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Exhibit 10.55
NEITHER THIS WARRANT, NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE
HEREOF, HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAW. SUCH SECURITIES MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME
EFFECTIVE WITH REGARD THERETO OR (II) IN THE OPINION OF COUNSEL IN FORM AND
SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY, REGISTRATION UNDER THE
SECURITIES ACT AND SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN
CONNECTION WITH A PROPOSED SALE OR TRANSFER.
COMMON STOCK
PURCHASE WARRANT
For the Purchase of Shares of
Common Stock of
ACTION PERFORMANCE COMPANIES, INC.
(Par Value $0.01 Per Share)
(Incorporated under the Laws of the State of Arizona)
VOID AFTER 5:00 P.M. PST ON OCTOBER 7, 2008
Date of Original Issuance: October 7, 1998
This is to certify that, for value received, the National Association
for Stock Car Auto Racing, Inc., a Florida corporation, or assigns (the
"Warrantholder"), is entitled, subject to the terms and conditions hereinafter
set forth, to purchase 25,000 shares of common stock, par value $0.01 per share
(the "Common Stock"), of ACTION PERFORMANCE COMPANIES, INC., an Arizona
corporation (the "Company"), for the Warrant Price (as defined below), and to
receive a certificate or certificates for the shares of Common Stock so
purchased. This Warrant is being issued in connection with and pursuant to the
terms of that certain Electronic Commerce Agreement dated October 7, 1998, by
and between the Warrantholder and the Company.
1. TERMS AND EXERCISE OF WARRANT.
(a) VESTING OF WARRANT SHARES. Warrant Shares (as defined
below) that have vested may be acquired in accordance with the terms of this
Warrant until the Termination Date (as defined below). The time at which the
Warrant Shares vest and the Warrantholder may thereafter exercise this Warrant
with respect to such Warrant Shares (each, a "Vesting Date") shall be as
follows:
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NUMBER OF OPTIONS
VESTING DATE VESTED AND EXERCISABLE
------------ ----------------------
October 7, 1999 5,000
October 7, 2000 5,000
October 7, 2001 5,000
October 7, 2002 5,000
October 7, 2003 5,000
--------
Total 25,000
(b) EXERCISE PERIOD. Subject to the terms of this Warrant, the
Warrantholder shall have the right, at any time and from time to time during the
Exercise Period (as defined below), to exercise this Warrant for any or all
Warrant Shares that have vested and to purchase from the Company up to the
number of fully paid and nonassessable shares of Common Stock which the
Warrantholder may at the time be entitled to purchase pursuant to this Warrant.
The 25,000 shares of Common Stock subject to this Warrant and any other
securities that the Company may be required by the operation of Section 3 to
issue upon the exercise hereof are referred to herein as the "Warrant Shares."
The "Exercise Period" shall mean the period commencing on the Vesting Date for
such Warrant Shares and ending at 5:00 P.M., Pacific Standard Time, on October
7, 2008 (the "Termination Date"), or if such date is a day on which banking
institutions are authorized by law to close, then on the next succeeding day
which shall not be such a day. If this Warrant is not exercised on or prior to
the Termination Date, this Warrant shall become void and all rights of the
Warrantholder hereunder shall cease.
(c) METHOD OF EXERCISE. The Warrantholder may exercise this
Warrant by surrender of this Warrant to the Company at its principal office in
Phoenix, Arizona (or at such other address as the Company may designate by
notice in writing to the Warrantholder at the address of the Warrantholder
appearing on the books of the Company or such other address as the Warrantholder
may designate in writing), together with the form of Election to Purchase
included as Exhibit A hereto, duly completed and signed, and upon payment to the
Company of the Warrant Price (as defined in Section 2) multiplied by the number
of Warrant Shares being purchased upon such exercise (the "Aggregate Warrant
Price"), together with all taxes applicable upon such exercise. Payment of the
Aggregate Warrant Price shall be made in cash or by certified check or cashier's
check, payable to the order of the Company.
(d) PARTIAL EXERCISE. At the election of the Warrantholder,
this Warrant shall be exercisable in whole or in part at any time, and from time
to time, during the Exercise Period for Warrant Shares that have vested pursuant
to Section 1(a) hereof.
(e) SHARE ISSUANCE UPON EXERCISE. Upon the exercise and
surrender of this Warrant certificate and payment of the Aggregate Warrant
Price, the Company shall issue and cause to be delivered with all reasonable
dispatch to the Warrantholder, in such name or names as the Warrantholder may
designate in writing, a certificate or certificates for the number of full
Warrant Shares so purchased upon the exercise of the Warrant, together with
cash, as provided in Section 4 hereof, with respect to any fractional Warrant
Shares otherwise issuable upon such surrender and, if applicable, the Company
shall issue and deliver a new Warrant to the Warrantholder for the number of
Warrant Shares not so exercised. Such certificate or certificates shall be
deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of such Warrant Shares as of the close
of business on the date of the surrender of the Warrant and payment of the
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Aggregate Warrant Price, notwithstanding that the certificates representing such
Warrant Shares shall not actually have been delivered or that the stock transfer
books of the Company shall then be closed.
2. WARRANT PRICE. The price per share at which Warrant Shares shall be
purchasable upon the exercise of this Warrant shall be $28.875 per share,
subject to adjustment pursuant to Section 3 hereof (originally and as adjusted,
the "Warrant Price").
3. ADJUSTMENT OF NUMBER OF WARRANT SHARES AND WARRANT PRICE. The
Company agrees to reserve and shall keep reserved for issuance the number of
shares of Common Stock issuable upon exercise of this Warrant. The number of
Warrant Shares purchasable upon the exercise of this Warrant and the Warrant
Price shall be subject to adjustment from time to time upon the happening of
certain events, as follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of its Common Stock, (2) subdivide its outstanding Common
Stock into a greater number of shares, (3) combine its outstanding Common Stock
into a smaller number of shares, or (4) issue by reclassification of its Common
Stock any shares of capital stock of the Company (other than a change in par
value, or from par value to no par value, or from no par value to par value),
the number of Warrant Shares issuable upon exercise of this Warrant and the
Warrant Price in effect immediately prior thereto shall be adjusted as follows:
(i) The number of Warrant Shares issuable upon
exercise of this Warrant shall be adjusted by multiplying the number of Warrant
Shares issuable upon exercise of this Warrant immediately prior to such
adjustment by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding immediately after such adjustment, and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately prior to such adjustment; and
(ii) The Warrant Price shall be adjusted by
multiplying the Warrant Price in effect immediately prior to such adjustment by
a fraction, the numerator of which shall be the number of Warrant Shares
issuable upon exercise of this Warrant immediately prior to such adjustment, and
the denominator of which shall be the number of Warrant Shares as so adjusted.
An adjustment made pursuant to this Section 3(a) shall become effective
immediately after the record date in the case of a dividend or distribution
(provided, however, that such adjustments shall be reversed if such dividends or
distributions are not actually paid) and shall become effective immediately
after the effective date in the case of a subdivision, combination or
reclassification. If, as a result of an adjustment made pursuant to this Section
3(a), the Warrantholder shall become entitled to receive shares of two or more
classes of capital stock of the Company, the Board of Directors (whose
determination shall be conclusive and shall be evidenced by a resolution) shall
determine the allocation of the adjusted Warrant Price between or among the
shares of such classes of capital stock.
(b) In case of any reclassification of the outstanding Common
Stock (other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision, combination or
stock dividend), or in case of any consolidation of the Company with, or merger
of the Company into, another corporation wherein the Company is not the
surviving entity, or in case of any sale of all, or substantially all, of the
property, assets, business and goodwill of the Company, the Company, or such
successor or purchasing corporation, as the case may be, shall provide, by a
written instrument delivered to the Warrantholder, that the Warrantholder shall
thereafter be entitled, upon exercise of this Warrant, to the kind and amount of
shares of stock or other equity securities, or
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other property or assets which would have been receivable by such Warrantholder
upon such reclassification, consolidation, merger or sale, if this Warrant had
been exercised immediately prior thereto. Such corporation, which thereafter
shall be deemed to be the "Company" for purposes of this Warrant, shall provide
in such written instrument for adjustments to the Warrant Price which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Section 3.
(c) No adjustment in the number of securities purchasable
hereunder shall be required unless such adjustment would require an increase or
decrease of at least five percent (5%) in the number of securities (calculated
to the nearest full share or unit thereof) then purchasable upon the exercise of
this Warrant; provided, however, that any adjustment which by reason of this
Section 3(c) is not required to be made immediately shall be carried forward and
taken into account in any subsequent adjustment.
(d) For the purpose of this Section 3, the term "Common Stock"
shall mean (i) the class of stock designated as Common Stock of the Company at
October 7, 1998, or (ii) any other class of stock resulting from successive
changes or reclassifications of such Common Stock consisting solely of changes
in par value, or from par value to no par value, or from no par value to par
value. In the event that at any time, as a result of an adjustment made pursuant
to this Section 3, the Warrantholder shall become entitled to purchase any
shares of the Company's capital stock other than Common Stock, thereafter the
number of such other shares so purchasable upon the exercise of this Warrant and
the Warrant Price of such shares shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the shares contained in this Section 3.
(e) Whenever the number of shares of Common Stock and/or other
securities purchasable upon the exercise of this Warrant or the Warrant Price is
adjusted as herein provided, the Company shall cause to be promptly mailed to
the Warrantholder by first class mail, postage prepaid, notice of such
adjustment and a certificate of the Company's chief financial officer setting
forth the number of shares of Common Stock and/or other securities purchasable
upon the exercise of this Warrant, the Warrant Price after such adjustment, a
brief statement of the facts requiring such adjustment, and the computation by
which such adjustment was made.
(f) Irrespective of any adjustments in the Warrant Price or
the number or kind of securities purchasable upon the exercise of this Warrant,
the Warrant certificate or certificates theretofore or thereafter issued may
continue to express the same price or number or kind of securities stated in
this Warrant initially issuable hereunder.
4. FRACTIONAL INTEREST. The Company shall not be required to issue
fractional shares upon exercise of this Warrant, but shall pay an amount in cash
equal to the closing price of the Company's Common Stock on a national
securities exchange, the Nasdaq National Market or other trading market on the
day preceding the date of the surrender of this Warrant pursuant to Section 1(c)
hereof, or if there is no public market, cash equal to the then fair market
value of the shares as reasonably determined by the Board of Directors of the
Company, in its sole discretion, multiplied by such fraction.
5. TRANSFER PROHIBITION. Neither this Warrant nor any rights hereunder
may be sold, exchanged, conveyed, assigned, given, pledged, hypothecated or
otherwise transferred by the Warrantholder to any person or entity other than a
person or entity directly or indirectly controlled by, in control of, or under
common control with the Warrantholder.
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6. NO RIGHTS AS SHAREHOLDER; NOTICES TO WARRANTHOLDER. Prior to the
exercise of this Warrant pursuant to the terms hereof, nothing contained in this
Warrant shall be construed as conferring upon the Warrantholder any rights as a
shareholder of the Company, either at law or in equity, including the right to
vote, receive dividends, consent or receive notices as a shareholder with
respect to any meeting of shareholders for the election of directors of the
Company or for any other matter.
7. NOTICES. Any notice given pursuant to this Warrant by the Company or
by the Warrantholder shall be in writing and shall be deemed to have been duly
given upon (a) personal delivery, (b) transmitter's confirmation of the receipt
of a facsimile transmission, (c) confirmed delivery by a standard overnight
carrier, or (d) the expiration of three business days after the day when mailed
by United States Postal Service by certified or registered mail, return receipt
requested, postage prepaid at the following addresses:
If to the Company:
Action Performance Companies, Inc.
0000 X. Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
with a copy to:
X'Xxxxxx, Cavanagh, Anderson, Xxxxxxxxxxxxx & Xxxxxxxx, P.A.
One E. Camelback Road, Suite 1100
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
If to the Warrantholder:
The National Association for Stock Car Auto Racing, Inc.
0000 X. Xxxxxxxxxxxxx Xxxxxxxx Xxxx.
Xxxxxxx Xxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxxx Xxxxxxx
with a copy to:
Xxxxxx & Bird LLP
One Atlantic Center
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Each party hereto may, from time to time, change the address to which
notices to it are to be transmitted, delivered or mailed hereunder by notice in
accordance herewith to the other party.
8. INVESTMENT REPRESENTATION. The Warrantholder hereby represents to
the Company that it is acquiring this Warrant for its own account, as principal,
for investment and not with a view to or the intent to participate in, directly
or indirectly, the resale, assignment, distribution or fractionalization of all
or any part hereof. Further, the Warrantholder shall furnish the Company an
investment letter, in
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form and substance satisfactory to the Company, prior to the issuance of any
Warrant Shares or other securities issuable upon the exercise hereof, to the
effect that such securities, and any additional securities of the Company for
which such securities may be exercised or exchanged or into which they may
ultimately be converted, if not registered pursuant to applicable state and
federal securities laws, will be acquired for investment and not with a view to
the sale or distribution thereof. The Warrantholder hereby further represents
that it has been provided with, or given reasonable access to, full and fair
disclosure of all material information regarding the Company, this Warrant, and
the Common Stock.
9. GENERAL PROVISIONS.
(a) SUCCESSORS. All covenants and provisions of this Warrant
shall bind and inure to the benefit of the respective successors and assigns of
the parties hereto.
(b) CHOICE OF LAW. This Warrant and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of the
State of Arizona, including all matters of construction, validity, performance,
and enforcement, and without giving effect to the principles of any Arizona or
other conflict-of-law provisions to the contrary.
(c) ENTIRE AGREEMENT. Except as provided herein, this Warrant,
including exhibits, contains the entire agreement of the parties, and supersedes
all existing negotiations, representations or agreements and all other oral,
written, or other communications between them concerning the subject matter of
this Warrant.
(d) SEVERABILITY. If any provision of this Warrant is
unenforceable, invalid, or violates applicable law, such provision shall be
deemed stricken and shall not affect the enforceability of any other provisions
of this Warrant.
(e) CAPTIONS. The captions in this Warrant are inserted only
as a matter of convenience and for reference and shall not be deemed to define,
limit, enlarge, or describe the scope of this Warrant or the relationship of the
parties, and shall not affect this Warrant or the construction of any provisions
herein.
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IN WITNESS WHEREOF, the Company caused this Warrant to be duly executed
as of the date first above written.
ACTION PERFORMANCE COMPANIES, INC., an Arizona
corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------
Its: Chief Financial Officer
The Warrantholder hereby agrees to and accepts the terms and conditions
of this Warrant this 7th day of October, 1998.
NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING, INC.
By: /s/ Xxxxx Xxxxxx
-------------------
Its: Sr. Vice President
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EXHIBIT A
ELECTION TO PURCHASE
Action Performance Companies, Inc.
0000 X. Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
The undersigned hereby irrevocably elects to exercise the
right of purchase set forth in the attached Warrant to purchase thereunder
____________________ shares of the Common Stock (the "Warrant Shares") provided
for therein and requests that the Warrant Shares be issued in the name of
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
(Please Print Name, Address and SSN or EIN of Shareholder above)
Dated:______________
Name of Warrantholder or Assignee:______________________________________________
(Please Print)
Signature:___________________________________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant.)
Address:_____________________________________________________________
_____________________________________________________________
Aggregate Warrant Price Paid: $__________________
Method of payment:______________________________________________________________
(Please Print)
________________________________________________________________________________
Medallion Signature Guarantee (required if an assignment of Warrant Shares
acquired on exercise is made upon exercise.)
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