Exhibit 10.2
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
June 9, 2000
To the parties to the Amended and Restated
Registration Rights Agreement dated November 22, 1993
by and among Dick's Sporting Goods, Inc., as amended
Ladies and Gentlemen:
Reference is made to the Amended and Restated Registration Rights
Agreement dated November 22, 1993, as amended (the "Prior Restated Agreement"),
by and among Dick's Sporting Goods, Inc., a Delaware corporation (formerly
Dick's Clothing & Sporting Goods, Inc., a New York corporation) (the "Company")
and the persons who held the Company's Common and Preferred Stock. This Second
Amended and Restated Registration Rights Agreement (this "Second Restated
Agreement" or this "Agreement") amends the Prior Restated Agreement and
supersedes and restates the Prior Restated Agreement in its entirety.
The holders of 65% of the Restricted Stock, including 65% of the former
holders of Company's Series A, C, D, E, F and G Preferred Stock, voting as a
single class, as provided by Section 13(d) of the Prior Restated Agreement, have
approved this Second Restated Agreement. This Second Restated Agreement is being
entered into effective upon the conversion of all the Company's Preferred Stock
into Common Stock (the "Conversion"). The Company covenants and agrees with the
parties hereto, as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Securities Act.
"COMMON STOCK" shall mean the Common Stock, $.01 par value,
of the Company, as constituted as of the date of this Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and
regulations of the Commission thereunder, all as the sale shall be in
effect from time to time.
"INSIDER SHARES" means the shares of Common Stock that are not
shares of Investor Common Stock.
"INVESTOR COMMON STOCK" shall mean the shares of Common Stock
issued in connection with the Conversion to the former holders of the
Company's Series A, C, D, E, F and G Preferred Stock.
"INVESTORS" shall mean the holders of Investor Common Stock.
"REGISTRATION EXPENSES" shall mean the expenses so described
in Section 8.
"RESTRICTED STOCK" shall mean (1) the Investor Common Stock,
excluding Investor Common Stock which has been (a) registered under the
Securities Act pursuant to an effective registration statement filed
thereunder and disposed of in accordance with the registration
statement covering them or (b) publicly sold pursuant to Rule 144 under
the Securities Act, and (2) except for purposes of Section 4 and 6
hereof, the Insider Shares, but excluding shares of Common Stock which
have been (a) registered under the Securities Act pursuant to an
effective registration statement filed thereunder and disposed of in
accordance with the registration statement covering them, or (b)
publicly sold pursuant to Rule 144 under the Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the
time.
"SELLING EXPENSES" shall mean the expenses so described in
Section 8.
2. RESTRICTIVE LEGEND. Each certificate representing Restricted Stock
shall, except as otherwise provided in this Section 2 or in Section 3, be
stamped or otherwise imprinted with a legend substantially in the following
form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933 or applicable
state securities laws. These securities have been acquired for
investment and not with a view to distribution or resale, and
may not be sold mortgaged, pledged, hypothecated or otherwise
transferred without an effective registration statement for
such securities under the Securities Act of 1933 and
compliance with applicable state securities laws, or the
availability of an exemption from the registration provisions
of the Securities Act of 1933."
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company, which may be counsel to the Company, the securities
being sold thereby may be publicly sold without registration under the
Securities Act, provided, however, that if counsel to the Company disagrees with
such opinion, the parties shall seek a no-action letter from the Commission with
respect to such matter.
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3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer of
Restricted Stock (other than under the circumstances described in Sections 4, 5
or 6), the holder thereof shall give written notice to the Company of its
intention to effect such transfer. Each such notice shall describe the manner of
the proposed transfer and, if requested by the Company (it being understood that
if such transfer is intended to be in accordance with the provisions of Rule
144, the Company shall generally not require an opinion of counsel), shall be
accompanied by an opinion of counsel satisfactory to the Company (PROVIDED,
HOWEVER, that if counsel to the Company disagrees with such opinion, the parties
shall seek a no-action letter from the Commission with respect to such matter)
to the effect that the proposed transfer may be effected without registration
under the Securities Act, whereupon the holder of such stock shall be entitled
to transfer such stock in accordance with the terms of its notice; PROVIDED,
HOWEVER, that no such opinion of counsel shall be required for a transfer to one
or more partners of the transferor (in the case of a transferor that is a
partnership) or to an affiliated corporation (in the case of a transferor that
is a corporation). Each certificate for Restricted Stock transferred as above
provided shall bear the legend set forth in Section 2, except that such
certificate shall not bear such legend if (i) such transfer is in accordance
with the provisions of Rule 144 (or any other rule permitting public sale
without registration under the Securities Act) or (ii) the opinion of counsel
referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be entitled
to transfer such securities in a public sale without registration under the
Securities Act. The restrictions provided for in this Section 3 shall not apply
to securities which are not required to bear the legend prescribed by Section 2
in accordance with the provisions of that Section. If the Company does not
accept an opinion of counsel required hereby signed by the original holder's
general counsel, the Company will pay the reasonable fees and disbursements of
other counsel in connection with all opinions rendered by them pursuant to this
Section 3.
4. REQUIRED REGISTRATION.
(a) At any time beginning the earlier of (i) three months
after any registration statement covering the initial public offering of
securities of the Company under the Securities Act shall have become effective
or (ii) May 19, 2005, the holders of Restricted Stock (excluding the holders of
Insider Shares) constituting at least fifty-five percent (55%) of the total
shares of Restricted Stock (excluding the shares of Restricted Stock held by
holders of Insider Shares) then outstanding may request the Company to register
for sale under the Securities Act all or any portion of the shares of Restricted
Stock held by such requesting holder or holders for sale in the manner specified
in such notice, if the reasonably anticipated aggregate price to the public of
such sale would exceed $10,000,000.
(b) Following receipt of any notice under this Section 4, the
Company shall immediately notify all holders of Restricted Stock (excluding the
holders of Insider Shares) from whom notice has not been received and such
holders shall then be entitled within 20 days after receipt of such notice from
the Company to request the Company to include in the requested registration all
or any portion of their shares of Restricted Stock. The Company shall use its
best efforts to register under the Securities Act, for public sale in accordance
with the method of
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disposition specified in the notice from requesting holders described in
paragraph (a) above, the number of shares of Restricted Stock specified in such
notice (and in all notices received by the Company from other holders within 20
days after the receipt of such notice by such holders). If such method of
disposition shall be an underwritten public offering, the holders of sixty-five
percent (65%) of the shares of Restricted Stock to be sold in such offering may
designate the managing underwriter of such offering, subject to the approval of
the Company, which approval shall not be unreasonably withheld or delayed. The
Company shall be obligated to register Restricted Stock pursuant to this Section
4 on three occasions only, PROVIDED, HOWEVER, that such obligation shall be
deemed satisfied only when a registration statement covering all shares of
Restricted Stock specified in notices received as aforesaid, for sale in
accordance with the method of disposition specified by the requesting holders,
shall have become effective and, if such method of disposition is a firm
commitment underwritten public offering, all such shares shall have been sold
pursuant thereto.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 4, for sale in accordance
with the method of disposition specified by the requesting holders, shares of
Common Stock to be sold by the Company for its own account, except as and to the
extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Restricted Stock to be sold. Except for
registration statements on Form X-0, X-0 or any successor thereto or any
proposed filing as to which the Company has notified the Investors of their
right to participate pursuant to Section 5 hereof, the Company will not file
with the Commission any other registration statement with respect to its Common
Stock, whether for its own account or that of other stock-holders, from the date
of receipt of a notice from requesting holders pursuant to this Section 4 until
the completion of the period of distribution of the registration contemplated
thereby or 120 days after the effective date of such registration, whichever is
later.
(d) If in the opinion of the managing underwriter the
inclusion of all of the Restricted Stock requested to be registered under this
Section would adversely affect the marketing of such shares, after any shares to
be sold by the Company have been excluded, shares to be sold by the holders of
Restricted Stock shall be excluded in such manner that the shares to be sold
shall be allocated among the selling holders pro rata based on their ownership
of Restricted Stock.
5. INCIDENTAL REGISTRATION. If the Company at any time and from time to
time (other than pursuant to Section 4 or Section 6) proposes to register any of
its securities under the Securities Act for sale to the public, whether for its
own account or for the account of other security holders or both (except with
respect to registration statements on Forms X-0, X-0 or another form not
available for registering the Restricted Stock for sale to the public), each
such time it will give written notice to all holders of outstanding Restricted
Stock of its intention so to do. Upon the written request of any such holder,
received by the Company within 30 days after the giving of any such notice by
the Company, to register any of its Restricted Stock, the Company will use its
best efforts to cause the Restricted Stock as to which registration shall have
been so requested to be included in the securities to be covered by the
registration statement proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by the holder (in accordance
with its written request) of such Restricted Stock so registered. In the event
that any registration pursuant to this Section 5
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shall be, in whole or in part, an underwritten public offering of Common Stock,
the number of shares of Restricted Stock to be included in such an underwriting
may be reduced (up to 100% in the case of an initial public offering and to not
less than 30% of the total offering in the case of a subsequent public offering)
if and to the extent that the managing underwriter shall be of the opinion that
such inclusion would adversely affect the marketing of the securities to be sold
by the Company therein, PROVIDED, HOWEVER, that such reduction shall be applied
first to the Restricted Stock requested to be included by the holders of Insider
Shares and then to the Restricted Stock requested to be included by the
Investors, in such manner that the shares to be sold shall be allocated among
the Selling Investors pro rata based on their ownership of Restricted Stock, and
provided further that such number of shares of Restricted Stock shall not be
reduced if any shares are to be included in such underwriting for the account of
any person other than the Company or requesting holders of Restricted Stock.
Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to in this Section 5 without thereby incurring
any liability to the holders of Restricted Stock.
6. REGISTRATION ON FORM S-3. Subject to a limit of two registrations
hereunder in any 12 month period, if at any time (i) a holder or holders of
Restricted Stock (excluding the holders of Insider Shares) constituting at least
twenty-five percent (25%) of the total shares of Restricted Stock then
outstanding (excluding Insider Shares) request that the Company file a
registration statement on Form S-3 or any successor thereto for a public
offering of all or any portion of the shares of Restricted Stock held by such
requesting holder or holders, the reasonably anticipated aggregate price to the
public of which would exceed $500,000, and (ii) the Company is a registrant
entitled to use Form S-3 or any successor thereto to register such shares, then
the Company shall use its best efforts to register under the Securities Act on
Form S-3 or any successor thereto, for public sale in accordance with the method
of disposition specified in such notice, the number of shares of Restricted
Stock specified in such notice. Whenever the Company is required by this Section
6 to use its best efforts to effect the registration of Restricted Stock, each
of the procedures and requirements of Section 4, including but not limited to
the requirement that the Company notify all holders of Restricted Stock from
whom notice has not been received and provide them with the opportunity to
participate in the offering; provided, however that holders shall have no more
than ten (10) days to reply to the Company's notice in order to participate in
the offering), shall apply to such registration, PROVIDED, HOWEVER, that except
as provided above there shall be no limitation on the number of registrations on
Form S-3 which may be requested and obtained under this Section 6, and PROVIDED,
FURTHER, HOWEVER, that the requirements contained in the first sentence of
Section 4(a) shall not apply to any registration on Form S-3 which may be
requested and obtained under this Section 6.
7. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of Sections 4, 5 or 6 to use its best efforts to effect the
registration of any shares of Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 4, shall be on Form S-1 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its best efforts to cause such registration
statement to become and
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remain effective for the period of the distribution contemplated thereby
(determined as provided in the third-to-last paragraph of this Section 7);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Restricted Stock
covered by such registration statement in accordance with the sellers, intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement and each such
amendment and supplement thereto (in each case including all exhibits) and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted
Stock covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as the sellers of Restricted Stock or, in the case of
an underwritten public offering, the managing underwriter reasonably shall
request, PROVIDED, HOWEVER, that the Company shall not for any such purpose be
required to qualify generally to transact business as a foreign corporation in
any jurisdiction where it is not so qualified or to consent to general service
of process in any such jurisdiction;
(e) use its best efforts to list the Restricted Stock covered
by such registration statement with any securities exchange on which the Common
Stock of the Company is then listed;
(f) immediately notify each seller of Restricted Stock and
each underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has knowledge as a
result of which the prospectus contained in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and promptly
prepare and furnish to such seller a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers of
such Restricted Stock, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(g) if the offering is underwritten and at the request of any
seller of Restricted Stock, use its best efforts to furnish on the date that
Restricted Stock is delivered to the underwriters for sale pursuant to such
registration: (i) an opinion dated such date of counsel representing the Company
for the purposes of such registration, addressed to the underwriters and to such
seller, to such effects as reasonably may be requested by counsel for the
underwriters or by such seller or its counsel, and (ii) a letter dated such date
from the independent public accountants retained by the
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Company, addressed to the underwriters and to such seller, stating that they are
independent public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial matters (including information as
to the period ending no more than five business days prior to the date of such
letter) with respect to such registration as such underwriters reasonably may
request;
(h) make available for inspection by each seller of Restricted
Stock, any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent retained by
such seller or underwriter, reasonable access to all financial and other
records, pertinent corporate documents and properties of the Company, as such
parties may reasonably request, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;
(i) cooperate with the selling holders of Restricted Stock and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Restricted Stock to be sold, such
certificates to be in such denominations and registered in such names as such
holders or the managing underwriters may request at least two business days
prior to any sale of Restricted Stock; and
(j) permit any holder of Restricted Stock which holder, in the
sole and exclusive judgment, exercised in good faith, of such holder, might be
deemed to be a controlling person of the Company, to participate in good faith
in the preparation of such registration or comparable statement and to require
the insertion therein of material, furnished to the Company in writing, which in
the reasonable judgment of such holder and its counsel should be included.
For purposes of Section 7(a) and 7(b) and of Section 4(c), the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby and
120 days after the effective date thereof.
In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information
requested by the Company with respect to themselves and the proposed
distribution by them as reasonably shall be necessary in order to assure
compliance with federal and applicable state securities laws; and such sellers
shall provide the Company with appropriate representations with respect to the
accuracy of such information.
In connection with each registration pursuant to Sections 4, 5
or 6 covering an underwritten public offering, the Company and each seller agree
to enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing
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such provisions as are customary in the securities business for such an
arrangement between such underwriter and companies of the Company's size and
investment stature.
8. EXPENSES. All expenses incurred by the Company in complying with
Sections 4, 5 and 6, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, costs of any insurance which might be
obtained and fees and disbursements of one counsel selected by a majority in
interest of the sellers of Restricted Stock, but excluding any Selling Expenses,
are called "Registration Expenses." All underwriting discounts and selling
commissions applicable to the sale of Restricted Stock are called "Selling
Expenses."
The Company will pay all Registration Expenses in connection
with each registration statement under Sections 4, 5 or 6. All Selling Expenses
in connection with each registration statement under Sections 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Sections 4, 5 or 6, the Company will
indemnify and hold harmless each holder of Restricted Stock (other than holders
of Insider Shares), its officers and directors, each underwriter of such
Restricted Stock thereunder and each other person, if any, who controls such
holder or underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such holder,
officer, director, underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Sections 4, 5 or 6, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, (ii) any blue sky application or other document executed by the Company
specifically for that purpose or based upon written information furnished by the
Company filed in any state or other jurisdiction in order to qualify any or all
of the Restricted Stock under the securities laws thereof (any such application,
document or information herein called a "Blue Sky Application"), (iii) the
omission or alleged omission to state in any such registration statement,
prospectus, amendment or supplement or in any Blue Sky Applications executed or
filed by the Company, a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iv) any violation by the Company
or its agents of any rule or regulation promulgated under the Securities Act
applicable to the Company or its agents and relating to action or inaction
required of the Company in connection with such registration, or (v) any failure
to register or qualify the Restricted Stock in any state where the Company or
its agents has affirmatively undertaken or agreed in writing that the Company
(the undertaking of any underwriter chosen by the Company
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being attributed to the Company) will undertake such registration or
qualification (provided that in such instance the Company shall not be so liable
if it has used its best efforts to so register or qualify the Restricted Stock)
and will reimburse each such seller, and such officer and director, each such
underwriter and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action, PROVIDED, HOWEVER, that the
Company will not be liable in any such case if and to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by any such holder, any such underwriter
or any such controlling person in writing specifically for use in such
registration statement or prospectus.
(b) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Sections 4, 5 or 6, each seller of
such Restricted Stock thereunder, severally and not jointly, will indemnify
and hold harmless the Company, each person, if any, who controls the Company
within the meaning of the Securities Act, each officer of the Company who signs
the registration statement, each director of the Company, each other seller of
Restricted Stock, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such officer, director,
other seller, underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the registration statement under which such Restricted Stock was registered
under the Securities Act pursuant to Sections 4, 5 or 6, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or any Blue Sky Application or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company and each such officer, director, other seller,
underwriter and controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action, PROVIDED, HOWEVER, that such seller will be
liable hereunder in any such case if and only to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
registration statement or prospectus. Not in limitation of the foregoing, it is
understood and agreed that the indemnification obligations of any seller
hereunder pursuant to any underwriting agreement entered into in connection
herewith shall be limited to the obligations contained in this subparagraph (b).
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 9 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the
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indemnifying party is prejudiced by such omission. In case any such action shall
be brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel satisfactory to such indemnified party, and, after
notice from the indemnifying party to such indemnified party of its election so
to assume and undertake the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 9 for any legal expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation and of liaison with counsel
so selected, PROVIDED, HOWEVER, that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be reasonable
defenses available to it which are different from or additional to those
available to the indemnifying party or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, the indemnified party shall have the right to select a separate counsel
and to assume such legal defenses and otherwise to participate in the defense of
such action, with the expenses and fees of such separate counsel and other
expenses related to such participation to be reimbursed by the indemnifying
party as incurred.
(d) The indemnities provided in this Section 9 shall survive
the transfer of any Restricted Stock by such holder.
10. CHANGES IN COMMON STOCK. If, and as often as, there is any change
in the Common Stock by way of a stock split, stock dividend, combination or
reclassification, or through a merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof so that the rights and privileges granted hereby shall
continue with respect to the Common Stock as so changed.
11. RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Stock to the public without registration, at all times
after 90 days after any registration statement covering a public offering of
securities of the Company under the Securities Act shall have become effective,
the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each holder of Restricted Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Restricted Stock without
registration.
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12. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other agency of
government, the Charter or By-laws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets of
the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except to the extent the
indemnification or contribution provisions herein may be deemed not enforceable.
13. MISCELLANEOUS.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including
without limitation transferees of any Restricted Stock), whether so expressed or
not. This Agreement is assignable by any Investor or by the holders of Insider
Shares to a purchaser of the shares covered hereby.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered to the Company at its
principal business address and to any holder of Restricted Stock at the last
address as may have been furnished to the Company in writing by such holder.
(c) This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Delaware.
(d) This Agreement may not be amended or modified, and no
provision hereof may be waived, without the written consent of the Company, the
holders of at least sixty-five percent (65%) of the outstanding shares of
Restricted Stock, which in every event must include the holders of sixty-five
percent (65%) in interest of the outstanding Investor Common Stock.
(e) This 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. Any person who, after the
date hereof, acquires Common Stock shall become a party to this Agreement and a
holder of"Restricted Stock" for all purposes hereunder, all upon execution by
such person and the Company of a counterpart of this Agreement.
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(f) The obligations of the Company to register shares of
Restricted Stock under Sections 4, 5 or 6 shall terminate (i) one year after the
effective date of a registration statement covering the initial underwritten
public offering of the Company immediately with respect to any holder who holds
less than two percent (2%) of the aggregate Restricted Stock outstanding if all
of the shares of Restricted Stock held by such holder may be publicly sold
within any one three-month period pursuant to Rule 144 of the Securities Act,
and (ii) otherwise on the eighth anniversary of the effective date of the
initial underwritten public offering of the Company in which the holder of
Restricted Stock was able to and was allowed to participate.
(g) If requested in writing by the underwriters for the
initial underwritten public offering of securities of the Company, each holder
of Restricted Stock who is a party to this Agreement shall agree not to sell
publicly any shares of Restricted Stock or any other shares of Common Stock
(other than shares of Restricted Stock or other shares of Common Stock being
registered in such offering or in a follow-on offering pursuant to Section 4
hereof), without the consent if such underwriters, for a period of not more than
180 days following the effective date of the registration statement relating to
such offering; provided, however, that all persons selling shares of Common
Stock in such offering and all executive officers and directors of the Company
shall also have agreed not to sell publicly their Common Stock under the
circumstances and pursuant to the terms set forth in this Section 13(g).
(h) Notwithstanding the provisions of Section 7(a), the
Company's obligation to file a registration statement, or cause such
registration statement to become and remain effective, may be suspended for a
period not to exceed 90 days in any 24-month period if there exists at the time
material non-public information relating to the Company which, in the reasonable
opinion of the Company, should not be disclosed.
(i) The Company shall not grant to any third party any
registration rights more favorable than, or in any way conflicting with, any of
those contained herein, so long as any of the registration rights under this
Agreement remain in effect.
(j) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
(k) The Company recognizes that the rights of the Investors
under this Agreement are unique and, accordingly, the Investors shall, in
addition to such other remedies as may be available to them at law or in equity,
have the right to enforce their rights hereunder by actions for injunctive
relief and specific performance to the extent permitted by law. This Agreement
is not intended to limit or abridge any rights of the Investors which may exist
apart from this Agreement.
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Very truly yours,
DICK'S SPORTING GOODS, INC.
By:
----------------------------------------
Xxxxxx X. Xxxxx
President and Chief Executive Officer
AGREED TO AND ACCEPTED as of the
date first above written.
MANAGEMENT HOLDERS:
Pursuant to Consents solicited pursuant to the Information
Statement and Offer to Purchase Shares of the Company dated
April 20, 2000, which Consents are on file with the Company.
INVESTORS:
Pursuant to Consents solicited pursuant to the Information
Statement and Offer to Purchase Shares of the Company dated
April 20, 2000, which Consents are on file with the Company.
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