As filed with the Securities and Exchange Commission on October 21, 2002
Registration No. 333-________
DICK'S SPORTING GOODS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 16-1241537
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
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200 INDUSTRY DRIVE, RIDC PARK WEST
PITTSBURGH, PENNSYLVANIA 15275
(Address of Principal Executive Offices)
1992 STOCK OPTION PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
COPIES OF ALL COMMUNICATIONS TO:
EDWARD W. STACK LEWIS U. DAVIS, JR., ESQUIRE
CHAIRMAN AND CHIEF EXECUTIVE OFFICER BUCHANAN INGERSOLL PROFESSIONAL CORPORATION
DICK'S SPORTING GOODS, INC. ONE OXFORD CENTRE
200 INDUSTRY DRIVE 301 GRANT STREET, 20TH FLOOR
RIDC PARK WEST PITTSBURGH, PENNSYLVANIA 15219-1410
PITTSBURGH, PENNSYLVANIA 15275 (412) 562-8800
(412) 809-0100
(Name and address, including zip code, and
telephone number of agent for service)
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(1) If, as a result of stock splits, stock dividends or similar transactions, the number of securities purported to be registered by this Registration Statement changes, the provisions of Rule 416 under the Securities Act shall apply to this Registration Statement, and this Registration Statement shall be deemed to cover the additional securities resulting from the split of, or the dividend on, the securities covered by this Registration Statement.
(2) In accordance with Rule 457(h), such price is the price at which the options with respect to such shares may be exercised.
(3) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h). In accordance with Rule 457(h), such price is the based upon the initial public offering price of $12.00 per share as set forth in the registrant's final prospectus dated October 15, 2002 as filed with the Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed with the Commission by Dick's Sporting Goods, Inc., a Delaware corporation (the "Company"), and are incorporated herein by reference and made a part hereof:
(a) The Company's prospectus covering the offer and sale of shares of the Company's common stock, par value $.01 per share (the "Common Stock"), filed with the Securities and Exchange Commission (the "Commission") on October 15, 2002 pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act"), which contains audited financial statements for the Company's latest fiscal year for which such statements have been filed; and
(b) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A12B (Registration No. 001-31463 filed on September 27, 2002), as amended by Amendment No. 1 on Form 8-A12B/A to the Company's Registration Statement on Form 8-A12B (filed on September 27, 2002), including any amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities offered pursuant to this Registration Statement have been sold or that deregisters all securities then remaining unsold, shall also be deemed to be incorporated by reference herein and to be a part hereof from the dates of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware law permits a corporation to adopt a provision in its certificate of incorporation, and the Company has adopted a provision in its amended and restated certificate of incorporation, eliminating the personal liability of a director, but not an officer in his or her capacity as such, to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that such provision shall not limit the liability of a director for (1) any breach of the director's duty of loyalty to the corporation or its stockholders, (2) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (3) liability under section 174 of the Delaware General
Corporation Law for unlawful payment of dividends or stock purchases or redemptions, or (4) any transaction from which the director derived an improper personal benefit.
Under Delaware law, a corporation may indemnify any individual made a
party or threatened to be made a party to any type of proceeding, other than an
action by or in the right of the corporation, because he or she is or was an
officer, director, employee or agent of the corporation or was serving at the
request of the corporation as an officer, director, employee or agent of another
corporation or entity against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such proceeding:
(1) if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation; or
(2) in the case of a criminal proceeding, he or she had no reasonable cause to
believe that his or her conduct was unlawful. A corporation may indemnify any
individual made a party or threatened to be made a party to any threatened,
pending or completed action or suit brought by or in the right of the
corporation because he or she was an officer, director, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other entity,
against expenses actually and reasonably incurred in connection with such action
or suit if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation,
provided that such indemnification will be denied if the individual is found
liable to the corporation unless, in such a case, the court determines the
person is nonetheless entitled to indemnification for such expenses. A
corporation must indemnify a present or former director or officer who
successfully defends himself or herself in a proceeding to which he or she was a
party because he or she was a director or officer of the corporation against
expenses actually and reasonably incurred by him or her. Expenses incurred by an
officer or director, or any employees or agents as deemed appropriate by the
board of directors, in defending civil or criminal proceedings may be paid by
the corporation in advance of the final disposition of such proceedings upon
receipt of an undertaking by or on behalf of such director, officer, employee or
agent to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the corporation. The Delaware law regarding
indemnification and expense advancement is not exclusive of any other rights
which may be granted by the Company's amended and restated certificate of
incorporation or bylaws, a vote of stockholders or disinterested directors,
agreement or otherwise.
Under the Delaware General Corporation Law, termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that such person is prohibited form being indemnified.
The Company's amended and restated certificate of incorporation provides for the indemnification and advancement of expenses to the fullest extent permitted by law of any individual made, or threatened to be made, a party to an action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the Company or is or was a director or officer of the Company serving as an officer, director, employee or agent of any other enterprise at the request of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of this Registration Statement.
Exhibit No. Description Method of Filing
----------- ------------ ----------------
3.1 Amended and Restated Certificate of Incorporation Filed herewith
3.2 Amended and Restated Bylaws Incorporated by reference to
Exhibit 3.4 to the Registrant's
Registration Statement on Form
S-1, File
No. 333-96587
4.1 Registrant's 1992 Stock Option Plan Incorporated by reference to
Exhibit 10.4 to the Registrant's
Registration Statement on Form
S-1, File No. 333-96587
4.2 Registrant's Employee Stock Purchase Plan Filed herewith
5.1 Opinion of Buchanan Ingersoll Professional Corporation Filed herewith
regarding legality of the securities being registered
23.1 Independent Auditors' Consent Filed herewith
23.2 Consent of Buchanan Ingersoll Professional Corporation (included in its opinion filed
as Exhibit 5.1 hereto)
24.1 Power of Attorney Included on signature page
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ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant with or furnished to the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) That, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Pittsburgh, Commonwealth of Pennsylvania, on this 21st day of October, 2002.
DICK'S SPORTING GOODS, INC.
By: /s/ Edward W. Stack ---------------------------------- Edward W. Stack Chairman of the Board and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Edward W. Stack and Michael F. Hines, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ Edward W. Stack Chairman of the Board, October 11, 2002
-------------------------------------------- Chief Executive Officer and
Edward W. Stack Director
/s/ William J. Colombo President and Director October 11, 2002
--------------------------------------------
William J. Colombo
/s/ Michael F. Hines Chief Administrative Officer and Chief October 11, 2002
-------------------------------------------- Financial Officer (principal financial
Michael F. Hines and accounting officer)
/s/ David Fuente Director October 11, 2002
--------------------------------------------
David Fuente
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/s/ Walter Rossi Director October 11, 2002
--------------------------------------------
Walter Rossi
/s/ Lawrence J. Schorr Director October 11, 2002
--------------------------------------------
Lawrence J. Schorr
/s/ Steve E. Lebow Director October 11, 2002
--------------------------------------------
Steve E. Lebow
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EXHIBIT INDEX
Exhibit No. Description Method of Filing
----------- ----------- ----------------
3.1 Amended and Restated Certificate of Incorporation Filed herewith
3.2 Amended and Restated Bylaws Incorporated by reference to
Exhibit 3.4 to the Registrant's
Registration Statement on Form
S-1, File
No. 333-96587
4.1 Registrant's 1992 Stock Option Plan Incorporated by reference to
Exhibit 10.4 to the
Registrant's Registrations
Statement on Form S-1, File
No. 333-96587
4.2 Registrant's Employee Stock Purchase Plan Filed herewith
5.1 Opinion of Buchanan Ingersoll Professional Corporation Filed herewith
regarding legality of the securities being registered
23.1 Independent Auditors' Consent Filed herewith
23.2 Consent of Buchanan Ingersoll Professional Corporation (included in its opinion filed
as Exhibit 5.1 hereto)
24.1 Power of Attorney Included on signature page
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Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
of
DICK'S SPORTING GOODS, INC.
DICK'S SPORTING GOODS, INC., a corporation organized and existing under the laws of the State of Delaware (hereinafter called the "Corporation"), hereby certifies pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware (the "General Corporation Law") as follows:
FIRST: The Corporation's name is Dick's Sporting Goods, Inc. and it was originally incorporated under the name "Dick's Clothing & Sporting Goods, Inc."
SECOND: The Certificate of Incorporation of the Corporation was filed with the Secretary of State on November 25th, 1996 and was amended on April 26th, 1999, amended further on June 2, 1999 and amended further on January 30, 2002.
THIRD: This Amended and Restated Certificate of Incorporation amends and restates the Certificate of Incorporation of the Corporation, as previously amended and now in effect and shall become effective at 9:00 am (Wilmington, Delaware time) on October 18, 2002. This Amended and Restated Certificate of Incorporation was adopted by the Board of Directors and Stockholders of the Corporation entitled to vote in respect thereof in the manner and by the vote prescribed by Sections 228 and 242 of the General Corporation Law to read as follows:
1. Name. The name of the corporation is Dick's Sporting Goods, Inc. (the "Corporation").
2. Address; Registered Office and Agent. The address of the Corporation's registered office is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware; 19808 and its registered agent at such address is Corporation Service Company.
3. Purposes. The purpose of the Corporation is to engage in, carry on and conduct any lawful act or activity for which corporations may be organized under the General Corporation Law.
4. Capital Stock.
4.1. Authorized Capital Stock. The total number of shares of stock that the Corporation shall have the authority to issue is one hundred twenty five million (125,000,000) shares, consisting of (a) five million (5,000,000) shares of Preferred Stock, par value $.01 per share (the "Preferred Stock"), issuable in one or more series as hereinafter provided (b) one hundred million (100,000,000) shares of Common Stock, par value $.01 per share (the " Common Stock") and (b) twenty million (20,000,000) shares of Class B Common Stock, par value $.01 per share (the "Class B Common Stock"). The number of authorized shares of any
class or classes of capital stock of the Corporation may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of the stock of the Corporation entitled to vote generally in the election of directors irrespective of the provisions of Section 242(b)(2) of the General Corporation Law or any corresponding provision hereinafter enacted.
4.2. Terms of Common Stock. All shares of Common Stock will be identical in all respects and will entitle the holders thereof to the same rights, privileges and preferences, except as otherwise provided herein.
(a) Voting Rights. The holders of shares of Common Stock shall have the following voting rights:
(i) Each share of Common Stock shall entitle the holder thereof to one vote in person or by proxy on all matters submitted to a vote of the stockholders of the Corporation.
(ii) Except as required by applicable law, the holders of shares of Common Stock shall vote together with the holders of Class B Common Stock as one class on all matters submitted to a vote of stockholders of the Corporation (or, if any holders of shares of Preferred Stock are entitled to vote together with the holders of Common Stock and Class B Common Stock, as a single class with such holders of shares of Preferred Stock).
(b) Dividends and Distributions.
Subject to the preferences applicable to Preferred Stock outstanding and subject to 4.3(b) if any shares of Class B Common Stock are outstanding, the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions in cash, property or shares of stock of the Corporation as may be declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefore.
4.3. Terms of Class B Common Stock. All shares of Class B Common Stock will be identical in all respects and will entitle the holders thereof to the same rights, privileges and preferences, except as otherwise provided herein.
(a) Voting Rights. The holders of shares of Class B Common Stock shall have the following voting rights:
(i) Each share of Class B Common Stock shall entitle the holder thereof to ten votes in person or by proxy on all matters submitted to a vote of the stockholders of the Corporation.
(ii) Except as required by applicable law, the holders of shares of Class B Common Stock and Common Stock shall vote together as one class on all matters submitted to a vote of stockholders of the Corporation (or, if any holders of shares of Preferred Stock are entitled to vote together with the holders of Common Stock and Class B Common Stock, as a single class with such holders of shares of Preferred Stock).
(b) Dividends and Distributions.
Subject to the preferences applicable to Preferred Stock outstanding at any time and to the provisions of this Section 4.3(b), the holders of shares of Class B Common Stock shall be entitled to receive such dividends and other distributions in cash, property or shares of stock of the Corporation as may be declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefore. The Corporation shall not (1) pay dividends or make distributions to any holders of Common Stock unless simultaneously with such dividend or distribution, as the case may be, the Corporation makes the same dividend or distribution with respect to each outstanding share of Class B Common Stock or (2) pay dividends or make distributions to any holders of Class B Common Stock unless simultaneously with such dividend or distribution, as the case may be, the Corporation makes the same dividend or distribution with respect to each outstanding share of Common Stock; provided, however, in the case of dividends or other distributions payable in Common Stock or Class B Common Stock, including distributions pursuant to stock splits or divisions of Common Stock or Class B Common Stock, only shares of Common Stock shall be distributed with respect to Common Stock and only shares of Class B Common Stock shall be distributed with respect to Class B Common Stock and the number of shares of Common Stock payable per share of outstanding Common Stock shall equal the number of shares of Class B Common Stock payable per share of outstanding Class B Common Stock. In the case of dividends or other distributions consisting of other voting securities of the Corporation or of voting securities of any corporation which is a wholly-owned subsidiary of the Corporation, the Corporation shall declare and pay such dividends in two separate classes of such voting securities, identical in all respects, except that (i) the voting rights of each such security paid to the holders of Common Stock shall be one-tenth of the voting rights of each such security paid to the holders of Class B Common Stock, and (ii) such security paid to the holders of Class B Common Stock shall convert into the security paid to the holders of Common Stock upon the same terms and conditions applicable to the conversion of Class B Common Stock into Common Stock and shall have the same restrictions on ownership applicable to the Class B Common Stock. In the case of dividends or other distributions consisting of securities convertible into, or exchangeable for, voting securities of the Corporation or voting securities of another corporation which is a wholly-owned subsidiary of the Corporation, the Corporation shall provide that such convertible or exchangeable securities and the underlying securities be identical in all respects (including, without limitation, the conversion or exchange rate), except that (i) the voting rights of each security underlying the convertible or exchangeable security paid to the holders of Common Stock shall be one-tenth of the voting rights of each security underlying the convertible or exchangeable security paid to the holders of the Class B Common Stock and (ii) such underlying securities paid to the holders of Class B Common Stock shall convert into the underlying securities paid to the holders of Common Stock upon the same terms and conditions applicable to the conversion of Class B Common Stock into Common Stock and shall have the same restrictions on ownership applicable to the Class B Common Stock.
(c) Conversion of Class B Common Stock.
(i) Each holder of Class B Common Stock shall be entitled to convert, at any time and from time to time, any or all of the shares of such holder's Class B Common Stock as the case may be, on a one-for-one basis, into the same number of fully paid
and non-assessable shares of Common Stock. Such right shall be exercised by the surrender of the certificate or certificates representing the shares of Class B Common Stock to be converted to the Corporation at any time during normal business hours at the principal executive offices of the Corporation or at the offices of the Transfer Agent, accompanied by a written notice of the holder of such shares stating that such holder desires to convert such shares, or a stated number of the shares represented by such certificate or certificates, into an equal number of shares of the Common Stock, and (if so required by the Corporation or the Transfer Agent) by instruments of transfer, in form satisfactory to the Corporation and to the Transfer Agent, duly executed by such holder or such holder's duly authorized attorney, and transfer tax stamps or funds therefore, if required pursuant to section 4.3(c)(vi).
(ii) (A) If, on the record date for any meeting of stockholders of the Corporation, the number of shares of Class B Common Stock outstanding is less than 1,000,000 (adjusted for any subsequent stock splits, stock dividends, reclassifications, recapitalizations and reverse stock splits and similar transactions), each share of Class B Common Stock then issued or outstanding shall thereupon be converted automatically as of such date into one (1) fully paid and non-assessable share of Common Stock. Upon the making of such determination, notice of such automatic conversion shall be given by the Corporation by means of a press release and written notice to all holders of Class B Common Stock, and shall be given as soon as practicable, and the Secretary of the Corporation shall be instructed to, and shall promptly request from each holder of Class B Common Stock that each such holder promptly deliver the certificate representing each such share of Class B Common Stock to the Corporation for exchange hereunder, together with instruments of transfer, in form satisfactory to the Corporation and Transfer Agent, duly executed by such holder or such holder's duly authorized attorney, and together with transfer tax stamps or funds therefore, if required pursuant to Section 4.3(c)(vi).
(B) Upon the transfer of any shares of Class B Common Stock to any person other than a Class B Permitted Holder (as defined below), each such share of Class B Common Stock transferred to any person other than a Class B Permitted Holder shall thereupon be converted automatically as of such date into one (1) fully paid and non-assessable share of Common Stock. For the purposes of this Article Four, a "Class B Permitted Holder" shall include only the following persons: (i) Edward W. Stack, Martin Stack, Donna Stack, Kim Myers, Nancy Heichemer, Richard T. Stack and Karin Stack (collectively, the "Stack Family"), and their respective spouses (either former or current), estates, guardians, conservators or committees; (ii) each descendant of a member of the Stack Family (a "Stack Descendant") and their respective spouses (either former or current), estates, guardians, conservators or committees; (iii) each Stack Family Controlled Entity (as defined below); and (iv) the trustees, in their respective capacities as such, of each Stock Family Controlled Trust (as defined below). The term "Stack Family Controlled Entity" means (i) any not-for-profit corporation if at least a majority of its board of directors is composed of Stack Family members and/or Stack Descendants; (ii) any other corporation if at least 80% of the value of its outstanding equity is owned by Stack Family members or Stack Descendants or their respective spouses (either former or current) or Stack Family Controlled Trusts; (iii) any partnership if at least 80% of the value of its outstanding equity is owned by Stack Family members or Stack Descendants or their respective spouses (either former or current) or Stack Family Controlled Trusts and (iv) any limited liability or similar company if at least 80% of the economic interest of the Company is
owned by Stack Family members or Stack Descendants or their respective spouses (either former or current) or Stack Family Controlled Trusts. The term "Stack Family Controlled Trust" includes trusts the primary beneficiaries of which are members of the Stack Family, Stack Descendants, spouses (either current or former) of Stack Family members or Stack Descendants and their respective estates, guardians, conservators or committees and/or charitable organizations (collectively, "Stack Beneficiaries"), provided that if the trust is a wholly charitable trust, at least 80% of the trustees of such trust consist of Stack Family members or Stack Descendants. For purposes of this provision, the primary beneficiaries of a trust will be deemed to be Stack Beneficiaries if, under the maximum exercise of discretion by the trustee in favor of persons who are not Stack Beneficiaries, the value of the interests of such persons in such trust, computed actuarially, is 50% or less. The factors and methods prescribed in section 7520 of the Internal Revenue Code of 1986, as amended, for use in ascertaining the value of certain interests shall be used in determining a beneficiary's actuarial interest in a trust for purposes of applying this provision. For purposes of this provision, the actuarial value of the interest in a trust of any person in whose favor a testamentary power of appointment may be exercised shall be deemed to be zero. For purposes of this provision, in the case of a trust created by a Stack Descendant, the actuarial value of the interest in such trust of any person who may receive trust property only at the termination of the trust and then only in the event that, at the termination of the trust, there are no living issue of such Stack Descendant shall be deemed to be zero.
(C) For purposes of this Section 4.3(c)(ii):
(1) the relationship of any person that is derived by or through legal adoption shall be considered a natural relationship;
(2) a minor who is a descendant of a member of the Stack Family and for whom shares of Class B Common Stock are held pursuant to a Uniform Gifts to Minors Act or similar law shall be considered a Class B Permitted Holder and the custodian who is the record holder of such shares shall not be considered the Class B Permitted Holder of such shares;
(3) an incompetent stockholder who is a Class B Permitted Holder but whose shares are owned or held by a guardian or conservator shall be considered a Class B Permitted Holder of such shares and such guardian or conservator who is the holder of such shares shall not be considered the Class B Permitted Holder of such shares;
(4) unless otherwise specified, the term "person" means and includes natural persons, corporations, partnerships, unincorporated associations, firms, joint ventures, trusts and all other entities; and
(5) except as provided in Section 4.3(c)(ii)(C)(2) and (3) above, for purposes of determining whether the holder of shares of Class B Common Stock is a Class B Permitted Holder, the record holder of such shares shall be considered the holder; provided, however, that if such record holder is a nominee, the holder for purposes of determining whether the holder of shares of Class B Common Stock is a Class B
Permitted Holder shall be the first person in the chain of ownership of such share of Class B Common Stock who is not holding such share solely as a nominee.
(D) At such time as a person ceases to be a Class B Permitted Holder, any and all shares of Class B Common Stock held by such person at such time shall automatically convert into shares of Common Stock, provided that, no conversion shall occur upon the pledge of a Class B Permitted Holder's shares of Class B Common Stock to a financial institution.
(iii) As promptly as practicable following
the surrender of a certificate representing shares of Class B Common Stock
converted in the manner provided in Section 4.3(c)(i) or Section 4.3(c)(ii), as
applicable, and the payment in cash of any amount required by the provisions of
Section 4.3(c)(vi), the Corporation will deliver or cause to be delivered at the
office of the Transfer Agent, a certificate or certificates representing the
number of full shares of Common Stock issuable upon such conversion, issued in
such name or names as such holder may direct. Upon the date any such conversion
occurs, all rights of the holder of such shares as such holder shall cease, and
the person or persons in whose name or names the certificates or certificates
representing the shares of Common Stock are to be issued shall be treated for
all purposes as having become the record holder or holders of such shares of
Common Stock; provided, however, that if any conversion date occurs on any date
when the stock transfer books of the Corporation shall be closed, the person or
persons in whose name or names the certificate or certificates representing
shares of Common Stock are to be issued shall be deemed the record holder or
holders thereof for all purposes immediately prior to the close of business on
the next succeeding day on which the stock transfer books are open.
(iv) In the event of a reclassification or other similar transaction as a result of which the shares of Common Stock are converted into another security, then a holder of Class B Common Stock shall be entitled to receive upon conversion the amount of such security that such holder would have received if such conversion had occurred immediately prior to the record date of such reclassification or other similar transaction. No adjustments in respect of dividends shall be made upon the conversion of any share of Class B Common Stock; provided, however, that if a share shall be converted subsequent to the record date for the payment of a dividend or other distribution on shares of Class B Common Stock but prior to such payment, then the registered holder of such share at the close of business on such record date shall be entitled to receive the dividend or other distribution payable on such share on such date notwithstanding the conversion thereof or the Corporation's default in payment of the dividend due on such date.
(v) The Corporation covenants that it will at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of issuance upon conversion of the outstanding shares of Class B Common Stock, such number of shares of Common Stock that shall be issuable upon the conversion of all such outstanding shares of Class B Common Stock; provided that, nothing contained herein shall be construed to preclude the Corporation from satisfying its obligations in respect of the conversion of the outstanding shares of Class B Common Stock by delivery of purchased shares of Common Stock which are held in the treasury of the Corporation. The Corporation covenants that if any shares of Common Stock require registration with or approval of any governmental authority
under any federal or state law before such shares of Common Stock may be issued upon conversion, the Corporation will cause such shares to be duly registered or approved, as the case may be. The Corporation will use its best efforts to list the shares of Common Stock required to be delivered upon conversion prior to such delivery upon each national securities exchange upon which the outstanding Common Stock is listed at the time of such delivery. The Corporation covenants that all shares of Common Stock that shall be issued upon conversion of the shares of Class B Common Stock will, upon issue, be validly issued, fully paid and non-assessable.
(vi) The issuance of certificates for shares of Common Stock upon conversion of shares of Class B Common Stock shall be made without charge to the holders of such shares for any stamp or other similar tax in respect of such issuance; provided, however, that, if any such certificate is to be issued in a name other than that of the holder of the share or shares of Class B Common Stock converted, then the person or persons requesting the issuance thereof shall pay to the Corporation the amount of any tax that may be payable in respect of any transfer involved in such issuance or shall establish to the satisfaction of the Corporation that such tax has been paid.
(vii) When shares of Class B Common Stock are converted into shares of Common Stock as provided herein (a) the authorized number of shares of Class B Common Stock shall be reduced by the number of shares of Class B Common Stock so converted so that such shares of Class B Common Stock so converted may not be reissued and (b) the authorized number of shares of Common Stock shall be increased by the number of shares of Common Stock issued upon conversion of the Class B Common Stock so converted.
(d) Restrictions on Issuance. The Corporation shall not issue or sell any shares of Class B Common Stock or any securities (including, without limitation, any rights, options, warrants or other securities) convertible, exchangeable or exercisable into shares of Class B Common Stock other than (a) pursuant to options or other awards made to a Series B Permitted Holder pursuant to the Corporation's 2002 Stock Plan or any other stock plan adopted by the Board of Directors of the Corporation to provide additional incentives to employees of the Corporation or its subsidiaries and/or to non-employee members of the Board of Directors of the Corporation and (b) in connection with a transaction contemplated by Section 4.3(b) or 4.3(e). Any issuance or sale of shares of Class B Common Stock (or securities convertible into, or exchangeable or exercisable for, shares of Class B Common Stock) in violation of this Section 4.3(d) shall be null and void ab initio.
(e) Stock Splits. The Corporation shall not in any manner subdivide (by any stock split, stock dividend, reclassification, recapitalization or otherwise) or combine (by reverse stock split, reclassification, recapitalization or otherwise) the outstanding shares of the Common Stock or Class B Common Stock unless the outstanding shares of both the Common Stock and Class B Common Stock shall be proportionately subdivided or combined.
(f) Options, Rights or Warrants
(i) Except as provided in Section 4.3(d), the Corporation shall not make any offering of options, rights or warrants to subscribe for shares of Class B Common Stock. If the Corporation makes an offering of options, rights or warrants to subscribe for shares
of any class or classes of capital stock (other than Class B Common Stock) to all holders of either the Common Stock or Class B Common Stock then the Corporation shall simultaneously make an identical offering to all holders of the other class unless the holders of the other class, voting as a separate class, determine that such offering need not be made to such class. All such options, rights or warrants offerings shall offer the respective holders of Common Stock and Class B Common Stock the right to subscribe at the same rate per share.
(ii) Subject to Section 4.3(c)(iv) and 4.3(i), the Corporation shall have the power to create and issue, whether or not in connection with the issue and sale of any shares of stock or other securities of the Corporation, rights or options entitling the holders thereof to purchase from the Corporation any shares of its capital stock of any class or classes at the time authorized (other than Class B Common Stock), such rights or options to have such terms and conditions, and to be evidenced by or in such instrument or instruments, as shall be approved by the Board of Directors.
(g) Mergers, Consolidation, Etc. In the event that the Corporation shall enter into any consolidation, merger, combination or other transaction in which shares of the Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then, and in such event, the shares of Common Stock and Class B Common Stock shall be exchanged for or changed into either (1) the same amount of stock, securities, cash and/or any other property, as the case may be, into which, or for which, each share of Common Stock is exchanged or changed; provided, however, that if shares of Common Stock are exchanged for or changed into shares of capital stock, such shares so exchanged for or changed into may differ to the extent and only to the extent that the Common Stock and the Class B Common Stock differ as provided herein or (2) if holders of Common Stock and Class B Common Stock are to receive different distributions of stock, securities, cash and/or any other property, an amount of stock, securities, cash and/or property per share having a value, as determined by an independent investment banking firm of national reputation selected by the Board of Directors, equal to the value per share into which, or for which, each share of the other class of stock is exchanged or changed.
(h) Liquidation Rights. In the event of any dissolution, liquidation or winding up of the affairs of the Corporation, whether voluntary or involuntary, after payment or provision for payment of the debts and other liabilities of the Corporation and after making provision for the holders of each series of Preferred Stock, if any, the remaining assets and funds of the Corporation, if any, shall be divided among and paid ratably to the holders of the shares of the Common Stock and the Class B Common Stock treated as a single class.
(i) No Preemptive Rights. Except as provided in
Section 4.3(f), the holders of shares of Common Stock and Class B Common Stock
are not entitled to any preemptive right to subscribe for, purchase or receive
any part of any new or additional issue of stock of any class, whether now or
hereafter authorized, or of bonds, debentures or other securities convertible
into or exchangeable for stock.
(j) Restrictions on Transfer. No Class B Permitted Holder may, directly or indirectly, sell, assign or otherwise transfer (collectively, "Transfer") any share of Class B Common Stock or any interest therein or any rights incident to ownership thereof to any
other Class B Permitted Holder for consideration or value constituting a price greater than the then Market Price of the Common Stock. Any Transfer of shares of Class B Common Stock in violation of this Section 4.3(j) shall be null and void ab initio and the Corporation shall not register (or shall instruct the Corporation's transfer agent and registrar for such shares not to register) such Transfer and the purported transferor will continue to own such shares of Class B Common Stock and have all rights incident to ownership of such shares of Class B Common Stock. For purposes of this paragraph "Market Price" shall mean:
(i) If the Common Stock is listed on any established stock exchange or national market system reporting sales transactions, including, without limitation, the Nasdaq National Market, its Market Price shall be the mean between the highest and lowest selling prices for a share of the Common Stock as quoted on such exchange or system for the date of Transfer as reported in the Wall Street Journal (central edition ) or such other source as the Board of Directors deems reliable. If there are no sales quoted on such exchange or system for the date of the Transfer but there were sales quoted on such exchange or system with respect to dates within a reasonable period both before and after such date of Transfer, the Market Value shall be determined by taking a weighted average of the means between the highest and lowest sales prices quoted with respect to the nearest date before and the nearest date after the date of the Transfer as reported in the Wall Street Journal (central edition ) or such other source as the Board of Directors deems reliable. The average is to be weighted inversely by the respective numbers of trading days between the selling dates and the date of the Transfer. If there are no sales quoted on such exchange or system for the date of Transfer and there are no sales quoted on such exchange or system with respect to dates during a reasonable period before and after the date of Transfer, its Market Price shall be determined as the mean between bona fide bid and asked prices on the date of Transfer or, if there are no such bid and asked prices on the date of Transfer, by a weighted average of the means between the bona fide bid and asked prices on the nearest trading day before and the nearest trading day after the date of Transfer if such trading days are during a reasonable period before and after the date of Transfer.
(ii) In the absence of a market for the Common Stock within the meaning of (i), above, the Market Price thereof shall be determined in good faith by the Board of Directors.
(k) Legend. Each share of Class B Common Stock shall contain the following legend, in addition to all other legends required by applicable federal or state law or by contract:
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.
4.4. Preferred Stock. Shares of Preferred Stock may be issued
from time to time in one or more series of any number of shares provided that
the aggregate number of shares issued and not canceled of any and all series
shall not exceed the total number of shares of Preferred Stock hereinabove
authorized. The Board of Directors is authorized, by resolution adopted and
filed in accordance with law, to provide for the issue of such series of shares
of Preferred Stock. Each series of shares of Preferred Stock: (a) may have such
voting powers, full or limited, or may be without voting powers; provided,
however, that, the Board of Directors may not issue any shares of Preferred
Stock that have voting rights of more than one vote per share or that have the
right as a class (or together with any other classes of Preferred Stock) to
elect a majority of the Board of Directors; (b) may be subject to redemption at
such time or times and at such prices; (c) may be entitled to receive dividends
(which may be cumulative or non-cumulative, at such rate or rates, on such
conditions and at such times, and payable in preference to, or in such relation
to, the dividends payable on any other class or classes or series of stock; (d)
may have such rights upon the dissolution of, or upon any distribution of the
assets of, the Corporation; (e) may, subject to Section 4.3(d), be made
convertible into, or exchangeable for, shares of any other class or classes or
of any other series of the same or any other class or classes of stock of the
Corporation or such other corporation or other entity at such price or prices or
at such rates of exchange and with such adjustments; (f) may be entitled to the
benefit of a sinking fund to be applied to the purchase or redemption of shares
of such series in such amount or amounts; (g) may be entitled to the benefit of
conditions and restrictions upon the creation of indebtedness of the Corporation
or any subsidiary, upon the issue of any additional shares (including additional
shares of such series or of any other series) and upon the payment of dividends
or the making of other distributions on, and the purchase, redemption or other
acquisition by the Corporation or any subsidiary of, any outstanding shares of
the Corporation; and (h) may have such other relative, participating, optional
or other special rights, qualifications, limitations or restrictions thereof,
all as shall be stated in said resolution or resolutions providing for the issue
of such shares of Preferred Stock. Any of the voting powers, designations,
preferences, rights and qualifications, limitations or restrictions of any such
series of Preferred Stock may be made dependant upon facts ascertainable outside
of the resolution or resolutions provided for the issue of such Preferred Stock
adopted by the Board of Directors pursuant to the authority vested in it by this
Section 4.4, provided that the manner in which such facts shall operate upon the
voting powers, designations, preferences, rights and qualifications, limitations
or restrictions of such series of Preferred Stock is clearly and expressly set
forth in the resolution or resolutions provided for the issue of such Preferred
Stock. The term "facts" as used in the next preceding sentence shall have the
meaning given to it in Section 151(a) of the General Corporation Law as in
effect on the date hereof. Shares of Preferred Stock of any series that
have been redeemed or repurchased by the Corporation (whether through the operation of a sinking fund or otherwise) or that, if convertible or exchangeable, have been converted or exchanged in accordance with their terms shall be retired and have the status of authorized and unissued shares of Preferred Stock of the same series and may be reissued as a part of the series of which they were originally a part or may, upon the filing of an appropriate certificate with the Delaware Secretary of State, be reissued as part of a new series of shares of Preferred Stock to be created by resolution or resolutions of the Board of Directors or as part of any other series of shares of Preferred Stock, all subject to the conditions or restrictions on issuance set forth in the resolution or resolutions adopted by the Board of Directors providing for the issue of any series of shares of Preferred Stock.
5. Board of Directors.
5.1. Number of Directors. The number of Directors shall be such members as set forth or determined in the By-laws; provided that the number of Directors shall be not less than three nor more than 11. The use of the phrase "Entire Board" refers to the total number of directors in office, whether or not present at a meeting of the Board, but disregarding vacancies.
5.2. The Board of Directors shall be divided into three classes designated as Class A, Class B and Class C, respectively. Directors shall be assigned to each class in accordance with a resolution or resolutions adopted by the Board of Directors. Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board of Directors. At the annual meeting of stockholders in calendar 2003, the term of office of the Class A directors shall expire and Class A directors shall be elected for a full term of three years. At the annual meeting of stockholders in calendar 2004, the term of office of the Class B directors shall expire and Class B directors shall be elected for a full term of three years. At the annual meeting of stockholders in calendar 2005, the term of office of the Class C directors shall expire and Class C directors shall be elected for a full term of three years. At each succeeding annual meeting of stockholders, directors shall be elected for a full term of three years to succeed the directors of the class whose term expire at such annual meeting. If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of directors shorten the term of any incumbent director. So long as any shares of Class B Common Stock are outstanding, any or all of the directors may be removed with or without cause by the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the votes entitled to be cast at a meeting of the stockholders to elect directors. If no shares of Class B Common Stock are outstanding, directors may only be removed for cause by the stockholders. Elections of directors need not be by written ballot except and to the extent provided in the By-laws of the Corporation. No stockholder will be permitted to cumulate votes at any election of directors.
5.3. Powers of the Board of Directors. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors selected as provided by law and this Amended and Restated Certificate of Incorporation and the By-laws of
the Corporation (the "By-laws"). In furtherance, and not in limitation, of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized to:
(a) adopt, amend, alter, change or repeal By-laws of the Corporation; provided, however, that no By-law hereafter adopted shall invalidate any prior act of the Corporation that would have been valid if such new By-laws had not been adopted;
(b) subject to the By-laws as from time to time in effect, determine the rules and procedures for the conduct of the business of the Board of Directors and the management and direction by the Board of Directors of the business and affairs of the Corporation, including the power to designate and empower committees of the Board of Directors, to elect, or authorize the appointment of, and empower officers and other agents of the Corporation, and to determine the time and place of, the notice requirements for, and the manner of conducting, Board meetings, as well as other notice requirements for, and the manner of taking, Board action; and
(c) exercise all such powers and do all such acts as may be exercised or done by the Corporation, subject to the provisions of the General Corporation Law and this Amended and Restated Certificate of Incorporation and By-laws of the Corporation.
6. Liability of Directors.
6.1. Limitation of Liability. No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this provision shall not eliminate or limit the liability of a director (a) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under section 174 of the General Corporation Law or (d) for any transaction from which the director derived any improper personal benefits. If the General Corporation Law is amended after approval by the stockholders of this article to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law, as so amended.
6.2. Amendments. Any repeal or modification of Section 6.1 hereof by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.
7. Indemnification.
7.1. To the extent not prohibited by law, the Corporation shall indemnify any person who is or was made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding (a "Proceeding"), whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the Corporation to procure a judgment in its favor, by reason of the fact that such person, or a person of whom such person is the legal representative, is or was a director or officer of the Corporation, or, at the request of the Corporation, is or was serving as a director or officer of any other corporation or in a capacity with comparable authority or responsibilities for any partnership, joint venture, trust,
employee benefit plan or other enterprise (an "Other Entity"), against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys' fees, disbursements and other charges). Persons who are not directors or officers of the Corporation (or otherwise entitled to indemnification pursuant to the preceding sentence) may be similarly indemnified in respect of service to the Corporation or to an Other Entity at the request of the Corporation to the extent the Board at any time specifies that such persons are entitled to the benefits of this Section 7.
7.2. The Corporation shall, from time to time, reimburse or advance to any director or officer or other person entitled to indemnification hereunder the funds necessary for payment of expenses, including attorneys' fees and disbursements, incurred in connection with any Proceeding, in advance of the final disposition of such Proceeding; provided, however, that, if required by the General Corporation Law, such expenses incurred by or on behalf of any director or officer or other person may be paid in advance of the final disposition of a Proceeding only upon receipt by the Corporation of an undertaking, by or on behalf of such director or officer (or other person indemnified hereunder), to repay any such amount so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal that such director, officer or other person is not entitled to be indemnified for such expenses.
7.3. The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section 7 shall not be deemed exclusive of any other rights to which a person seeking indemnification or reimbursement or advancement of expenses may have or hereafter be entitled under any statute, this Amended and Restated Certificate of Incorporation, the By-laws, any agreement, any vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.
7.4. The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section 7 shall continue as to a person who has ceased to be a director or officer (or other person indemnified hereunder) and shall inure to the benefit of the executors, administrators, legatees and distributees of such person.
7.5. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of an Other Entity, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this Section 7, the By-laws or under section 145 of the General Corporation Law or any other provision of law.
7.6. The provisions of this Section 7 shall be a contract between the Corporation, on the one hand, and each director and officer who serves in such capacity at any time while this Section 7 is in effect and any other person entitled to indemnification hereunder, on the other hand, pursuant to which the Corporation and each such director, officer, or other person intend to be, and shall be, legally bound. No repeal or modification of this Section 7 shall affect any rights or obligations with respect to any state of facts then or theretofore existing or
thereafter arising or any proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.
7.7. The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, this Section 7 shall be enforceable by any person entitled to such indemnification or reimbursement or advancement of expenses in any court of competent jurisdiction. The burden of proving that such indemnification or reimbursement or advancement of expenses is not appropriate shall be on the Corporation. Neither the failure of the Corporation (including its Board, its independent legal counsel and its stockholders) to have made a determination prior to the commencement of such action that such indemnification or reimbursement or advancement of expenses is proper in the circumstances nor an actual determination by the Corporation (including its Board, its independent legal counsel and its stockholders) that such person is not entitled to such indemnification or reimbursement or advancement of expenses shall constitute a defense to the action or create a presumption that such person is not so entitled. Such a person shall also be indemnified for any expenses incurred in connection with successfully establishing his or her right to such indemnification or reimbursement or advancement of expenses, in whole or in part, in any such proceeding.
7.8. Any director or officer of the Corporation serving in any capacity of (a) another corporation of which a majority of the shares entitled to vote in the election of its directors is held, directly or indirectly, by the Corporation or (b) any employee benefit plan of the Corporation or any corporation referred to in clause (a) shall be deemed to be doing so at the request of the Corporation.
7.9. Any person entitled to be indemnified or to reimbursement or advancement of expenses as a matter of right pursuant to this Section 7 may elect to have the right to indemnification or reimbursement or advancement of expenses interpreted on the basis of the applicable law in effect at the time of the occurrence of the event or events giving rise to the applicable Proceeding, to the extent permitted by law, or on the basis of the applicable law in effect at the time such indemnification or reimbursement or advancement of expenses is sought. Such election shall be made, by a notice in writing to the Corporation, at the time indemnification or reimbursement or advancement of expenses is sought; provided, however, that if no such notice is given, the right to indemnification or reimbursement or advancement of expenses shall be determined by the law in effect at the time indemnification or reimbursement or advancement of expenses is sought.
8. Adoption, Amendment and/or Repeal of By-laws. The Board may from time to time adopt, amend or repeal the By-laws; provided, however, that any By-laws adopted or amended by the Board may be amended or repealed, and any By-laws may be adopted, by the stockholders of the Corporation by vote of the holders of shares of stock of the Corporation representing a majority of the votes entitled to be cast in the election of directors of the Corporation.
9. Action by Stockholders. So long as there are shares of Class B Common Stock outstanding, the stockholders of the corporation entitled to take action on any matter may consent in writing to the taking of any such action without a meeting if the Corporation receives consents signed by stockholders having the minimum number of votes that would be necessary
to approve the action of a meeting at which all shares of stock entitled to vote on the matter were present. At such time when there are no shares of Class B Common Stock outstanding, the stockholders of the Corporation entitled to take action on any matter may consent in writing to the taking of any such action without a meeting if, and only if, the Corporation receives consents signed by all stockholders entitled to vote on the matter.
10. Section 203 of General Corporation Law. The Corporation hereby expressly elects not to be governed by Section 203 of the General Corporation Law.
11. Amendment to Amended and Restated Certificate. The corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred on stockholders herein are granted subject to this reservation.
***************
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by the President in Pittsburgh, Pennsylvania this 14th day of October, 2002.
DICK'S SPORTING GOODS, INC.
By: /s/ William J. Colombo
-------------------------------------
President
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Exhibit 4.2
DICK'S SPORTING GOODS, INC.
EMPLOYEE STOCK PURCHASE PLAN
I. DEFINITIONS
Account means the Employee Stock Purchase Plan Account established for a Participant under Section IX hereunder.
Board of Directors shall mean the Board of Directors of the Company.
Code shall mean the Internal Revenue Code of 1986, as amended.
Committee shall mean the Compensation Committee of the Board of Directors.
Common Stock shall mean shares of the common stock, par value $.01 per share, and any security into which such stock shall be converted or shall become by reason of changes in its nature such as by way of recapitalization, reclassification, changes in par value, merger, consolidation or similar transaction.
Company shall mean Dick's Sporting Goods, Inc., a Delaware corporation. When used in the Plan with reference to employment, Company shall include Subsidiaries.
Compensation shall mean the total of such Eligible Employee's base salary plus bonus payments paid to an Eligible Employee by the Company.
Effective Date shall mean the date of effectiveness of the Company's Registration Statement relating to the initial public offering of the Company's Common Stock.
Eligible Employees shall mean only those persons who, as of the first
day of a Purchase Period, are Employees of the Company and who are not, as of
the day preceding the first day of the Purchase Period, deemed for purposes of
Section 423(b)(3) of the Code to own stock possessing 5% or more of the total
combined voting power or value of all classes of stock of the Company.
Employees shall mean all persons who are employed by the Company as common-law employees, excluding persons (i) whose customary employment is 20 hours or less per week, or (ii) whose customary employment is for not more than five months in a calendar year.
Exercise Date shall mean the last day of a Purchase Period.
Fair Market Value shall mean: (i) as of the Effective Date the initial public offering price of the Company's Common Stock as approved by the Board of Directors; or (ii) as of any date subsequent to the Effective Date, the last reported sales price of the Common Stock on such date as reported by the Nasdaq National Market or the principal national securities exchange on which such stock is listed and traded, or in each such case where there is no trading on such date, on the first previous date on which there is such trading.
Participant shall mean an Eligible Employee who elects to participate in the Plan under Section VII hereunder.
Plan shall mean the Dick's Sporting Goods, Inc. Employee Stock Purchase Plan, as set forth herein and as amended from time to time.
Purchase Period shall mean: (a) for the initial purchase period, the period commencing on the Effective Date and ending on December 31, 2002; and (b) thereafter, purchase periods shall be semi-annual or as otherwise elected by the Committee not less than 60 days in advance of the commencement of such period. A Purchase Period shall begin on the first business day of, and end on the last business day of, each such calendar period. The last Purchase Period under the Plan shall terminate on or before the date of termination of the Plan provided in Section XXIII.
Subsidiary shall mean any corporation which is a subsidiary of the Company within the meaning of Section 424(f) of the Code.
Termination of Service shall mean the earliest of the following events with respect to a Participant: his or her retirement, death, quit, discharge or permanent separation from service with the Company.
The masculine gender includes the feminine, the singular number includes the plural and the plural number includes the singular unless the context otherwise requires.
II. PURPOSE
It is the purpose of this Plan to provide a means whereby Eligible Employees may purchase Common Stock through payroll deductions. It is intended to provide a further incentive for Employees to promote the best interests of the Company and to encourage stock ownership by Employees in order to participate in the Company's economic progress.
It is the intention of the Company to have the Plan qualify as an "employee stock purchase plan" within the meaning of Section 423 of the Code and the provisions of the Plan shall be construed in a manner consistent with the Code.
III. ADMINISTRATION
The Plan shall be administered by the Committee. The Committee shall have authority to make rules and regulations for the administration of the Plan, and its interpretations and decisions with regard thereto shall be final and conclusive. The Committee shall have all necessary authority to communicate, from time to time, with Eligible Employees and Participants for purposes of administering the Plan, and shall notify Eligible Employees promptly of its election of the term of each forthcoming Purchase Period, if other than semi-annual, and of its election to utilize the Trust Administration Option referred to in Section IX.
IV. SHARES
There shall be 500,000 shares of Common Stock reserved for issuance to and purchase by Participants under the Plan, subject to adjustment in accordance with Section XXI hereof. The shares of Common Stock subject to the Plan shall be either shares of authorized but unissued Common Stock or shares of Common Stock reacquired by the Company. Shares of Common Stock covered by the unexercised portion of any terminated purchase right may again be subject to purchase rights granted under the Plan.
V. PURCHASE PRICE
The purchase price per share of the shares of Common Stock sold to Participants under this Plan for any Purchase Period shall be the lesser of (a) 85% of the Fair Market Value of a share of Common Stock on the first day of such Purchase Period, or (b) 85% of the Fair Market Value of a share of Common Stock on the Exercise Date of such Purchase Period.
VI. GRANT OF PURCHASE RIGHT TO PURCHASE SHARES
Each Eligible Employee shall be granted a purchase right effective on the first day of each Purchase Period to purchase a number of full shares of Common Stock (subject to adjustment as provided in Section XXI). No Eligible Employee shall be permitted to purchase shares under this Plan (or under any other "employee stock purchase plan" within the meaning of Section 423(b) of the Code, of the Company ) with an aggregate Fair Market Value (as determined as of the first day of the Purchase Period) in excess of $25,000 for any one calendar year within the meaning of Section 423(b)(8) of the Code. For a given Purchase Period, payroll deductions shall commence on the first day of the Purchase Period and shall end on the related Exercise Date, unless sooner altered or terminated as provided in the Plan.
Anything herein to the contrary notwithstanding, if, as of the first day of a Purchase Period, any Eligible Employee entitled to purchase shares hereunder would be deemed for the purposes of Section 423(b)(3) of the Code to own stock (including any number of shares which such person would be entitled to purchase hereunder) possessing 5% or more of the total combined voting power or value of all classes of stock of the Company, the maximum number of shares which such person shall be entitled to purchase pursuant to the Plan shall be reduced to that number which when added to the number of shares of stock of the Company which such person is so deemed to own (excluding any number of shares which such person would be entitled to purchase hereunder), is one less than such 5%.
VII. ELECTION TO PARTICIPATE
An Eligible Employee may elect to become a Participant in this Plan by completing a "Stock Purchase Agreement" form prior to the first day of the Purchase Period. In the Stock Purchase Agreement, the Eligible Employee shall authorize regular, "after tax" payroll deductions from his Compensation subject to the limitations in Section VIII below. Purchase
rights granted to Eligible Employees who fail to authorize payroll deductions will automatically lapse. If a Participant's payroll deductions allow him to purchase fewer than the maximum number of shares of Common Stock to which his purchase rights entitle him, the purchase rights with respect to the shares which he does not purchase will lapse as of the last day of the Purchase Period.
The execution and delivery of the Stock Purchase Agreement as between the Participant and the Company shall be conditioned upon the compliance by the Company at such time with Federal (and any applicable state) securities laws.
VIII. PAYROLL DEDUCTIONS
An Eligible Employee may authorize payroll deductions from his Compensation for each payroll period of a specified percentage of such Compensation, not less than 1.0% and not more than 25%, in multiples of 1.0%.
The amount of payroll deduction shall be established at the beginning of a Purchase Period and may not be altered, except for complete discontinuance under Section XI, XIII or XIV hereunder.
IX. EMPLOYEE STOCK PURCHASE ACCOUNT AND TRUST ADMINISTRATION OPTION
An Employee Stock Purchase Account will be established for each Participant in the Plan. Payroll deductions made under Section VIII will be credited to the individual Accounts. No interest or other earnings will be credited to a Participant's Account and the assets of all such Accounts shall remain general assets of the Company until such assets are used to purchase Common Stock in accordance with Section X hereunder.
X. PURCHASE OF SHARES
If, as of any Exercise Date, there is credited to the Account of a Participant an amount at least equal to the purchase price of one share of Common Stock for the current Purchase Period, as determined in Section V, the Participant shall buy and the Company shall sell at such price the largest number of whole shares of Common Stock which can be purchased with the amount in his Account.
Any balance remaining in a Participant's Account at the end of a
Purchase Period will be carried forward into the Participant's Account for the
following Purchase Period. In no event will the balance carried forward be equal
to or exceed the purchase price of one share of Common Stock as determined in
Section V above. Notwithstanding the foregoing provisions of this paragraph, if
as of any Exercise Date the provisions of Section XV are applicable to the
Purchase Period ending on such Exercise Date, and the Committee reduces the
number of shares which would otherwise be purchased by Participants on such
Exercise Date, the entire balance
remaining credited to the Account of each Participant after the purchase of the applicable number of shares of Common Stock on such Exercise Date shall be refunded to each such Participant. Except with respect to a Purchase Period for which the Trust Administration Option has been elected, no refund of an Account balance made pursuant to the Plan shall include any amount in respect of interest or other imputed earnings.
Anything herein to the contrary notwithstanding, no Participant may, in any calendar year, purchase a number of shares of Common Stock under this Plan which, together with all other shares of stock of the Company and its Subsidiaries which he may be entitled to purchase in such year under all other employee stock purchase plans of the Company and its Subsidiaries which meet the requirements of Section 423(b) of the Code, have an aggregate Fair Market Value (measured as of the first day of each applicable Purchase Period) in excess of $25,000. The limitation described in the preceding sentence shall be applied in a manner consistent with Section 423(b)(8) of the Code.
XI. WITHDRAWAL
A Participant may withdraw from the Plan at any time prior to the Exercise Date of a Purchase Period by filing a notice of withdrawal. Upon a Participant's withdrawal, the payroll deductions shall cease for the next payroll period and the entire amount credited to his Account shall be refunded to him. Any Participant who withdraws from the Plan may again become a Participant hereunder at the start of the next Purchase Period in accordance with Section VII.
XII. ISSUANCE OF STOCK CERTIFICATES
The shares of Common Stock purchased by a Participant shall, for all purposes, be deemed to have been issued and sold at the close of business on the Exercise Date. Prior to that date, none of the rights or privileges of a stockholder of the Company shall exist with respect to such shares. Stock certificates shall be registered either in the Participant's name or jointly in the names of the Participant and his spouse, as the Participant shall designate in his Stock Purchase Agreement. Such designation may be changed at any time by filing notice thereof. Certificates representing shares of purchased Common Stock shall be delivered promptly to the Participant following issuance. Notwithstanding any provision hereof to the contrary, no shares of Common Stock shall be issued, sold, registered or delivered pursuant to this Section XII or otherwise under the Plan unless such issuance, sale, registration or delivery shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any stock exchange upon which the shares of Common Stock may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance.
XIII. TERMINATION OF SERVICE
(a) Upon a Participant's Termination of Service for any reason other than death or voluntary termination of employment on or after attaining age 55 ("Retirement"), no payroll
deduction may be made from any Compensation due him as of the date of his Termination of Service and the entire balance credited to his Account shall be automatically refunded to him.
(b) Upon a Participant's Retirement, no payroll deduction shall be made from any Compensation due him as of the date of his retirement. Such a Participant may, prior to Retirement, elect:
(1) to have the entire amount credited to his Account as of the date of his Retirement refunded to him, or
(2) to have the entire amount credited to his Account held therein and utilized to purchase shares on the Exercise Date as provided in Section X and in accordance with all applicable requirements of the Code relating to the Plan.
(c) Upon the death of a Participant, no payroll deduction shall be made from any Compensation due him at time of death, and the entire balance in the deceased Participant's Account shall be paid to the Participant's designated beneficiary, or otherwise to his estate.
XIV. TEMPORARY LAYOFF, AUTHORIZED LEAVE OF ABSENCE, DISABILITY
Payroll deductions shall cease during a period of absence without pay from work due to a Participant's temporary layoff, authorized leave of absence, disability or for any other reason. If such Participant shall return to active service prior to the Exercise Date for the current Purchase Period, payroll deductions shall be resumed in accordance with his prior authorization.
If the Participant shall not return to active service prior to the
Exercise Date for the current Purchase Period, the balance of his Stock Purchase
Account will be used to purchase shares on the Exercise Date as provided in
Section X and in accordance with all applicable requirements of the Code
relating to the Plan, unless the Participant elects to withdraw from the Plan in
accordance with Section XI.
XV. PROCEDURE IF INSUFFICIENT SHARES AVAILABLE
In the event that on any Exercise Date the aggregate funds available for the purchase of shares of Common Stock pursuant to Section X hereof would result in purchases of shares in excess of the number of shares of Common Stock then available for purchase under the Plan, the Committee shall proportionately reduce the number of shares which would otherwise be purchased by each Participant on the Exercise Date in order to eliminate such excess, and the provisions of the second paragraph of Section X shall apply.
XVI. RIGHTS NOT TRANSFERABLE
The right to purchase shares of Common Stock under this Plan is exercisable only by the Participant during his lifetime and is not transferable by him. If a Participant attempts to transfer his right to purchase shares under the Plan, he shall be deemed to have requested withdrawal from the Plan and the provisions of Section XI hereof shall apply with respect to such Participant.
XVII. NO OBLIGATION TO EXERCISE PURCHASE RIGHTS
Granting of a purchase right under this Plan shall impose no obligation on an Eligible Employee to exercise such purchase right.
XVIII. NO GUARANTEE OF CONTINUED EMPLOYMENT
Granting of a purchase right under this Plan shall imply no right of continued employment with the Company for any Eligible Employee.
XIX. NOTICE
Any notice which an Eligible Employee or Participant files pursuant to this Plan shall be in writing and shall be delivered personally or by mail addressed to the Compensation Committee, c/o Vice President-Finance at Dick's Sporting Goods, Inc., or such other person or location as may be specified by the Committee.
XX. REPURCHASE OF STOCK
The Company shall not be required to repurchase from any Participant shares of Common Stock acquired under this Plan.
XXI. ADJUSTMENT FOR RECAPITALIZATION, MERGER, ETC.
The aggregate number of shares of Common Stock which may be purchased pursuant to purchase rights granted hereunder, the number of shares of Common Stock covered by each outstanding purchase right, and the purchase price thereof for each such purchase right shall be appropriately adjusted for any increase or decrease in the number of outstanding shares of Common Stock resulting from a stock split or other subdivision or consolidation of shares of Common Stock or for other capital adjustments or payments of stock dividends or distributions or other increases or decreases in the outstanding shares of Common Stock affected without receipt of consideration of the Company.
Subject to any required action by the stockholders, if the Company shall be the surviving corporation in any merger, reorganization or other business combination, any purchase right
granted hereunder shall cover the securities or other property to which a holder of the number of shares of Common Stock would have been entitled pursuant to the terms of the merger. A dissolution or liquidation of the Company or a merger or consolidation in which the Company is not the surviving entity shall cause every purchase right outstanding hereunder to terminate.
The foregoing adjustments and the manner of application of the foregoing provisions shall be determined by the Committee in its sole discretion. Any such adjustment shall provide for the elimination of any fractional share which might otherwise become subject to a purchase right.
XXII. AMENDMENT OF THE PLAN
The Board of Directors may, without the consent of the Participants, amend the Plan at any time, provided that no such action shall adversely affect purchase rights theretofore granted hereunder, and provided that no such action by the Board of Directors, without approval of the Company's stockholders, may:
(a) increase the total number of shares of Common Stock which may be purchased by all Participants, except as contemplated in Section XXI;
(b) change the class of Employees eligible to receive purchase rights under the Plan;
(c) decrease the minimum purchase price under Section V;
(d) extend a Purchase Period hereunder; or
(e) extend the term of the Plan.
XXII. INTERNATIONAL PARTICIPANTS
With respect to Eligible Employees who reside or work outside the United States of America, the Committee may, in its sole discretion, amend the terms of the Plan with respect to such Eligible Employees in order to conform such terms with the requirements of local law.
XXIII. TERM OF THE PLAN
This Plan shall become effective as of the Effective Date upon its adoption by the Board of Directors, provided that it is approved at a duly-held meeting of stockholders of the Company, by an affirmative majority of the total votes present and voting thereat, within 12 months after the earlier of the Effective Date or the date of adoption by the Board of Directors. If the Plan is not so approved, no Common Stock shall be purchased under the Plan and the balance of each Participant's Account shall be promptly returned to the Participant. The Plan shall continue in effect through June 30, 2007, unless terminated prior thereto pursuant to the next succeeding sentence. The Board of Directors shall have the right to terminate the Plan at any time, effective as of the next succeeding Exercise Date. In the event of the expiration of the Plan or its
termination, outstanding purchase rights shall not be affected, except to the extent provided in Section XV and any remaining balance credited to the Account of each Participant as of the applicable Exercise Date shall be refunded to each such Participant.
XXIV. GOVERNING LAW
The validity, constrictions and effect of the Plan, agreements entered into pursuant to the Plan, and of any rules, regulations, determinations or decisions made by the Committee relating to the Plan or such agreements, and the rights of any and all persons having or claiming to have any interest therein or thereunder, shall be determined exclusively in accordance with applicable federal laws and the laws of the state of Delaware, without regard to its conflict of laws principles.
Exhibit 5.1
[BUCHANAN INGERSOLL PROFESSIONAL CORPORATION LETTERHEAD]
October 21, 2002
Dick's Sporting Goods, Inc.
200 Industry Drive
Pittsburgh, Pennsylvania 15275
Ladies and Gentlemen:
We have acted as counsel to Dick's Sporting Goods, Inc., a Delaware corporation (the "Corporation"), in connection with the proposed issuance by the Corporation of up to 5,221,307 shares (the "Shares") of the Corporation's common stock (the "Common Stock"), pursuant to the terms of the Corporation's 1992 Stock Option Plan and Employee Stock Purchase Plan (the "Plans").
In connection with such proposed issuance, we have examined such documents, records, certificates of public officials, statutes and decisions as we consider necessary to express the opinions contained herein. In the examination of such documents, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to those original documents of all documents submitted to us as certified or photostatic copies.
Based on the foregoing, we are of the opinion that when the Shares have been issued and sold and the consideration is received therefore by the Corporation pursuant to the terms of the Plans, the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. We express no opinion as to the applicability or compliance with, of the effect of, Federal law or the law of any jurisdiction other than the Commonwealth of Pennsylvania or the corporate laws of the State of Delaware. It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.
Very truly yours,
BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION
By: /s/ Lewis U. Davis, Jr.
----------------------------------
Lewis U. Davis, Jr.
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of Dick's Sporting Goods, Inc. on Form S-8 of our report dated July 1, 2002 (October 15, 2002 as to Note 15), and contained in Registration Statement No. 333-96587 of Dick's Sporting Goods, Inc. on Amendment No. 5 to Form S-1 insofar as such report relates to the financial statements of Dick's Sporting Goods, Inc. for the year ended February 2, 2002.
/s/ Deloitte & Touche LLP Pittsburgh Pennsylvania October 21, 2002 |