EXHIBIT I
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of April 27, 2000 between Global Sports, Inc., a Delaware corporation
(the "Company"), SOFTBANK Capital Partners LP, a Delaware limited partnership
("SOFTBANK Capital Partners"), and SOFTBANK Capital Advisors Fund LP, a Delaware
limited partnership ("SOFTBANK Advisors" and, together with SOFTBANK Capital
Partners, the "Purchasers").
ARTICLE I
AUTHORIZATION AND SALE OF STOCK
Section 1.1 SALE OF THE SHARES. Subject to the terms and conditions
hereof, at the Closing (as defined in Section 2.1 hereof), the Company shall
issue and sell to each Purchaser, and each Purchaser, severally and not jointly,
shall purchase from the Company, the total number of shares (collectively, the
"Shares") of common stock, par value $0.01 per share ("Common Stock"), of the
Company equal to (i) the dollar amount set forth opposite such Purchaser's name
on Exhibit A hereto divided by (ii) $8.00, rounded to the nearest whole share.
ARTICLE II
CLOSING DATE; DELIVERY
Section 2.1 CLOSING AND LOCATION. The purchase and sale of the Shares
hereunder (the "Purchase") shall take place at a closing (the "Closing") at the
offices of Xxxxxxxx & Xxxxxxxx, 0000 Xxxxxxx Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000, at 10:00 a.m., California time, on the later to occur of (i) the date
hereof, (ii) the first business day following the date on which the last to be
fulfilled or waived of the conditions to the Closing set forth in Section 6.1
hereof have been fulfilled or waived in accordance with this Agreement or (iii)
such other date as is mutually agreed to by the Company and the Purchasers. The
date of the Closing is hereinafter referred to as the "Closing Date."
Section 2.2 DELIVERY. Subject to the terms and conditions of this
Agreement, at the Closing, the Company shall deliver to the Purchasers a stock
certificate or certificates representing the Shares to be purchased by the
Purchasers at such Closing, registered in the name of the
Purchaser or its assigns, against payment of the purchase price therefor. The
purchase price of the Shares to be purchased at the Closing shall be paid by
wire transfer in immediately available funds to an account designated in writing
by the Company.
Section 2.3 CONSUMMATION OF CLOSING. All acts, deliveries and
confirmations comprising the Closing regardless of chronological sequence shall
be deemed to occur contemporaneously and simultaneously upon the occurrence of
the last act, delivery or confirmation of the Closing and none of such acts,
deliveries or confirmations shall be effective unless and until the last of same
shall have occurred.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchasers as
follows:
Section 3.1 ORGANIZATION. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power to own, lease and operate its property and
to carry on its business as now being conducted and is duly qualified to do
business and is in good standing in each jurisdiction where it is required to be
so qualified and in good standing, except for any such jurisdiction in which the
failure to be so qualified and in good standing would not, individually or in
the aggregate, have a material adverse effect on the business, financial
condition, results of operations or prospects of the Company (a "Material
Adverse Effect").
Section 3.2 SUBSIDIARIES. Each of the Company's subsidiaries is a
corporation duly organized, validly existing in good standing under the laws of
the jurisdiction of its organization, and is duly qualified to do business and
in good standing in the jurisdictions where it is required to be so qualified
and is in good standing, except for any such jurisdiction in which the failure
to be so qualified and in good standing would not, individually or in the
aggregate, have a Material Adverse Effect.
Section 3.3 VALID ISSUANCE OF COMMON STOCK. The Shares, when issued and
paid for in accordance with this
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Agreement, will be duly authorized, validly issued, fully paid and
non-assessable.
Section 3.4 AUTHORITY; NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) The Company has all requisite corporate power and authority to
enter into this Agreement and the Amended and Restated Registration Rights
Agreement in the form attached hereto as Exhibit B (the "Registration Rights
Agreement"), and to consummate the transactions contemplated by this Agreement
and the Registration Rights Agreement. This Agreement and the Registration
Rights Agreement have been duly authorized, executed and delivered by the
Company and constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(b) The execution and delivery by the Company of this Agreement and the
Registration Rights Agreement does not, and consummation of the transactions
contemplated by this Agreement and the Registration Rights Agreement, will not,
(i) conflict with, or result in any violation or breach of any provision of, the
Certificate of Incorporation or Bylaws of the Company, (ii) result in any
violation or breach of, or constitute (with or without notice or lapse of time,
or both) a default (or give rise to a right of termination, cancellation or
acceleration of any obligation or loss of any material benefit) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, contract or other agreement, instrument or obligation to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries, properties or assets may be bound, or (iii) conflict with or
violate any permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to the Company or
any of its subsidiaries, properties or assets, except in the case of (ii) and
(iii) for any such violations, defaults, breaches, terminations, cancellations,
accelerations, losses or conflicts which would not, individually or in the
aggregate, have a Material Adverse Effect, and would not materially burden or
delay the consummation of the transactions contemplated hereby.
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(c) No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or instrumentality (a "Governmental Entity") is
required by or with respect to the Company in connection with the execution and
delivery of this Agreement and the Registration Rights Agreement or the
consummation of the transactions contemplated hereby or thereby, except for (i)
the filing of a Form D under the Securities Act of 1933, as amended (the
"Securities Act"), (ii) such filings as may be required under applicable state
securities laws or the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), and (iii) such other consents, authorizations, filings,
approvals and registrations which, if not obtained or made, would not,
individually or in the aggregate, have a Material Adverse Effect on the Company
and would not materially burden or delay the consummation of the transactions
contemplated hereby.
Section 3.5 CAPITALIZATION.
(a) The authorized capital stock of the Company as of the date hereof
consists of (i) 60,000,000 shares of Common Stock, of which 18,575,880 shares
are issued and outstanding, and (ii) 1,000,000 shares of Preferred Stock, $0.01
par value per share, of which 8,000 shares are issued and outstanding.
(b) Other than (i) as disclosed in the Company Commission Reports (as
defined below) or in documents incorporated by reference therein, (ii) stock
options and employee stock purchases following the date of the most recent
Company Commission Report under the Company's stock option, stock incentive and
stock purchase plans described in the Company Commission Reports and (iii) as
disclosed on Schedule 3.5(b) hereto, there are no outstanding options, warrants
or commitments of any kind to which the Company is a party or by which it is
bound obligating the Company to issue, deliver or sell any shares of capital
stock of the Company.
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Section 3.6 COMMISSION FILINGS; FINANCIAL STATEMENTS.
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") and made available to the Purchasers and their
representatives all forms, reports and documents filed by the Company with the
Commission since December 31, 1998 (collectively, the "Company Commission
Reports"). The Company Commission Reports (i) at the time filed, complied in all
material respects with the applicable requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,
and (ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such amending or
superseding filing) contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(b) Each of the financial statements (including, in each case, any
related notes) contained in the Company Commission Reports complied as to form
in all material respects with the applicable published rules and regulations of
the Commission with respect thereto, was prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to such financial
statements or, in the case of unaudited statements, as permitted by Form 10-Q of
the Commission) and include all adjustments, consisting only of normal
accounting adjustments, that the Company reasonably considers necessary for a
fair presentation of its financial position at the respective dates and the
results of its operations and cash flows for the periods indicated. Except as
disclosed in the Company Commission Reports filed with the Commission prior to
the date hereof, since December 31, 1999, taking into account the cumulative
effect of all developments and events since such date, there has not been any
development or event, or series of developments or events, that would reasonably
be expected to have a Material Adverse Effect.
Section 3.7 COMPLIANCE WITH LAWS. Each of the Company and its
subsidiaries has complied with, is not in violation of, and has not received any
notices of violation
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with respect to, any federal, state or local statute, law or regulation with
respect to the conduct of its business, or the ownership or operation of its
business, including but not limited to statutes, laws or regulations relating to
the protection of the environment or concerning the handling, storage, disposal
or discharge of toxic materials, except for failures to comply or violations
which would not, individually or in the aggregate, have a Material Adverse
Effect on the Company.
Section 3.8 STOCKHOLDERS' CONSENT. No consent or approval of the
stockholders of the Company is required or necessary for the Company to enter
into this Agreement and the Registration Rights Agreement or to consummate the
Purchase.
Section 3.9 LITIGATION. Except as otherwise disclosed as of the date of
this Agreement in the Company Commission Reports, (i) there is no private or
governmental action, suit, proceeding, claim, arbitration or investigation
pending before any agency, court or tribunal, foreign or domestic, or, to the
knowledge of the Company, threatened against the Company or any of its
subsidiaries or properties or any of its officers or directors (in their
capacities as such), which, if determined adversely to the Company, would,
individually or in the aggregate, have a Material Adverse Effect, and (ii) there
is no judgment, decree or order against the Company or any of its subsidiaries,
or, to the knowledge of the Company, against any of its respective directors or
officers (in their capacities as such) relating to the business of the Company
or any of its subsidiaries, the existence of which would have a Material Adverse
Effect.
Section 3.10 INTELLECTUAL PROPERTY. Except as disclosed in the Company
Commission Reports or as set forth on Schedule 3.10, each of the Company and its
subsidiaries (i) owns or possesses adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights, technology,
software, know-how and trade secrets (collectively, "Intellectual Property")
necessary to conduct the business now conducted by the Company and its
subsidiaries and (ii) either owns or possesses, or can acquire on commercially
reasonable terms, adequate licenses or other rights to use all Intellectual
Property necessary to conduct the business proposed to be conducted by the
Company and its subsidiaries. Except as disclosed in the
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Company Commission Reports, neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with (and knows of no such
infringement of or conflict with) asserted rights of others with respect to any
Intellectual Property; and, to the Company's knowledge, the discoveries,
inventions, products, services or processes used in the business of the Company
and its subsidiaries do not infringe or conflict with any right or patent of any
third party, or any discovery, invention, product or process which is the
subject of a patent application filed by any third party.
Section 3.11 CHANGE OF CONTROL BENEFITS. Except as set forth on
Schedule 3.11, there exist no provisions contained in any employment or
severance agreement or benefit plan of the Company which provide for the
payment, accrual or acceleration of any benefit to any person as a result of the
consummation of the transactions contemplated hereby.
Section 3.12 FINDER'S FEES. The Company has retained no finder or
broker in connection with the transactions contemplated by this Agreement and
hereby agrees to indemnify and to hold the Purchasers harmless from any
liability for commission or compensation in the nature of a finder's fee to any
broker or other person or firm (and the costs and expenses of defending against
such liability or asserted liability) for which the Company, or any of its
employees or representatives acting on behalf of the Company, is or may be
responsible as a result of the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally but not jointly, represents and warrants to
the Company as follows:
Section 4.1 ORGANIZATION. The Purchaser is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
Section 4.2 AUTHORITY.
(a) The Purchaser has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated by
this Agreement. The execution
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and delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of the Purchaser. This Agreement has been duly
executed and delivered by the Purchaser and constitutes a valid and legally
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(b) No consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity is required by or with
respect to the Purchaser in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby, except
for (i) the filing of a notification and report form under the HSR Act,
compliance with the rules and regulations thereunder and satisfaction of the
applicable waiting period thereunder, (ii) the filing of a Form D under the
Securities Act, (iii) such filings as may be required under applicable state
securities laws and (iv) such other consents, authorizations, filings, approvals
and registrations which, if not obtained or made, would not materially burden or
delay the consummation of the transactions contemplated hereby.
Section 4.3 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Shares will be
acquired solely for investment purposes, for the Purchaser's own account, not as
a nominee or agent, and not with a view to the resale or distribution of any
part thereof. The Purchaser has not been formed for the specific purpose of
acquiring the Shares.
Section 4.4 INVESTMENT EXPERIENCE. Purchaser is an "accredited
investor" as defined in Rule 501(a)(3) under the Securities Act. Purchaser has
had an opportunity to ask questions and receive answers regarding the Company's
business affairs and financial condition and believes it has acquired sufficient
information about the Company to reach an informed decision to purchase the
Shares. Purchaser has such business and financial experience as is required to
give it the capacity to protect its own interests in connection with the
purchase of the Shares.
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Section 4.5 RESTRICTED SECURITIES. The Purchaser understands that the
Shares are characterized as "restricted securities" under the Securities Act
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that Purchaser must hold the Shares indefinitely
unless the sale thereof is registered under the Securities Act and qualified
under state securities laws, or an exemption from such registration and
qualification requirements is available. The Purchaser further acknowledges that
if an exemption from registration or qualification is available, it may be
conditioned on various requirements including, but not limited to, the time and
manner of sale, the holding period for the Shares, and on requirements relating
to the Company which are outside of the Purchaser's control.
Section 4.6 LEGENDS. The Purchaser understands that the Shares, and any
securities issued in respect thereof or exchange therefor, may bear one or all
of the following legends until such time, if any, as the Shares or such
securities (i) are sold in compliance with Rule 144 under the Securities Act (or
a comparable successor provision) or in a transaction registered under the
Securities Act or (ii) may be resold pursuant to Rule 144(k) under the
Securities Act (or a comparable successor provision):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN APPLICABLE
EXEMPTION THEREFROM AND IN COMPLIANCE WITH THE TERMS OF THE STOCK PURCHASE
AGREEMENT, DATED AS OF APRIL 28, 2000, WITH THE COMPANY, A COPY OF WHICH IS
AVAILABLE FROM THE COMPANY ON REQUEST."
Section 4.7 FINDER'S FEES. The Purchaser has not retained any finder or
broker in connection with the transactions contemplated by this Agreement and
hereby agrees to indemnify and to hold the Company harmless from any liability
for any commission or compensation in the nature of a finder's fee to any broker
or other person or firm (and the costs and expenses of defending against such
liability or asserted liability) for which the Purchaser, or any of its
employees or representatives acting on behalf of
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the Purchaser, is or may be responsible as a result of the transactions
contemplated hereby.
ARTICLE V
COVENANTS
Section 5.1 HSR ACT FILINGS.
(a) The Purchasers shall make all filings required under the HSR Act
relating to the transactions contemplated by this Agreement and shall use
commercially reasonably efforts to cause any such required filings to be made
promptly after the date hereof.
(b) The Company shall make all filings required under the HSR Act
relating to the transactions contemplated by this Agreement and shall use
commercially reasonable efforts to cause any such required filings to be made
promptly after the date hereof.
(c) The parties will each use commercially reasonable efforts to
promptly furnish, or, cause to be furnished, any information that may be
required by the Federal Trade Commission (the "FTC") or the Department of
Justice (the "DOJ") under the HSR Act in order for the requisite approvals for
the purchase and sale of the Shares and the consummation of the related
transactions contemplated by this Agreement to be obtained or any applicable
waiting periods to be terminated or expire; provided, however, that in the event
the FTC or the DOJ issues a "second request" in connection with any such filing,
the parties hereto will consult with each other in good faith regarding
appropriate further action, which shall be taken only to the extent agreed upon
by all of the parties.
Section 5.2 BOARD OF DIRECTORS. On and after the Closing Date, SOFTBANK
Capital Partners and SOFTBANK Capital Advisors, together, shall have the right,
(i) (A) so long as the Purchasers and the SOFTBANK Entities (as defined herein)
collectively own 50% or more of the Common Stock (on an as if exercised basis)
held immediately after consummation of the Purchase, to designate three (3)
members of the Company's Board of Directors, (B) so long as the Purchasers and
the SOFTBANK Entities collectively own 25% or more of the Common Stock (on an as
if exercised basis) held
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immediately after consummation of the Purchase, to designate two (2) members of
the Company's Board of Directors, and (C) so long as the Purchasers and the
SOFTBANK Entities collectively own 5% or more of the Common Stock (on an as if
exercised basis) held immediately after consummation of the Purchase, to
designate one (1) member of the Company's Board of Directors (collectively, the
"Board Composition Requirement"); and (ii) so long as the Purchasers and the
SOFTBANK Entities collectively own 35% or more of the Common Stock (on an as if
exercised basis) held immediately after consummation of the Purchase, to
designate one (1) member of each committee of the Company's Board of Directors.
Section 5.3 PREEMPTIVE RIGHTS.
(a) If the Company proposes to issue, grant or sell Common Stock or
Rights, the Company shall first give to the Purchasers (so long as the
Purchasers own at least 500,000 Shares) and any transferee (of whom the Company
has notice) of Shares from any Purchaser then owning at least 500,000 Shares
(appropriately adjusted for any stock split, reverse stock split or stock
dividend), except for any transferee that acquires such Shares in a public
offering registered under the Securities Act or in a transaction on the open
market effected pursuant to Rule 144 under the Securities Act, (each a
"Securityholder") written notice setting forth in reasonable detail the price
and other terms on which such shares of Common Stock or Rights are proposed to
be issued or sold, the terms of any such Rights and the amount thereof proposed
to be issued, granted or sold. Each Securityholder shall thereafter have the
preemptive right, exercisable by written notice to the Company no later than
twenty (20) days after the Company's notice is given, to purchase the number of
such shares of Common Stock or Rights set forth in the Securityholder's notice
(but in no event more than the Securityholder's Proportionate Share (as defined
below) thereof, as of the date of the Company's notice), at the price and on the
other terms set forth in the Company's notice. Any notice by a Securityholder
exercising the right to purchase shares of Common Stock or Rights pursuant to
this Section 5.3 shall constitute an irrevocable commitment to purchase from the
Company the shares of Common Stock or Rights specified in such notice, subject
to the maximum set forth in the preceding sentence. If all the Securityholders
exercise their preemptive rights set forth in this Section 5.3(a) to the full
extent of their Proportionate Share or if for any other reason the Company
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shall not issue, grant or sell shares of Common Stock or Rights to persons other
than Securityholders, then the closing of the purchase of shares of Common Stock
or Rights by Securityholders shall take place on such date, no less than ten
(10) and no more than thirty (30) days after the expiration of the 20-day period
referred to above, as the Company may select, and the Company shall notify the
Securityholders of such closing at least seven (7) days prior thereto. If all
persons entitled thereto do not exercise their preemptive rights to the full
extent of their Proportionate Share and, as contemplated by Section 5.3(b), the
Company shall issue, grant or sell shares of Common Stock or Rights to persons
other than Securityholders, then the closing of the purchase of shares of Common
Stock or Rights shall take place at the same time as the closing of such
issuance, grant or sale.
(b) If all persons entitled thereto do not exercise their preemptive
rights to the full extent of their Proportionate Share, the Company shall use
its good faith and commercially reasonable efforts to issue, grant or sell the
remaining subject shares of Common Stock or Rights on the terms set forth in its
notice to Securityholders, unless the Company is advised by its financial
advisors that the remaining number or amount is too small to be reasonably sold.
From the expiration of the 20-day period first referred to in Section 5.3(a) and
for a period of 90 days thereafter, the Company may offer, issue, grant and sell
to any person or entity shares of Common Stock or Rights having the terms set
forth in the Company's notice relating to such shares of Common Stock or Rights
at a price and on other terms no less favorable to the Company, and including no
less cash, than those set forth in such notice (without deduction for reasonable
underwriting, sales agency and similar fees payable in connection therewith);
provided, however, that the Company may not issue, grant or sell shares of
Common Stock or Rights in an amount greater than the amount set forth in such
notice minus the amount purchased or committed to be purchased by
Securityholders rights.
(c) The provisions of this Section 5.3 shall not apply to the
following issuances of securities: (i) pursuant to an approved stock option
plan, stock purchase plan, or similar benefit program or agreement for the
benefit of employees of, or consultants to, the Company, where the primary
purpose is not to raise additional equity capital
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for the Company, (ii) the issuance of Rights, or Common Stock issuable upon
exercise of Rights, granted to business partners, retailers or lessors engaged
in bona fide business transactions with the Company, where the primary purpose
is not to raise additional equity capital for the Company, (iii) as direct
consideration for the acquisition by the Company of another business entity or
the merger of any business entity with or into the Company, (iv) in connection
with a stock dividend, (v) upon the exercise of warrants or options, or upon the
conversion of convertible securities, outstanding on the date hereof or as to
which Securityholders have been previously offered the right to participate as
contemplated hereby or (vi) in an underwritten public offering registered under
the Securities Act if the managing underwriters advise the Securityholders in
writing that the purchase of shares of Common Stock pursuant to the preemptive
rights afforded by this Section 5.3 would materially and adversely affect the
marketing of the offering.
(d) For purposes of this Section 5.3, the following terms shall have
the corresponding meanings set forth herein:
"Proportionate Share" means, with respect to each Securityholder, a
fraction the numerator of which is the total number of shares of Common Stock
owned and the number of shares of Common Stock issuable upon exercise of Rights
owned by such Securityholder, and the denominator of which is the total number
of shares of Common Stock outstanding plus the number of shares of Common Stock
issuable upon exercise of all Rights outstanding.
"Right" means any option, warrant, security, right or other instrument
convertible into or exchangeable or exercisable for, or otherwise giving the
holder thereof the right to acquire, directly or indirectly, from the Company
any Common Stock or any other such option, warrant, security, right or
instrument, including any instrument issued by the Company or any subsidiary
thereof the value of which is measured by reference to the value of the Common
Stock.
Section 5.4 MEETING OF THE COMPANY STOCKHOLDERS. The Company shall take
all customary actions in accordance with applicable law and its Certificate of
Incorporation and By-Laws to seek stockholder approval of a Board of Directors
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meeting the Board Composition Requirements by the holders of a majority of the
outstanding shares of Common Stock at any meeting of stockholders (and with
respect to any written consent of stockholders of the Company in lieu of a
meeting) at which directors are to be elected. The Board of Directors of the
Company shall recommend such approval, and the Company shall solicit such
approval in accordance with its customary practices.
Section 5.5 PUBLICITY. The Company and the Purchasers shall consult
with each other prior to issuing any press releases or otherwise making public
statements with respect to the transactions contemplated hereby and prior to
making any filings with any federal or state governmental or regulatory agency
or any self-regulatory organization with respect thereto.
Section 5.6 FULFILLMENT OF CONDITIONS. Each of the Company and the
Purchasers shall use reasonable efforts to perform, comply with and fulfill all
obligations, covenants and conditions required by this Agreement to be
performed, complied with or fulfilled on its part prior to or on the Closing
Date.
Section 5.7 FURTHER ASSURANCES. The Company shall use its reasonable
efforts at any time and from time to time prior to, at and after the Closing to
execute and deliver to the Purchasers such further documents and instruments and
to take all such further actions as the Purchasers reasonably may request in
order to convey and transfer the Shares to the Purchasers and to consummate the
transactions contem plated by this Agreement and the Registration Rights
Agreement.
Section 5.8 TMCT VENTURES, L.P. TRANSFER OF SHARES. The Company shall
use its best efforts to cause TMCT Ventures, L.P. to execute and deliver a
lock-up agreement, with respect to any shares of Common Stock Times Mirror
acquires, for a period ending six (6) months after acquisition of such shares,
except if such sale, transfer or pledge is effected pursuant to Rule 144 under
the Securities Act of 1933, as amended.
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ARTICLE VI
CONDITIONS TO CLOSING
Section 6.1 CONDITIONS TO THE PURCHASERS' OBLIGATIONS. The obligation
of each Purchaser to purchase the Shares at the Closing is subject to the
fulfillment on or prior to the Closing Date of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES CORRECT; PERFORMANCE OF OBLIGATIONS.
The representations and warranties made by the Company in Article III hereof
shall be true and correct in all material respects as of the date of this
Agreement and as of the Closing Date (except with respect to representations and
warranties made as of a specific time, which shall be true in all material
respects as of such time, and except for representations and warranties
containing a materiality qualification, which must be true in all respects) with
the same effect as though such representations and warranties had been made at
and as of the Closing Date; and the Company shall have performed all obligations
herein required to be performed by it on or prior to the Closing Date in all
material respects (except with respect to obligations containing a materiality
qualification, which must be performed in all respects).
(b) REGISTRATION RIGHTS AGREEMENT. The Company shall have duly executed
and delivered the Registration Rights Agreement.
(c) VOTING AGREEMENT. Xxxxxxx X. Xxxxx shall have duly executed and
delivered the Voting Agreement in the form attached hereto as Exhibit C.
(d) WARRANT. The Company shall have duly executed and delivered
warrants to SOFTBANK Capital Partners and SOFTBANK Advisors in the form attached
hereto as Exhibit E.
(e) LOCK-UP. TMCT Ventures, L.P. shall have duly executed and
delivered a lock-up agreement with respect to any shares of Common Stock it
purchases from the Company with a duration of six (6) months as contemplated in
Section 5.8.
(f) BOARD COMPOSITION. A Board of Directors meeting the Board
Composition Requirement shall have been duly established and in place.
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(g) COMPLIANCE CERTIFICATE. The President of the Company shall deliver
to the Purchasers at the Closing a certificate certifying that the conditions
specified in Section 6.1(a) have been fulfilled.
(h) OPINION OF COMPANY'S COUNSEL. The Purchasers shall have received
from Blank Rome Xxxxxxx & XxXxxxxx LLP, counsel to the Company, an opinion
addressed to the Purchasers, dated the Closing Date, reasonably satisfactory in
form and substance to Xxxxxxxx & Xxxxxxxx, counsel to SOFTBANK Capital Partners
and SOFTBANK Advisors.
(i) NO INJUNCTION, ORDER, ETC. There shall be no injunction, order or
decree of any nature of any court or government authority of competent
jurisdiction that is in effect that restrains or prohibits the consummation of
the transactions contemplated hereby.
(j) WAITING PERIOD. Any waiting period applicable to the sale of the
Shares under the HSR Act shall have expired or been terminated.
Section 6.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's
obligation to issue and sell the Shares at the Closing is subject to the
fulfillment on or prior to the Closing Date of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES CORRECT; PERFORMANCE OF OBLIGATIONS.
The representations and warranties of the Purchasers in Article IV hereof shall
be true and correct in all material respects as of the date of this Agreement
and as of such Closing Date (except with respect to representations and
warranties made as of a specific time, which shall be true in all material
respects as of such time, and except for representations and warranties
containing a materiality qualification, which must be true in all respects) with
the same effect as though such representations and warranties had been made at
and as of the Closing Date; and the Purchasers shall have performed all
obligations herein required to be performed by them on or prior to such Closing
Date in all material respects (except with respect to covenants containing a
materiality qualification, which must be performed in all respects).
(b) REGISTRATION RIGHTS AGREEMENT. The Purchasers shall have duly
executed and delivered the Registration Rights Agreement.
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(c) VOTING AGREEMENT. SOFTBANK Capital Partners and SOFTBANK Advisors
shall have duly executed and delivered the Voting Agreement in the form attached
hereto as Exhibit D.
(d) NO INJUNCTION, ORDER, ETC. There shall be no injunction, order or
decree of any nature of any court or government authority of competent
jurisdiction that is in effect that restrains or prohibits the consummation of
the transactions contemplated hereby.
(e) WAITING PERIOD. Any waiting period applicable to the sale of the
Shares under the HSR Act shall have expired or been terminated.
ARTICLE VII
INDEMNIFICATION
Section 7.1 INDEMNIFICATION. Each of the Company and the Purchasers,
severally but not jointly (an "Indemnifying Party"), covenants and agrees to
indemnify and hold the others (each, an "Indemnified Party") harmless from and
against, and to reimburse the Indemnified Party for, any claim for any losses,
damages, liabilities or expenses, including reasonable counsel fees
(collectively "Damages") incurred by such Indemnified Party by reason of or
arising from (i) any misrepresentation or breach of any representation or
warranty of such Indemnifying Party contained in this Agreement or in any
instrument delivered hereunder or (ii) any failure by such Indemnifying Party to
perform any obligation or covenant required to be performed by it under any
provision of this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without regard
to the conflict of laws provisions thereof.
Section 8.2 SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive the closing of the transactions
contemplated hereby.
Section 8.3 SUCCESSORS AND ASSIGNS. Except as expressly provided
herein, the rights and obligations
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hereunder may not be assigned or delegated by the Purchasers or the Company
without the prior written consent of the other; provided, however, that
Purchasers may assign, in whole or in part, their rights and delegate their
obligation hereunder (including, without limitation, the right to purchase any
or all of the Shares and the obligation to pay all or any portion of the
Purchase Price for the Shares) to any affiliates of the Purchasers or SOFTBANK
Corp., a Japanese corporation, including, without limitation, any
partnership or other entity of which any direct or indirect subsidiary of
SOFTBANK Corp. is a general partner or has investment discretion, or any
employees of any of the foregoing (each, a "SOFTBANK Entity"); provided,
further, that any such delegation by such Purchaser of its obligations shall not
relieve Purchaser of liability to the Company that it would otherwise have in
the event such obligations are not performed. The provisions hereof shall inure
to the benefit of, and be binding upon, the successors and permitted assigns of
the parties hereto.
Section 8.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
full and entire understanding and agreement among the parties with regard to the
subject matter hereof. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Purchasers.
Section 8.5 NOTICES AND OTHER COMMUNICATIONS. Every notice or other
communication required or contemplated by this Agreement by either party shall
be delivered either by (i) personal delivery, (ii) postage prepaid return
receipt requested by registered or certified mail, (iii) overnight courier, such
as Federal Express or UPS, or (iv) facsimile with a confirmation copy sent
simultaneously by postage prepaid, return receipt requested, registered or
certified mail, in each case addressed to the Company or the Purchasers as the
case may be at the following address:
To the Company: Global Sports, Inc.
0000 Xxxxx Xxxxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx
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With a copy to: Blank Rome Xxxxxxx & XxXxxxxx LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Purchasers: c/o SOFTBANK Capital Partners LP
00 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Attn: Administrative Member
Facsimile: (000) 000-0000
With a copy to: Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
or at such other address as the intended recipient previously shall have
designated by written notice given in like manner to the other party. Notice by
registered or certified mail shall be effective on the date it is officially
recorded as delivered to the intended recipient by return receipt or equivalent,
and in the absence of such record of delivery, the effective date shall be
presumed to have been the fifth (5th) business day after it was deposited in the
mail. All notices delivered in person or sent by courier shall be deemed to have
been delivered to and received by the addressee and shall be effective on the
date of personal delivery; notices delivered by facsimile with simultaneous
confirmation copy by registered or certified mail shall be deemed delivered to
and received by the addressee and effective on the date sent. Notice not given
in writing shall be effective only if acknowledged in writing by a duly
authorized representative of the party to whom it was given.
Section 8.6 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any person or entity hereunder shall impair
any such right, power or remedy 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 thereafter occurring; nor shall any waiver of any single
breach or default be
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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 any person or entity hereunder of any breach or default under this
Agreement, or any waiver on the part of any such person or entity 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 shall be cumulative
and not alternative.
Section 8.7 SEVERABILITY. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 8.8 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. Execution and delivery of this Agreement by
exchange of facsimile copies bearing the facsimile signature of a party hereto
shall constitute a valid and binding execution and delivery of this Agreement by
such party.
Section 8.9 ATTORNEYS' FEES. If any action or proceeding shall be
commenced to enforce this Agreement or any right arising in connection with this
Agreement, the prevailing party in such action or proceeding shall be entitled
to recover from the other party the reasonable attorneys' fees, costs and
expenses incurred by such prevailing party in connection with such action or
proceeding.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
GLOBAL SPORTS, INC.
By:
----------------------------------
Name:
Title:
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SOFTBANK CAPITAL PARTNERS LP
By: Softbank Capital Partners LLC
Its General Partner
By:
----------------------------------
Name:
Title:
SOFTBANK CAPITAL ADVISORS FUND LP
By: Softbank Capital Partners LLC
Its General Partner
By:
----------------------------------
Name:
Title:
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EXHIBIT A
SCHEDULE OF PURCHASES
Dollar Amount
of Shares of
Entity Common Stock Purchased
------ ----------------------
SOFTBANK Capital Partners LP $19,714,000
00 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Administrative Member
SOFTBANK Capital Advisors Fund LP $ 286,000
00 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Administrative Member
Total.......................................... $20,000,000
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