EXHIBIT 10.18
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
APPLICABLE STATE SECURITIES LAWS, OR APPLICABLE LAWS OF ANY FOREIGN
JURISDICTION. THIS WARRANT AND SUCH UNDERLYING SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE
OFFERED, SOLD, PLEDGED, HYPOTHECATED, RENOUNCED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS AND IN THE ABSENCE OF COMPLIANCE WITH
APPLICABLE LAWS OF ANY FOREIGN JURISDICTION, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY, ACTING REASONABLY, THAT SUCH REGISTRATION IN NOT
REQUIRED AND SUCH FOREIGN JURISDICTION LAWS HAVE BEEN SATISFIED.
TOTAL SPORTS INC.
SERIES D1 PREFERRED STOCK PURCHASE WARRANT
This Warrant is issued as of this 12/th/ day of November 1999, by TOTAL
SPORTS INC., a Delaware corporation (the "Company"), to [_____________________]
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or permitted successors or assigns (the "Holder").
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1. Issuance of Warrant; Term; Price.
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1.1 Issuance. Subject to the terms and conditions herein set forth,
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the Holder is entitled to purchase from the Company, at any time on or before
the expiration of the term of this Warrant as set forth below, ________________
(_______) shares (which number of shares is subject to adjustment as described
below) of fully paid and nonassessable Series D1 Preferred Stock of the Company,
par value $0.001 per share (the "Warrant Stock") upon surrender hereof at the
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principal office of the Company and, at the election of the Holder hereof, upon
either payment of the purchase price at said office in cash or by check or by
the cancellation of any present or future indebtedness from the Company to the
Holder hereof in a dollar amount equal to the purchase price of the Warrant
Stock for which the consideration is being given, or by surrendering for
cancellation shares of capital stock of the Company which shares have a fair
market value equal to the purchase price of the Warrant Stock for which the
consideration is being given.
1.2 Term. The shares of Warrant Stock issuable upon exercise of this
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Warrant are hereinafter referred to as the "Shares." This Warrant shall be
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exercisable at any time and from time to time in whole or in part from the date
hereof until November 1, 2004.
1.3. Exercise Price. Subject to adjustment as hereinafter provided,
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the exercise price (the "Warrant Price") per share for which all or any of the
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Shares may be purchased pursuant to the terms of this Warrant shall be equal to
Sixteen Dollars and Fifty-nine Cents ($16.59).
2. Adjustment of Warrant Price, Number and Kind of Shares. The Warrant
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Price and the number and kind of securities issuable upon the exercise of this
Warrant shall be subject to adjustment from time to time and the Company agrees
to provide notice upon the happening of certain events as follows.
2.1 Dividends in Stock Adjustment. In case at any time and from time
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to time on or after the date hereof the holders of the Common Stock or Warrant
Stock of the Company (or any shares of stock or other securities at the time
receivable upon the exercise of this Warrant) shall have received, or, on or
after the record date fixed for the determination of eligible stockholders,
shall have become entitled to receive, without payment therefor, other
additional securities or other property (other than cash) of the Company by way
of dividend or distribution, then and in each case, the holder of this Warrant
shall, upon the exercise hereof, be entitled to receive, in addition to the
number of Shares receivable thereupon, and without payment of any additional
consideration therefor, the amount of such other or additional securities or
other property (other than cash) of the Company which such holder would hold on
the date of such exercise had it been the holder of record of such Shares on the
date hereof and had thereafter, during the period from the date hereof to and
including the date of such exercise, retained such Shares and/or all other
additional securities or other property receivable by it as aforesaid during
such period, giving effect to all adjustments called for during such period by
this Section 2.
2.2 Reclassification or Reorganization Adjustment. In case of any
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reclassification or change of the outstanding securities of the Company or of
any reorganization of the Company (or any other corporation the stock or
securities of which are at the time receivable upon the exercise of this
Warrant) at any time and from time to time on or after the date hereof, and the
holder of this Warrant, upon the exercise hereof at any time after the
consummation of such reclassification, change or reorganization, shall be
entitled to receive, in lieu of the stock or other securities and property
receivable upon the exercise hereof prior to such consummation, the stock or
other securities or property to which such holder would have been entitled upon
such consummation if such holder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in this Section 2.
2.3 Stock Splits and Reverse Stock Splits. If at any time and from
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time to time on or after the date hereof the Company shall subdivide or
otherwise change its outstanding shares of Common Stock or Warrant Stock into a
greater number of shares, the Warrant Price in effect immediately prior to such
subdivision shall thereby be proportionately reduced and the number of shares
receivable upon exercise of this Warrant shall thereby be proportionately
increased; and, conversely, if at any time and from time to time on or after the
date hereof the outstanding number of shares of Common Stock or Warrant Stock
shall be combined or otherwise changed into a smaller number of shares, the
Warrant Price in effect immediately prior to such combination shall thereby be
proportionately increased and the number of shares receivable upon exercise of
this Warrant shall thereby be proportionately decreased.
2.4 Conversion or Redemption of Series D1 Preferred Stock. If at the
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time of any exercise of this Warrant there are no other shares of Series D1
Preferred Stock outstanding (such shares having been converted), this Warrant
shall be exercisable for Common Stock of the Company instead of Series D1
Preferred Stock in the amounts and upon the same terms as if such
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holder had exercised this Warrant immediately prior to conversion of the Series
D1 Preferred Stock, and all references herein to "Warrant Stock" or "Series D1
Preferred Stock" shall be deemed to refer to the Common Stock of the Company.
2.5 Other Impairment. The Company will not, by amendment of its
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Certificate of Incorporation or Bylaws or through any reorganization, transfer
of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and conditions and in the taking of all
such action as may be necessary or appropriate in order to protect the rights of
the holder against impairment.
3. No Fractional Shares. No fractional shares of Common Stock will be
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issued in connection with any subscription hereunder. In lieu of any fractional
shares that would otherwise be issuable, the Company shall pay cash equal to the
product of such fraction multiplied by the fair market value of one share of
Common Stock or Warrant Stock on the date of exercise, as determined in good
faith by the Company's Board of Directors.
4. No Shareholder Rights. This Warrant as such shall not entitle Holder
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to any of the rights of a shareholder of the Company until the Holder has
exercised this Warrant in accordance with Section 6 hereof.
5. Reservation of Stock. The Company covenants that during the period
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this Warrant is exercisable, the Company will reserve from its authorized and
unissued Series D1 Preferred Stock and Common Stock a sufficient number of
shares thereof to provide for the issuance of Shares or other securities upon
the exercise of this Warrant. The Company agrees that its issuance of this
Warrant shall constitute full authority to its officers who are charged with the
duty of executing stock certificates to execute and issue the necessary
certificates for Shares or other securities upon the exercise of this Warrant.
6. Exercise of Warrant. This Warrant may be exercised by Holder by the
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surrender of this Warrant at the principal office of the Company, accompanied by
notice of and payment in full of the purchase price of the Shares the Holder
elects to purchase hereunder. This Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date of its
surrender for exercise as provided above, and the person entitled to receive the
Shares or other securities and/or property issuable upon such exercise shall be
treated for all purposes as the holder of such Shares or other securities of
record as of the close of business on such date. As promptly as practicable, the
Company shall issue and deliver to the person or persons entitled to receive the
same a certificate or certificates for the number of full Shares or other
securities issuable upon such exercise, together with cash in lieu of any
fraction of a share as provided above. The Shares or other securities issuable
upon exercise hereof shall, upon their issuance, be fully paid and
nonassessable.
7. Net Issue Election.
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7.1 Right to Convert. In addition to and without limiting the rights
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of the Holder under the terms of this Warrant, the Holder shall have the right
to convert this Warrant or any portion hereof (the "Conversion Right") into
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shares of Common Stock or Warrant Stock as
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provided in this Section 7. Upon exercise of the Conversion Right with respect
to a particular number of shares subject to this Warrant (the "Converted Warrant
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Shares"), the Company shall deliver to the Holder (without payment by the Holder
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of any cash or other consideration) that number of shares of Common Stock or
Warrant Stock equal to the quotient obtained by dividing (x) the value of this
Warrant (or the specified portion hereof) on the Conversion Date (as defined in
subsection 7.2 hereof ), which value shall be determined by subtracting (A) the
aggregate Warrant Price of the Converted Warrant Shares immediately prior to the
exercise of the Conversion Right from (B) the aggregate fair market value of the
Converted Warrant Shares issuable upon exercise of this Warrant (or the
specified portion hereof) on the Conversion Date (as herein defined) by (y) the
fair market value of one share of Common Stock or Warrant Stock on the
Conversion Date (as herein defined). No fractional shares shall be issuable upon
exercise of the Conversion Right, and if the number of shares to be issued
determined in accordance with the foregoing formula is other than a whole
number, the Company shall pay to the Holder an amount in cash equal to the fair
market value of the resulting fractional share on the Conversion Date (as herein
defined).
7.2 Method of Exercise. The Conversion Right may be exercised by the
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Holder by the surrender of this Warrant at the principal office of the Company
together with a written statement specifying that the Holder thereby intends to
exercise the Conversion Right and indicating the number of shares subject to
this Warrant that are being surrendered (referred to in subsection 7.1 hereof as
the Converted Warrant Shares) in exercise of the Conversion Right. Such
conversion shall be effective upon such surrender of this Warrant (the
"Conversion Date"). Certificates for the shares of Common Stock or Warrant
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Stock issuable upon exercise of the Conversion Right (or any other securities
deliverable in lieu thereof under Section 2) shall be issued as of the
Conversion Date and shall be delivered to the Holder immediately following the
Conversion Date, or, if requested at the time of surrender of this Warrant, held
for pick-up by the Holder at the Company's principal office.
7.3 Determination of Fair Market Value. For purposes of this Section
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7, fair market value (the "Market Price") of a share of Common Stock or Warrant
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Stock as of a particular date (the "Determination Date") shall mean the average
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of the closing prices of such security's sales on the principal securities
exchanges on which such security may at the time be listed, or, if there has
been no sales on any such exchange on any day, the average of the highest bid
and lowest asked prices on all such exchanges at the end of such day, or, if on
any day such security is not so listed, the average of the last sale prices
quoted in the NASDAQ System, or if on any day such security is not quoted in the
NASDAQ System, the average of the highest bid and lowest asked prices on such
day in the domestic over-the-counter market as reported by the National
Quotation Bureau, Incorporated, or any similar successor organization, in each
such case averaged over a period of five days consisting of the day prior to the
day as of which "Market Price" is being determined and the five consecutive
business days prior to such day. If at any time such security is not listed on
any securities exchange or quoted in the NASDAQ System or the over-the-counter
market, the "Market Price" shall be the fair value thereof as determined in good
faith by the Company's Board of Directors.
8. Certificate of Adjustment. Whenever the Warrant Price or number or
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type of securities issuable upon exercise of this Warrant is adjusted, as herein
provided, the Company shall
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promptly deliver to the record holder of this Warrant a certificate of an
officer of the Company setting forth the nature of such adjustment and a brief
statement of the facts requiring such adjustment.
9. Notice of Proposed Transfers. This Warrant is transferable by the
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Holder hereof subject to compliance with this Section 9. Prior to any proposed
transfer of this Warrant or the Shares received on the exercise of this Warrant
(the "Securities"), unless there is in effect a registration statement under the
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Securities Act of 1933, as amended (the "Securities Act"), covering the proposed
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transfer, the Holder thereof shall give written notice to the Company of such
Holder's intention to effect such transfer. Each such notice shall describe the
manner and circumstances of the proposed transfer in sufficient detail, and
shall, if the Company so requests, be accompanied (except in transactions in
compliance with Rule 144) by either (a) a written opinion of legal counsel who
shall be satisfactory to the Company acting reasonably addressed to the Company
and satisfactory in form and substance to the Company's counsel acting
reasonably, to the effect that the proposed transfer of the Securities may be
effected without registration under the Securities Act, or (b) a "no action"
letter from the Securities Exchange Commission (the "Commission") to the effect
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that the transfer of such Securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the Holder of the Securities shall be entitled to transfer
the Securities in accordance with the terms of the notice delivered by the
Holder to the Company; provided, however, no such registration statement or
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opinion of counsel shall be necessary for a transfer by a Holder to any
affiliate of such Holder, or a transfer by a Holder which is a partnership to a
partner of such partnership or a retired partner of such partnership who retires
after the date hereof, or to the estate of any such partner or retired partner
or the transfer by gift, will or intestate succession of any partner to his
spouse or lineal descendants or ancestors, if the transferee agrees in writing
to be subject to the terms hereof to the same extent as if such transferee were
the original Holder hereunder. Each certificate evidencing the Securities
transferred as above provided shall bear the appropriate restrictive legend set
forth above, except that such certificate shall not bear such restrictive legend
if in the opinion of counsel for the Company acting reasonably such legend is
not required in order to establish compliance with any provisions of the
Securities Act.
10. Replacement of Warrants. Upon receipt by the Company of evidence
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reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of the Warrant, and in the case of any such loss, theft or
destruction of the Warrant, on delivery of an indemnity agreement or security
satisfactory in form and amount to the Company acting reasonably, and
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of the Warrant if mutilated, the Company will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
11. Dividends and Distributions. For so long as any part of this Warrant
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remains outstanding and unexercised, the Company will, upon the declaration of a
cash dividend upon its Common Stock or Warrant Stock or other distribution to
the Holders of its Common Stock and at least ten (10) days prior to the record
date, notify the Holder hereof of such declaration, which notice will contain,
at a minimum, the following information: (a) the date of the declaration of the
dividend or distribution, (b) the amount of such dividend or distribution, (c)
the record date of such dividend or
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distribution, and (d) the payment date or distribution date of such dividend or
distribution. The Holder shall, upon the exercise hereof, be entitled to
receive, in addition to the number of shares of Common Stock or Warrant Stock
receivable thereupon, and without payment of any additional consideration
therefor, the amount of such other or additional securities or other property
(other than cash) of the Company which such Holder would hold on the date of
such exercise had it been the holder of record of such Common Stock or Warrant
Stock on the date hereof and had thereafter, during the period from the date
hereof to and including the date of such exercise, retained such shares and/or
all other additional securities or other property receivable by it as aforesaid
during such period, giving effect to all adjustments pursuant to Section 2.
12. Miscellaneous. This Warrant shall be governed by the laws of the State
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of North Carolina. The headings in this Warrant are for purposes of convenience
of reference only, and shall not be deemed to constitute a part hereof. The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provisions. All notices and other
communications from the Company to the holder of this Warrant shall be delivered
personally or mailed by first class mail, postage prepaid, or by facsimile to
the address or facsimile number furnished to the Company in writing by the last
holder of this Warrant who shall have furnished an address and facsimile number
to the Company in writing, and if mailed shall be deemed given three days after
deposit in the U.S. Mail.
13. Taxes. The Company shall pay all issue taxes and other governmental
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charges (but not including any income taxes of a Holder) that may be imposed in
respect of the issuance or delivery of the Shares or any portion thereof.
14. Amendment. Any term of this Warrant may be amended with the written
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consent of the Company and the Holder. Any amendment effected in accordance with
this Section 14 shall be binding upon the Holder of this Warrant, each future
holder of such Warrant, and the Company.
15. Remedies. In the event of any default or threatened default by the
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Company in the performance of or observance with any of the terms of this
Warrant, it is agreed that remedies at law are not and will not be adequate for
the Holder and that such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
16. Facsimile Signature. This Warrant may be executed by the Company in
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facsimile form and upon receipt by the Holder of such faxed executed copy of
this Warrant, this Warrant shall be binding upon and enforceable against the
Company in accordance with its terms. The Company shall promptly forward to the
Holder an original of the facsimile signed copy of this Warrant previously
delivered to Holder.
[The next page is the signature page.]
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IN WITNESS WHEREOF, the undersigned officer of the Company has executed
this Series D1 Preferred Stock Purchase Warrant as of the date first above
written.
TOTAL SPORTS INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
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