Exhibit 10.11
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT (the "Agreement"), dated as of __________, 2002,
between Dick's Sporting Goods, Inc., a Delaware corporation (the "Company"), and
Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxx Xxxxx, Xxx Xxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxx X. Xxxxx and Xxxxx Xxx Stack (each a "Holder" and
collectively, the "Holders");
WITNESSETH
WHEREAS, each Holder is currently a holder of common stock, par value
$.01 per share, of the Company (the "Common Stock");
WHEREAS, pursuant to the initial public offering of the Company's
common stock (the "IPO"), the Company has amended and restated its Certificate
of Incorporation, in the form attached hereto as EXHIBIT A (the "Restated
Certificate") to, among other things, create a new Class B common stock, par
value $.01 per share, (the "Class B Common Stock");
WHEREAS, the Class B Common Stock shall have those rights, preferences
and privileges as set forth in the Restated Certificate; and
WHEREAS, in connection with the IPO, the Company and the Holders desire
to exchange that number of outstanding shares of Common Stock set forth opposite
such Holders name on EXHIBIT B attached hereto (the "Old Shares") for an equal
number of shares of Class B Common Stock, again as set forth on EXHIBIT B
attached hereto (the "New Shares"), upon the terms and subject to the conditions
of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth and each act done pursuant hereto, the parties hereto,
intending to be legally bound, do hereby represent, warrant, covenant and agree
as follows:
1. EXCHANGE.
1.1 EXCHANGE OF COMMON STOCK. Each Holder hereby agrees to assign and
transfer to the Company at the Closing (as defined below), and the Company
hereby agrees to acquire and accept from each Holder all right, title and
interest in and to that number of Old Shares set forth opposite such Holder's
name on EXHIBIT B in consideration for the issuance and transfer by the Company
to such Holder of that number of New Shares set forth opposite such Holder's
name on EXHIBIT B (such number of shares to be adjusted for any stock split,
dividend or similar event).
1.2. CLOSING AND DELIVERIES. The exchange provided for in Section 1.1
hereof shall take place at the offices of the Company at 10:00 a.m. (Pittsburgh,
PA local time) on the date immediately prior to the consummation of the IPO (the
"Closing"). At the Closing or as soon thereafter as reasonably practicable, the
Company shall duly and validly deliver to each Holder a stock certificate
representing the New Shares acquired by such Holder.
2. REPRESENTATIONS AND WARRANTIES OF THE HOLDERS.
(a) Each Holder hereby represents and warrants, as to himself or
herself, but not as to any other Holder, that he/she owns all right, title and
interest to the Old Shares set opposite his/her name on EXHIBIT B free and clear
of any claim, suit, proceeding, call, commitment, trust, proxy, restriction,
limitation, security interest, pledge or lien or encumbrance of any kind or
nature whatsoever, and has full power and authority to transfer and assign the
same hereunder to the Company.
(b) Each Holder represents, as to himself or herself, but not as to any
other Holder, that the New Shares to be received by it hereunder will be
acquired for investment for its own account, not as a nominee or agent, and not
with a view to the sale or other transfer of any part thereof or interest
therein, and that it has no present intention of selling or otherwise
transferring the New Shares with the exception of shares of Common Stock being
sold by the Holders in connection with the IPO, but subject nevertheless to any
requirement of law that the disposition of its property shall at all times be
within its control.
(c) Each Holder understands that the New Shares to be received by it
hereunder are not registered under the Securities Act of 1933, as amended (the
"Securities Act"), on the ground that the exchange provided for in this
Agreement and the issuance of the New Shares are exempt from registration
pursuant to Section 3(a)(9) of the Securities Act.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company hereby represents and warrants that the New Shares
being issued to the Holders hereunder, when issued, transferred and delivered in
accordance with the terms hereof for the consideration expressed herein, will be
duly and validly issued, fully paid and nonassessable, free of restrictions of
transfer other than pursuant to the terms thereof, applicable state and federal
securities laws, those restrictions set forth in the Restated Certificate and
other contractual restrictions entered into by such Holders.
(b) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, has all requisite
corporate power and authority to own its properties and assets, to carry on its
business as now conducted and as proposed to be conducted and to execute,
deliver and perform this Agreement.
(c) All corporate action on the part of the Company and its officers,
directors and stockholders necessary for the authorization, execution, delivery
and performance of all obligations of the Company under this Agreement and for
the authorization, issuance and delivery of the New Shares being exchanged under
this Agreement has been taken or will be taken prior to the Closing. This
Agreement, when executed and delivered, shall constitute a valid and legally
binding obligation of the Company, enforceable in accordance with its terms.
5. LEGENDS. Each Holder acknowledges as follows:
(a) The New Shares must bear legends substantially similar to the
following legends:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AS PROVIDED IN THE CORPORATION'S
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION (THE
"CHARTER"), AS AMENDED FROM TIME TO TIME, A COPY OF WHICH IS
ON FILE WITH THE SECRETARY OF THE CORPORATION AND (I) MAY NOT
BE TRANSFERRED TO ANY PERSON OTHER THAN A CLASS B PERMITTED
HOLDER (AS DEFINED IN THE CHARTER) WITHOUT BEING AUTOMATICALLY
CONVERTED INTO COMMON STOCK OF THE CORPORATION OR (II)
TRANSFERRED AT A PRICE GREATER THAN THE THEN APPLICABLE MARKET
PRICE (AS DEFINED IN THE CHARTER) OF THE COMMON STOCK. PRIOR
TO ANY TRANSFER OF ANY SHARES OF CLASS B COMMON STOCK
REPRESENTED BY THIS CERTIFICATE FOR VALUE TO A CLASS B
PERMITTED HOLDER, BOTH THE HOLDER OF THIS CERTIFICATE AND THE
PURCHASER (WHO SHALL BE A CLASS B PERMITTED HOLDER) OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL CERTIFY IN
WRITING TO THE CORPORATION (IN FORM AND SUBSTANCE ACCEPTABLE
TO THE CORPORATION WHICH CERTIFICATION SHALL PROVIDE EVIDENCE
ACCEPTABLE TO THE CORPORATION OF THE PRICE AT WHICH THE SHARES
OF CLASS B COMMON STOCK REPRESENTED BY THIS CERTIFICATE WILL
BE TRANSFERRED AND THE THEN APPLICABLE MARKET PRICE OF THE
COMMON STOCK) THAT THE SHARES OF CLASS B COMMON STOCK
REPRESENTED BY THIS CERTIFICATE WILL NOT BE TRANSFERRED AT A
PRICE GREATER THAN THE THEN APPLICABLE MARKET PRICE OF THE
COMMON STOCK.
(b) The New Shares shall also bear any legend required by any
applicable state securities laws.
3. MISCELLANEOUS. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors, heirs,
executors and administrators. This Agreement shall be interpreted in accordance
with the laws of the State of Delaware, without regard to any jurisdiction's
conflict of law provisions. The parties hereto may execute this Agreement in any
number of counterparts, each of which when executed and delivered, shall be an
original, but all such counterparts shall constitute one and the same
instrument.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have duly executed this Exchange
Agreement as of the day and year first above written.
DICK'S SPORTING GOODS, INC.
By:________________________________
Name: Xxxxxxx Xxxxxxx
Title: President
HOLDERS:
--------------------------------
Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
--------------------------------
Xxxxx Xxxxx
--------------------------------
Xxx Xxxxx
--------------------------------
Xxxxx Xxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxx
--------------------------------
Xxxxx Xxx Stack
EXHIBIT A
EXHIBIT B
NAME OLD SHARES NEW SHARES
--------------------------------------- -------------- --------------
Xxxxxx X. Xxxxx 2,459,457 2,459,457
Xxxxxx X. Xxxxx 16,500 16,500
Xxxxxx X. Xxxxx and Xxxxxx X. Xxxxx 37,511 37,511
Xxxxxx X. Xxxxx 16,500 16,500
Xxxxx Xxxxx 11,209 11,209
Xxx Xxxxx 370,089 370,089
Xxxxx Xxxxxxxxx 426,347 426,347
Xxxxxxx X. Xxxxx 254,500 254,500
Xxxxx Xxx Stack 12,500 12,500
