1
Exhibit 10.4
SERIES D PREFERRED STOCK PURCHASE AGREEMENT
THIS SERIES D PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement") is
made as of August 21, 1996, by and between Nevada Bob's Holdings, Inc., a
Delaware corporation (the "Company"), and The Xxxxxx Xxxxxx Golf Company, a
Tennessee corporation (the "Investor").
In consideration of the promises herein made and on the terms and
subject to the conditions herein contained, the Company and the Investor agree
as follows:
SECTION 1
Contribution to the Company
1.1 Purchase and Sale of Stock. The Company will sell to the Investor,
and the Investor will purchase from the Company, a total of 625,000 shares of
the Company's Series D Preferred Stock, ("Preferred Shares") at the per share
purchase price of $8.00 and an aggregate purchase price of $5,000,000 (the
"Purchase Price"). The Preferred Shares will have and be subject to all the
rights, preferences, privileges and restrictions with respect to the Series D
Preferred Stock set forth in the form of the Company's Fourth Amended and
Restated Certificate of Incorporation attached hereto as Exhibit A (the
"Amended Certificate").
1.2 Closing. The purchase and sale of the Preferred Shares will take
place at 10:00 a.m. PDT on August 21, 1996, at the offices of Howard, Rice,
Nemerovski, Canady, Xxxx & Rabkin, A Professional Corporation, Three
Embarcadero Center, Seventh Floor, San Francisco, California, or such other
time and such place as the Company and the Investor mutually agree (which time
and place are designated the "Closing").
SECTION 2
Representations and Warranties of the Company
Except as set forth on SCHEDULE 2 the Company hereby represents and
warrants to, and agrees with, the Investor as follows:
2.1 Organization and Standing; Certificate and By-Laws. The Company is
a corporation duly organized and existing under, and by virtue of, the laws of
the State of Delaware and is in good standing under such laws. The Company has
all requisite corporate power and authority to own and operate its properties
and assets, and to carry on its business as presently conducted and as proposed
to be conducted. The Company is duly qualified
-1-
2
to do business as a foreign corporation in each jurisdiction in which the
failure to so qualify would have a material adverse effect on the Company's
execution, delivery and performance of this Agreement, the transactions
contemplated hereby and the Company's business generally. The Company has
furnished the Investor with copies of its Restated Certificate of Incorporation
in effect as of the date hereof (the "Restated Certificate") and Bylaws, as
amended. Said copies are true, correct and complete and contain all amendments
through the date hereof.
2.2 Corporate Power. The Company has all requisite legal and corporate
power and authority to execute and deliver this Agreement and to carry out and
perform its obligations under the terms of this Agreement.
2.3 Affiliates. Other than Nevada Bob's Pro Shop, Inc., the Company has
no Affiliates and does not otherwise own or control, directly or indirectly,
any equity interest in any corporation, association, partnership, trust, limited
liability company or other business entity. "Affiliate" means any corporation,
association, partnership, trust, limited liability company or other business
entity that the Company, directly or indirectly, controls; and "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of an entity through the majority
ownership of voting securities.
2.4 Capitalization. The authorized capital of the Company consists of:
(i) twenty-one million five hundred thousand (21,500,000) shares of Common
Stock, twenty million (20,000,000) shares of which are designated as Series A
Common Stock and one million five hundred thousand (1,500,000) shares of which
are designated as Series B Common Stock; and (ii) ten million (10,000,000)
shares of Preferred Stock, six hundred twenty-nine thousand (629,000) shares of
which are designated as Series A Preferred Stock, eight thousand (8,000) shares
of which are designated as Series B Preferred Stock and four hundred four
thousand two hundred twenty-six (404,226) shares of which are designated as
Series C Preferred Stock and eight million nine hundred fifty-eight thousand
seven hundred seventy-four (8,958,774) shares of which are undesignated
Preferred Stock. The number of issued and outstanding shares of each series of
Common Stock and Preferred Stock is as follows: (i) six million eight hundred
sixty-one thousand (6,861,000) shares of Series A Common Stock, (ii) one
million five hundred thousand (1,500,000) shares of Series B Common Stock,
(iii) six hundred twenty-nine thousand (629,000) shares of Series A Preferred
Stock, (iv) eight thousand (8,000) shares of Series B Preferred Stock and (v)
four hundred four thousand two hundred twenty-six (404,226) shares of Series C
Preferred Stock. The outstanding shares of Common Stock and Preferred Stock
have been duly authorized and validly issued, and are fully paid and
non-assessable, with no preemptive rights. All outstanding securities of the
Company were issued in compliance with applicable federal and state securities
laws. Except for (i) the conversion privileges of Xxxxxx Xxxxxxx, (ii) the
right of first refusal of Kasumi Sports World, Inc, with respect to certain
shares issued by the Company to third
-2-
3
parties, as provided in the Contribution and Investor Rights Agreement dated
January 31, 1996 between Kasumi Sports World, Inc. and the Company and (iii) as
otherwise provided herein, there are no outstanding obligations, warrants,
preemptive rights or other agreements or commitments to which the Company is a
party, or by which the Company is otherwise bound, providing for the issuance
of any additional shares or for the purchase of shares of the Company's stock.
2.5 Authorization. The execution, delivery and performance by the
Company of this Agreement, and all other agreements or instruments executed and
delivered by the Company in connection with the transactions contemplated
hereunder, including the Amended Certificate (i) have been duly authorized by
all necessary corporate action and duly executed and delivered by the Company
and (ii) will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium
or other similar laws or court decisions relating to or affecting the rights of
creditors generally.
2.6 Material Liabilities. The Company has no material liabilities or
obligations, absolute or contingent (individually or in the aggregate), except
(i) the liabilities and obligations set forth in SCHEDULE 2; (ii) liabilities
and obligations which have been incurred in the ordinary course of business
which are not, in the aggregate, materially adverse to the Company and (iii)
liabilities and obligations under sales, procurement, leases and other
contracts and arrangements entered into in the ordinary course of business.
2.7 Litigation, etc. There are no actions, suits, proceedings or
investigations pending against the Company or its properties before any court
or governmental agency, nor, to the best of the Company's knowledge,
threatened, except as set forth in SCHEDULE 2.
2.8 Compliance with Other Instruments, None Burdensome, etc. The
Company is not, and will not be, in violation of any term of its Restated
Certificate (or the Restated Certificate, as amended upon filing of the Amended
Certificate) or By-Laws, or, in any material respect, of any term or provision
of any material mortgage, indebtedness, indenture, contract, agreement,
instrument, judgment or decree, and is not in violation of any order, statute,
rule or regulation applicable to the Company where such violation would
materially and adversely affect the Company. The execution, delivery and
performance of and compliance with this Agreement have not resulted and will
not (i) result in any material violation of, or material conflict with, or
constitute a material default under, the Company's Restated Certificate (or the
Restated Certificate, as amended after filing of the Amended Certificate) or
By-Laws or any of its material agreements, or (ii) give rise to or result in the
creation of any mortgage, pledge, lien, encumbrance, charge or right of any
third party upon any of the properties or assets of the Company or under any
provision of any law, regulation, ordinance or other legal requirement or any
-3-
4
judgment, injunction, order, governmental permit, license or decree applicable
to the Company, which would materially and adversely affect the Company.
2.9 Registration Rights. Except pursuant to the Contribution and
Investors' Rights Agreement dated January 31, 1996 between the Company and
Kasumi Sports World, Inc. and as otherwise provided herein, the Company is not
under any contractual obligation to register under the Securities Act of 1933,
as amended (the "Securities Act"), any of its presently outstanding securities
or any of its securities which may hereafter be issued.
2.10 Govenmental Consents. No consent, approval, qualification, order
or authorization of, or filing with, any local, state or federal governmental
authority is required on the part of the Company in connection with the
Company's execution, delivery or performance of this Agreement, except the
filing of the Amended Certificate with the Secretary of State of the State of
Delaware and taking such action as may be necessary to secure an exemption
under applicable state securities laws from qualification of the issuance of
the Preferred Shares to the Investor.
2.11 Brokers and Finders. No agent, broker, investment banker or other
firm or person acting on behalf or under the authority of the Company is or
will be entitled to any broker's or finder's fee or any other commission or
similar fee from the Company in connection with any of the transactions
contemplated by this Agreement,
2.12 Financial Statements. Company has delivered to Investor the
audited balance sheets of the Company and Nevada Bob's Pro Shop, Inc.,
respectively, as of December 31, 1995 and related consolidated statements of
income, shareholder's equity and cash flows for the year ended December 31,
1995 for each company ("Financial Statements"), and the unaudited consolidated
balance sheet of the Company and Nevada Bob's Pro Shop, Inc. as of, and
unaudited consolidated statements of income and cash flows for the four-month
period ended April, 1996, The Financial Statements have been prepared in
accordance with GAAP consistently applied and fairly present the financial
condition and results of operations of the Company and Nevada Bob's Pro Shop,
Inc., respectively, as of the respective dates thereof and for the respective
periods covered thereby. The unaudited financial statements were prepared in
accordance with GAAP consistently applied and present fairly the financial
position and results of operations of the Company and Nevada Bob's Pro Shop,
Inc. taken as a whole as of the date and for the period covered thereby, except
for the absence of complete footnotes.
2.13 Disclosure. The financial projections contained in the Company's
draft Private Placement Memorandum dated June _, 1996 in the section entitled
"Projected Financial Performance" were prepared based on assumptions of fact
and opinion as to future events that the officers and directors of the Company,
at the time of delivery of the Memorandum to the
-4-
5
Investor, believed to be reasonable and in good faith. Those financial
projections, as with any projections, are dependent on a variety of assumptions
the realization of which are not within the Company's control. Accordingly, the
projections are inherently uncertain and the Company's performance may vary
substantially from the projections.
SECTION 3
Representations and Warranties of the Investor.
The Investor hereby represents and warrants to, and agrees with, the
Company as follows;
3.1 Organization and Standing. The Investor is a corporation duly
organized and existing under, and by virtue of, the laws of the State of
Tennessee and is in good standing under such laws.
3.2 Corporate Power. The Investor has all requisite legal and corporate
power and authority to execute and deliver this Agreement, and all other
agreements or instruments executed and delivered by the Investor in connection
with the transactions contemplated hereunder, and to carry out and perform its
obligations under the terms thereof.
3.3 Authorization. The execution, delivery and performance by the
Investor of this Agreement, and all other agreements or instruments executed
and delivered by the Investor in connection with the transactions contemplated
hereunder (i) have been duly authorized by all necessary corporate action and
duly executed and delivered by the Investor and (ii) will constitute valid and
legally binding obligations of the Investor, enforceable against the Investor
in accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium or other similar laws or court
decisions relating to or affecting the rights of creditors generally.
3.4 Investment. The Investor is acquiring the Preferred Shares for
investment for its own account, not as nominee or agent, and not with the view
to, or for resale in connection with, any distribution thereof. It
understands that the Preferred Shares have not been registered under the
Securities Act or qualified under applicable state securities law by reason of
their issuance in a transaction exempt from the registration requirements of
the Securities Act and the qualification requirements of the applicable states,
the availability of which exemptions depends upon, among other things, the bona-
fide nature of the investment intent and the accuracy of the Investor's
representations as expressed herein.
3.5 Rule 144, The Investor acknowledges that the Preferred Shares must
be held indefinitely unless subsequently registered under the Securities Act or
unless an exemption from such registration is available. The Investor is
-5-
6
aware of the provisions of Rule 144 promulgated under the Securities Act, which
permit the limited resale of securities purchased in a private placement,
subject to the satisfaction of certain conditions, including, among other
things, the existence of a public market for the securities, the availability
of certain current public information about the Company, the resale occurring
not less than two (2) years after a party has purchased and paid for the
security to be sold, the sale being effected through a "broker's transaction"
or in transactions directly with a "market maker" and the number of shares
being sold during any three (3) month period not exceeding specified
limitations.
3.6 No Public Market. The Investor understands that no public market
now exists for any of the securities issued by the Company and that the Company
has made no assurances that a public market will ever exist for the Company's
securities,
3.7 Accredited Investor. The Investor hereby represents and warrants
that the following statement shall be true and correct as of the date of
execution of this Agreement: the Investor is an "accredited investor" as
defined by Rule 501(a) promulgated by the Securities and Exchange Commission.
3.8 Risk. The Investor understands that an investment in the Company
entails a significant degree of risk. The Investor represents that it is
experienced in evaluating and investing in private placement transactions of
securities of companies in a similar stage of development and has such
knowledge and experience in financial and business matters that it is capable
of evaluating the merits and risks of its investment in the Company.
3.9 Access to Information. The Investor, alone or with the Investor's
advisors, has had full and complete access to information concerning the
Company, including the opportunity to discuss the business, management and
financial affairs of the Company with the Company's management and to review
the Company's facilities and business plan.
3.10 Brokers and Finders. No agent, broker, investment banker or other
firm or person acting on behalf of or under the authority of the Investor is or
will be entitled to any broker's or finder's fee or any other commission or
similar from the Investor in connection with any of the transactions
contemplated by this Agreement.
-6-
7
SECTION 4
Conditions of Investors' Obligations at Closing.
The obligations of the Investor under Section 1 of this Agreement are
subject to the fulfillment at or before the Closing of each of the following
conditions, any of which may be waived in writing by the Investor:
4.1 Representations and Warranties. The representations and warranties
of the Company contained in Section 2 of this Agreement will be true, correct
and complete on and as of the Closing with the same effect as if made on and as
of the Closing, except that, with respect to Section 2.4, the Preferred Shares
shall have been authorized and issued.
4.2 Performance. The Company will have performed or fulfilled all
agreements, obligations and conditions contained herein required to be
performed or fulfilled by the Company at or before the Closing, including
without limitation delivery to the Investor of executed certificates evidencing
the Preferred Shares being acquired by the Investor hereunder.
4.3 Blue Sky Compliance. The Company will have complied with the state
securities or Blue Sky laws applicable to the offer and sale of the Preferred
Shares to the Investor.
4.4 0pinion of Company's Counsel. The Investor will have received from
Howard, Rice, Nemerovski, Canady, Xxxx & Rabkin, a Professional Corporation,
counsel for the Company, a favorable opinion, dated the date of the Closing.
4.5 Proceedings Satisfactory; Compliance Certificate. All corporate and
legal proceedings taken by the Company in connection with the transactions
contemplated by this Agreement and all documents and papers relating to such
transactions will be satisfactory to the Investor, in the reasonable exercise
of the judgment of the Investor. The Company will have delivered to the Investor
an officer's certificate dated as of the Closing certifying that the conditions
set forth in Sections 4.1 and 4.2 have been satisfied.
4.6 Investor's Rights Agreement. The Company will have executed and
delivered the Investor's Rights Agreement, in the form attached hereto as
Exhibit B.
4.7 Sub-license Agreement. The Company will have executed and delivered
the Sub-license Agreement, in the form attached hereto as EXHIBIT C.
-7-
8
4.8 Marketing and Distribution Agreement. The Company will have
executed and delivered the Marketing and Distribution Agreement, in the form
attached hereto as EXHIBIT D.
4.9 Consents, Permits, and Waivers. The Company will have obtained any
and all consents, permits and waivers necessary or appropriate for consummation
of the transactions contemplated by the Agreement (except for such as may be
properly obtained subsequent to the Closing).
SECTION 5
Conditions of the Company's Obligations at Closing.
The obligations of the Company under Section 1 of this Agreement are
subject to the fulfillment at or before the Closing of each of the following
conditions, any of which may be waived in writing by the Company:
5.1 Representations and Warranties. The representations and warranties
of the Investor contained in Section 3 will be true on and as of the Closing
with the same effect as though said representations and warranties had been
made on and as of the Closing.
5.2 Performance. The Investor will have performed or fulfilled all
agreements, obligations and conditions contained herein required to be
performed or fulfilled by the Investor at or before the Closing, including
without limitation, delivery to the Company of the Purchase Price, in the form
of immediately available funds.
5.3 Blue Sky Compliance. The Company will have complied with the state
securities or Blue Sky laws applicable to the offer and sale of the Preferred
Shares to the Investors.
5.4 Proceedings Satisfactory; Compliance Certificate. The Investor will
have delivered to the Company an officer's certificate dated as of the Closing
certifying that the conditions set forth in Sections 5.1 and 5.2 have been
satisfied.
5.5 Investor's Rights Agreement. The Investor will have executed and
delivered the Investor's Rights Agreement, in the form attached hereto as
EXHIBIT B.
5.6 Sub-license Agreement. The Investor will have executed and
delivered the Sub-license Agreement, in the form attached hereto as EXHIBIT C.
-8-
9
5.7 Marketing and Distribution Agreement. The Investor will have
executed and delivered the Marketing and Distribution Agreement, in the form
attached hereto as EXHIBIT D.
SECTION 6
Post-Closing Covenant of the Company
The Company shall file the Amended Certificate promptly following the
Closing.
SECTION 7
Limitations on Actions; Limitation of Liability
Any action by either party hereto for breach by the other party hereto
of any obligation, representation or warranty hereunder must be commenced
within twenty four (24) months of the date of execution of this Agreement, or
the aggrieved party shall be deemed to have waived any right to bring any such
action; provided, however, that (i) such representations and warranties need
only be accurate as of the date of execution and delivery of this agreement
and as of the Closing and (ii) such limitation will not apply to any breach of
Section 2.4 for which the time period shall be governed by applicable law. In
no event shall either party hereto be liable to the other party hereto for any
lost revenues, lost profits, lost savings, or indirect, consequential,
incidental, special or punitive damages, arising out of or relating to: (i) any
material misrepresentation or material breach of any representation or
warranty made by such party in this Agreement or in any written statement,
certificate or schedule furnished by such party pursuant to the provisions of
this Agreement; and (ii) any material breach of any covenant, agreement or
obligation of such party contained in this Agreement or any other agreement,
instrument or document executed by such party in connection with this
Agreement.
-9-
10
SECTION 8
Miscellaneous
8.1 Further Actions. Each party hereto agrees that it will, at any time
and from time to time after the date hereof, upon reasonable request of the
other party hereto, do, execute, perform, acknowledge and deliver all such
further acts, deeds, assignments, certificates, transfers, conveyances and
assurances as may be reasonably required for the consummation of the
transactions contemplated hereunder.
8.2 Governing Law. This Agreement shall be governed in all respects by
the internal laws of the State of Delaware without reference to conflicts of
law principles.
8.3 Dispute Resolution-Arbitration. In the event of a dispute between
the parties hereto, such parties agree to submit the matter to binding
arbitration to be conducted under the auspices of the American Arbitration
Association (hereinafter referred to as "AAA").
(a) The dispute shall be resolved in accordance with the
Commercial Arbitration Rules in effect for AAA, which form of rules pertaining
on the date of the demand for arbitration shall apply and govern the
arbitration proceeding.
(b) The arbitration shall be held in the State of Delaware, at
such place as shall be designated by the arbitrator. Delaware law, both
substantive and procedural, shall govern the proceedings.
(c) All procedural rules for arbitration shall be strictly
followed in resolving disputes under this Agreement, whether by the arbitrator,
or by a court of competent jurisdiction in enforcing such provisions.
(d) The dispute shall be resolved by a single arbitrator. The
arbitrator shall be a member of the Delaware State Bar, actively engaged in the
practice of law for at least ten (10) years, with expertise in the process of
deciding disputes and/or interpreting contracts (in the particular field of law
involving the subject controversy). If the parties cannot agree on an
arbitrator after having been presented with three (3) lists of potential
candidates by AAA, AAA shall select an arbitrator from among its commercial
arbitration panel members who are retired Delaware judges.
(e) The parties may resort to the courts for injunctive relief
pending arbitration, without thereby waiving arbitration.
(f) The arbitration shall be conducted in the English language
in Delaware, according to the rules of evidence contained in Delaware law.
-10-
11
(g) In rendering the award, the arbitrator shall determine the
rights and obligations of the parties according to the substantive and
procedural laws of Delaware, as though the arbitrator was a court of competent
jurisdiction in Delaware.
(h) The award must be accompanied by a written statement of
decision. The award will be final and binding in the absence of manifest
mistake or fraud. Judgment on the award may be entered in any court of
competent jurisdiction.
(i) The arbitrator shall have the discretion to order a
pre-hearing exchange of information by the parties, including, without
limitation, production of requested documents, exchange of summaries of
testimony of proposed witnesses, an examination by deposition of parties and
third-party witnesses.
(j) Any prevailing party is entitled to recover costs (and
expenses) which shall include reasonable attorney's fees as well as the fees
and expenses of the arbitrators and the administrative fees of AAA. A
"prevailing party" shall be a party in whose favor any portion of the award is
rendered and that is determined by the arbitrator to be the prevailing party.
(k) The arbitrator shall have the authority to employ the law
and motion process and to award any remedy or relief that a court of the State
of Delaware could order or grant, including, without limitation, rescission,
specific performance of any obligation created under the agreement, the
awarding of punitive damages, the issuance of an injunction, or the imposition
of sanctions for abuse or frustration of the arbitration or judicial process.
(l) The issue of fraud in the inducement of a contract
containing an arbitration clause, such as this contract, may be decided by the
arbitrator and not by the court, unless it is alleged that fraud permeated the
entire contract.
8.4 Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto
without the consent of the Company.
8.5 Entire Agreement; Amendment. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof, and no party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought.
-11-
12
8.6 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by
messenger, addressed at such address as the Investor and the Company shall have
furnished to each other in writing. Each such notice or other communication
shall for all purposes of this Agreement be treated as effective or having been
given when delivered if delivered personally, or, if sent by mail, at the
earlier of its receipt or seventy-two (72) hours after the same has been
deposited in a regularly maintained receptacle for the deposit of the United
States mail, addressed and mailed as aforesaid.
8.7 Delays or Omissions. Except as expressly provided herein, no delay
or omission to exercise any right, power or remedy accruing to the Investor,
upon any breach or default of the Company under this Agreement, shall impair
any such right, power or remedy of the Investor nor shall it be construed to be
a waiver of any such breach or default, or an acquiescence therein, or of or in
any similar breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of the Investor of any breach or default
under this Agreement, or any waiver on the part of the Investor of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to the
Investor, shall be cumulative and not alternative.
8.8 Expenses. The Company and the Investor shall each bear its own
expenses incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby.
8.9 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective
if it materially changes the economic benefit of this Agreement to any party.
8.10 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing
or interpreting this Agreement.
-12-
13
The foregoing Agreement is hereby executed as of the date first above
written.
NEVADA BOB'S HOLDINGS, INC.
/s/ Xxxx X. Xxxxxxx
---------------------------
By: Xxxx X. Xxxxxxx
Its: President
THE XXXXXX XXXXXX GOLF
COMPANY
/s/ Xxxxxx X. Xxxxxxx
---------------------------
By: Xxxxxx X. Xxxxxxx
Its: President
-13-
