Warrant Agreement - Broadband Sports Inc. and DirecTV Enterprises Inc.
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AS
AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY BE COMPANY COUNSEL)
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAWS.
WARRANT AGREEMENT
To Purchase Shares of the Common Stock of
Broadband Sports, Inc.
Dated as of April 12, 2000 (the "Effective Date")
WHEREAS, Broadband Sports, Inc., a Delaware corporation (the "Company") has
entered into a Strategic Agreement dated as of April 12, 2000 (the "Strategic
Agreement") with DIRECTV Enterprises, Inc. (the "Warrantholder");
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in consideration of the Strategic Agreement, the Company
and Warrantholder agree as follows:
1. GRANT OF THE RIGHT TO PURCHASE COMMON STOCK.
The Company hereby grants to the Warrantholder, and the Warrantholder is
entitled, upon the terms and subject to the conditions hereinafter set forth, to
subscribe to and purchase, from the Company, 13,608,834 fully paid and non-
assessable shares of the Company's Common Stock ("Common Stock"), subject to
such shares having vested pursuant to Section 2, at a purchase price of $1.40
per share (the "Exercise Price"). The number and purchase price of such shares
are subject to adjustment as provided in Section 8 hereof; provided, however,
that in the event that, within six (6) months from the Effective Date, the
Company shall issue Common Stock in a single sale or a series of related sales
involving a committed stock purchase price of more than $10,000,000 (or a number
of shares of Common Stock in excess of 7,500,000) at a price (taking into
account cash and non-cash consideration received by the Company in connection
with such issuance) other than $1.40 share (subject to proportional adjustment
to reflect any stock split or similar recapitalization event), then, with
reference to the first such sale (only and as applicable), the per share
exercise price for the Warrants shall be revised upward or downward (as
applicable) to a per share price equal to the per share price for the Common
Stock sold in connection with such first sale. By way of clarification, the
exercise price of the Warrant shall only be subject to a single adjustment
pursuant to the provisions of this Section.
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2. TERM AND VESTING.
(a) Vesting. The following number of shares of Common Stock purchasable
upon exercise of the Warrants as stated in Section 1 shall vest as follows:
<CAPTION>
1,134,069 shares July 1, 2000
1,134,070 shares October 1, 2000
1,134,069 shares January 1, 2001
1,134,070 shares April 1, 2001
4,536,278 shares April 1, 2002
4,536,278 shares April 1, 2003
; provided that the Strategic Agreement has not been terminated as of the date
of vesting set forth above. If the Strategic Agreement has been terminated,
then no additional shares of Common Stock shall vest and the right to purchase
such additional shares under this Agreement shall terminate.
(b) Term. Subject to the terms of this Warrant, including the vesting
schedule set forth above in Section 2(a), the Warrant may be exercised, at any
time after the Effective Time, in whole or from time to time in part, at the
option of the Holder until 5:00 p.m., Los Angeles Time, within three years from
the date of vesting (each a "Termination Date").
3. EXERCISE OF THE PURCHASE RIGHTS.
The purchase rights set forth in this Warrant Agreement are exercisable by
the Warrantholder, in whole or in part, at any time, or from time to time, prior
to the expiration of the term set forth in Section 2 above, by tendering to the
Company at its principal office a notice of exercise in the form attached hereto
as Exhibit A (the "Notice of Exercise"), duly completed and executed. Promptly
upon receipt of the Notice of Exercise and the payment of the purchase price in
accordance with the terms set forth below, and in no event later than twenty-one
(21) days thereafter, the Company shall issue to the Warrantholder a certificate
for the number of shares of Common Stock purchased and shall execute the
acknowledgment of exercise in the form attached hereto as Exhibit B (the
"Acknowledgment of Exercise") indicating the number of shares which remain
subject to future purchases, if any.
The Exercise Price may be paid at the Warrantholder's election either (i)
by cash or check, or (ii) by surrender of Warrants ("Net Issuance") as
determined below. If the Warrantholder elects the Net Issuance method, the
Company will issue Common Stock in accordance with the following formula:
X = Y(A-B)
------
A
Where:X = the number of shares of Common Stock to be issued to the
Warrantholder.
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Y = the number of shares of Common Stock requested to be exercised under
this Warrant Agreement.
A = the fair market value of one (1) share of Common Stock.
B = the Exercise Price.
For purposes of the above calculation, current fair market value of Common
Stock shall mean with respect to each share of Common Stock:
(i) if the exercise is in connection with an initial public offering
of the Company's Common Stock, and if the Company's Registration Statement
relating to such public offering has been declared effective by the SEC, then
the fair market value per share shall be the initial "Price to Public" specified
in the final prospectus with respect to the offering;
(ii) if this Warrant is exercised after, and not in connection with
the Company's initial public offering, and:
(a) if traded on a securities exchange, the fair market value
shall be deemed to be the average of the closing prices over a five (5) day
period ending three days before the day the current fair market value of the
securities is being determined; or
(b) if actively traded over-the-counter, the fair market value
shall be deemed to be the average of the closing bid and asked prices quoted on
the NASDAQ system (or similar system) over the five (5) day period ending three
days before the day the current fair market value of the securities is being
determined.
(iii) if at any time the Common Stock is not listed on any securities
exchange or quoted in the NASDAQ System or the over-the-counter market, the
current fair market value of the Common Stock shall be at the highest price per
share which the Company could obtain on the date of calculation from a willing
buyer (not a current employee or director) for shares of Common Stock sold by
the Company, from authorized but unissued shares, as determined in good faith by
its Board of Directors, unless the Company shall become subject to a merger,
acquisition or other consolidation pursuant to which the Company is not the
surviving party, in which case the fair market value of Common Stock shall be
deemed to be the value received by the holders of the Company's Common Stock on
a common equivalent basis pursuant to such merger or acquisition.
Upon partial exercise by either cash or Net Issuance, the Company shall
promptly issue an amended Warrant Agreement representing the remaining number of
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shares purchasable hereunder. All other terms and conditions of such amended
Warrant Agreement shall be identical to those contained herein, including, but
not limited to the Effective Date hereof.
4. RESERVATION OF SHARES.
Authorization and Reservation of Shares. During the term of this Warrant
Agreement, the Company will at all times have authorized and reserved a
sufficient number of shares of its Common Stock to provide for the exercise of
the rights to purchase Common Stock as provided for herein.
5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of the Warrant, but in lieu of such fractional shares
the Company shall make a cash payment therefor upon the basis of the Exercise
Price then in effect.
6. NO RIGHTS AS SHAREHOLDER.
This Warrant Agreement does not entitle the Warrantholder to any voting
rights or other rights as a shareholder of the Company, including the right to
receive dividends, prior to the exercise of the Warrant.
7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of the
registered holder of this Warrant Agreement.
8. ADJUSTMENT RIGHTS.
The purchase price per share and the number of shares of Common Stock
purchasable hereunder are subject to adjustment, as follows:
(a) Merger and Sale of Assets. If at any time there shall be (i) a capital
reorganization of the shares of the Company's Common Stock (other than a
combination, reclassification, exchange or subdivision of shares otherwise
provided for herein), or (ii) a merger or consolidation of the Company with or
into another corporation whether or not the Company is the surviving
corporation, or (iii) the sale of all or substantially all of the Company's
properties and assets to any other person (a "Merger-Event"), this Warrant
shall, after such reorganization, consolidation, merger or sale, be exercisable,
upon payment of the Exercise Price, for the kind and number of shares of stock
or other securities or property of the Company or of the corporation resulting
from such consolidation or surviving such merger or to which such properties and
assets shall have been sold to which such holder would have been entitled if he
had held the common stock issuable upon the exercise hereof immediately prior to
such reorganization, consolidation, merger or sale. In any such case,
appropriate adjustment (as determined in good faith by the Company's Board of
Directors) shall be made in the application of the provisions of this Warrant
Agreement with respect to the rights and
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interest of the Warrantholder after the Merger Event to the end that the
provisions of this Warrant Agreement (including adjustments of the Exercise
Price and number of shares of Common Stock purchasable) shall be applicable to
the greatest extent possible.
(b) Reclassification, etc. If the Company, at any time while this Warrant
or any portion hereof remains outstanding and unexpired, by reclassification of
securities or otherwise, shall change any of the securities as to which purchase
rights under this Warrant exist into the same or a different number of
securities of any other class or classes, this Warrant shall thereafter
represent the right to acquire such number and kind of securities as would have
been issuable as the result of such change with respect to the securities that
were subject to the purchase rights under this Warrant immediately prior to such
reclassification or other change and the Exercise Price therefor shall be
appropriately adjusted.
(c) Split, Subdivision or Combination of Shares. If the Company, at any
time while this Warrant or any portion hereof remains outstanding and unexpired,
shall split, subdivide or combine the securities as to which purchase rights
under this Warrant exist into a different number of securities of the same
class, the Exercise Price for such securities and the number of securities into
which this Warrant is convertible shall be proportionately adjusted.
(d) Stock Dividends. If , at any time while the Warrants, or any portion
hereof, are outstanding and unexpired, the holders of the securities issuable
upon exercise thereof 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 therefore, other or additional stock or other
securities or property (other than cash) of the Company, by way of dividend or
other distribution, then and in each case, such Warrant shall thereafter
represent the right to acquire, in addition to the number of shares of the
security issuable upon exercise of such Warrant, and without payment by the
Holder of any additional consideration therefor, the amount of such other or
additional stock or other securities or property (other than cash) of the
Company that such Holder would have held on the date of such exercise had such
Holder been the holder of record of the security receivable upon exercise of
such Warrant on the date of this Agreement and had thereafter, during the period
from the date of this Agreement to and including the date of such exercise,
retained such shares and/or all other additional stock available to it as
aforesaid during such period, giving effect to all adjustments called for during
such period by the provisions of this Section.
(e) Notice of Adjustments. If: (i) the Company shall declare any dividend
or distribution upon its Common Stock, whether in cash, property, stock or other
securities; (ii) there shall be any Merger Event; or (iii) there shall be any
voluntary dissolution, liquidation or winding up of the Company; then, in
connection with each such event, the Company shall send to the Warrantholder:
(A) at least twenty (20) days' prior written notice of the date on which the
books of the Company shall close or a record shall be taken for such dividend,
distribution, subscription rights (specifying the date on which the holders of
Common Stock shall be entitled thereto) or for determining rights to vote in
respect of such Merger Event, dissolution, liquidation or winding up; and (B) in
the
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case of any such Merger Event, dissolution, liquidation or winding up, at least
twenty (20) days' prior written notice of the date when the same shall take
place (and specifying the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such Merger Event, dissolution, liquidation or winding up).
Each such written notice shall set forth, in reasonable detail, (i) the
event requiring the adjustment, (ii) the amount of the adjustment, (iii) the
method by which such adjustment was calculated, (iv) the Exercise Price, and (v)
the number of shares subject to purchase hereunder after giving effect to such
adjustment, and shall be given by first class mail, postage prepaid, addressed
to the Warrantholder, at the address as shown on the books of the Company.
(f) All such notices, advises and communications shall be deemed to have
been received, (i) indicates the personal delivery on the date of such delivery,
(ii) in the case of mailing by first-class mail, on the fifth business day
following the date of such mailing, and (iii) in the case of delivery by over-
night courier, on the first business day following the date of mailing.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
(a) Reservation of Common Stock. The Common Stock issuable upon exercise
of the Warrantholder's rights has been duly and validly reserved and, when
issued in accordance with the provisions of this Warrant Agreement, will be
validly issued, fully paid and non-assessable, and will be free of any taxes,
liens, charges or encumbrances created by the Company of any nature whatsoever;
provided, however, that the Common Stock issuable pursuant to this Warrant
Agreement may be subject to restrictions on transfer under state and/or Federal
securities laws, this Warrant Agreement and the Bylaws of the Company. The
issuance of certificates for shares of Common Stock upon exercise of the Warrant
Agreement shall be made without charge to the Warrantholder for any issuance tax
in respect thereof, or other cost incurred by the Company in connection with
such exercise and the related issuance of shares of Common Stock. The Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved and the issuance and delivery of any certificate in a name
other than that of the Warrantholder.
(b) Due Authority. The execution and delivery by the Company of this
Warrant Agreement and the performance of all obligations of the Company
hereunder, including the issuance to Warrantholder of the right to acquire the
shares of Common Stock, have been duly authorized by all necessary corporate
action on the part of the Company, and this Warrant Agreement is not
inconsistent with the Company's Charter or Bylaws, does not contravene any law
or governmental rule, regulation or order applicable to it, does not and will
not contravene any material provision of, or constitute a default under, any
indenture, mortgage, contract or other instrument to which it is a party or by
which it is bound, and this Warrant Agreement constitutes a legal, valid and
binding agreement of the Company, enforceable in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and
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other laws of general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
(c) Consents and Approvals. No consent or approval of, giving of notice
to, registration with, or taking of any other action in respect of any state,
Federal or other governmental authority or agency is required with respect to
the execution, delivery and performance by the Company of its obligations under
this Warrant Agreement, except for the filing of notices pursuant to Regulation
D under the 1933 Act and any filing required by applicable state securities law,
which filings will be effective by the time required thereby.
(d) Issued Securities. All issued and outstanding shares of Common Stock,
Preferred Stock or any other securities of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. All outstanding shares
of Common Stock, Preferred Stock and any other securities were issued in full
compliance with all Federal and state securities laws.
(e) Exempt Transaction. Subject to the accuracy of the Warrantholder's
representations in Section 10 hereof, the issuance of the Common Stock upon
exercise of this Warrant will constitute a transaction exempt from (i) the
registration requirements of Section 5 of the 1933 Act, in reliance upon Section
4(2) thereof, and (ii) the qualification requirements of California state
securities laws.
10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Warrant Agreement has been entered into by the Company in reliance
upon the following representations and covenants of the Warrantholder:
(a) Investment Purpose. The right to acquire Common Stock, or the Common
Stock issuable upon exercise of the Warrantholder's rights contained herein and
the Common Stock issuable upon conversion of the Common Stock will be acquired
for investment and not with a view to the sale or distribution of any part
thereof, and the Warrantholder has no present intention of selling or engaging
in any public distribution of the same .
(b) Private Issue. The Warrantholder understands (i) that the Common Stock
issuable upon exercise of this Warrant is not registered under the 1933 Act or
qualified under applicable state securities laws on the ground that the issuance
contemplated by this Warrant Agreement will be exempt from the registration and
qualifications requirements thereof, and (ii) that the Company's reliance on
such exemption is predicated on the representations set forth in this Section
10.
(c) Disposition of Warrantholder's Rights. In no event will the
Warrantholder make a disposition of any of its rights to acquire Common Stock or
the Common Stock, unless and until (i) it shall have notified the Company of the
proposed disposition, and (ii) if requested by the Company, it shall have
furnished the Company with an opinion of counsel (which counsel may either be
inside or outside counsel to the Warrantholder)
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satisfactory to the Company and its counsel to the effect that (A) appropriate
action necessary for compliance with the 1933 Act has been taken, or (B) an
exemption from the registration requirements of the 1933 Act is available.
Notwithstanding the foregoing, the restrictions in this Section 10(c) imposed
upon the transferability of any of its rights to acquire Common Stock, or Common
Stock issuable on the exercise of such rights do not apply to transfers from the
beneficial owner of any of the aforementioned securities to its nominee or from
such nominee to its beneficial owner, and shall terminate as to any particular
share of Common Stock when (1) such security shall have been effectively
registered under the 1933 Act and sold by the holder thereof in accordance with
such registration or (2) such security shall have been sold without registration
in compliance with Rule 144 under the 1933 Act, or (3) a letter shall have been
issued to the Warrantholder at its request by the staff of the Securities and
Exchange Commission or a ruling shall have been issued to the Warrantholder at
its request by such Commission stating that no action shall be recommended by
such staff or taken by such Commission, as the case may be, if such security is
transferred without registration under the 1933 Act in accordance with the
conditions set forth in such letter or ruling and such letter or ruling
specifies that no subsequent restrictions on transfer are required. Whenever the
restrictions imposed hereunder shall terminate, as hereinabove provided, the
Warrantholder or holder of a share of Common Stock then outstanding as to which
such restrictions have terminated shall be entitled to receive from the Company,
without expense to such holder, one or more new certificates for the Warrant or
for such shares of Common Stock not bearing any restrictive legend.
(d) Financial Risk. The Warrantholder has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of its investment, and has the ability to bear the economic risks of its
investment.
(e) Risk of No Registration. The Warrantholder understands that if the
Company does not register with the Securities and Exchange Commission pursuant
to Section 12 of the 1934 Act (the "1934 Act"), or file reports pursuant to
Section 15(d), of the 1934 Act, or if a registration statement covering the
securities under the 1933 Act is not in effect when it desires to sell (i) the
rights to purchase Common Stock pursuant to this Warrant Agreement, or (ii) the
Common Stock issuable upon exercise hereof, it may be required to hold such
securities for an indefinite period. The Warrantholder also understands that any
sale of its rights of the Warrantholder to purchase Common Stock which might be
made by it in reliance upon Rule 144 under the 1933 Act may be made only in
accordance with the terms and conditions of that Rule.
(f) Accredited Investor. Warrantholder is an "accredited investor"
within the meaning of the Securities and Exchange Rule 501 of Regulation D.
(g) Investor Rights Agreement. The Warrantholder shall become a party to
the Company's existing Investor Rights Agreement dated as of May 21, 1999, as
amended from time to time and agrees to be bound by the provisions therein,
including the "Market Startup Policies".
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11. TRANSFERS.
Subject to the terms and conditions contained in Section 10 hereof, this
Warrant Agreement and all rights hereunder are transferable in whole or in part
by the Warrantholder and any successor transferee upon the prior written consent
of the Company (which such consent shall not be unreasonably withheld), provided
that Warrantholder may, without the consent of the Company, transfer this
Warrant Agreement to any direct, or indirect, wholly-owned subsidiary of
Warrantholder. The transfer shall be recorded on the books of the Company upon
receipt by the Company of a notice of transfer in the form attached hereto as
Exhibit C (the "Transfer Notice"), at its principal offices and the payment to
the Company of all transfer taxes and other governmental charges imposed on such
transfer. No transfer of this Warrant Agreement, any shares of Common Stock
issuable upon exercise hereof shall be effective unless the Company shall first
receive from such proposed transferee a written agreement, satisfactory to the
Company, providing that such transferee is subject to all of the terms and
conditions hereof.
12. MISCELLANEOUS.
(a) Effective Date. Except as otherwise provided herein, the provisions of
this Warrant Agreement shall be construed and shall be given effect in all
respects as if it had been executed and delivered by the Company on the date
hereof. This Warrant Agreement shall be binding upon any successors or assigns
of the Company.
(b) Attorney's Fees. In any litigation, arbitration or court proceeding
between the Company and the Warrantholder relating hereto, the prevailing party
shall be entitled to attorneys' fees and expenses and all costs of proceedings
incurred in enforcing this Warrant Agreement.
(c) Governing Law. This Warrant Agreement shall be governed by and
construed for all purposes under and in accordance with the laws of the State of
California.
(d) Counterparts. This Warrant Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery, facsimile
transmission (provided that the original is sent by personal delivery or mail as
hereinafter set forth) or seven (7) days after deposit in the United States
mail, by registered or certified mail, addressed (i) to the Warrantholder at
DIRECTV, 2230 East Imperial Highway, El Segundo, California 90245, Fax No. (310)
535-5420, Attn: Vice President of New Ventures, with a separate copy to the
attention of the General Counsel, Fax No. (310) 726-4991; and (ii) to the
Company at 2120 Colorado Blvd. 2nd Floor, Santa Monica, CA 90404, Attention:
General Counsel (and/or if by facsimile,
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(310) 453-8101) or at such other address as any such party may subsequently
designate by written notice to the other party.
(f) Remedies. In the event of any default hereunder, the non-defaulting
party may proceed to protect and enforce its rights either by suit in equity
and/or by action at law, including but not limited to an action for damages as a
result of any such default, and/or an action for specific performance for any
default where Warrantholder will not have an adequate remedy at law and where
damages will not be readily ascertainable.
(g) No Impairment of Rights. The Company will not, by amendment of its
Charter or through any other means, 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 in the taking of all such
actions as may be necessary or appropriate in order to protect the rights of the
Warrantholder against impairment.
(h) Survival. The representations, warranties, covenants and conditions of
the respective parties contained herein or made pursuant to this Warrant
Agreement shall survive the execution and delivery of this Warrant Agreement.
(i) Severability. In the event any one or more of the provisions of this
Warrant Agreement shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Warrant Agreement shall be
unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a mutually acceptable valid, legal and enforceable provision, which
comes closest to the intention of the parties underlying the invalid, illegal or
unenforceable provision.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed by its officer thereunto duly authorized as of the date first set forth
above.
The Company:
BroadBand Sports, Inc.
By:
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Its:
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The Warrantholder:
DIRECTV ENTERPRISES, INC.
By:
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Its:
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