EXHIBIT 2.2
SHAREHOLDER TENDER AGREEMENT
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This SHAREHOLDER TENDER AGREEMENT (this "Agreement"), dated as of June
21, 2004, is entered into by and among Dick's Sporting Goods, Inc., a Delaware
corporation (the "Parent"), Diamondbacks Acquisition Inc., an Indiana
corporation and a direct wholly-owned subsidiary of Parent (the "Purchaser"),
and certain shareholders of Xxxxxx'x Trading Company, Inc., an Indiana
corporation (the "Company"), each of which is identified on Schedule A attached
hereto (each a "Shareholder" and collectively, the "Shareholders").
WHEREAS, simultaneously with the execution of this Agreement, Parent,
Purchaser and the Company are entering into an Agreement and Plan of Merger,
dated as of the date hereof (as the same may be amended or supplemented, the
"Merger Agreement"), which provides, among other things, for the acquisition of
the Company by Parent by means of a cash tender offer (the "Offer") by Purchaser
for all outstanding shares of common stock, no par value per share, of the
Company (the "Company Common Stock") and for the subsequent merger of Purchaser
with and into the Company with the Company continuing as the surviving entity
(the "Merger");
WHEREAS, as of the date hereof, each Shareholder is the Beneficial
Owner (as defined below) of the outstanding shares of Company Common Stock set
forth opposite such Shareholder's name in Schedule A (such Shareholder's "Owned
Shares"); and
WHEREAS, as an inducement and a condition to its entering into the
Merger Agreement and incurring the obligations set forth therein, Parent has
required that each Shareholder enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained herein
and in the Merger Agreement, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Certain Definitions. (a) Capitalized terms used but not
defined in this Agreement shall have the meanings ascribed to such terms in the
Merger Agreement. In addition, for purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any Person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified. For
purposes of this Agreement, with respect to any Shareholder, "Affiliate" shall
not include the Company or the Persons that directly, or indirectly through one
or more intermediaries, are controlled by the Company.
"Beneficially Owned" or "Beneficial Ownership" with respect to any
securities means having both voting power and investment power (as determined
pursuant to Rule 13d-3(a) under the Exchange Act) over such securities,
including pursuant to any agreement, arrangement or understanding, whether or
not in writing. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all Affiliates of such Person and all other Persons with
whom such Person would constitute a "Group" within the meaning of Section 13(d)
of the Exchange Act and the rules promulgated thereunder; provided that, FS
Equity Partners IV, L.P. shall not be deemed to have Beneficial Ownership over
any shares held of record by Limited Brands, Inc. or G Trademark, Inc., and G
Trademark, Inc. and Limited Brands, Inc. shall not be deemed to have Beneficial
Ownership over any shares held of record by FS Equity Partners IV, L.P., in
either case as a result of the circumstances described in that certain Schedule
13D filed by FS Equity Partners IV, L.P., Limited Brands, Inc. and G Trademark,
Inc., as most recently amended on August 18, 2003.
"Beneficial Owner" with respect to any securities means a Person who
has Beneficial Ownership of such securities.
"Company Group" means the Company and its subsidiaries Xxxxxx'x Nevada,
Inc., a Nevada corporation, and Xxxxxx'x of Virginia, Inc., a Virginia
corporation.
"Offer Completion Date" means the date of purchase of shares of Company
Common Stock by the Purchaser in the Offer.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Proposed Business Combination" means the Offer, the Merger and the
related transactions contemplated by the Merger Agreement.
"Transfer" means, with respect to a security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or disposition of such security
or the Beneficial Ownership thereof (other than by operation of law), the offer
to make such a sale, transfer or other disposition, and each option, agreement,
arrangement or understanding, whether or not in writing, to effect any of the
foregoing. As a verb, "Transfer" shall have a correlative meaning.
2. Tender of Shares; Agreement to Sell.
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(a) In order to induce Parent and the Purchaser to enter
into the Merger Agreement, each Shareholder hereby agrees to validly
tender (or cause the record owner of such shares to validly tender),
pursuant to and in accordance with the terms of the Offer, not later
than the 20th business day after commencement of the Offer, such
Shareholder's Owned Shares. If a Shareholder acquires Beneficial
Ownership of additional shares of Company Common Stock after the date
hereof and prior to termination of this Agreement, such Shareholder
shall tender such additional shares of Company Common Stock on such
20th business day or, if later, on the second business day after such
acquisition. A Shareholder shall not withdraw any shares tendered
pursuant this Section 2(a) unless this Agreement is terminated or the
Offer is terminated or has expired without Purchaser purchasing all
shares validly tendered in the Offer and not withdrawn. Notwithstanding
anything herein to the contrary, Limited Brands, Inc. shall not be
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obligated to tender its warrant for 1,350,000 shares of Company Common
Stock, with an exercise price in excess of $44.82 per share (the
"Warrant"), or any shares of Company Common Stock issuable upon
exercise of the Warrant (unless Limited Brands, Inc. elects to exercise
such Warrant).
(b) Without the written consent of each Shareholder,
Purchaser shall not (i) decrease the Offer Price, (ii) decrease the
aggregate number of shares of Company Common Stock sought or (iii)
change the form of consideration to be paid pursuant to the Offer.
3. No Disposition or Solicitation.
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(a) Each Shareholder agrees that from and after the date
hereof, except as contemplated by this Agreement, such Shareholder will
not (as a Shareholder, trustee or custodian) Transfer or agree to
Transfer any of such Shareholder's Owned Shares or any options or
warrants or other rights held or owned by such Shareholder to acquire
Company Common Stock (other than any transfer of an option or warrant
to the Company in connection with the exercise of such option or
warrant by such Shareholder) without Parent's prior written consent
(which consent shall not be unreasonably withheld or delayed in the
context of a Transfer to any member of the immediate family of such
Shareholder or to any trust the Beneficial Ownership of which is held
by such Shareholder, provided in each case that such transferee agrees,
in a form satisfactory to Parent, to be bound by the terms of this
Agreement), or grant any proxy or power-of-attorney with respect to any
such Company Common Stock other than pursuant to this Agreement.
(b) Shareholder will not, in its capacity as a
shareholder of the Company, and will use its reasonable best efforts to
ensure that its investment bankers, attorneys, accountants, agents or
other advisors or representatives (the "Shareholder Representatives"),
directly or indirectly, will not take any action with respect to any
Takeover Proposal that the Company is prohibited from taking under
clause (i) or (ii) of Section 5.1.3 of the Merger Agreement; provided
that, in the event the Company takes action under Section 5.1.3 of the
Merger Agreement, each Shareholder will be entitled to participate in
all actions that the Company is or would be entitled to take under
Section 5.1.3 of the Merger Agreement so long as such actions are taken
in compliance with such Section 5.1.3. Notwithstanding the foregoing,
it is agreed and understood by the parties that the term "Shareholder
Representatives" shall not include the Company or any subsidiary of the
Company or any of their respective investment bankers, attorneys,
accountants, agents or other advisors or representatives.
(c) Shareholder will cease and cause to be terminated all
existing discussions or negotiations conducted by it or its behest with
respect to any Takeover Proposal (other than with Parent and
Purchaser).
4. Option.
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(a) On the terms and subject to the conditions set forth
herein, each Shareholder hereby grants to each of Parent and Purchaser
an irrevocable option (the "Option") to purchase all of the right,
title and interest of such Shareholder in and to such Shareholder's
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Owned Shares at a price per share equal to the Offer Price but not less
than $16.75 per share. The Parent or Purchaser, as the case may be, may
exercise an Option in whole, but not in part, if, but only if, (i)
Purchaser has acquired all shares of Company Common Stock validly
tendered pursuant to the Offer and (ii) such Shareholder shall have
failed to tender into the Offer any Owned Shares or shall have
withdrawn the tender of any Owned Shares into the Offer.
(b) In the event that Parent or Purchaser is entitled to
and wishes to exercise an Option, Parent or Purchaser shall send a
written notice to the relevant Shareholder or parties prior to the
termination of this Agreement specifying the place and the date for the
closing of such purchase, which date shall be not less than three
business days and not more than five business days after the date of
such notice; provided that in the event that prior notification to, or
approval of, any Governmental Entity is required in connection with the
exercise of an Option or there shall be in effect any preliminary or
final injunction or other order issued by any Governmental Entity
prohibiting the exercise of an Option, the period of time during which
the date of the closing may be fixed shall be extended until the tenth
day following the last date on which all required approvals shall have
been obtained, all required waiting periods shall have expired or been
terminated and any such prohibition shall have been vacated, terminated
or waived.
(c) At the closing of the purchase of a Shareholder's
Owned Shares pursuant to exercise of an Option, simultaneously with the
payment by Parent or Purchaser of the purchase price for a
Shareholder's Owned Shares, such Shareholder shall deliver, or cause to
be delivered, to Parent or Purchaser certificates representing such
Owned Shares duly endorsed to Parent or Purchaser or accompanied by
stock powers duly executed by the Company in blank, together with any
necessary stock transfer stamps properly affixed, free and clear of all
Liens.
5. Agreement to Vote. Each Shareholder agrees that (a) at such
time as the Company conducts a meeting (including any adjournment thereof) of or
otherwise seeks a vote or consent of its shareholders for the purpose of
approving the Merger Agreement and the transactions contemplated by the Merger
Agreement, including the Merger, such Shareholder will vote, or provide a
consent with respect to, all Company Common Stock (including the Owned Shares)
which, as of the relevant record date, such Shareholder has the power to vote,
in favor of approving the Merger Agreement and the transactions contemplated by
such Agreement, including the Merger, and (b) such Shareholder will (at any
meeting of shareholders or in connection with any consent solicitation) vote all
shares of Company Common Stock (including the Owned Shares) which, as of the
relevant record date, such Shareholder has the power to vote, against, and will
not consent to, any Takeover Proposal with a Person other than Parent and
Purchaser or any action that would or is designed to delay, prevent or frustrate
the Proposed Business Combination. Without limiting the foregoing, it is
understood that the obligations under clause (a) in this Section 5 shall remain
applicable in respect of each meeting of shareholders of the Company duly called
for the purpose of approving the Merger Agreement and the transactions
contemplated thereby, including the Merger, regardless of the position of the
Company's board of directors as to the Proposed Business Combination at the time
of such meeting.
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6. Information. Each Shareholder will provide any information
requested by the Company or Parent for any regulatory application or filing made
or approval sought for such transactions (including filings with the SEC).
7. Additional Stock. Each Shareholder agrees that any additional
shares of Company Common Stock or securities convertible into Company Common
Stock acquired by such Shareholder or over which it acquires Beneficial
Ownership or voting power or dispositive power, whether pursuant to existing
stock option agreements, warrants or otherwise, shall be subject to the
provisions of this Agreement.
8. Irrevocable Proxy.
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(a) In furtherance of the agreements contained in this
Agreement, each Shareholder hereby irrevocably grants to, and appoints,
Xxxxxx X. Xxxxx, Chairman and Chief Executive Officer of Parent,
Xxxxxxx X. Xxxxxxx, President of Parent, Xxxxxxx X. Xxxxx, Chief
Financial Officer of Parent, and Xxxxxxx X. Xxxxxx, Chief
Administrative Officer of Parent, in their respective capacities as
officers of Parent, and any individual who shall hereafter succeed to
any such office of Parent, and each of them individually, such
Shareholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such
Shareholder, to vote all shares of such Shareholder's Owned Shares or
Company Common Stock over which such Shareholder has voting power, or
grant a consent or approval in respect of such shares, or execute and
deliver a proxy to vote such shares, (i) in favor of adopting the
Merger Agreement and approving the transactions contemplated thereby,
including the Merger, and (ii) against any Takeover Proposal with a
Person other than Parent and Purchaser or any other matter referred to
in clause (b) of Section 5 hereof. For the avoidance of doubt, the
proxy granted by each Shareholder pursuant to this Section 8(a) is not
granted with respect to any matter other than those matters set forth
in items (i) and (ii) of this Section 8(a).
(b) Each Shareholder represents and warrants to Parent
and Purchaser that any proxies heretofore given by it in respect of
shares of Company Common Stock are not irrevocable, and that any such
proxies are hereby revoked, and agrees to communicate in writing notice
of revocation of such proxies to the relevant proxy holders.
(c) Each Shareholder hereby affirms that the irrevocable
proxy set forth in Section 8(a) is given in connection with, and in
consideration of, the execution of the Merger Agreement by Parent and
Purchaser, and that such irrevocable proxy is given to secure the
performance of the duties of such Shareholder under this Agreement.
Each Shareholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked.
Such Shareholder hereby ratifies and confirms all that such irrevocable
proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 3 of Chapter 30 of the
Indiana Business Corporation Law.
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(d) Nothing contained in this Agreement shall give Parent
or Purchaser the right to control or direct the Company or the
Company's operations.
9. Representations, Warranties and Covenants of the Shareholders.
Each Shareholder hereby individually (and not jointly or severally) represents
and warrants to, and agrees with, Parent and Purchaser as follows:
(a) Such Shareholder has all necessary power and
authority and legal capacity to execute and deliver this Agreement and
perform its obligations hereunder. In the case of each Shareholder who
is not a natural person, no other proceedings or actions on the part of
such Shareholder are necessary to authorize the execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby.
(b) This Agreement has been duly and validly executed and
delivered by such Shareholder and constitutes a valid, legal and
binding agreement of such Shareholder, enforceable against such
Shareholder in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws of general
applicability relating to or affecting creditors' rights or by general
equity principles.
(c) Each Shareholder is the sole Beneficial Owner of such
Shareholder's Owned Shares, other than those Owned Shares Beneficially
Owned by a family trust or child of such Shareholder. Each Shareholder
has the sole right to vote, or cause to be voted, and to dispose, or
cause the disposition, of such Shareholder's Owned Shares and there
exist no limitations on its ability to exercise such right. Each
Shareholder has good and marketable title (which may include holding in
nominee or "street" name) to all of such Shareholder's Owned Shares
(other than those Owned Shares Beneficially Owned by a family trust or
child of such Shareholder), free and clear of all Liens (other than as
created by this Agreement and the restrictions on Transfer under
applicable securities laws). The Owned Shares constitute all of the
capital stock of the Company Beneficially Owned by such Shareholder.
(d) Subject to requisite shareholder approval and except
for the consents referred to in Section 4.1.8 of the Merger Agreement,
neither the execution nor delivery of this Agreement by such
Shareholder nor the Shareholder's consummation of the transactions
contemplated hereby will conflict with, result in any violation of, or
constitute a default under, (i) any material mortgage, bond, indenture,
agreement, instrument or obligation to which such Shareholder is a
party or by which such Shareholder or any of the Owned Shares is bound
(or, in the case of each Shareholder that is not a natural person, such
Shareholder's constituent documents), or (ii) any judgment, decree,
order or material law or regulation of any governmental agency or
authority in the United States by which such Shareholder or any of its
subsidiaries is bound, except, with respect to clauses (i) and (ii)
above, where the conflict or default, individually or in the aggregate,
will not have a material adverse effect on such Shareholder.
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(e) Each Shareholder understands and acknowledges that
each of Parent and Purchaser is entering into the Merger Agreement in
reliance upon such Shareholder's execution, delivery and performance of
this Agreement.
10. Representations and Warranties of Parent. Parent represents
and warrants to each Shareholder as follows:
(a) Organization, Good Standing, Capitalization. Parent
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware with all requisite corporate
power and authority to own, operate and lease its properties, to carry
on its business as now being conducted, and to enter into this
Agreement and perform its obligations hereunder.
(b) Purchaser. Parent owns all of the issued and
outstanding shares of Purchaser. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Indiana with all requisite corporate power to enter into this
Agreement and perform its obligations hereunder. All of the issued and
outstanding shares of Purchaser have been validly issued and are fully
paid and non-assessable with no personal liability attaching to the
ownership thereof. There are no outstanding rights, options, warrants,
conversion rights or agreements for the purchase or acquisition from,
or the sale or issuance by, Purchaser of any shares of its capital
stock, other than this Agreement. Since its organization, Purchaser has
conducted no business activities, except such as are related to this
Agreement and the performance of its obligations hereunder.
(c) Authority Relative to this Agreement, etc. Each of
Parent and Purchaser has taken all necessary corporate action to
approve this Agreement and the performance of its obligations
hereunder. This Agreement has been duly and validly executed and
delivered by each of Parent and Purchaser and constitutes a valid,
legal and binding agreement of each of Parent and Purchaser,
respectively, enforceable against each of Parent and Purchaser in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws of general applicability relating
to or affecting creditors' rights or by general equity principles.
(d) Compliance with other Instruments, etc. Subject to
the consents referred to in Section 4.2.5 of the Merger Agreement,
neither the execution nor delivery of this Agreement by Parent or
Purchaser nor Parent's or Purchaser's consummation of the transactions
contemplated hereby will conflict with, result in any violation of, or
constitute a default under, the Articles or Certificate of
Incorporation or Bylaws of Parent or Purchaser or any agreement,
mortgage, indenture, license, permit, lease or other instrument
material to Parent and its subsidiaries taken as a whole or any
judgment, decree, order, or any material law or regulation of any
governmental agency or authority in the United States by which Parent
or any of its subsidiaries is bound.
(e) Governmental and other Consents, etc. Subject to any
required filing with the U.S. Department of Justice or the Federal
Trade Commission, no material consent, approval or authorization of or
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designation, declaration or filing with any Governmental Entity on the
part of Parent or Purchaser is required in connection with the
execution or delivery by Parent and Purchaser of this Agreement or the
consummation of the transactions by Parent and Purchaser contemplated
hereby other than filings with the SEC and any applicable national
securities exchange or quotation system.
(f) No Broker. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement based
upon arrangements made by or on behalf of Parent or Purchaser other
than Xxxxx X. Xxxxxxx Company, L.P.
(g) Litigation. There is not now pending, and to the
knowledge of Parent and Purchaser there is not threatened, any
litigation, action, suit or proceeding to which Parent or Purchaser or
any of their respective subsidiaries is or will be a party in or before
or by any Governmental Entity, except for any litigation, action, suit
or proceeding (whether instituted, pending or threatened) involving
claims which, individually or in the aggregate, will not have a
Material Adverse Effect on Parent and Purchaser or the Merger. In
addition, there is no judgment, decree, injunction, rule or order of
any Governmental Entity or arbitrator outstanding against Parent or
Purchaser or any of their respective subsidiaries having or which,
individually or in the aggregate, will not have a Material Adverse
Effect on Parent and Purchaser or the Merger.
(h) Offer Documents; Proxy Statement.
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(1) None of the Offer Documents will, at the
times such documents are filed with the SEC and are mailed to the
shareholders of the Company, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the
circumstances under which they are made, not misleading, except that no
representation is made by Parent or Purchaser with respect to
information supplied in writing by the Company or an affiliate of the
Company expressly for inclusion therein. The Offer Documents will
comply as to form in all material respects with the provisions of the
Exchange Act and the rules and regulations of the SEC thereunder.
(2) None of the information supplied by Parent,
Purchaser or any affiliate of Parent or Purchaser for inclusion in the
Proxy Statement or the Schedule 14D-9 will, at the date of filing with
the SEC, and, in the case of the Proxy Statement, at the time the Proxy
Statement is mailed and at the time of the Special Shareholders
Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
11. Termination. This Agreement, and all rights and obligations of
the parties hereunder (other than those set forth in Section 12(a)), shall
terminate upon the earlier of: (i) the Effective Time of the Merger, (ii) the
acceptance for payment of the Owned Shares by Parent or Purchaser in the Offer,
(iii) the failure of Purchaser timely to commence the Offer, (iv) the failure of
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Purchaser timely to purchase all Owned Shares of the Shareholders in the Offer
or (v) the date upon which the Merger Agreement is terminated pursuant to
Section 7 thereof without the Merger having been consummated.
12. Miscellaneous.
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(a) Costs and Expenses. Except as otherwise provided in
this Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expenses.
(b) Execution in Counterparts. For the convenience of the
parties, this Agreement and any amendments, supplements, waivers and
modifications 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 document.
(c) Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties
and their respective successors, personal or legal representatives,
executors, administrators, heirs, distributees, devisees, legatees and
permitted assigns, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any party
(whether by operation of law or otherwise), in whole or in part,
without the prior written consent of the other parties; provided, that
Parent or Purchaser may assign any or all rights under this Agreement
to any subsidiary of Parent, and Purchaser may assign any or all rights
under this Agreement to Parent.
(d) Amendments and Waivers. This Agreement may not be
amended, changed, supplemented, or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed
by the parties hereto; provided, that each of Parent and Purchaser may
waive compliance by any other party with any representation, agreement
or condition otherwise required to be complied with by any other party
under this Agreement or release any other party from its obligations
under this Agreement, but any such waiver or release shall be effective
only if in a writing executed by Parent and Purchaser.
(e) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given (i) upon
transmitter's confirmation of a receipt of a facsimile transmission,
(ii) confirmed delivery by a nationally reputable standard overnight
carrier or (iii) when delivered by hand, addressed at the address for
such party set forth below.
If to a Shareholder, to such Shareholder at the address set
forth beside its name on Schedule A hereto with a copy to:
Xxxxxx'x Trading Company, Inc.
Xxx Xxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attention: C. Xxxxx Xxxx, Executive Vice President, General
Counsel and Secretary
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and to:
Drake S. Tempest, Esq.
O'Melveny & Xxxxx LLP
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
If to Parent or Purchaser, to:
Dick's Sporting Goods, Inc.
000 Xxxxxxxx Xxxxx
XXXX Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Executive Vice President and
Chief Administrative Officer
With a copy to:
Xxxxx X. Xxxxx, Xx., Esq.
Xxxxxxxx X. Xxxxxx, Esq.
Xxxxxxxx Xxxxxxxxx PC
One Oxford Centre
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
or to such other address or facsimile number as the Person to
whom notice is given shall have previously furnished to the
others in writing in the manner set forth above.
(f) Inadequate Remedy at Law; Specific Performance. Each
Shareholder acknowledges and agrees that in the event of any breach of
this Agreement, Parent would be irreparably and immediately harmed and
could not be made whole by monetary damages. It is accordingly agreed
with respect to any provision of this Agreement that (i) each
Shareholder will waive, in any action for specific performance, the
defense of adequacy of a remedy at law, and (ii) Parent shall be
entitled, in addition to any other remedy to which it may be entitled
at law or in equity, to compel specific performance of this Agreement.
(g) Cumulative Rights, Powers and Remedies. All rights,
powers and remedies provided under this Agreement or otherwise
available in respect hereof at law or in equity shall be cumulative and
not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right,
power or remedy by such party. The failure of any party hereto to
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exercise any right, power or remedy provided under this Agreement or
otherwise available in respect hereof at law or in equity, or to insist
upon compliance by any other party hereto with its obligations
hereunder, and any custom or practice of the parties at variance with
the terms hereof, shall not constitute a waiver by such party of its
right to exercise any such or other right, power or remedy or to demand
such compliance.
(h) Entire Agreement; No Third Party Beneficiaries. This
Agreement, along with the specific references to the Merger Agreement,
constitutes the complete, final and exclusive agreement among the
parties and supersedes any and all prior agreements and understandings,
written or oral, among the parties heretofore made with respect to the
subject matter hereof. Nothing in this Agreement, express or implied,
is intended to or shall confer upon any other Person any rights,
benefits or remedies of any nature whatsoever under or by reason of
this Agreement.
(i) Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of
Indiana without regard to any principles of conflict of laws. Each of
the parties hereto consents to submit itself to the personal
jurisdiction of any federal court located in the Northern District of
Indiana or any Indiana state court located in a county within the area
comprising the Federal District Court for the Northern District of
Indiana in the event any dispute arises out of this Agreement or the
transactions contemplated by the Merger Agreement, (ii) agrees that it
shall not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court and (iii) agrees
that it shall not bring any action relating to this Agreement or the
transactions contemplated by the Merger Agreement in any court other
than a federal or state court sitting in the Federal District Court for
the Northern District of Indiana or a county within the area comprising
the Federal District Court for the Northern District of Indiana.
(j) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND
AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS
LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH
SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS
OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND
(iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
12(j).
11
(k) Severability. If any term, provision, covenant or
restriction contained in this Agreement is held by a court or a federal
or state regulatory agency of competent jurisdiction to be invalid,
void or unenforceable under any rule of law in any particular respect
or under any particular circumstances, the remainder of the terms,
provisions and covenants and restrictions contained in this Agreement
shall remain in full force and effect, and shall in no way be affected,
impaired or invalidated. If any provision of this Agreement is so broad
as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
(l) Interpretation. The section and paragraph captions
herein are for convenience of reference only, do not constitute part of
this Agreement and shall not be deemed to limit or otherwise affect any
of the provisions hereof. The words "include," "includes," and
"including" shall be deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like
import.
(l) Publicity. The initial press release concerning the
Offer and the Merger shall be a joint press release from the Company
and Parent and, thereafter, except as otherwise required by law or the
rules of the SEC, the NYSE or NASDAQ, for so long as this Agreement is
in effect, no party shall, or shall permit any of their respective
subsidiaries to, issue or cause the publication of any press release or
other public announcement with respect to the transactions contemplated
by this Agreement without the consent of the other parties, which
consent shall not be unreasonably withheld; provided, however, that any
party hereto may file a copy of this Agreement and the related
agreements with the SEC and the Purchaser and the Parent may summarize
the terms of this Agreement in the Purchaser's tender offer materials
and in any oral solicitations made in accordance with Regulation 14D
promulgated by the SEC and in any other filings made by Parent with the
SEC.
13. Shareholder Capacity. No Shareholder executing this Agreement
nor any partner, member, employee or Affiliate of a Shareholder who is or
becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such a director or
officer, and this Agreement does not bind any partner, member, employee or
Affiliate of a Shareholder in such person's capacity as a director of officer.
Each Shareholder executing this Agreement does so solely in such Shareholder's
capacity as the owner of record and/or Beneficial Owner of the Owned Shares or
as having the power to vote or dispose of the Owned Shares and nothing herein
(including in Section 4) shall limit or affect any actions taken or omitted to
be taken by a Shareholder, or any partner, member, employee or Affiliate of a
Shareholder, in his or her capacity as an officer or director of the Company
(including, for the avoidance of doubt, any action in the discharge of fiduciary
duties in compliance with Section 5.1.3 of the Merger Agreement); provided, that
nothing in this Section 13 shall be deemed to permit any Shareholder to take any
action on behalf of the Company that is prohibited by the Merger Agreement.
14. Further Assurances. From time to time, at Parent's or
Purchaser's request and without further consideration, each Shareholder shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
12
most expeditious manner practicable, the transactions contemplated by this
Agreement.
[Remainder of page intentionally left blank]
13
[Shareholder Signature Page to Shareholder Tender Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
FS EQUITY PARTNERS IV, L.P.
By: FS Capital Partners LLC
Its: General Partner
By: /s/ XXXX XXXX
-----------------------------------
Name: Xxxx Xxxx
Title: Vice President
S-1
[Shareholder Signature Page to Shareholder Tender Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
LIMITED BRANDS, INC.
By: /s/ XXXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President/Treasurer
G TRADEMARK, INC.
By: /s/ XXXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Representative
S-2
[Parent's and Purchaser's Signature Page to Shareholder Tender Agreement]
DICK'S SPORTING GOODS, INC.
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Administrative Officer
DIAMONDBACKS ACQUISITION INC.
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
S-3
SCHEDULE A
----------
SHAREHOLDERS
------------
NUMBER
NAME ADDRESS OF SHARES
----------------------------- ----------------------------- ------------
FS Equity Partners IV, L.P. 00000 Xxxxx Xxxxxx Xxxx 5,694,500
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Limited Brands, Inc. Three Limited Parkway 550,500
Xxxxxxxx, XX 00000
G Trademark, Inc. c/o Limited Brands, Inc. 3,350,000
Three Limited Parkway
Xxxxxxxx, XX 00000
----------------------------- ----------------------------- ------------
A-1
