreement, Xxxxx agrees and covenants that during the term of this Agreement it
will act in a Construction Capacity in connection with golf related construction
projects only through Xxxxx Golf, or a subsidiary of Xxxxx Golf, except, with
respect only to the state of Arizona, that Xxxxx may act in a Construction
Capacity with respect to golf related construction projects not designed by
Golden Bear. In the event of a breach or threatened breach by Xxxxx of this
paragraph 6(b), Golden Bear shall be entitled to an injunction restraining Xxxxx
from such breach. Nothing herein shall be construed as prohibiting Golden Bear
from pursuing any other remedies available for such breach or threatened breach,
including the recovery of damages.
7. MUTUAL INDEMNITY. (a) Golden Bear agrees to indemnify and hold Xxxxx
and Xxxxx Golf harmless from and against any and all loss, claim, liability,
debt, obligation, or expense, including attorneys fees, arising out of or in
connection with the acts, omissions or business operations of Golden Bear or any
of them.
(b) Xxxxx and Xxxxx Golf agree to indemnify and hold Golden Bear
harmless from and against any and all loss, claim, liability, debt, obligation,
or expense, including attorneys fees, arising out of or in connection with the
acts, omissions or business operations of Xxxxx or Xxxxx Golf.
8. ASSIGNMENT. This Agreement may not be assigned by any party without
the consent of all other parties, which consent, however, shall not be withheld
unreasonably. Notwithstanding the preceding sentence, (a) Xxxxx and/or Xxxxx
Golf may assign this Agreement to any business entity controlled by Xxxxx or to
any other business entity whose financial net worth is, and whose construction
expertise is generally reputed to be, at least equal to that of Xxxxx, and whose
business and marketing activities do not conflict with the golf course design
business of GBI, and (b) Golden Bear may assign its rights to receive Referral
and Participation
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Fees under this Agreement to any business entity controlled by Nicklaus.
9. TERMINATION. (a) This Agreement shall terminate on December 31, 2018,
unless terminated earlier as hereinafter provided. This Agreement may be
terminated at any time by agreement of Xxxxx and two of the Golden Bear
constituents.
(b) This Agreement shall, at the option of Golden Bear, terminate upon receipt
by Xxxxx of written notice of termination from Golden Bear which states one or
more of the following grounds for termination: (i) the material breach of this
Agreement by Xxxxx or Xxxxx Golf which has not been cured within 90 days of
notice of such breach previously sent to Xxxxx or Xxxxx Golf by Golden Bear, or
(ii) the insolvency or bankruptcy of Xxxxx or Xxxxx Golf, or (iii) the entry of
any order of any court which has not been revoked within 30 days of such entry,
suspending or terminating the right of Xxxxx or Xxxxx Golf to perform under this
Agreement, or (iv) the quality of services provided by Xxxxx Golf falls below
the standards established by GBI (Nicklaus Design) for recommendation of
contractors to clients which has not been cured within 90 days of notice of such
breach previously sent to Xxxxx or Xxxxx Golf by GBI (Nicklaus Design), or (v)
the inability of Xxxxx Golf to generate a reasonable level (as determined by
Golden Bear in its sole discretion) of Referral and Participation Fees within a
reasonable period of time (not less than eighteen months from the date of this
Agreement).
(c) This Agreement shall, at the option of Xxxxx, terminate upon receipt by
Golden Bear of written notice of termination from Xxxxx which states one or more
of the following grounds for termination: (i) the material breach of this
Agreement by Golden Bear or any of them which has not been cured within 90 days
of notice of such breach previously sent to Golden Bear by Xxxxx, or (ii) the
insolvency or bankruptcy of Golden Bear or any of them, or (iii) the entry of
any order of any court which has not been revoked within 30 days of such entry,
suspending or terminating the right of any of Golden Bear to perform under this
Agreement, or (iv) the dissolution or cessation of the ongoing business of Xxxxx
Golf, or (v) the inability of Golden Bear to generate a reasonable level (as
determined by Xxxxx in its sole discretion) of referred Construction Contracts
within a reasonable period of time (not less than twelve months from the date of
this Agreement).
(d) Upon termination of this Agreement, the parties shall nonetheless continue
performance under this Agreement as to any Construction Contracts not yet
completed. However, except as necessary to complete such Construction Contracts
and except with respect only to the state of Arizona, in the event of a
termination of this Agreement by Golden Bear under clauses 9(b)(i), 9(b)(ii) or
9(b)(iv), or in the event of a termination of this Agreement by Xxxxx under
clause 9(c)(iv) , Xxxxx agrees not to engage in the business of acting in a
Construction Capacity in connection with golf related construction projects for
a period of twelve (12) months following termination of this Agreement.
10. IOWA LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the state of Iowa, excluding the choice
of law rules of said state.
11. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement embodies the entire
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Agreement and understanding of the undersigned in respect of the subject matter
addressed herein. Any amendment to the Agreement must be in writing and signed
by the undersigned. There are no restrictions, promises, representations,
warranties, covenants, or understandings other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings with respect to the subject matter hereof.
12. MEDIATION; LEGAL PROCEEDING COSTS AND EXPENSES; WAIVER OF JURY
TRIAL; WAIVER OF PUNITIVE DAMAGES. The parties agree to engage in good faith
mediation under the auspices of a professional mediator and to share the cost of
such professional mediator with respect to any dispute arising under this
Agreement prior to the commencement of any arbitration or litigation proceeding.
In the event any party enforces the terms of this Agreement through legal
proceedings of any type, including arbitration, the prevailing party shall be
awarded reasonable attorney fees, court costs and other costs incurred related
to such legal proceedings, in addition to any damages or other relief to which
the prevailing party may be entitled. All parties waive (if and to the extent
permitted by applicable law) the right to trial by jury with respect to any
dispute among them not involving a third party who is entitled to and demands
trial by jury. All parties waive all rights to punitive or exemplary damages
with respect to any matter under this Agreement.
13. WAIVER. Any party may, at its option, waive in writing any or all of
the terms herein contained. Any waiver of any part of this Agreement shall not
constitute a waiver of any other part; nor shall a waiver of any breach of this
Agreement, or any part of it, constitute a waiver of any succeeding breach or a
waiver of any other part of this Agreement.
14. SEVERABILITY. In case any of the foregoing provisions may be held
invalid, the same shall be deemed to be severable and shall not defeat the
remaining provisions; and a court or arbitrator having power to make such
adjudication is further authorized to modify any provisions hereof which may be
deemed unduly restrictive to the end that such restrictions, as modified, shall
be reasonable and valid.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
16. NOTICES. Any notice or other communication required or permitted
hereunder shall be sufficiently given if mailed or sent by registered or
certified mail, postage prepaid, or by facsimile transmission or telex
immediately confirmed in writing sent by registered mail or certified mail,
postage prepaid, addressed,
in the case of Golden Bear to: or in the case of Xxxxx or Xxxxx Golf to:
President, Golden Bear International, Inc. and President, The Xxxxx Company, Inc.
President, Golden Bear Golf, Inc. and 000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxx Xxx Xxxxxx, XX 00000
00000 X.X. Xxxxxxx Xxx
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Xxxxx Xxxx Xxxxx, XX 00000
17. HEADINGS. Headings in this Agreement are for the convenience of the
parties and shall have no substantive effect.
18. EQUITY PURCHASE OPTION. Xxxxx hereby grants to GBG the right and
option, at GBG's sole election, to convert Golden Bear's Referral and
Participation Fee interest into a 49% equity interest in Xxxxx Golf upon payment
to Xxxxx of an amount equal to the greater of (a) $490 or (b) 49% of the
positive depreciated book value of any construction equipment owned by Xxxxx
Golf, such that thereafter Xxxxx will own 51% and GBG will own 49% of Xxxxx
Golf. If this equity purchase option right is exercised, GBG's ownership of the
49% equity interest shall continue until December 31,2007. As of January 1, 2008
GBG shall assign such 49% equity interest to the Designated Successor in
exchange for the same purchase price amount originally paid by GBG, and the
Designated Successor shall thereafter own such 49% of Xxxxx Golf. Such equity
purchase option right may be exercised only in full by GBG and only at any time
during a period commencing on the date of this Agreement and continuing for a
period of twenty-four (24) months thereafter. This equity purchase option right
shall in any event expire on the second anniversary date of this Agreement if
not exercised prior to that date. If this equity purchase option right is
exercised, the Referral and Participation Fee shall thereafter be reduced to
zero, and Xxxxx Golf may thereafter use the name "Golden Bear" in its name.
19. ACKNOWLEDGMENT. GBI and Nicklaus specifically consent and agree to
the provisions of Section 18. GBI acknowledges that the formation of Xxxxx Golf
under the terms of this Agreement meets the terms and conditions of the
Commitment.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first above written.
___________________________________ Golden Bear International, Inc.
Xxxx Xxxxxxxx
By:_________________________________
The Xxxxx Company, Inc. Title:______________________________
By: ___________________________ Golden Bear Golf, Inc.
Title: ___________________________
By:_________________________________
Xxxxx Golf International, L.L.C. Title:______________________________
By: ___________________________
Title: ___________________________
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