EXHIBIT 10.5
Confidential Treatment has been requested with respect to portions of the
agreement indicated with an asterisk [*]. A complete copy of this agreement,
including the redacted terms, has been separately filed with the Securities and
Exchange Commission.
E-COMMERCE VENTURE AGREEMENT
BETWEEN
THE SPORTS AUTHORITY, INC.
AND
GLOBAL SPORTS INTERACTIVE, INC.
MAY 7, 1999
E-COMMERCE VENTURE AGREEMENT
This Agreement is made and entered into on the 7th day of May, 1999, by and
between GLOBAL SPORTS INTERACTIVE, INC., a corporation organized and existing
under the laws of the Commonwealth of Pennsylvania and having its principal
place of business at King of Prussia, Pennsylvania ("GSI"), and THE SPORTS
AUTHORITY, INC., a corporation organized and existing under the laws of the
State of Delaware and having its principal place of business at Fort Lauderdale,
Florida ("TSA").
SECTION I
PURPOSE AND STRUCTURE OF THE E-COMMERCE VENTURE
1.1. Purpose. The purpose of the e-commerce venture is to manage and
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operate the E-Commerce Business.
1.2. Structure. The e-commerce venture shall be carried out through
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TheSportsAuthority.com, Inc., a corporation to be organized by the parties under
the laws of the State of Delaware ("TSA.com") and located in King of Prussia,
Pennsylvania unless the parties otherwise agree. The parties agree to cause
TSA.com to sell and issue shares only as provided in Section 3.3 hereof.
SECTION II
TERMS AND DEFINITIONS
For purposes of this Agreement, the following terms have the meaning
expressed after each term:
2.1. "Advertising Co-op and Discretionary Funds" - Amounts earned by or
allocated to TSA.com by vendors, the purpose of which is to advertise that
vendor's brand or to use at TSA.com's discretion.
2.2. "Affiliate(s)" - An entity directly or indirectly controlling
(through one or more intermediaries), controlled by or under common control with
a given "Party" (as defined below), where control means the ownership or
control, directly or indirectly, of 50% or more of all of the voting power of
the shares (or other securities or rights) entitled to vote for the election of
directors or other governing authority, provided that such entity shall be
considered an Affiliate only for the time during which such control exists.
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2.3. "Board of Directors" - The Board of Directors of TSA.com or of any
Subsidiary, as the case may be.
2.4. "Business Day(s)" - Any day which is not a Saturday, Sunday or
official federal holiday in the United States.
2.5. "Directors" - The members of the Board of Directors of TSA.com.
2.6. "E-Commerce Agreement" - The agreement between TSA.com and TSA,
substantially in the form attached hereto as Exhibit "A."
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2.7. "E-Commerce Business" - The business of creating, developing,
operating, managing, advertising and promoting the TSA Site (as defined below).
2.8. "E-Commerce Services Agreement" - The agreement between TSA.com and
GSI, substantially in the form attached hereto as Exhibit "B."
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2.9. "Fiscal Year" - TSA.com's fiscal year as further defined in Section
7.1.
2.10. "GAAP" - Generally accepted accounting principles, consistently
applied.
2.11. "Gross Sales" shall mean all revenues received for merchandise and
services furnished at, by or through the TSA Site by TSA.com, its Affiliate,
Subsidiary or Related companies or permitted sublicensees (if any), whether
received by TSA.com, its Affiliate, Subsidiary or Related companies or permitted
sublicensees, whether for cash, credit, or other quid pro quo (as measured at
fair market value), except that the following shall be excluded in calculating
Gross Sales: (i) sales of General Merchandise or Own Brand Merchandise
subsequently returned for refund or credit; (ii) value added taxes, consumption
taxes, sales taxes, uses taxes and any other applicable taxes imposed by
governments, excluding withholding taxes collected and paid by TSA.com, if any;
and (iii) TSA.com's related actual costs of shipping and handling. Gross Sales
shall be calculated net of any allowances given with respect to defective
General Merchandise or Own Brand Merchandise, provided that such allowances
shall not exceed [*] percent ([*]%) of the value (at TSA.com's lowest cost) of
General Merchandise or Own Brand Merchandise (as the case may be) received in
any given Fiscal Year from the subject vendor or vendors to TSA.com.
2.12. "Internet" - A global network of interconnected computer networks,
each using the Transmission Control Protocol/Internet Protocol and/or such other
standard network interconnection protocols as may be adopted from time to time,
which is used to transmit content that is directly or indirectly delivered to a
computer or other digital electronic device for display to an end-user, whether
such content is delivered through on-line browsers, off-line browsers or through
"push" technology, electronic mail, broadband distribution, satellite, wireless
or other successor technologies or means.
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2.13. "Investment Banker" - A major investment banking firm having
substantial experience in the valuation of e-commerce enterprises similar in
size and structure to TSA.com.
2.14. "License Agreement" - The agreement among TSA, The Sports Authority
Michigan, Inc. and TSA.com, substantially in the form attached hereto as Exhibit
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"C."
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2.15. "Operative Documents" - This Joint Venture Agreement, the E-Commerce
Agreement, the E-Commerce Services Agreement and the License Agreement.
2.16. "Party(ies)" - "Party" shall mean TSA and/or GSI; "Parties" shall
mean both of them.
2.17. "Related" - Related company or companies shall mean any legal entity
which holds directly or indirectly more than 50% of the issued share capital or
capital stock of GSI or TSA, or of which GSI or TSA holds directly or indirectly
more than 50% of the issued share capital or capital stock, in any event not to
include TSA.com. An entity shall be deemed to hold shares indirectly if the
shares are held by another entity that is majority controlled, either directly
or through other majority controlled entities, by such first mentioned entity.
2.18. "Shareholder(s)" - The shareholder(s) of TSA.com.
2.19. "Subsidiary" - Any company owned or controlled by GSI or by TSA.
2.20. "TSA Competitor" shall mean: (a) any person, firm or corporation or
other entity (other than TSA and its retailing Subsidiaries) which either
directly or indirectly derives twenty percent (20%) or more of its revenues from
the sales or distribution of sporting goods, athletic apparel, athletic footwear
or related goods and services, whether operating from stores located in the
U.S., Canada or Japan or any other nation in which the predominant language is
English, whether by mail order, home shopping through audio or video
programming, over the Internet or otherwise; and (b) any retailing entity which
would clearly be regarded as a competitor of TSA by the U.S. Department of
Justice under federal antitrust and competition laws and regulations.
2.21. "TSA Site" shall mean that certain Internet site currently
accessible through the URL "http://www.thesportsauthority.com," and any backup
or mirror Internet site operated by TSA.com; it being understood that the TSA
Site shall be primarily targeted by TSA.com at Customers, and not at persons,
entities or activities otherwise described in Article 2.6 of the License
Agreement. TSA.com agrees that the TSA Site shall not be used by TSA.com to
furnish, sell, advertise or promote the goods or services of any TSA Competitor.
2.22. "TSA Stores" shall mean any sporting goods retail store established
and/or operated by Retailer or Retailer's retailing subsidiaries devoted to the
sale of a broad assortment of sporting goods and equipment, footwear and apparel
and related goods and to provision of the related services.
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SECTION III
FORMATION AND CAPITALIZATION OF THE JOINT VENTURE
3.1. Independent Entities. It is the intention of GSI and TSA that
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TSA.com and any Subsidiary of TSA.com shall (i) be autonomous and independent
business organizations; (ii) have their own personnel, except as otherwise
contemplated herein or by the E-Commerce Services Agreement, and (iii) not
require any loans or guarantees from TSA.
3.2. Organization of TSA.com. As soon as possible after the execution of
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this Agreement, GSI shall cause TSA.com to be duly organized under the laws of
the State of Delaware. The initial registered office of TSA.com shall be
located at such location as may be determined mutually by the Parties. The text
of the Certificate of Incorporation and the Bylaws of TSA.com shall be subject
to the prior approval of both of the Parties.
3.3. Initial Capital Contributions. The Certificate of Incorporation of
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TSA.com shall authorize the issuance of up to 16,000 shares of common stock,
$.01 par value per share, and no other class of equity securities. Upon
organization of TSA.com, the Parties agree to cause TSA.com to issue and sell to
(i) GSI 8,001 shares of TSA.com common stock for the aggregate cash purchase
price of $[*] and (ii) TSA 1,999 shares of TSA.com common stock for the
aggregate cash purchase price of $[*].
3.4. Additional Funding.
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(a) GSI shall loan TSA.com all additional funding hereafter required
by TSA.com. Such loans shall bear interest at the [*], but not in excess of [*]
(the "GSI Rate"). In the alternative, GSI may support borrowing directly by
TSA.com by providing (without additional compensation other than reimbursement
of any letter of credit fees) letters of credit or guarantees to enhance
TSA.com's creditworthiness to permit TSA.com to borrow at the GSI Rate. All
additional funding as used herein shall include but not be limited to all
amounts for corporate overhead, purchase or lease of property, inventory and
working capital needs in connection therewith, and any shortfall that may be
required pursuant to Section 6.3 of the E-Commerce Agreement. In the event of a
breach of this Section 3.4(a), GSI shall have the right to cure such breach
within 30 days of receipt of written notice of breach from TSA.
(b) GSI agrees to fund TSA.com in the manner provided in Section
3.4(a) in an amount not less than [*] during the period from the date hereof
through November 1, 1999. In the event of a breach of this Section 3.4(b), GSI
shall have the right to cure such breach within 30 days of receipt of written
notice of breach from TSA.
(c) GSI agrees to cause TSA.com to spend, prior to December 31, 2007,
not less than [*] in excess of the amount of Advertising Co-op and Discretionary
Funds spent by
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TSA.com for advertising of TSA's Site, of which at least [*] shall be spent by
December 31, 2001 and the balance remaining will be spent at the rate of at
least [*] per Fiscal Year until all [*] is spent. In the event of a breach of
this Section 3.4(c), GSI shall have the right to cure such breach within 30 days
of receipt of written notice of breach from TSA.
(d) A breach of Sections 3.4(c) may be cured by delivering to TSA the
required amounts not spent on condition that TSA spend such amounts for
advertising of TSA's Site in such manner as TSA shall determine.
(e) The Parties shall not permit TSA.com to incur any indebtedness
for borrowed money except in accordance with Section 3.4(a).
3.5 TSA Option. The parties agree to cause TSA to have the right and
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option, on and after May 9, 2002 (or immediately prior to an initial public
offering of shares of TSA.com common stock, if such offering occurs prior to May
9, 2002), to purchase from TSA.com shares of TSA.com common stock in the number
which after purchase would cause TSA to own up to 49.9% of the outstanding
shares of TSA.com common stock. Such "49.9%" is based on 16,000 authorized
shares of common stock, and the parties agree that so long as there are 16,000
shares authorized TSA's ownership pursuant to Sections 3.3, 3.5 and 3.6 hereof
shall never exceed 7.999 shares unless the parties otherwise mutually agree.
The purchase price shall be payable to TSA.com in cash at closing and shall be
equal to the lesser of (i) the aggregate amount equal to the percentage of
TSA.com shares to be purchased (giving effect to such purchase) multiplied times
an amount equal to [*] times the [*] as of the month end immediately prior to
the closing of such purchase, as determined in accordance with GAAP, or (ii)
[*]. In the event that such stockholders equity shall be positive, then such
aggregate purchase price shall be [*]. The option set forth in this Section 3.5
shall expire upon an initial public offering of TSA.com common stock.
3.6 Earn In.
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(a) The Parties agree that provided that TSA.com's Gross Sales in the
first full fiscal year exceed [*], TSA.com shall issue and deliver to TSA upon
TSA's demand therefor, [*] shares of TSA.com common stock.
(b) The Parties further agree that TSA.com shall issue and deliver
shares of TSA.com common stock to TSA in the following amounts promptly upon the
achievement of either the Land Based Goal or the E-Commerce Goal for the year
indicated.
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Land Based E-Commerce Number of
Year Goal Goal Shares
2000 $[*] N/A [*]
2001 $[*] $[*] [*]
2002 $[*] $[*] [*]
2003 $[*] $[*] [*]
"Land Based Goal" shall mean gross revenues of TSA for TSA's fiscal year.
"E-Commerce Goal" shall mean TSA.com's operating income (excluding
extraordinary items) for the Fiscal Year as determined in accordance with GAAP.
In the event the goals set forth in Sections 3.6(a) or 3.6(b) for a prior
year or years are not achieved, but a goal for a subsequent year is achieved,
then TSA shall receive all shares specified above in Sections 3.6(a) or 3.6(b)
for the prior year or years.
The provisions of this Section 3.6 shall terminate upon TSA's exercise of
the option set forth in Section 3.5 hereof.
3.7 Warrant. In consideration of TSA entering into this Agreement, GSI
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shall cause Global Sports, Inc., a Delaware corporation ("Global"), to issue and
deliver to TSA a Warrant to purchase shares of Global common stock in the amount
and with the terms and conditions set forth on Exhibit "D" hereto.
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SECTION IV
MANAGEMENT AND OPERATIONS OF TSA.COM;
VOTING PROCEDURES
4.1. Management of TSA.com.
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(a) Board of Directors. The Board of Directors shall consist of five
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persons. The Parties agree to elect to the Board of Directors three persons
designated by GSI from time to time and two persons designated by TSA from time
to time. Each Party may remove the persons appointed by such Party as a
Director at any time. The Parties agree that a quorum for a Board of Directors
meeting shall exist only if at least three directors are present and if at least
one of the directors present is a designee of TSA. The initial directors
designated by each Party shall be as set forth on Exhibit "E."
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(b) Meetings. The Parties agree that the Bylaws of TSA.com shall
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provide that (i) meetings of the Board of Directors can be called upon five
Business Days' written notice by
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the Chairman of the Board, the President or any two Directors and (ii) meetings
of shareholders can be called by any shareholder upon 10 days' written notice.
4.2. Management of Subsidiaries. The Board of Directors of any Subsidiary
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of TSA.com shall consist at all times of the same persons as are the members of
the Board of Directors of TSA.com.
4.3. Transactions with GSI or TSA. The Parties agree that TSA.com and any
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Subsidiaries of TSA.com shall be operated as independent businesses and that any
transaction between or among TSA.com or any Subsidiary of TSA.com, on the one
hand, and GSI or TSA or any of their Related companies, on the other hand, shall
be on an arms-length basis (except as otherwise provided in the Operative
Documents). Any sales or purchases of materials, products or services to or
from TSA.com or any Subsidiary by GSI or TSA or any of their Related companies
shall be competitive with alternative sources of equivalent materials, products
or services in terms of price, design, performance, quality, technology and
delivery (except as otherwise provided in the Operative Documents).
4.4. Insurance. The Parties shall cause TSA.com to maintain at all times
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during the term of this Agreement an amount of coverage, consistent with good
business practices in the United States and sufficient at all times to the
obligations of the Parties under the Operative Documents, including, without
limitation, comprehensive general liability insurance, including products and
completed operations and contractual liability coverage, naming TSA and GSI and
their respective Subsidiary and Related companies as additional insureds. Each
policy of insurance purchased by TSA.com pursuant to the preceding sentence
shall (i) be placed with a reputable insurance company acceptable to the Board
of Directors, (ii) either have a self-insurance retention or a deductible in
amounts consistent with good business practices, as such amount may be
determined by the Board of Directors, and (iii) contain other terms acceptable
to the Board of Directors.
4.5. Actions by Shareholders/Voting Procedure. Any action of TSA.com or
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any Subsidiary with respect to any decision or process requiring the approval of
the Shareholders shall require the unanimous vote of the shareholders.
4.6. Actions by Board of Directors. Any action of TSA.com or any
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Subsidiary with respect to any decision or process requiring the approval of the
Directors shall require the affirmative vote of a majority of the Directors
present at a Board meeting except the following actions, which shall require the
affirmative vote of at least four Directors:
(i) Any amendment to the Bylaws.
(ii) The sale or issuance of any shares of common stock, securities
convertible in shares of common stock or options or rights to acquire any shares
of common stock, other than as provided in Section 3 of this Agreement.
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(iii) The declaration of any dividend or distribution to
shareholders.
SECTION V
DIVIDEND POLICY
The Parties agree not to permit TSA.com to declare and pay any dividends
until such time as the indebtedness payable to GSI referred to in Section 3.4
hereof shall have been paid in full, unless the Parties shall otherwise agree in
writing.
SECTION VI
E-COMMERCE, E-COMMERCE SERVICES AND LICENSE AGREEMENTS
The Parties agree to enter into the E-Commerce Agreement, the E-Commerce
Services Agreement and the License Agreement substantially in the form attached
hereto. The parties agree that none of such agreements, in the form executed by
the parties thereto, may be amended without the prior written consent of both of
the Parties. The Parties agree that TSA.com shall not enter into any agreement
with either of the Parties or any of their Affiliates without the prior written
consent of both of the Parties.
SECTION VII
ACCOUNTING MATTERS, BOOKS AND RECORDS
7.1. Fiscal Year. The fiscal year of each of TSA.com and any Subsidiary
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of TSA.com shall end on December 31 of each year.
7.2. Right of Inspection. The accounting books, records and accounts of
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TSA.com and each Subsidiary shall at all times be open to inspection by duly
authorized representatives of GSI and/or TSA during regular business hours.
7.3. Books and Records. The accounting books, records and accounts of
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TSA.com and Subsidiary shall be kept in accordance with GAAP at the principal
place of business of TSA.com and shall be audited by TSA.com's external auditor
at the expense of TSA.com or the appropriate Subsidiary of TSA.com, as
applicable. The Parties agree to mutually nominate and approve Deloitte Touche
as the initial external auditor and to nominate and approve any replacement
external auditor thereafter.
SECTION VIII
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RESTRICTION ON TRANSFER
8.1. General Restriction. Except with the prior written consent of the
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other Party, neither Party shall, directly or indirectly, sell, assign, give or
otherwise dispose of, any shares of common stock of TSA.com owned by it in any
manner except (i) as provided in Section 8.3 hereof or (ii) as provided in
Section 8.6 hereof. Neither Party shall pledge or otherwise grant a security
interest in the shares of TSA.com common stock owned by it without the prior
written consent of the other Party.
8.2. Interest Covered by Agreement. Section 8.1 hereof shall be
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applicable to any shares of TSA.com common stock owned by a Party, whether now
owned or hereafter acquired by whatever means, including, but not limited to,
interests acquired by purchase, share dividend or received through any
recapitalization or reorganization of TSA.com.
8.3. Transfers to Wholly Owned Subsidiaries. Notwithstanding anything in
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this Agreement to the contrary, (a) TSA may, from time to time, transfer all
(but not less than all) of its TSA.com common stock to any Subsidiary of TSA,
and (b) GSI may, from time to time, transfer all (but not less than all) of its
TSA.com common stock to any Subsidiary of GSI (each of the foregoing transfers
in this paragraph is hereinafter referred to as a "Permitted Transfer" and each
Subsidiary referred to as a "Transferee"); provided, however, that (i) the
Transferee shall continue to be a Subsidiary of TSA or GSI, as the case may be,
(ii) the Transferee shall enter into a joinder agreement to be bound by all of
the terms and conditions of this Agreement in the same manner as is applicable
to its transferor hereunder, (iii) GSI or TSA, as the case may be, shall
continue to be bound by all of the terms and conditions of this Agreement, (iv)
the Party effecting a Permitted Transfer shall provide notice of such Transfer
to the other Party within 10 Business Days following such Permitted Transfer,
together with the written joinder from the Transferee and (v) if any Transferee
subsequently ceases to be a Subsidiary of TSA or GSI, as the case may be, TSA or
GSI, as the case may be, shall cause such common stock to be transferred back to
TSA or GSI or to any other Subsidiary of TSA or GSI prior to the Transferee
ceasing to be a Subsidiary of TSA or GSI.
8.4. Impermissible Transfers Void. Any attempted sale, transfer or
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disposition of TSA.com common stock made in violation of this Agreement shall be
null and void. The transferee of such interest shall not be entitled to be
registered as a shareholder of TSA.com and shall not be entitled to vote such
interest or receive dividends thereon.
8.5. Legend on Shares. The following legend shall be placed on all
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certificates representing TSA.com common stock:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR UNDER
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED
UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO
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AVAILABLE EXEMPTIONS FROM SUCH REGISTRATION, PROVIDED THAT THE SELLER
DELIVERS TO THE COMPANY AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO THE COMPANY CONFIRMING THE AVAILABILITY OF SUCH EXEMPTION.
THESE SECURITIES ARE SUBJECT TO CERTAIN RIGHTS AND OPTIONS
RESTRICTING TRANSFERABILITY PURSUANT TO A CERTAIN JOINT VENTURE
AGREEMENT DATED MAY 9, 1999, A COPY OF WHICH IS AVAILABLE FROM THE
SECRETARY OF THE COMPANY.
8.6. Provisions Relating to Transfers to Persons or Entities other than to
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Wholly Owned Subsidiaries.
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(a) General. After May 9, 2004, a Party may sell all, but not less
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than all, of its TSA.com common stock only in accordance with this Section 8.6.
(b) Negotiations; Notice of Proposed Sale. A Party (the
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"Transferring Party") who desires to sell all of its TSA.com common stock, other
than a Permitted Transfer, shall first give written notice to the other Party
the "Other Party") of its intentions, and negotiate in good faith with the Other
Party with respect to a sale of its TSA.com common stock. If a written
definitive agreement with respect to a sale is not reached within 60 days after
the date on which notice is given by the Transferring Party, the Transferring
Party may negotiate with third parties with respect to the sale of all but not
less than all of its TSA.com common stock, subject to the right of first refusal
of the Other Party set forth below. If the Transferring Party receives a bona
fide written offer from a third party to purchase its TSA.com common stock, the
Transferring Party shall serve notice (the "Transfer Notice") on the Other
Party. The Transfer Notice shall state that the Transferring Party has received
a bona fide written offer to purchase all of its TSA.com common stock from a
financially responsible third party, the consideration proposed to be paid for
the TSA.com common stock, any additional material terms or conditions of such
offer and the name and address of the prospective purchaser (the "Third Party").
(c) Option to Purchase.
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(1) Upon receipt of the Transfer Notice, the Other Party shall
have the option to purchase all, but not less than all, of the TSA.com common
stock owned by the Transferring Party. The Other Party may purchase such common
stock for the same consideration described in the Transfer Notice (or, to the
extent the consideration consists of securities, for the equivalent cash market
value of such securities) and in accordance with any other material terms or
conditions described in the Transfer Notice.
(2) If the Other Party elects to exercise its option to
purchase the TSA.com common stock, it shall do so by notifying the Transferring
Party of such election within
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30 days after receipt of the Transfer Notice from such Party. After such 30-day
period, the Other Party's option shall expire.
(3) In the event of any purchase and sale of TSA.com common
stock pursuant to this paragraph (c), the closing of such purchase and sale
shall be held within 90 days after the date on which notice of exercise of an
option is given by the Other Party to the Transferring Party.
(d) Lapse of Options. If the option specified in Section 8.6(c)
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hereof shall expire without exercise thereof, the Transferring Party shall be
entitled to make the proposed sale of its TSA.com common stock to the Third
Party for the consideration and in accordance with any other material terms or
conditions described in the Transfer Notice, provided that the Third Party
agrees, in form and substance reasonably satisfactory to the Other Party, to be
bound by the provisions of this Agreement to the same extent as if such Third
Party were originally a party hereto. If the sale of the Transferring Party=s
TSA.com common stock is not completed within 90 days of the date of the
expiration of the option set forth in Section 8.6(c) above, then such TSA.com
common stock shall again become subject to the options of this Section 8.6.
(e) Delivery of Certificates. At the closing of any sale of TSA.com
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common stock pursuant to this Agreement, the Transferring Party shall deliver to
the Transferee the certificate(s) for such TSA.com common stock. The shares
being transferred shall be transferred free and clear of any lien or
encumbrance, except for the provisions of this Section 8.6.
8.7 Public Offerings. Upon the closing of an underwritten public
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offering by TSA.com of its common stock registered under the Securities Act of
1933, this Section 8 shall automatically terminate and be of no further force
and effect.
SECTION IX
TERM AND TERMINATION
9.1. Term. This Agreement shall terminate upon 90 days' prior notice
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given by one Party to the other Party on and after December 31, 2014. Such 90
day period shall be extended until the occurrence of a purchase by one of the
Parties pursuant to Section 9.3, if such purchase shall not have been completed
within such 90 day period, or the expiration of the right of each Party to elect
to make a purchase pursuant to Section 9.3.
9.2. Termination. This Agreement may be terminated prior to December 31,
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2014 in accordance with Section 9.4, as follows:
(a) By either Party if the other Party shall materially default in
the performance of any of the covenants, terms and conditions of this Agreement
and shall fail to cure such default within 60 days after receipt of notice in
writing from the terminating Party of such default, giving
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reasonable particulars of such default and of the intention of the Party serving
the notice to terminate this Agreement unless such default is cured; provided,
however, that if such default cannot reasonably be cured within 60 days, no
termination shall occur so long as the Party against which default has been
declared continues to use its best efforts to cure such default and in fact
cures such default within 90 days of receipt of such notice.
(b) By either Party if the other Party shall be judicially declared
bankrupt or insolvent, make an assignment for the benefit of, or enter into a
compromise with, its creditors; initiate bankruptcy or insolvency proceedings of
any kind or proceedings for the appointment of a receiver, manager, judicial
manager or similar official with respect to it or any of its assets or become a
party to dissolution proceedings; provided, however, that no termination shall
occur if any such action is stayed, dismissed or reversed within 60 days of the
initiation of such action and the other Party provides satisfactory evidence of
the same within such period and in fact cures such default within 90 days of
receipt of such notice.
(c) TSA shall have the right to terminate this Agreement in the
event that total revenues from all sources from the TSA Site by TSA.com for the
Fiscal Year ended December 31, 2003 shall be less than [*]. In order to exercise
such right to terminate this Agreement, TSA shall give GSI written notice of
termination during the period commencing January 1, 2004 and ending 30 days
after final TSA.com financial statements for the year ended December 31, 2003
are delivered to TSA. The Parties agree to cause such financial statements to be
prepared and delivered to TSA prior to March 15, 2004.
(d) TSA shall have the right to terminate this Agreement in the
event that TSA.com shall not achieve positive operating income for the Fiscal
Year ended December 31, 2005, excluding extraordinary items of income or
expense, as determined in accordance with GAAP. In order to exercise such option
to terminate this Agreement, TSA shall give GSI written notice of termination
during the period commencing January 1, 2006 and ending 30 days after final
TSA.com financial statements for the Fiscal Year ended December 31, 2005 are
delivered to TSA. The Parties agree to cause such financial statements to be
prepared and delivered to TSA prior to March 15, 2006.
(e) TSA shall have the option to terminate this Agreement in the
event that (i) either TSA.com's operating income, excluding extraordinary items
of income or expense, for the Fiscal Year ended December 31, 2009 shall be less
than [*]% of TSA.com's Gross Sales for the Fiscal Year ended December 31, 2009,
or (ii) TSA.com's Gross Sales for the Fiscal Year ended December 31, 2009, as
determined in accordance with GAAP, shall be less than [*]. In order to exercise
such option to terminate this Agreement, TSA shall give GSI written notice of
termination during the period commencing January 1, 2010 and ending 30 days
after final TSA.com financial statements for the Fiscal Year ended December 31,
2009 are delivered to TSA. The Parties agree to cause such financial statements
to be prepared and delivered to TSA prior to February 15, 2010.
12
(f) TSA shall have the option to terminate this Agreement in the event
that the Launch Date (as defined in the E-Commerce Agreement) has not occurred
on before November 1, 1999, provided that TSA.com shall have until December 1,
1999 to cure such default. In order to exercise such right, TSA shall give GSI
written notice of termination prior to January 31, 2000.
(g) TSA shall have the right to terminate this Agreement in the event
that Michael G. Rubin is not a full-time active employee of one of Global, GSI
or TSA.com for any reason prior to January 1, 2001. In order to exercise such
option to terminate this Agreement, TSA shall give GSI written notice of
termination within 60 days of the date on which Michael G. Rubin is not such an
employee.
(h) TSA shall have the right to terminate this Agreement in the event
that the shareholders equity of Global, as determined in accordance with GAAP,
as of December 31, 1999, is less than [*]. In order to exercise such option to
terminate this Agreement, TSA shall give GSI written notice of termination
within 60 days of the date Global first publishes financial statements as of
December 31, 1999.
(i) TSA shall have the right to terminate this Agreement in the event
that GSI breaches any of the provisions of Sections 3.4(b), (c) or (d) hereof,
or Section 5.1 of the E-Commerce Services Agreement.
(j) TSA shall have the right to terminate this Agreement in the event
TSA gives notice of termination of the License Agreement or the E-Commerce
Agreement or if TSA.com gives notice of termination of the E-Commerce Services
Agreement provided that termination of this Agreement shall not be effective
unless and until such other agreement is terminated pursuant to its terms.
(h) GSI shall have the right to terminate this Agreement if the event
TSA.com gives notice of termination of the License Agreement or the E-Commerce
Agreement provided that termination of this Agreement shall not be effective
unless and until such other agreement is terminated pursuant to its terms.
9.3. Effect of Termination after 2014. Upon termination of this Agreement
--------------------------------
by written notice given after December 31, 2014 by either Party in accordance
with Section 9.1 hereof, hereof, either Party shall have the right to cause a
Valuation by giving written notice to the other within 30 days after the date on
which notice of termination is given. If neither Party elects to cause a
Valuation, then the option contained in this Section 9.3 shall terminate. If
either Party elects to cause a Valuation, TSA shall have the right (but not the
obligation) to purchase all (but not less than all) of the TSA.com common stock
then owned or held by GSI or any of its Subsidiaries by giving written notice to
GSI within 20 days after the date of determination of Fair Market Value. In the
event that TSA shall fail to exercise such right, GSI shall have the right (but
not the obligation) to purchase all (but not less than all) of the TSA.com
common stock then owned or held by TSA or any of its Subsidiaries by giving
written notice to TSA within 40 days after the date of determination of Fair
Market Value. The price that the purchaser (the
13
"Purchaser") shall pay for the TSA.com common stock owned by the other Party or
any of its Subsidiaries (the "Seller"), in the event that the Purchaser elects
to exercise the right to purchase the TSA.com common stock of the Seller under
this Section 9.3, shall be the Fair Market Value of the TSA.com common stock
owned by the Seller as of the date notice of termination is given, determined in
accordance with the Valuation. The purchase price of the TSA.com common stock
purchased under this Section 9.3 must be paid in immediately available funds
through a transfer of funds to a banking account to be designated at that time
by the Seller to the Purchaser. The closing of any purchase and sale of TSA.com
common stock under this Section 9.3 shall be completed within 20 days after the
Purchaser gives the Seller notice of its election to purchase hereunder. As a
condition of closing, the Seller shall deliver to the Purchaser or its nominees
the certificate for the TSA.com common stock. The TSA.com common stock so
delivered shall be duly endorsed and free and clear of any lien or encumbrance
of any nature whatsoever.
9.4. Effect of Termination Under Section 9.2.
---------------------------------------
(a) Upon termination in accordance with Section 9.2 hereof, the Party
exercising the right of termination (the "Terminating Party") shall have the
right to cause a Valuation by giving written notice to the other Party
contemporaneously with the notice of termination, in which event the date of
termination shall not occur until the occurrence of a purchase by the
Terminating Party pursuant to this Section 9.4 or the expiration of the
Terminating Party's right to make a purchase hereunder. If the Terminating Party
does not cause a Valuation, then the option contained in this Section 9.4 shall
terminate. If the Terminating Party elects to cause a Valuation and in addition
to any other remedy as may be provided for in this Agreement or by law, the
Terminating Party shall have the right but not the obligation to purchase all
(but not less than all) of the TSA.com common stock then owned by the other
party or any of its Subsidiaries by giving written notice to the other Party
within 20 days of the date of determination of Fair Market Value. The price that
the Terminating Party shall pay for the TSA.com common stock owned by the other
Party or any of its Subsidiaries shall be 50% of the Fair Market Value of the
TSA.com common stock owned by the other Party as of the date notice of
termination is given, determined in accordance with the Valuation. The purchase
price of the TSA.com common stock purchased must be paid in immediately
available funds through a transfer of funds to a banking account to be
designated at that time by the seller to the purchaser. The closing of any
purchase of TSA.com common stock by the Terminating Party shall be completed
within 20 days after the Terminating Party gives the other Party notice of its
election to purchase hereunder. As a condition of closing, the seller shall
deliver to the purchaser or its nominees the certificate for the TSA.com common
stock. The TSA.com common stock so delivered shall be duly endorsed and free
and clear of any lien or encumbrance of any nature whatsoever.
(b) In the event that the Terminating Party elects to cause a
Valuation pursuant to Section 9.4(a) and TSA.com common stock is not so
purchased by the Terminating Party pursuant to Section 9.4(a), the other Party
shall have the right (but not the obligation) to require the Terminating Party
to purchase all (but not less than all) of the TSA.com common stock then owned
or held by the other Party or any of its Subsidiaries by giving written notice
to the
14
Terminating Party within 40 days after the date of Valuation. The purchase price
for the TSA.com common stock under this Section 9.4(b), shall be 50% of the Fair
Market Value of the TSA.com common stock owned by the other Party as of the date
notice of termination is given, determined in accordance with the Valuation. The
purchase price must be paid in immediately available funds through a transfer of
funds to a banking account to be designated at that time by the seller to the
purchaser. The closing of any purchase of TSA.com common stock under this
Section 9.4(b) shall be completed within 20 days after the other Party gives the
Terminating Party notice of its election to require the Terminating Party to
purchase hereunder. As a condition of closing, the seller shall deliver to the
purchaser or its nominee the certificate for the TSA.com common stock. The
TSA.com common stock so delivered shall be duly endorsed and free and clear of
any lien or encumbrance of any nature whatsoever.
9.5. Definitions. For the purposes of this Section 9, the following terms
-----------
shall have the meanings ascribed to them below.
"Fair Market Value" of the TSA.com common stock held by the Seller means
(A) the value of the TSA.com common stock, considering TSA.com as a going
concern being sold as an entirety, taking into account net worth, past, present
and prospective earnings and cash flow, market conditions and prices paid in
previous acquisitions of similar businesses and specific valuations given to
Internet-related business, multiplied by (B) the percentage of the TSA.com
common stock held by the Seller.
"Valuation" means the following procedure to determine Fair Market Value:
GSI and TSA shall each select an Investment Banker, each at its own expense,
within a 20-day calendar period following the date on which a Party notified the
other Party of its intent to exercise the right to cause a Valuation under
Section 9.3 or 9.4. The Fair Market Value shall be the average obtained by
dividing the sum of the Fair Market Value determined by the two Investment
Bankers by two, provided the higher of the two determinations is not greater
than 10% of the lesser of the two. In the event that such difference is greater
than 10%, the two Investment Bankers shall choose a third Investment Banker.
The third Investment Banker shall then select which of the Fair Market Values
previously determined by the first two Investment Bankers it believes is more
accurate. The selection of the third Investment Banker shall be the Fair Market
Value and shall be conclusive and binding on both parties. Each Investment
Banker shall make its determination as to the Fair Market Value within a period
of 30 days from the date of its selection.
The Parties shall cause TSA.com to disclose and make available to the
Investment Bankers selected pursuant to this Section 9.5 all of the information
regarding the operations and financial condition of TSA.com and its Subsidiaries
as may be requested by such Investment Bankers in order to conduct and conclude
their Valuations as set forth herein.
9.6 Dissolution. In the event that the TSA.com common stock is not
-----------
purchased in accordance with either Section 9.3 or 9.4, the Parties agree to
promptly dissolve TSA.com and distribute its net assets in accordance with
Delaware law.
15
9.7. Survival. The termination of this Agreement for any reason shall
--------
not release either Party from its liability to pay any sums of money accrued,
due and payable to the other Party or to discharge its then-accrued and unfilled
obligations. Sections 9 and 10 shall survive any termination of this Agreement.
SECTION X
CONFIDENTIALITY PROVISIONS
10.1. General Confidentiality Provisions/Public Disclosure. Except as may
----------------------------------------------------
be mutually agreed in writing between the Parties or as a Party may reasonably
determine to be required or appropriate to comply with stock exchanges or
securities laws, neither GSI nor TSA shall, nor shall either of them permit any
of its Related companies, during the term of this Agreement or any time
thereafter, to: (i) disclose to third parties the terms and conditions of this
Agreement or the other Operative Documents, except to those of its Related
companies, attorneys, accountants and other consultants who need to know the
information for the purposes of operating TSA.com and carrying out transactions
related thereto; or (ii) disclose to third parties (i.e. persons or entities
other than TSA or GSI), any confidential or proprietary information obtained
from the other Party or any Affiliate Company of the other Party.
SECTION XI
ADDITIONAL COVENANTS
11.1. Press Releases. All voluntary public announcements concerning the
--------------
transactions contemplated by this Agreement shall be mutually acceptable to both
GSI and TSA. Unless required by law, neither GSI on the one hand, and TSA on the
other hand, shall make any public announcement or issue any press release
concerning the transactions contemplated by this Agreement without the prior
written consent of GSI or TSA, respectively.
11.2. Exclusive.
---------
(a) During the term of this Agreement (i) TSA and its Subsidiaries
agree not to engage in the E-Commerce Business except as permitted under Section
2.6(a) of the License Agreement and (ii) GSI agrees not to engage in and TSA.com
shall not engage in the sale of goods over the Internet as a shareholder,
partner or investor in any corporation, partnership, limited liability company
or other entity or venture which generates in excess of 20% of its revenues from
the sale of sporting goods, athletic footwear and athletic apparel (other than
with TJX Companies, Inc., Ross Stores, Inc. and any other such party which does
not engage in the sale of sporting goods, athletic footwear and athletic apparel
in the United States, Canada, Japan, any other nation in which the predominant
language is English or any other nation in which TSA, any of its Subsidiaries or
any corporation, LLC or other entity or venture in which TSA has more
16
than a 19% interest engages in the sale of sporting goods, athletic footwear and
athletic apparel or has announced its intention to commence doing so within six
months and in fact does so) (the foregoing shall not prevent GSI from entering
into additional e-commerce services or e-commerce license agreement with other
retailers of sporting goods, athletic footwear or athletic apparel, but GSI may
not launch any web site for such retailers or provide any other e-commerce
services prior to January 1, 2000).
(b) Until January 1, 2000, GSI agrees to devote all of its e-
commerce related activities to developing the TSA Site and the sites of other
retailers which have executed e-commerce services agreements with GSI prior to
the date of this Agreement (except that GSI may enter into additional e-commerce
services or e-commerce license agreement with other retailers of sporting goods,
athletic footwear or athletic apparel, but GSI may not launch any web site for
such retailers or provide any other e-commerce services prior to January 1,
2000).
11.3. Expenses. Except as otherwise provided herein, each Party shall
---------
bear its own expenses in connection with the transactions contemplated hereby.
11.4. Choice of Law. This Agreement shall be construed, interpreted and
-------------
enforced under and in accordance with the internal laws of the State of
Delaware.
11.5. WAIVER OF JURY TRIAL. EACH OF TSA AND GSI DO HEREBY KNOWINGLY,
--------------------
VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE SUCH RIGHT ANY PARTY MAY HAVE
TO A JURY TRIAL IN EVERY JURISDICTION IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER OF THE PARTIES AGAINST THE OTHER PARTY OR ITS RESPECTIVE
AFFILIATES, SUCCESSORS OR ASSIGNS, IN RESPECT OF ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, ANY OTHER OPERATIVE DOCUMENT OR ANY OTHER
DOCUMENTS EXECUTED AND DELIVERED BY ANY PARTY IN CONNECTION THEREWITH
(INCLUDING, WITHOUT LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT,
AND ANY CLAIMS OR DEFENSES ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY
INDUCED OR OTHERWISE VOID OR VOIDABLE).
11.6. Notices.
-------
(a) Any notice or request with respect to this Agreement shall be in
writing and shall be delivered personally, by facsimile transmission, or by
overnight express courier, in each such case directed by each Party to the
other, with evidence of transmission, to its respective addresses as follows:
if to GSI: Global Sports Interactive, Inc.
555 South Henderson Road
King of Prussia, Pennsylvania 19406
Attention: President
17
Fax No.: 610-354-9088
copy to: David S. Mandel, Esq.
Astor Weiss Kaplan & Rosenblum, LLP
The Bellevue
Broad & Walnut Streets
6th Floor
Philadelphia, Pennsylvania 19102
Fax No.: 215-790-0509
if to TSA: The Sports Authority, Inc.
3383 North State Road 7
Fort Lauderdale, Florida 33319
Attention: Alex Stanton,
Senior Vice President,
Business Development
Fax No.: 954-677-6094
copies to: The Sports Authority, Inc.
3383 North State Road 7
Fort Lauderdale, Florida 33319
Attention: General Counsel
Fax No.: 954-730-4288
The Sports Authority Michigan, Inc.
306 S. Washington, Suite 224
Royal Oak, Michigan 48067
Attention: Senior Vice President and
General Counsel
Fax No.: 248-414-9993
(b) Any notice or request shall be deemed to be given when actually
received. Either Party, by written notice to the other Party, may change the
address to which notices or requests shall be directed.
11.7. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon each of the Parties and their respective permitted successors and
assigns, but neither the rights nor the obligations of either Party hereunder
may be voluntarily assigned, in whole or in part, without the prior written
consent of the other Party.
11.8. Severability; Conflict with Organizational Documents. If any term
----------------------------------------------------
or provision of this Agreement is held to be unenforceable or in conflict with
any law or regulation of any kind, either by arbitration as provided herein or
by court of competent jurisdiction, then this Agreement, except for such part or
parts thereof, shall continue to be in full force and effect; provided, however,
that such remaining terms and provisions of this Agreement shall be construed to
reflect the original intent of the Parties and remain as a workable instrument
for the purposes of carrying out the original intentions of the Parties. In the
event of any conflict between the provisions of
18
this Agreement and the organizational documents of TSA.com, the provisions of
this Agreement shall prevail.
11.9. Entire Agreement. The Operative Documents constitute the complete
----------------
and final agreement between the Parties with respect to the subject matter
hereof and supersede all previous negotiations, agreements, commitments and
understandings, whether written or oral.
11.10. Amendment; Waiver. The provisions hereof may not be amended,
-----------------
waived, modified or superseded except by an instrument in writing signed by a
duly authorized officer or representative of each of the Parties.
11.11. Headings. Descriptive headings in this Agreement are for
--------
convenience only and shall not control or affect the meaning or construction of
any of the provisions of this Agreement.
11.12. Counterparts. This Agreement may be executed in counterparts and
------------
both such counterparts taken together shall be deemed to constitute the same
instrument.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on the date first above written by its duly authorized officer or
officers.
GLOBAL SPORTS INTERACTIVE, INC.
By: /s/ Michael Rubin
------------------------
Name:
Title:
THE SPORTS AUTHORITY, INC.
By: /s/ Martin E. Hanaka
-------------------------
Name:
Title:
19
EXHIBIT "A"
-----------
See E-Commerce Agreement
------------------------
1
EXHIBIT "B"
-----------
See E-Commerce Services Agreement
---------------------------------
2
EXHIBIT "C"
-----------
See License Agreement
---------------------
3
EXHIBIT "D"
-----------
WARRANT TERM SHEET
1. Grant of Warrants As part of its E-Commerce Initiative, Global Sports,
Inc. ("Global") intends to provide all sporting goods
and/or athletic footwear and apparel retailers who
execute a contract with Global to become part of
Global's E-Commerce Initiative ("Retailers") prior to
the public announcement of such initiative the
opportunity to receive warrants to purchase shares of
Global common stock based on the terms and conditions
outlined in this Term Sheet.
2. Amount of Warrants Warrants will be granted for a total exercise amount of
[*]. Each Retailer will receive a warrant to purchase
its pro rata share of the total exercise amount based
on the proportion that such Retailer's net sales
(including sales by such Retailer's franchisees, if
any) for its most recent fiscal year bears to the total
net sales of all Retailers participating in the E-
Commerce Initiative (including sales by all such
Retailers' franchisees, if any).
3. Security Warrant to purchase Global common stock. The period
during which the warrant may be exercised will be one
year from the date of public announcement of Global's
E-Commerce Initiative. The warrant and the shares of
common stock issuable upon exercise of the warrant will
be offered and sold to Retailers pursuant to an
exemption from the Securities Act of 1933, as amended.
As a result, such shares will be restricted securities
within the meaning of that Act, and the resale of such
shares will be subject to certain restrictions,
including a one year holding period.
4. Warrant Exercise The warrant exercise price will be equal to the average
Price of the closing bid and asked prices for a share of
Common Stock for the 20 trading days ending on the
trading day immediately preceding the public
announcement of Global's E-Commerce Initiative.
5. Issuance of Global will issue the warrants to participating
Warrants Retailers effective as of the public announcement of
Global's E-Commerce Initiative which is expected to
occur by May 10, 1999.
4
6. Confidentiality This Term Sheet is not to be disclosed to any party
other than the employees or advisors of Retailers
receiving this Term Sheet who need to know the terms
set forth herein for the purpose of evaluating such
Retailer's participation in Global's E-Commerce
Initiative.
7. Other This Term Sheet is only intended to serve as a general
outline of the major terms of Global's proposed grant
of warrants in accordance with the terms and conditions
set forth herein. This Term Sheet does not constitute
an offer or sale of the shares by Global. This Term
Sheet does not constitute a commitment or binding
agreement to grant such securities. Such commitment or
binding agreement can only be created by definitive
agreements which will need to be negotiated and
executed.
5