EXHIBIT 10.3
LICENSE AGREEMENT
AGREEMENT by and between ▇▇▇ ▇▇▇▇▇ ENTERPRISES, INC. ("Licensor"), ▇▇▇▇▇▇▇
▇▇▇▇▇ individually ("▇▇▇▇▇"), and DIVOT - RFG JOINT VENTURE, L.L.C., a Florida
limited liability company ("Company" or "Licensee").
W I T N E S S E T H :
WHEREAS, ▇▇▇▇▇ has assigned to Licensor the worldwide rights to use the
name, likeness, image and endorsement of ▇▇▇▇▇, the facsimile signature of
▇▇▇▇▇, and the Eagle Design ▇▇▇▇;
WHEREAS, Licensee, directly or indirectly desires to manufacture and
distribute a signature line of ▇▇▇▇▇-endorsed golf-related consumer products and
to obtain the right to use the name, likeness, endorsement, and personal
services of ▇▇▇▇▇ in connection with the merchandising, distribution, and sale
of such products; and
WHEREAS, Licensor has the right and license to grant such rights to
Licensee and is willing to do so and ▇▇▇▇▇ is willing to provide personal
services in accordance with the following terms in exchange for the
consideration stated hereinbelow and in the Limited Liability Company Agreement
of the Licensee ("L.L.C. Agreement").
NOW, THEREFORE, for and in consideration of the premises and of the
mutual promises and covenants herein contained, and in the L.L.C. Agreement,
the parties do hereby agree as follows:
46
ARTICLE 1 : Definitions.
As used herein, the following terms shall be defined as set forth below.
1.1 "Calendar Year" means each twelve-month period commencing
on January 1 and ending on December 31 during the Initial Term and any
subsequent terms of this Agreement, except that, with respect to the year 1998,
"Calendar Year" shall mean the period commencing on the Effective Date and
ending on December 31, 1998.
1.2 "Contract Period" shall mean that period of time commencing on
the Effective Date, expiring or terminating in accordance with the provisions of
the L.L.C. Agreement, and/or terminating pursuant to the provisions of Article 4
herein.
1.3 "Contract Territory" shall mean all countries including the
territories and possessions thereof of the world.
1.4 "Divot Golf" and/or "Divot" mean Divot Golf Corporation, a
Delaware corporation.
1.5 "Effective Date" shall mean the date on which the last party to
sign executes this Agreement.
1.6 "▇▇▇▇▇ Identification" shall mean the name "▇▇▇▇▇", "▇▇▇ ▇▇▇▇▇"
or "▇▇▇▇▇▇▇ ▇▇▇▇▇", the likeness, image, and endorsement of ▇▇▇▇▇, the facsimile
signature of ▇▇▇▇▇ and the Eagle Design ▇▇▇▇, which is currently registered in
the United States, and Canada.
1.7 "Licensed Products" shall mean the products approved upon the
date of this Agreement, if any, and from time to time hereafter by Licensor for
manufacture and sale by Licensee under and in connection with ▇▇▇▇▇
Identification pursuant to this License Agreement. Schedule A attached hereto
contains a list of the product items the parties have agreed to designate as
"Licensed Products" at the time this Agreement was signed, if any. Additional
items shall be deemed "Licensed Products" after the Licensor has delivered to
Licensee a memorandum or other written statement containing a reasonably
detailed description of the additional item and the signature of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
or his designee, if any (as such designee may be identified in writing to
Licensee from time to time). The parties may develop a mutually acceptable
procedure for submitting such additional "Licensed Product" item requests to the
Licensor and requesting the written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, or his designee
thereto.
1.8 "Initial Term" shall mean the period of time commencing on the
Effective Date and ending in accordance with the provisions of the L.L.C.
Agreement, Article 4 hereof, or upon the expiration of fifty (50) years after
the Effective Date, whichever first occurs.
1.9 "Licensee" or "Company" means Divot - RFG Joint Venture, L.L.C.,
a Florida limited liability company established pursuant to and governed by the
terms and conditions of the L.L.C. Agreement.
1.10 "Licensor" means ▇▇▇ ▇▇▇▇▇ Enterprises, Inc., a Florida
corporation, owning world-wide rights to ▇▇▇▇▇ Identification.
1.11 "L.L.C. Agreement" means the Limited Liability Company
Agreement of the Licensee executed simultaneously herewith between Divot Golf
Corporation, a Delaware corporation ("Divot"), and Eagle Golf Enterprises, Inc.,
a Florida corporation ("Eagle"), which Agreement governs the aforesaid parties'
respective rights and obligations in and with respect to, among other issues,
Licensee's governance and management.
47
ARTICLE 2 : Grant.
2.1 Grant of Rights.
2.1.1 Grant of Trademark Rights. Subject to all of the terms
and provisions herein and to the terms and provisions of
the L.L.C. Agreement, executed as of the same date,
Licensor hereby grants to Licensee the exclusive,
non-transferable royalty-free right and license to
manufacture, advertise, distribute and sell Licensed
Products under and in connection with ▇▇▇▇▇
Identification as same may be approved by Licensor in
Licensor's sole and absolute discretion and subject to
Licensor's prior grants of rights to third-parties as
set forth on Schedule B to the L.L.C. Agreement. If a
product is approved by Licensor to be a Licensed
Product, the parties shall sign a written addendum to
this Agreement identifying the product and stating the
date of its approval as a Licensed Product by Licensor.
Licensee shall be obligated to launch any such Licensed
Product within eighteen (18) months after the date of
approval thereof set forth in the Addendum.
2.1.2 Personal Appearances. During the Contract Term, but only
so long as (i) ▇▇▇▇▇ is not physically impaired; (ii)
▇▇▇▇▇ owns and controls Licensor; (iii) Eagle or ▇▇▇▇▇▇▇
▇▇▇▇▇ (and his spouse or other affiliates) owns an
ownership interest in Licensee, and Licensee is in
compliance with all the terms and conditions hereof,
Licensee may request that ▇▇▇▇▇ make personal
appearances from time to time for the benefit of and on
behalf of Licensee and Licensed Products, for example,
to attend trade shows and/or to participate in
photography sessions for print or television advertising
of Licensed Products. Subject to the reasonableness of
such requests on Licensee's part and taking into
consideration ▇▇▇▇▇'▇ schedule and commitments, as a
professional golfer, ▇▇▇▇▇ shall endeavor to accommodate
such requests. Licensee agrees that, for each personal
appearance made pursuant to this paragraph 2.1.2,
Licensee shall reimburse ▇▇▇▇▇ for the expenses incurred
by ▇▇▇▇▇ and one travelling companion of ▇▇▇▇▇ for
meals, first-class accommodations, and ▇▇▇▇▇'▇ private
aircraft including jet fuel costs allocable to ▇▇▇▇▇'▇
travel to and from West Palm Beach, Florida to a
personal appearance destination requested by Licensee
hereunder.
2.2 Reservation of Rights. All rights not herein specifically
granted to Licensee shall remain the property of Licensor to be used in any
manner Licensor deems appropriate. Licensee acknowledges that Licensor has
heretofore exclusively authorized third-parties to use, and expressly reserves
the right to use and authorize others to use, ▇▇▇▇▇ Identification within the
Contract Territory and during the Contract Period in connection with certain
defined products and services as set forth on Schedule B to the L.L.C. Agreement
and the renewal terms thereof. Specifically, Licensee acknowledges, by way of
example and not limitation, that Licensor has previously granted others the
exclusive right to use ▇▇▇▇▇ Identification on and in connection with certain
articles of clothing, clothing accessories, golf equipment, and certain golf
accessories; for golf pro shops which are operated as a part of, and ancillary
to, golf courses, golf driving ranges, recreational centers, hotel and
conference center complexes having golf courses, and golf learning centers; in
connection with golf-related apparel, golf-related products, golf-related
events, and with golf-related theme restaurants and retail store services
ancillary thereto.
48
2.2.1 No Trade Name Rights Granted. Licensee expressly
acknowledges that Licensor is not granting to Licensee
hereby the right to use, and that Licensee may not use,
the name "▇▇▇▇▇" or ▇▇▇▇▇ Identification or Eagle Design
as or as part of any trade name, corporate title,
business style or fictitious name to identify Licensee's
business under the terms hereof at any time in any
country during or after the termination or expiration of
this License Agreement.
2.3 Acknowledgment of Ownership Rights. Licensee acknowledges that
Licensor owns all right, title and interest worldwide in and to ▇▇▇▇▇
Identification, ▇▇▇▇▇'▇ endorsement and services rights, and that Licensor is
▇▇▇▇▇'▇ related company as that term is defined in Section 45 of the ▇▇▇▇▇▇
Trademark Act. Licensee further acknowledges and agrees that it will not at any
time challenge or contest the validity of said rights or Licensor's ownership
thereof or rights therein in the Contract Territory. Licensee agrees that it
will not apply to register or register any ▇▇▇▇▇ Identification or the ▇▇▇▇▇
Collection ▇▇▇▇ or any word, phrase, symbol or name confusingly similar thereto
or suggestive thereof as a trademark or service ▇▇▇▇, trade name, fictitious
name or corporate title anywhere in the world and that, upon Licensor's request,
Licensee shall execute any and all documents which Licensor reasonably believes
to be necessary or desirable for registration or protection of such ▇▇▇▇▇
Identification for Licensed Products or otherwise.
2.4 Quality of Services. Licensee acknowledges and agrees that
Licensor has a right and an obligation to maintain and protect the image and
reputation of ▇▇▇▇▇ Identification, and that, in order to accomplish this
purpose, Licensor must in all cases be assured that ▇▇▇▇▇ Identification will be
used only on or in connection with the manufacture, distribution, and
merchandising services for the Licensed Products and for Licensed Products which
are of a high quality and conform to a uniform and prestigious image acceptable
to Licensor.
2.5 Quality Controls. With respect to Licensed Products, Licensor
shall have the right to approve or disapprove all samples and prototypes of
Licensed Products and their packaging, labeling and materials prior to their
manufacture and sale by Licensee and Licensee agrees that the terms and
provisions governing Licensor's rights and Licensee's obligations with respect
to advertising uses of ▇▇▇▇▇ Identification set forth in paragraph 2.7 shall
apply to all Licensed Products.
2.6 Quality Controls: Distribution. In order to ensure that
Licensor's standards of quality with respect to selection, presentation,
assortment, manufacture, advertisement, distribution and sale of Licensed
Products are maintained, Licensee agrees as follows:
2.6.1 Licensed Products Marketed and Sold Individually or
as a Collection. Licensor shall have the right to:
(i) participate with Licensee in determining which
Licensed Products shall be merchandised
individually or together as a collection; and (ii)
participate in the determination of which channels
of distribution are acceptable for the sale of
Licensed Products as commercially appropriate to
the image of ▇▇▇▇▇ and ▇▇▇▇▇ Identification.
2.6.2 No Unauthorized Products or Trade Channels. Licensee
agrees that it shall not at any time during or after the
Term of this Agreement:
(i) manufacture, advertise, distribute, or sell
any altered, non-conforming, non-genuine,
counterfeit, unapproved or unauthorized products
using ▇▇▇▇▇ Identification; or (ii) distribute,
offer for sale or sell Licensed Products bearing
▇▇▇▇▇ Identification to or through any channel of
distribution or retail trade which has not been
approved by Licensor.
49
2.7 Signage, Promotion, Public Relations and Advertising
Approvals. Licensee agrees that, at all times during the Initial Term or any
subsequent terms of this Agreement, before using, publishing, releasing or
distributing any signage, advertising, public relations, announcements,
business, packaging, labeling or promotional or communications material in any
format or medium using or referencing ▇▇▇▇▇ or ▇▇▇▇▇ Identification or Licensed
Products bearing ▇▇▇▇▇ Identification, whether intended for the public, the
trade or for use for advertisement, offering for sale or sale by direct mail or
electronic or broadcast transmission or by retailers for in-store promotions,
Licensee shall first submit to Licensor for its examination, approval or
disapproval, a prototype or representative sample of each such item. Licensor
agrees that it will promptly examine and either approve or disapprove such
samples and that Licensor will promptly notify Licensee of its approval or
disapproval. Licensor agrees that Licensor will not unreasonably disapprove any
item so long as it conforms to Licensor's standards of quality, appearance,
taste, and content and, if any is disapproved, that Licensee will be advised of
the specific reasons in each case within ten business days of Licensor's receipt
of such item. Licensor agrees that any item submitted for approval hereunder
will be deemed approved hereunder if the same is not disapproved in writing
within ten (10) business days after receipt thereof. Licensee agrees not to use,
print, publish, advertise, or disseminate or sell any item disapproved by
Licensor. Licensee further agrees to bring all disapproved items into full
compliance with Licensor's directives before use or publication or dissemination
or sale thereof. Licensor acknowledges that Licensee is not required to resubmit
for Licensor's approval, products, signage, advertising, public relations or
promotional items previously approved by Licensor under this Section 2.7 if such
items conform to materials and articles previously approved by Licensor.
2.8 Undertakings Binding on Licensee's Subcontractors,
Affiliates, Agents. Licensee acknowledges and agrees that its undertakings set
forth in this Article 2 respecting Licensor's rights and Licensee's obligations
concerning quality controls shall be made binding by Licensee by contract upon
its agents, affiliates, subcontractors and representatives who shall be engaged
in any manner whatever in the selection, design, manufacture, distribution,
promotion, advertising, dissemination, packaging, transportation or sale of
Licensed Products pursuant to this License Agreement.
ARTICLE 3 3 3: Royalty.
3.1 Licensee's Royalty Obligation. Subject to the registration and
other obligations of Divot, ▇▇▇▇▇ acknowledges that he has received
simultaneously with the execution of this Agreement on his own behalf and on
behalf of his wife, ▇▇▇▇▇, as tenants by the entireties, the consideration set
forth on Exhibit 1 annexed hereto and made a part hereof as pre-paid royalties
for Licensor's and ▇▇▇▇▇'▇ ▇▇▇▇▇ of rights herein to Licensee, as to which grant
of rights Divot is a third-party beneficiary as a joint venturer in Licensee.
Except as set forth on Exhibit 1, Licensor's grant of rights herein to Licensee
under Section 2.1 shall be royalty-free.
ARTICLE 4 4 4: Term and Termination.
4.1 Renewal Option. Subject to the terms and conditions of this
Agreement, upon expiration of the Initial Term hereof, this Agreement shall be
automatically renewed upon all of the terms and conditions herein for
consecutive five (5) year terms, unless either party gives notice in writing of
its intention not to renew this Agreement at least three (3) months prior to the
expiration of the Initial Term or any subsequent five-year term. In the event
either party fails to deliver notice of its intention not to renew and extend
this Agreement for said additional five-year terms at least three months prior
to the expiration of the Initial Term and any subsequent five-year term, this
Agreement will automatically be extended for the next succeeding five-year term.
In the event either party delivers timely notice of its intent not to renew this
Agreement for any additional five-year term pursuant to the terms of this
Section 4.1, this Agreement shall expire automatically upon the expiration of
the then-current five-year term.
50
4.2 Termination upon Material Breach. In the event of a material
breach of this Agreement by Licensee (including any breach hereof by Divot),
▇▇▇▇▇ and Licensor may terminate the license and rights granted to Licensee
under this Agreement by giving written notice to Licensee of termination and the
basis for such termination. The license and rights granted under this Agreement
shall terminate 45 days after delivery of such written notice unless such breach
is substantially cured, within such 45-day period. In the event that, after the
expiration of said 45-day cure period, Licensee has failed to substantially cure
such breach or to tender substantial efforts to so cure to Licensor's reasonable
satisfaction, AND PROVIDED THAT Licensee delivers written notice to Licensor
that it disputes that its accused conduct constitutes a "material breach", the
parties agree to submit their dispute to arbitration as provided hereafter and
this License Agreement and the L.L.C. Agreement shall continue in full force and
effect during the pendency of such arbitration. By way of example only and not
limitation, the following could be deemed to be material breaches:
4.2.1 Divot fails to comply with its obligations set forth on
Exhibit 1 hereof;
4.2.2 Licensee uses or authorizes another to use the ▇▇▇▇▇
Identification for products which are non-Licensed
Products contrary to the provisions hereof;
4.2.3 Licensee fails to observe quality controls implemented
by Licensor and/or fails to require its subcontractors,
independent contractors, representatives and affiliates
to observe such controls and/or fails to reasonably cure
quality control deficiencies relating to Licensed
Products properly noticed by Licensor as required under
Section 2.6.1 of this License Agreement;
4.2.4 Licensee refuses or neglects to submit to Licensor
sample signage, public relations and trade
announcements, marketing materials, advertising copy,
promotional items, in-store displays, etc. or other
materials for which Licensor's approval is required
under Section 2.7 hereinabove of this Agreement;
4.2.5 Licensee assigns or purports to assign or pledges or
sublicenses any of the rights granted herein to any
third-party in violation of the terms of this Agreement;
4.2.6 Licensee engages in a business other than the
manufacture, merchandising and sale of Licensed
Products bearing ▇▇▇▇▇ Identification without first
obtaining the prior written consent of ▇▇▇▇▇ and
Licensor as required by the L.L.C. Agreement;
4.2.7 Licensee knowingly sells or offers for sale products
purportedly ▇▇▇▇▇-endorsed or ▇▇▇▇▇-branded products,
which are not genuine or authorized, or which have not
been pre-approved by Licensor; or
4.2.8 Divot undergoes a change of control.
4.3 Licensor's Unconditional Right of Termination. Licensor
shall have the unconditional right to terminate this Agreement immediately upon
notice to Licensee upon the happening of any one of the following events:
4.3.1 If all or substantially all of Licensee's business or
assets are nationalized or appropriated by any national
government or governmental authority provided, that this
Agreement will only terminate with respect to the
merchandising and sale of Licensed Products in countries
affected by such nationalization and/or appropriation;
4.3.2 If Licensee or Divot makes an assignment of all or
substantially all of its assets for the benefit of a
creditor or creditors, or becomes insolvent, or files a
petition in bankruptcy or is involuntarily forced into
bankruptcy, or a receiver or trustee of its assets is
appointed;
51
4.3.3 If either Licensee or Divot ceases operations with a
view to dissolving and winding up its affairs;
4.3.4 If Licensee pledges, hypothecates, assigns or
sublicenses any of its rights and obligations under this
License Agreement or any modification or amendment
thereto to any third-party without the express prior
written consent of Licensor;
4.3.5 If the applicable laws and regulations of any country or
any third-party claim or any court order prohibit or
prevent or otherwise impair Licensee's use of ▇▇▇▇▇
Identification under this License Agreement for any
Licensed Products, then this Agreement shall terminate
with respect to such country and/or for such product but
only for the period of time such use is prohibited,
prevented or impaired and Licensor shall have no
liability to Licensee or to Divot as a result thereof;
or
4.3.6 If Eagle has exercised its election to dissolve the
L.L.C. or its right to cause the L.L.C. to acquire its
entire interest in the L.L.C. (including all interests
held by ▇▇▇▇▇ or Eagle Affiliates that acquire their
interests from Eagle after the inception of the L.L.C.).
4.4 Licensee's Rights of Termination. Licensee shall have the right
upon 60 days' written notice to Licensor to terminate this Agreement during the
Initial Term and any subsequent term upon the occurrence of any one or more of
the following events:
4.4.1 The commercial value of ▇▇▇▇▇ Identification is
substantially impaired as a result of the commission by
▇▇▇▇▇ of any act which shocks, insults or offends the
community or ridicules public morals and decency which
termination shall become effective within 60 days
following Licensee's delivery of notice to Licensor of
such termination provided that, ▇▇▇▇▇'▇ death or
disability shall not constitute grounds for Licensee's
termination of this License Agreement.
4.4.2 Licensee is dissolved and discontinued in accordance
with the L.L.C. Agreement.
4.4.3 If Licensor makes an assignment of all or substantially
all of its assets for the benefit of a creditor or
creditors, or becomes insolvent, or files a petition in
bankruptcy or is involuntarily forced into bankruptcy,
or a receiver or trustee of its assets is appointed.
ARTICLE 5: Registration of ▇▇▇▇▇ Identification: Trademark Notations and
Legends.
5.1 Registration of ▇▇▇▇▇ Identification. At Licensee's
request, Licensor shall apply to register, maintain and renew the registration
of the ▇▇▇▇▇ Identification for the Licensed Products in the United States,
Canada and in any other country in which Licensee offers or proposes to offer
Licensed Products to the extent permitted by applicable laws and regulations
governing the registration of trademarks. Licensor will direct and control such
registration process through counsel of its choice and Licensee agrees that it
will reimburse Licensor for all reasonable attorneys' fees, costs and
disbursements incurred by Licensor in connection with the registration process
world-wide including defending opposition and cancellation proceedings brought
by third parties, upon delivery of invoices or other reasonable evidence of the
fees, costs and disbursements to be reimbursed to Licensor.
5.2 Licensee Cooperation. Licensee agrees to cooperate with
Licensor and/or Licensor's counsel in achieving registration of ▇▇▇▇▇
Identification and to execute any and all documents required, provide use
evidence and testimony and documentation that may be required in any ex parte or
inter partes administrative proceedings involving ▇▇▇▇▇ Identification use
and/or registration, at Licensor's sole expense.
52
5.3 Licensee's Use of ▇▇▇▇▇ Identification. Licensee agrees to
make proper use of Trademark notations ("sm", "(TM)" or "(R)") in conjunction
with all advertising uses and displays of the ▇▇▇▇▇ Identification and, when
practicable, in promotional or advertising messages in any media referencing the
▇▇▇▇▇ Identification, Licensee shall cause the following legend to appear in
legible form:
("▇▇▇▇▇ Identification") [`sm' or `(TM)' or `(R)'] is a
[registered] trademark of ▇▇▇ ▇▇▇▇▇ Enterprises, Inc.
and is used herein under license."
5.4 No Registration by Licensee: Ownership of Goodwill. Licensee
shall not, in its own name and on its own behalf, directly or indirectly, apply
to register or register any ▇▇▇▇▇ Identification or any name, words, symbols,
slogans or images confusingly similar thereto or suggestive thereof, in any
country whether as a trademark or service ▇▇▇▇, trade name, fictitious name or
corporate title. Licensee acknowledges that Licensee's use of ▇▇▇▇▇
Identification hereunder for Licensed Products inures solely to Licensor's
benefit and any goodwill resulting from such use shall belong solely to
Licensor.
ARTICLE 6: Litigation
6.1 Prosecutions. Licensor and Licensee shall use their good
faith best efforts to cooperate in protecting and enforcing rights in the ▇▇▇▇▇
Identification for Licensed Products, to bring jointly as co-plaintiffs all
actions and proceedings involving the Licensed Products and to agree upon the
terms of any settlement with respect to any third-party infringements, or acts
of unfair competition involving ▇▇▇▇▇ Identification, its use and registration
and Licensor and Licensee shall share equally the costs of all legal fees,
expenses and liabilities including amounts paid in settlement and any amounts
recovered as damages and costs or by way of settlement.
6.2 Undertaking to Defend. Licensor shall defend and hold
Licensee harmless from and against any suit, action or proceeding for trademark
infringement alleging that Licensee's use of ▇▇▇▇▇ Identification for Licensed
Products infringes the proprietary ownership rights of third-parties PROVIDED
THAT Licensee's breach of this Agreement or its negligence did not precipitate
such suit, action or proceeding; and Licensor shall pay all costs, expenses,
attorneys' fees and damages or amounts paid in settlement resulting from such
suit, action or proceeding, and shall have control over the defense of such
suit, action or proceeding including without limitation control over the
settlement of same including the right to withdraw any application, annul any
registration or require Licensee and Licensee's agents, subcontractors,
representatives, and distributors to cease the use of ▇▇▇▇▇ Identification and
sale of any Licensed Products bearing ▇▇▇▇▇ Identification in any location or
country or for any product without liability on the part of Licensor or ▇▇▇▇▇.
ARTICLE 7: Representations and Warranties and Covenants
7.1 Licensor Representations. Licensor represents and
warrants:
7.1.1 Licensor has the full right and legal authority to enter
into and fully perform this Agreement in accordance with
its terms and, without violating the rights of any other
person or entity;
7.1.2 Licensor will comply with all applicable laws,
regulations and ordinances in the performance of its
duties under this Agreement;
7.1.3 Licensor has no obligations and has not granted any
rights to any third-party that prohibit it from entering
into or fully complying with the terms and provisions of
this License Agreement, subject to Licensor's
Reservation of Rights under Section 2.2.
7.1.4 There is no material action, suit, proceeding, claim,
arbitration or investigation pending (or to the best of
Licensor's knowledge, currently threatened) against
Licensor, its constituent members, or their affiliates,
or any of them, or their respective personal or business
activities, properties or assets or, to the best of
Licensor's knowledge, that of any officer, director or
employee of Licensor or of its members which would or
could impair Licensor's or its constituent members'
ability to fully perform its obligations hereunder and
exploit its rights hereunder. Licensor is not a party to
or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or
government agency or instrumentality and there is no
material legal action by Licensor currently pending or
which Licensor intends to initiate.
53
7.2 Licensee's Representations, Warranties and Covenants. Licensee
represents and warrants as follows:
7.2.1 Licensee is a limited liability company duly organized,
validly existing and in good standing under the laws of
the State of Delaware. Licensee has all requisite power
and authority to enter into and perform this Agreement
in accordance with its terms and provisions without
violating the rights of any other person or entity.
7.2.2 Licensee will comply with all applicable laws,
regulations and ordinances in the performance of its
rights and obligations under this Agreement.
7.2.3 Absent ▇▇▇▇▇'▇ prior informed written consent, Licensee
will not, during the Contract Period, own, control or
operate, or participate directly or indirectly in the
ownership, control or operation of, any business or
enterprise except the manufacture, merchandising and
sale of authorized Licensed Products in accordance with
this License Agreement; PROVIDED THAT nothing herein
shall limit the business activity of Divot, or any
affiliate of Divot (other than the Licensee), except to
the extent set forth in the L.L.C. Agreement.
7.2.4 Licensee's marketing, promotion, advertising and sale of
Licensed Products does not and will not constitute
libel, defamation, false advertising or other commercial
tort or violate any federal, state or local laws,
ordinances, rules or regulations.
7.2.5 There is no material action, suit, proceeding, claim,
arbitration or investigation pending (or to the best of
Licensee's knowledge, currently threatened) against
Licensee, its constituent members, or their affiliates
or any of them or their respective personal or business
activities, properties or assets or, to the best of
Licensee's knowledge, that of any officer, director or
employee of Licensee or of its members which would or
could impair Licensee's or its constituent members'
ability to fully perform its obligations hereunder and
exploit its rights hereunder. Licensee is not a party to
or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or
government agency or instrumentality and there is no
material legal action by Licensee currently pending or
which Licensee intends to initiate.
ARTICLE 8: Indemnification.
8.1 Indemnification of Licensee. Licensor agrees to indemnify
and hold Licensee harmless both during the Contract Period of this Agreement and
following the expiration or termination hereof for any reason from, against and
in respect of any and all demands, claims, actions or causes of action,
liabilities, losses and expenses including reasonable attorneys' fees and
expenses arising out of or relating to any breach by Licensor of any
representation or warranty made by Licensor in any provision of Article 7
hereinabove. Such right to indemnification shall be in addition to any and all
other rights of Licensee under this Agreement.
8.2 Indemnification of Licensor. Divot and Licensee agree to
indemnify and hold Licensor and ▇▇▇▇▇ harmless, both during the Contract Period
of this Agreement and following the expiration or termination hereof for any
reason, from, against and in respect of any and all demands, claims, actions or
causes of action, liabilities, losses, and expenses including reasonable
attorneys' fees and expenses arising out of or relating to any breach by
Licensee of any representation or warranty made by Licensee in any provision of
Article 7 of this Agreement. Licensee's indemnification of Licensor shall also
extend to any and all third-party claims for deceptive, false or misleading
advertising, advertising injury, or product liability, personal injury or death
arising out of Licensee's business conducted with respect to the Licensed
Products. Such right to indemnification shall be in addition to any and all
other rights of Licensor or ▇▇▇▇▇, or their successors or assigns under this
Agreement.
54
8.3 Insurance. Licensee agrees to purchase and maintain in
effect at its own expense liability insurance covering claims arising under the
circumstances described in Section 8.2 above, which insurance shall be in the
amount of at least U.S. $1 million per occurrence or combined single limit.
Within 30 days following the Effective Date of this Agreement, Licensee shall
submit to Licensor a certificate of insurance naming Licensor as an additional
insured party and requiring that the insurer shall not terminate or modify such
policy without written notice given to Licensor at least 60 days in advance
thereof.
ARTICLE 9: Arbitration Procedure.
The parties agree that they shall resolve all disputes between them,
except as otherwise specifically set forth herein to the contrary, through the
arbitration provisions contained in Exhibit 2 annexed hereto and made a part
hereof provided, however, that the parties acknowledge that, in the event the
integrity of and goodwill symbolized by ▇▇▇▇▇ Identification may be damaged by
reason of the acts or omissions of Licensee or of Divot or of subcontractors or
agents or affiliates of any of the foregoing, Licensor may suffer irreparable
harm and, accordingly, it is expressly acknowledged and agreed that Licensor
shall have recourse to the federal and/or state courts in the event equitable
remedies are sought or desired by ▇▇▇▇▇ and/or Licensor to protect against
irreparable injury to ▇▇▇▇▇, to Licensor and to ▇▇▇▇▇ Identification.
ARTICLE 10: Assignments: Sub-licenses.
10.1 No Assignment. Licensee may not assign, pledge or
sub-license its rights and obligations (in whole or in part) under this License
Agreement without the express written consent of Licensor or ▇▇▇▇▇ provided,
however, that Licensee shall have the right to subcontract the manufacture,
distribution, advertisement, transportation and sale of Licensed Products to
▇▇▇▇▇▇ Golf, Inc., Divot's wholly-owned subsidiary so long as said subcontractor
is wholly or majority-owned by Divot.
10.2 No Collateral Assignment. Licensee may not make a
collateral assignment, pledge, hypothecation or contingent transfer of its
rights and obligations (in whole or in part) under this License Agreement.
ARTICLE 11: Notices.
11.1 Delivery of Notice. Any notice required to be given
pursuant to this License Agreement shall be made in writing and shall be deemed
delivered as follows:
11.1.1When transmitted by telecopier, on the date of the
transmission provided the transmitting party receives
confirmation that the facsimile transmission was
delivered;
11.1.2When delivered by express overnight courier, registered
or certified mail, on the date stated on the
confirmation of receipt to the addressee;
11.2 Notice to Licensor. Notice to Licensor should be addressed as
follows:
▇▇▇ ▇▇▇▇▇ Enterprises, Inc.
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇, President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to:
Greenberg, Traurig, Hoffman, Lipoff,
▇▇▇▇▇ & Quentel, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
55
11.3 Notice to Licensee. Notice to Licensee shall be addressed as
follows:
Divot - RFG Joint Venture, L.L.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
Annis, Mitchell, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
One Tampa City Center, Suite 2100
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
11.4 Change of Address for Notice. Upon at least 15 days written
notice, either party may, during the Contract Period, change its address to any
other address for purposes of delivery of notice pursuant to this Article 11.
ARTICLE 12: Miscellaneous Provisions.
12.1 Governing Law. This License Agreement and any dispute,
controversy or claim arising out of or relating to this Agreement or the
interpretation, performance, validity or enforceability thereof shall be
construed in accordance with federal laws applicable to trademarks and otherwise
with the internal laws of the State of Florida without regard to its principles
of conflicts of laws and this Agreement shall be deemed to have been drafted
jointly by the parties.
12.2 Entire Understanding. This License Agreement and the
L.L.C. Agreement constitute the entire understanding of the parties with respect
to the subject matter hereof and supersede all previous agreements and
understandings between them, and there are no prior understandings, agreements,
conditions or representations, oral or written, express or implied, with
reference to the subject matter hereof that are not merged herein, expressly
referenced herein or superseded hereby or which are expressly contemplated for
future consummation.
12.3 No Agency. Nothing contained in this License Agreement
shall be construed as creating any agency, partnership, joint venture or other
form of joint enterprise between the Licensor and or ▇▇▇▇▇, on the one hand, and
either Licensee, and/or Divot, on the other hand.
12.4 No Modification Unless in Writing. This License Agreement
may only be amended or modified and/or expanded as to additional products and
services in a writing signed by the parties.
12.5 Severability. The provisions of this License Agreement
are independent of each other and the invalidity of any provision or a portion
hereof shall not affect the validity or enforceability of any other provision.
12.6 Waiver. Any delay or failure on the part of either party
to enforce its rights hereunder to which it may be entitled shall not be
construed as a waiver of the right and privilege to do so at any subsequent time
and no acceptance of full or partial payment due under this Agreement during the
continuance of any default shall constitute a waiver of the breach of the term
or condition.
12.7 Binding Agreement. The provisions of this Agreement will
be binding upon and inure to the benefit of the parties and their respective
heirs, agents, executors, administrators, and Licensee's permitted successors
and permitted assigns.
12.8 Governing Agreement. In the event of a conflict between
any term or provision of this License Agreement and any term or provision of the
L.L.C. Agreement, the terms and provisions of this Agreement will prevail with
respect to the subject matter hereof.
56
12.9 Force Majeure. Neither party shall incur liability to the
other for any failure or delay in fulfilling its obligations under this License
Agreement due to force majeure. "Force Majeure" shall mean acts of nature, acts
of government, wars, riots, civil insurrection, strikes or other labor
disturbances.
WHEREFORE, the parties have caused this License Agreement to be
executed by their duly authorized representatives, intending thereby to be
legally bound.
For and on Behalf of Licensee: For and on Behalf of:
DIVOT - RFG JOINT
VENTURE, L.L.C. ▇▇▇ ▇▇▇▇▇ ENTERPRISES, INC.
By:_____________________________ By:_________________________________
Typed Name:_____________________ Typed Name:_________________________
Title:____________________________ Date of Signature:_____________________
Date of Signature:__________________
Name:_______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
Date of Signature:______________________
Accepted and Agreed As To All Terms:
DIVOT GOLF CORPORATION
By:____________________________
Name:
Title:
Date of Signature: ______________, 1998
Accepted and Agreed As To Paragraph 7 of Exhibit 1:
By: _____________________________
Name:
Title:
Date of Signature: ______________, 1998
57
EXHIBIT 1
Divot's Royalty Obligations
1. Upon the execution of this License Agreement by all parties, Divot Golf
Corporation, a Delaware corporation ("Divot"), a third-party beneficiary of this
License Agreement, shall deliver, or cause to be delivered, to Licensor, or its
assigns (which shall include ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, as tenants by the
entireties), 354,463 shares of Common Stock of par value $0.001 of Divot, duly
issued to and registered in the name of Licensor (or such assignee) (the
"Shares"), subject to Divot's option in Paragraph 2 below. 2. Upon the happening
of the "Triggering Event" (as defined below), Divot shall have the option to
cause Licensor (or its assignee, as the case may be) to sell to Divot, or its
designee, 137,445 of the Shares for the total sum of $1.00. The option shall be
exercised by delivery of a written notice to the Licensor (and with a copy
thereof to the assignee of the Shares, if known to Divot), stating Divot's
intent to acquire such shares, accompanied by a check in the total amount of
$1.00 payable to the Licensor (or assignee, if known). 3. The Shares shall
initially not be registered under the Securities act of 1933 and shall bear a
legend substantially similar to the following:
THE SHARES OF STOCK ("SHARES") REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, OR ANY STATE STATUTES.
THE SHARES MAY NOT BE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
WITHOUT AN OPINION OF COUNSEL FOR THE HOLDER, WHICH OPINION AND COUNSEL
SHALL BE REASONABLY SATISFACTORY TO DIVOT GOLF CORPORATION, THAT SUCH
REGISTRATION IS NOT REQUIRED. THE HOLDER OF THE SHARES IS ALSO ENTITLED TO
CERTAIN REGISTRATION RIGHTS AS SET FORTH IN THAT CERTAIN REGISTRATION
RIGHTS AND RELATED MATTERS AGREEMENT DATED _________, 1998 BETWEEN DIVOT
GOLF CORPORATION AND ▇▇▇ ▇▇▇▇▇ ENTERPRISES, INC., AND ARE FURTHER SUBJECT
TO THE OPTION OF DIVOT GOLF CORPORATION TO ACQUIRE 137,445 OF THE SHARES
UPON THE OCCURRENCE OF CERTAIN CONDITIONS SET FORTH IN THE LICENSE
AGREEMENT AMONG DIVOT, ▇▇▇ ▇▇▇▇▇ ENTERPRISES, INC., AND DIVOT-RFG JOINT
VENTURE, L.L.C. DATED ____________, 1998.
4. Licensor (or its assigns, as the case may be) shall execute such other
documentation as reasonably requested by Licensee or Divot in order to meet, or
demonstrate compliance with, any exemptions available under state or federal
securities laws in connection with the delivery of the Shares to Licensor. 5.
The "Triggering Event" shall be the first anniversary of this License Agreement,
unless prior to such date a definitive agreement is executed between Licensor
and Corporate Express, Inc. and/or its affiliate, as Licensee, containing a
provision substantially as follows:
"Section ___. Divot-Eagle. Without creating any legally binding
obligations upon the Licensee [Corporate Express], the Licensee will
consult with DIVOT-RFG JOINT VENTURE, L.L.C. ("Venture") from time to
time with regard to the Venture's desire and capability of providing
its manufacturing and distribution resources, as well as various
golf-related products and accessories, to Licensee for distribution or
resale to Licensee's customers."
58
6. The Shares shall in the aggregate constitute 4.9 percent of Divot's total
outstanding shares of Common Stock as of the date hereof on a fully diluted
basis, after giving effect to the issuance of the Shares and assuming exercise,
conversion and/or exchange of all of Divot's currently outstanding derivative or
convertible securities for shares of Divot's Common Stock in accordance with
their respective terms (including, without limitation, all of Divot's
outstanding stock options, warrants, preferred stock, and convertible notes).
All the Shares shall be duly authorized and validly issued to such person, fully
paid and nonassessable, and free and clear of all liens and encumbrances
(subject to Paragraph 2 above), and shall not be subject to preemptive or
similar rights; and all of the Shares shall also entitled to registrations
rights as set forth in that certain Registration Rights and Related Matters
agreement between Divot and Licensor dated as of even date herewith. 7. In the
event that Eagle Golf Enterprises, Inc. ("Eagle") elects to dissolve the
Licensee for its failure to achieve the gross revenue threshold for the
twelve-month period ending upon the second anniversary of the Limited Liability
Company Agreement of the Licensee dated _____________, 1998, in accordance with
the terms in Article 14 thereof, Divot shall have the option to require Licensor
to pay Divot an amount equal to the value of the Shares declared as taxable
income by Licensor (or its assigns, as the case may be) for the federal income
tax purposes for the tax year during which the Shares were received from Divot,
less the amount of all additional federal, state and local taxes the recipient
of the Shares was required to pay for receiving them. If the persons required to
make such payment to Divot under this paragraph hold any of the Shares at the
time Divot requests payment of the amount hereunder, then such persons may apply
all or part of such Shares to the payment liability, using the greater of (a)
the same value declared for the Shares for federal income tax purposes when
received, or (b) the then fair market value of the Shares based on the average
closing trading price of Divot's common stock during the 30-day period
commencing 15 days prior to the date that Divot's written request for payment is
made hereunder. The payment to Divot (and/or delivery to it of some or all of
the Shares) required under this paragraph shall be made within 30 days after
Divot's written request for payment is made.
59
EXHIBIT 2
Arbitration Provisions
1. Dispute Resolution Mechanism. All disputes between the parties not resolved
by private negotiating, shall be settled by the following procedures, which
shall only apply to disputes which are susceptible to binding resolution
through alternative dispute resolution under applicable Florida law.
The "Disputes" covered by these provisions specifically include, but are not
limited to, the following:
(a) any and all claims, disputes, or issues that in any way
relate to or arise out of the terms, conditions, rights, obligations,
representations, warranties and performance of this Agreement and the
relationship between the parties;
(b) any and all claims, disputes, or issues that in any way
relate to or, arise out of or under this Agreement;
(c) any and all claims, disputes, or issues that in any way
relate to or arise out of regarding the validity of this Agreement or any
provision of this Agreement;:
(d) any and all claims, disputes, or issues that in any way
relate to or arise out of the performance or breach of this Agreement;
(e) any claims, disputes or issues regarding punitive damages,
or injunctions, or any other equitable claims;
(f) any and all questions regarding the arbitrability of any
claims, disputes or issues under this Agreement;; and
(g) any claims, disputes or issues for attorneys' fees and
costs in connection with any dispute and any mediation and/or arbitration
under this Agreement..
In regard to any Dispute subject to the terms of these Regulations, the party
claiming to be aggrieved (a "Claimant") must comply with the following Dispute
resolution procedure or it shall be deemed to have waived its Dispute.
2. Step One: Notice of Dispute and Negotiation.
(a) The Claimant shall attempt to give detailed written notice to
the other parties of the Claimant's specific complaint including the nature and
facts of the Dispute, the amount of actual damages and expenses, including
attorneys' fees, claimed or incurred by the Claimant within thirty (30) days of
the date Claimant knew about, or should have known about, incurred acts,
occurrences and/or omissions giving rise to the Dispute. The Claimant shall
include copies of all documents that support its claims. The purpose of this
notice is to advise the other party of the Dispute and to provide the Parties an
opportunity to resolve the claim, dispute or issue before filing for mediation.
In no event shall a failure by Claimant to give notice hereunder limit or in any
way restrict Claimant's ability to prosecute its claims.
60
(b) Within thirty (30) days after receipt of the notice, the
Parties receiving the notice shall tender to the other parties a written
response, including an offer of settlement, if appropriate. Any offer of
settlement not accepted within thirty (30) days of receipt by the Claimant shall
be deemed to have been rejected.
(c) The tender of an offer of settlement is not an admission of
engaging in an unlawful act or practice or of liability.
(d) In the event the parties are unable to settle their disputes
after following the procedures set forth above, within thirty (30) days
thereafter, the parties shall submit their disputes to mediation. However, if
requested by either party, the parties agree to meet to discuss the Dispute
within such thirty (30) day period.
3. Error! Bookmark not defined.Step Two: Mandatory Mediation. If the parties do
not resolve the Dispute under Step One, then Claimant, if wishing to pursue
the Dispute, must submit the dispute to mandatory mediation. Any Dispute
between the Claimant and any other party shall be submitted to mandatory
mediation prior to the Claimant seeking recourse through arbitration.
Claimant, in order to submit a Dispute to mediation, must submit a written
request for mediation to the other party and to the mediator. The Claimant
shall use reasonable efforts to make a written request for mediation within
(60) days of the initial notice of the Dispute by the Claimant to the other
parties. The written request for mediation shall include the written notice
of the Dispute and supporting documents set forth above and a summary of the
negotiations.
(a) All parties shall share equally in the naming of the mediator.
The mediator shall act as an advocate for resolution and shall use his or her
best efforts to assist the parties in reaching a mutually acceptable settlement.
The parties shall name the mediator within seven (7) days after a party has
submitted a written request for mediation. In the event that the parties cannot
agree on the naming of the mediator, the parties shall each select a mediator
and those mediators shall select an Independent mediator. The mediation shall be
conducted in Tampa, Florida, unless otherwise agreed to by both parties. In the
event a party fails to attend a mediation without good cause or the mediator
determines that a party has not acted in good faith to settle the dispute, then
the Party failing to attend the mediation or to act in good faith during the
mediation shall be responsible for the reasonable attorneys' fees and costs of
the other Party as determined by the mediator.
(b) The mediator shall not serve as a mediator in any dispute in
which he or she has any financial or personal interest in the result of the
mediation. Prior to accepting an appointment, the mediator shall disclose any
circumstance likely to create a presumption of bias or prevent a prompt meeting
with the parties. In the event that the Parties disagree as to whether the
mediator shall serve, the mediator shall not serve.
61
(c) Except as set forth herein, the mediator does not have the
authority to decide any issue for the parties, but will attempt to facilitate
the voluntary resolution of the dispute by the parties. The mediator is
authorized to conduct joint and separate meetings with the parties and to offer
suggestions to assist the parties in achieving settlement. If necessary, the
mediator may also obtain expert advice concerning technical aspects of the
dispute, provided that the parties agree and assume the expenses of obtaining
such advice. Arrangements for obtaining such advice shall be made by the
mediator or the parties, as the mediator shall determine. Likewise, the mediator
may request the limited production of documents from both parties in defense of
their respective claims. The mediator shall not disclose the parties in defense
of their respective claims. The mediator shall not disclose the actual documents
without the consent of the offering party. However, in his or her discussions
with the respective parties, the mediator will be permitted to share summary
oral information from any such documents.
(d) Mediation proceedings shall not extend beyond two (2) days,
without the consent of the parties.
(e) The parties shall be governed by Sections 44.102 and 768.79,
Florida Statutes, although no civil action is pending. An offer of settlement or
an offer or demand for judgment may be made at any time after an impasse has
been declared by the mediator. An offer is deemed rejected if it is not accepted
in writing before the commencement of arbitration. The parties agree that in the
event they are unable to resolve their dispute through mediation, then the
Claimant, if it wishes to pursue the dispute further, must submit the dispute to
mandatory final and binding arbitration as set forth hereinbelow.
(f) The Parties further agree that at any time following the
mediation process but prior to the initiation of binding arbitration, the
president or highest ranking senior level executive of the respective companies
shall meet or confer telephonically in one last effort to resolve the dispute.
During each phase of the alternative dispute evaluation process, the Parties
agree to act in good faith to settle the dispute, if possible. 1 1Step 3:
Mandatory Final and Binding Arbitration
4. Step 3: Mandatory, Final and Binding Arbitration:
(a) Except as otherwise provided herein, all claims, disputes,
controversies and other matters in question arising out of or relating to this
Agreement or to the alleged breach thereof shall subject to negotiation between
the Parties as described herein or by mediation between the parties. If such
negotiation and mediation are unsuccessful, the parties agree to submit to
binding arbitration. The parties agree the arbitration shall be administered by
the American Arbitration Association ("AAA") and conducted in accordance with
its Commercial Arbitration Rules, except as otherwise provided herein or as the
parties may otherwise agree. The arbitration specified herein is intended to
provide an arbitral forum instead of a judicial forum for the resolution of
disputes, as authorized by Florida Statutes Section 682.02.
(b) In order to invoke arbitration, Claimant shall submit a notice
of demand for binding arbitration in writing to the other party pursuant to the
Regulations within ninety (90) days of the completion of mediation. The written
notice of demand for binding arbitration shall include the written notice of
claim and supporting documents as set forth above.
62
(c) Upon filing of a notice of demand for binding arbitration
by either party, arbitration shall be commenced and conducted as follows:
(i) All claims, disputes, controversies, and other matters
(collectively "matters") in question shall be referred to and decided and
settled by a three person arbitration panel that has been found acceptable by
all parties. Selection of the arbitrator panel shall be made within ten (10)
business days after the date of filing of a demand for arbitration. In the event
the parties cannot agree on the selection of the arbitrator panel within ten
(10) business days of demand of the written notice invoking arbitration, the
arbitrator panel shall be selected pursuant to the AAA Commercial Arbitration
Rules. The arbitrator panel shall act by the affirmative vote of a majority of
such panel.
(ii) The cost of arbitration proceedings, including without
limitation the arbitrator's compensation and expenses, hearing room charges,
court reporter transcript charges, etc., shall be borne by the Parties equally
or otherwise as the arbitrator panel may determine. The arbitrator panel may
award the prevailing Party its reasonable attorneys' fees and costs incurred in
connection with the arbitration. The arbitrator panel is specifically instructed
to award attorneys' fees for instances of abuse in the discovery process.
(iii) The arbitration proceedings shall be held in Tampa,
Florida, unless the parties agree otherwise.
(iv) The parties shall have the right to conduct and
enforce pro-hearing discovery in accordance with the then current Federal Rules
of Civil Procedure, subject to these limitations.
(v) Each party may serve no more than one set of
interrogators limited to fifty items.
(vi) Each party may depose the other parties expert
witnesses who will be called to testify at the hearing, plus two fact witnesses
without regard to whether they will be called to testify (each party will be
entitled to a total of not more than 24 hours of depositions of the other
parties' witnesses); provided however, that the arbitrator panel may provide for
additional depositions upon showing of good cause; and
(vii) Document discovery and other discovery shall be under
the control of and enforceable by the arbitrator panel.
(d) All discovery disputes shall be decided by the arbitrator
panel. The arbitrator panel is empowered:
(i) to issue subpoenas to compel pre-hearing
document or deposition discovery;
(ii) to enforce the discovery rights and obligations
of the Parties; and
(iii) to otherwise control the scheduling and conduct
of the proceedings.
63
Notwithstanding any contrary foregoing provisions, the arbitrator panel
shall have the power and authority to, and to the fullest extent practicable
shall, abbreviate arbitration discovery in a manner which is fair to all parties
in order to expedite the conclusion of each alternative dispute resolution
proceeding.
(e) Within fifteen (15) days after selection of the arbitrator
panel or as soon thereafter as is mutually convenient to the arbitrator panel,
the arbitrator panel shall hold a pre-hearing conference to establish schedules
for completion of discovery, for exchange of exhibit and witness lists, for
arbitration briefs, for the hearing, and to decide procedural matters and all
other questions that may be presented.
(f) The hearing shall be conducted to preserve its privacy and to
allow reasonable procedural due process. Rules of evidence need not be strictly
followed, and the hearing shall be streamlined as follows:
(i) Documents shall be self-authenticating, subject
to valid objection by the opposing party;
(ii) Expert reports, witness biographies,
depositions, and affidavits may be utilized, subject to the opponent's right
of a live cross-examination of the witness in person;
(iii) Charts, graphs, and summaries shall be utilized to
present voluminous data, provided (i) that the underlying data was made
available to the opposing Party thirty (30) days prior to the hearing, and (ii)
that the preparer of each chart, graph, or summary is available for explanation
and live cross-examination in person;
(iv) The hearing should be on consecutive Business
Days without interruption to the maximum extent practicable; and
(v) The arbitrator panel shall establish all other
procedural rules for the conduct of the arbitration in accordance with the
AAA Commercial Arbitration Rules.
(g) No arbitration shall include, by consolidation, joinder, or in
any other manner, any additional person not a party to the Regulations, except
by written consent of the Parties in dispute containing a specific reference to
these Regulations.
(h) The arbitrator panel is empowered to render an award of
general compensatory damages and equitable relief (including, without
limitations, injunctive relief, but is not empowered to award exemplary, special
or punitive damages. The award rendered by the arbitrator panel (1) shall be
final; (2) shall not constitute a basis for collateral estoppel as to any issue;
and (3) shall not be subject to vacation or modification.
(i) All persons subject to this Agreement expressly agree to WAIVE
ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES of any kind, whether this
right or claim could accrue now or in the future under applicable law. However,
in the event a court determines that the express waiver set forth herein is
unenforceable, then the arbitrator panel, and not a court, shall determine if
punitive or exemplary damages should be awarded and, if awarded, the amount
thereof.
64
(j) The parties hereto will maintain the substance of any
proceedings hereunder in confidence and the arbitrator panel, prior to any
proceedings hereunder, will sign an agreement whereby the arbitrator panel
agrees to keep the substance of any proceedings hereunder in confidence.
(k) In the event any court or other tribunal concludes any portion
of these procedures to be void or otherwise unenforceable for any reason, the
remainder of these procedures shall survive and is deemed severable, such that
the parties' express purpose to arbitrate any unresolved controversy shall be
recognized and given effect.
(l) THE PARTIES HAVE CAREFULLY READ THIS AGREEMENT AND UNDERSTAND
THAT BY SIGNING THIS AGREEMENT, THEY ARE AGREEING TO SUBMIT ALL DISPUTES TO
MEDIATION AND ARBITRATION IN LIEU OF FILING A LAW SUIT. THE PARTIES KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL AND
AGREE THAT PRIVATE ADJUDICATION THROUGH MEDIATION AND ARBITRATION IS THE
EXCLUSIVE MEANS FOR RESOLVING ANY AND ALL DISPUTES COVERED BY THIS AGREEMENT
AMONG ANY TWO OR MORE OF THE SIGNATORIES HERETO.
65