Dick's Sporting Goods, Inc 8-K, filed Jul 11, 2022
Dick's Sporting Goods, Inc. (DKS)
8-K
2022-07-11
For: 2022-07-08
View Original
Added on
April 12, 2026
About this 8-K
Dick's Sporting Goods, Inc filed this 8-K on July 11, 2022, reporting on events of July 8, 2022.
Items reported
- Item 1.01: Entered into a material agreement
- Item 1.02: Ended a material agreement
- Item 3.02: Unregistered sale of equity
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): July 8, 2022
(Exact name of registrant as specified in its charter)
| (State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) | ||||||
(Address of Principal Executive Offices)
(724 ) 273-3400
(Registrant's Telephone Number, Including Area Code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging Growth Company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
TABLE OF CONTENTS
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
On July 8, 2022, DICK’S Sporting Goods, Inc. (the “Company”) entered into, with a certain financial institution (the “Partial Early Termination Hedge Counterparty”), partial unwind agreements relating to a portion of the convertible note hedge transactions (the “Note Hedge Partial Early Termination Agreement”) and a portion of the warrant transactions (the “Warrant Partial Early Termination Agreement” and together with the Note Hedge Partial Early Termination Agreement, the “Partial Early Termination Agreements”) that were previously entered into by the Company with such Hedge Counterparty in connection with the issuance of its 3.25% Convertible Senior Notes due 2025 (the “2025 Notes”). The Note Hedge Partial Early Termination Agreement relates to a number of call options corresponding to a portion of the number of 2025 Notes subject to exchange pursuant to the Exchange Agreements described below (the “Exchanged Notes”), and the Warrant Partial Early Termination Agreement relates to a portion of the number of warrants corresponding to the number of shares of the Company’s common stock underlying such Exchanged Notes. Pursuant to the Partial Early Termination Agreements, the Partial Early Termination Hedge Counterparty will deliver to the Company a number of shares of the Company’s common stock in respect of the call option transactions and warrant transactions being early terminated thereunder, which number of shares will be determined based upon the volume-weighted average price per share of the Company’s common stock during an averaging period, commencing on July 11, 2022.
The foregoing description of the Partial Early Termination Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the form of Note Hedge Partial Early Termination Agreement and the form of Warrant Partial Early Termination Agreement, copies of which are filed with this Current Report on Form 8-K as Exhibits 10.1 and 10.2, respectively, and are incorporated herein by reference.
HudsonWest LLC, a full-service independent equity derivatives and convertible securities advisory firm, acted as financial advisor to the Company on the call spread terminations and the exchange transactions described below.
ITEM 1.02 TERMINATION OF A MATERIAL DEFINITIVE AGREEMENT
On July 8, 2022, the Company entered into, with a certain financial institution (the “Early Termination Hedge Counterparty”), complete unwind agreements relating to a portion of the convertible note hedge transactions (the “Note Hedge Early Termination Agreement”) and a portion of the warrant transactions (the “Warrant Early Termination Agreement” and, together with the Note Hedge Early Termination Agreement, the “Early Termination Agreements”) that were previously entered into by the Company with such Hedge Counterparty in connection with the issuance of the 2025 Notes. The Note Hedge Early Termination Agreement relates to a number of call options corresponding to a portion of the number of Exchanged Notes and the Warrant Early Termination Agreement relates to a portion of the number of warrants corresponding to the number of shares of the Company’s common stock underlying such Exchanged Notes. Pursuant to the Early Termination Agreements, the Early Termination Hedge Counterparty will deliver to the Company a number of shares of the Company’s common stock in respect of the call option transactions and warrant transactions being early terminated thereunder, which number of shares will be determined based upon the volume-weighted average price per share of the Company’s common stock during an averaging period, commencing on July 11, 2022.
No early termination penalties were incurred by the Company in connection with the Early Termination Agreements.
The foregoing description of the Early Termination Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the form of Note Hedge Early Termination Agreement and the form of Warrant Early Termination Agreement, copies of which are filed with this
Current Report on Form 8-K as Exhibits 10.3 and 10.4, respectively, and are incorporated herein by reference.
ITEM 3.02. UNREGISTERED SALE OF EQUITY SECURITIES
On July 8, 2022, the Company entered into exchange agreements (the “Exchange Agreements” and each, an “Exchange Agreement”) with certain holders (the “Noteholders”) of the 2025 Notes. The Noteholders have agreed to exchange $50 million in aggregate principal amount of the Company’s outstanding 2025 Notes for a combination of cash and shares of the Company’s common stock. The total number of shares of common stock to be issued by the Company to the Noteholders will be determined based upon the volume-weighted average price per share of the Company’s common stock during an averaging period, commencing on July 11, 2022.
The Company’s shares of common stock to be issued in connection with the exchange will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance on the exemption from the registration requirements thereof provided by Section 4(a)(2) of the Securities Act in a transaction by an issuer not involving a public offering.
The 2025 Notes to be exchanged represent approximately 11.76% of the outstanding principal amount. Following the exchange, approximately $375 million in aggregate principal amount of 2025 Notes will remain outstanding, and the Company’s annual interest payments will be reduced by $1,625,000.
The foregoing description of the Exchange Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the form of Exchange Agreements, a copy of which is filed with this Current Report on Form 8-K as Exhibit 10.5 and is incorporated herein by reference.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS
(d) Exhibits.
| Exhibit No. | Description | |||||||
| 10.1 | ||||||||
| 10.2 | ||||||||
| 10.3 | ||||||||
| 10.4 | ||||||||
| 10.5 | ||||||||
| Exhibit 104 | Cover Page Interative Data File (embedded within the Inline XBRL document) | |||||||
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| DICK'S SPORTING GOODS, INC. | ||||||||
| Date: July 8, 2022 | By: | /s/ JOHN E. HAYES III | ||||||
| Name: | John E. Hayes III | |||||||
| Title: | Senior Vice President - General Counsel & Corporate Secretary | |||||||
Exhibit Index
| Exhibit No. | Description | |||||||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |||||||
CALL OPTION PARTIAL UNWIND AGREEMENT dated as of July 8, 2022 with respect to Base Call Option Confirmation, dated April 14, 2020, as amended and Additional Call Option Confirmation, dated April 20, 2020, as amended | ||
between DICK’S Sporting Goods, Inc. and [Dealer] | ||
THIS CALL OPTION PARTIAL UNWIND AGREEMENT (this “Agreement”) is made as of July 8, 2022, between DICK’S Sporting Goods, Inc. (the “Company”) and [__________] (“Dealer”)[, acting through its agent [__________] (the “Agent”).]
WHEREAS, the Company and Dealer are party to a Base Call Option Transaction pursuant to an ISDA confirmation, dated April 14, 2020 (as amended, modified, adjusted or supplemented from time to time, the “Base Call Option Confirmation”), relating to the Company’s 3.25% Convertible Senior Notes due 2025 (the “Convertible Notes”);
WHEREAS, the Company and Dealer are party to an Additional Call Option Transaction pursuant to an ISDA confirmation, dated April 20, 2020 (as amended, modified, adjusted or supplemented from time to time, the “Additional Call Option Confirmation” and, collectively with the Base Call Option Confirmation, the “Call Option Confirmations”), also relating to the Convertible Notes;
WHEREAS, the Company and certain holders (each, a “Holder”) of the Convertible Notes, have entered into privately negotiated transactions, through the Company’s broker-dealer agent, pursuant to which the Company has agreed as of the date hereof to repurchase from such Holders (the “Repurchase”) an aggregate of $50,000,000 principal amount of Convertible Notes for a combination of cash and common stock of the Company;
WHEREAS, in connection with the Repurchase, the Company has requested, and Dealer has agreed, to unwind the Call Option Confirmations with respect to a portion of the Number of Options included therein;
NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:
1. Defined Terms. Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the Base Call Option Confirmation or the Additional Call Option Confirmation, as the case may be.
2. Base Call Option Partial Unwind. On the Settlement Date (as such term is defined below), the Number of Options in the Base Call Option Confirmation shall be reduced by [●] Options (the “Unwound Base Call Options”) to [●] Options. Effective as of the Settlement Date, all of the respective rights and obligations of the parties under the Base Call Option Confirmation with respect to the Unwound Base Call Options shall be terminated, cancelled and extinguished. In addition, the parties acknowledge and agree that the provisions of Sections 9(j)(ii) and 9(m) of each of the Call Option Confirmations will not apply to any Convertible Notes subject to the Repurchase or to the Unwound Base Call Options.
3. Additional Call Option Partial Unwind. On the Settlement Date, the Number of Options in the Additional Call Option Confirmation shall be reduced by [●] Options (the “Unwound Additional Call Options” and, collectively with the Unwound Base Call Options, the “Unwound Call Options”) to [●] Options. Effective as of the Settlement Date, all of the respective rights and obligations of the parties under the Additional Call Option Confirmation with respect to the Unwound Additional Call Options shall be terminated, cancelled and extinguished. In addition, the parties acknowledge and agree that the provisions of Sections 9(j)(ii) and 9(m) of each of the Call Option Confirmations will not apply to any Convertible Notes subject to the Repurchase or to the Unwound Additional Call Options.
4. Settlement. (a) In consideration for the foregoing partial unwinds, no later than 1:00 p.m., New York City time, on the date three Scheduled Trading Days immediately following the last day of the Hedge Unwind Period (the “Settlement Date”), Dealer shall deliver a number of Shares to the Company equal to the product of [●] and the applicable Cash Settlement Amount divided by the Average VWAP Price (the “Call Option Settlement Amount”). For the avoidance of doubt, no additional amount shall be payable or deliverable by either party pursuant to the Equity Definitions, either of the Call Option Confirmations, or the Agreement (as such term is defined in each of the Call Option Confirmations) in respect of the amendments to, and partial unwind of, each of the Call Option Confirmations pursuant to Sections 2 and 3 above. “Hedge Unwind Period” means the two Scheduled Trading Day period commencing on and including July 11, 2022 (the “Initial Unwind Date”), subject to Section 4(c) of this Agreement. “Warrants Settlement Amount” has the meaning assigned to such term in that certain Warrants Partial Unwind Agreement, dated as of the date hereof, between Dealer and the Company (the “Warrants Unwind Agreement”). “Cash Settlement Amount” has the meaning assigned to such term in Exhibit A hereto.
(b) Notwithstanding anything to the contrary herein, the Company and Dealer agree to net the Call Option Settlement Amount and the Warrants Settlement Amount such that a single delivery of Shares shall be made in respect of this Agreement and the Warrants Unwind Agreement (such net delivery, the “Net Termination Payment”), and such Net Termination Payment shall satisfy (i) Dealer’s obligation to deliver the Call Option Settlement Amount pursuant to this Agreement and (ii) the obligation of the Company to deliver the Warrants Settlement Amount pursuant to the Warrants Unwind Agreement. Dealer shall (i) notify the Company of the applicable Call Option Settlement Amount, Warrants Settlement Amount and the amount of the Net Termination Payment as soon as reasonably practicable after 5:00 p.m., New York City time, on the last Scheduled Trading Day of the Hedge Unwind Period, and (ii) deliver to the Company the Net Termination Payment by 1:00 p.m., New York City time, on the Settlement Date; provided that Dealer may make such delivery to the Company on the Settlement Date after 1:00 p.m., New York City time, if the requisite administrative or operational requirements have not been completed prior to such time.
(c) Notwithstanding anything to the contrary in this Agreement, (i) Dealer may postpone the Initial Unwind Date or extend the Hedge Unwind Period by one or more Scheduled Trading Days if Dealer determines, in its reasonable discretion, that such postponement or extension is reasonably necessary or advisable to preserve Dealer’s hedge unwind activity hereunder in light of existing liquidity conditions or, based upon the advice of counsel, to enable Dealer or its affiliate or agent to effect transactions with respect to Shares in connection with its hedge unwind or settlement activity hereunder in a manner that would be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer, and (ii) if a Disrupted Day occurs in the Hedge Unwind Period, (a) the Calculation Agent may extend the Hedge Unwind Period and (b) the Calculation Agent may also determine that (1) such Disrupted Day is a Disrupted Day in full, in which case the Daily VWAP Price for such Disrupted Day shall not be included for purposes of determining the Average VWAP Price or (2) such Disrupted Day is a Disrupted Day in part, in which case the Daily VWAP Price for such Disrupted Day shall be determined by the Calculation Agent taking into account the nature and duration of the relevant Market Disruption Event, and the volume, historical trading patterns and price of the Shares. If a Disrupted Day occurs in the Hedge Unwind Period, and each of the eight immediately following Scheduled Trading Days is a Disrupted Day, then the Calculation Agent may determine such eighth Scheduled Trading Day to be an Exchange Business Day that is not a Disrupted Day and determine the Daily VWAP Price for such eighth Scheduled Trading Day using its good faith estimate of the value of the Shares on such eighth Scheduled Trading Day. For purposes of this Agreement, “Market Disruption Event” shall have the meaning assigned to such term in the Equity Definitions; provided that Section 6.3(a) of the Equity Definitions shall be amended by replacing clause (ii) in its entirety with “(ii) an Exchange Disruption, or” and inserting immediately
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following clause (iii) the phrase “; in each case that the Calculation Agent determines is material” and Section 6.3(d) of the Equity Definitions shall be amended by deleting the remainder of the provision following the words “Scheduled Closing Time” in the fourth line thereof.
(d) The parties acknowledge that the Calculation Agent will be subject to the applicable requirements under the Call Option Confirmations, including under the provisions of Section 4 of each of the Call Option Confirmations. Dealer shall use its reasonable efforts to notify the Company in writing of any extension or postponement of the Hedge Unwind Period pursuant to this Section 4.
5. Representations and Warranties of the Parties. Each party hereto re-makes, as of the date hereof, the representations and warranties contained in Section 3(a) of the “Agreement” (as such term is defined in the Call Option Confirmations) as if such representations and warranties applied to this Agreement.
6. Representations, Warranties and Agreements of the Company. The Company represents and warrants to, and agrees with, Dealer as of the date hereof that:
a.The Company is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act or any other antifraud or anti-manipulation provisions of the federal or applicable state securities laws and has not entered into or altered and will not enter into or alter any “corresponding or hedging transaction or position” (within the meaning of Rule 10b5-1 under the Exchange Act) with respect to the Shares.
b.The Company does not have, and shall not attempt to exercise, any control or influence over how, when or whether Dealer (or its agents or affiliates) makes any “purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3) under the Exchange Act) in connection with this Agreement.
c.The Company is not in possession of any material non-public information regarding the Company or the Shares.
d.The Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.
e.The Company is not entering into this Agreement to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares).
f.On each of the date hereof and the Settlement Date, the Company is not, or will not be, “insolvent” (as such term is defined under Section 101(32) of the Bankruptcy Code).
g.The Company is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
h.Upon consummation of the Repurchase, the Convertible Notes subject to the Repurchase will be deemed to be cancelled in accordance with the applicable provisions of the Indenture and disregarded and no longer outstanding for all purposes under the Call Option Confirmations (including for the calculation of any amount in respect of any termination of the Call Option Confirmations under the “Agreement” (as such term is defined in each of the Call Option Confirmations), the Equity Definitions or otherwise).
i.Neither the Company nor any of its Affiliates or agents shall take any action that would cause Regulation M under the Exchange Act (“Regulation M”) to be applicable to any purchases of Shares, or any security for which the Shares are a reference security (as
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defined in Regulation M), by Company or any of its affiliated purchasers (as defined in Regulation M) on any Trading Day during the Hedge Unwind Period.
j.The Company (A) will not during the Hedge Unwind Period make, or (to the extent within Company’s control) permit to be made, any public announcement (as defined in Rule 165(f) under the Securities Act of 1933, as amended (the “Securities Act”)) of any Merger Transaction or potential Merger Transaction unless such public announcement is made prior to the opening or after the close of the regular trading session on the Exchange for the Shares; (B) shall promptly (but in any event prior to the next opening of the regular trading session on the Exchange) notify Dealer following any such announcement that such announcement has been made; and (C) shall promptly (but in any event prior to the next opening of the regular trading session on the Exchange) provide Dealer with written notice specifying (x) the Company’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months immediately preceding the announcement date that were not effected through Dealer or its affiliates and (y) the number of Shares purchased pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange Act for the three full calendar months preceding the announcement date. Such written notice shall be deemed to be a certification by the Company to Dealer that such information is true and correct. In addition, the Company shall promptly notify Dealer of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. “Merger Transaction” means any merger, acquisition or similar transaction involving a recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the Exchange Act.
k.Except in connection with the Repurchase, the Company shall not, and shall cause its affiliates and affiliated purchasers (each as defined in Rule 10b-18) not to, directly or indirectly (including, without limitation, by means of a cash-settled or other derivative instrument), without the prior written consent of Dealer, purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares during the Hedge Unwind Period.
l.On the date hereof, and on each day during the Hedge Unwind Period and on the Settlement Date, the Company is not, and will not be, “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) and Company would be able to purchase a number of Shares equal to the Call Option Settlement Amount in compliance with the corporate laws of the jurisdiction of its incorporation.
7. Agreements and Acknowledgements Regarding Hedge Unwind. The Company understands, acknowledges and agrees that: (A) at any time during the Hedge Unwind Period, Dealer and its affiliates or agents may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to each Transaction and this Agreement; (B) Dealer and its affiliates or agents also may be active in the market for Shares other than in connection with hedging activities in relation to each Transaction and this Agreement; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to each Transaction and this Agreement; and (D) any market activities of Dealer and its affiliates or agents with respect to Shares may affect the market price and volatility of Shares, as well as the Average VWAP Price and/or any Daily VWAP Price, each in a manner that may be adverse to the Company.
8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine).
9. No Other Changes. Except as expressly set forth herein, all of the terms and conditions of each of the Call Option Confirmations shall remain in full force and effect and are hereby confirmed in all respects.
10. Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all of the signatures thereto and hereto were upon the same instrument.
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11. No Reliance, etc. The Company hereby confirms that it has relied on the advice of its own counsel and other advisors (to the extent it deems appropriate) with respect to any legal, tax, accounting, or regulatory consequences of this Agreement, that it has not relied on Dealer or its affiliates or agents in any respect in connection therewith, and that it will not hold Dealer or its affiliates accountable for any such consequences.
12. Adjustment of Unwound Call Options. The parties agree that, upon the occurrence of any event that would result in an adjustment of the Warrants Settlement Amount under the Warrants Unwind Agreement, the Calculation Agent may adjust the Call Option Settlement Amount to account for the economic effect of such adjustment event on the unwind contemplated by this Agreement, as determined in good faith and in a commercially reasonable manner by the Calculation Agent.
13. Designation by Dealer. Notwithstanding any other provision in this Agreement to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from the Company, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such shares or other securities and otherwise to perform Dealer’s obligations in respect of the transactions contemplated by this Agreement and any such designee may assume such obligations. Dealer shall be discharged of its obligations to the Company to the extent of any such performance.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and the year first above written.
| DICK’S SPORTING GOODS, INC. | |||||||||||
| By: | |||||||||||
Name: Title: | |||||||||||
| [DEALER] | |||||||||||
| By: | |||||||||||
| Name: Title: | |||||||||||
[Signature Page to Call Option Partial Unwind Agreement]
EXHIBIT A
| Average VWAP Price | Cash Settlement Amount | ||||
“Cash Settlement Amount” means the amount of cash in USD set forth above in the “Cash Settlement Amount” column opposite the applicable Average VWAP Price, subject to adjustment pursuant to Sections 4 and 12 of this Agreement. If the Average VWAP Price is not specified on the grid above, the Cash Settlement Amount shall be determined by the Calculation Agent based on a straight-line interpolation between the Average VWAP Prices or extrapolation from the Average VWAP Prices (as the case may be) specified on the grid above.
“Average VWAP Price” means the arithmetic average of the Daily VWAP Prices for each of the Exchange Business Days in the Hedge Unwind Period, as determined by the Calculation Agent in good faith and a commercially reasonable manner, subject to adjustment pursuant to Section 4(c) of this Agreement.
“Daily VWAP Price” for any Exchange Business Day means the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “DKS <equity> AQR” (or any successor thereto) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Exchange Business Day (or if such volume-weighted average price is unavailable, the market value of one Share on such Exchange Business Day, as determined by the Calculation Agent using, if practicable, a volume-weighted method), subject to adjustment pursuant to Section 4(c) of this Agreement and provided that the Daily VWAP Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session.
WARRANTS PARTIAL UNWIND AGREEMENT dated as of July 8, 2022 with respect to Base Warrant Confirmation, dated April 14, 2020, as amended and Additional Warrant Confirmation, dated April 20, 2020, as amended | ||
between DICK’S Sporting Goods, Inc. and [Dealer] | ||
THIS WARRANTS PARTIAL UNWIND AGREEMENT (this “Agreement”) is made as of July 8, 2022 between DICK’S Sporting Goods, Inc. (the “Company”) and [__________] (“Dealer”)[, acting through its agent [__________] (the “Agent”)].
WHEREAS, the Company and Dealer are party to a Base Warrant Transaction pursuant to an ISDA confirmation, dated April 14, 2020 (amended, modified, adjusted or supplemented from time to time, the “Base Warrant Confirmation”);
WHEREAS, the Company and Dealer are party to an Additional Warrant Transaction pursuant to an ISDA confirmation, dated April 20, 2020 (as amended, modified, adjusted or supplemented from time to time, the “Additional Warrant Confirmation” and, collectively with the Base Warrant Confirmation, the “Warrant Confirmations”);
WHEREAS, the Company has requested, and Dealer has agreed, to unwind the Warrant Confirmations with respect to a portion of the Number of Warrants included therein;
NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:
1. Defined Terms. Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the Base Warrant Confirmation or the Additional Warrant Confirmation, as the case may be.
2. Base Warrant Partial Unwind. On the Settlement Date (as such term is defined below), the Number of Warrants in the Base Warrant Confirmation shall be reduced by [●] Warrants (the “Unwound Warrants”) to [●] Warrants. Effective as of the Settlement Date, all of the respective rights and obligations of the parties under the Base Warrant Confirmation with respect to the Unwound Warrants shall be terminated, cancelled and extinguished. In addition, the parties acknowledge and agree that the provisions of Section 9(j) of each of the Warrant Confirmations will not apply to any of the Unwound Warrants.
3. [Reserved].
4. Settlement. (a) In consideration for the foregoing partial unwind, no later than 1:00 p.m., New York City time, on the date three Scheduled Trading Days immediately following the last day of the Hedge Unwind Period (the “Settlement Date”), the Company shall deliver a number of Shares to Dealer equal to the product of the Unwound Warrants and the applicable Cash Settlement Amount divided by the Average VWAP Price (the “Warrants Settlement Amount”). For the avoidance of doubt, no additional amount shall be payable or deliverable by either party pursuant to the Equity Definitions, either of the Warrant Confirmations, or the Agreement (as such term is defined in each of the Warrant Confirmations) in respect of the amendments to, and partial unwind of, each of the Warrant Confirmations pursuant to Sections 2 and 3 above. “Hedge Unwind Period” means the two Scheduled Trading Day period commencing on and including July 11, 2022 (the “Initial Unwind
Date”), subject to Section 4(c) of this Agreement. “Call Option Settlement Amount” has the meaning assigned to such term in that certain Call Option Partial Unwind Agreement, dated as of the date hereof, between Dealer and the Company (the “Call Option Unwind Agreement”). “Cash Settlement Amount” has the meaning assigned to such term in Exhibit A hereto.
(b) Notwithstanding anything to the contrary herein, the Company and Dealer agree to net the Call Option Settlement Amount and the Warrants Settlement Amount such that a single delivery of Shares shall be made in respect of this Agreement and the Call Option Unwind Agreement (such net delivery, the “Net Termination Payment”), and such Net Termination Payment shall satisfy (i) Dealer’s obligation to deliver the Call Option Settlement Amount pursuant to the Call Option Unwind Agreement and (ii) the Company’s obligation to deliver the Warrants Settlement Amount pursuant to this Agreement. Dealer shall (i) notify the Company of the applicable Call Option Settlement Amount, Warrants Settlement Amount and the amount of the Net Termination Payment as soon as reasonably practicable after 5:00 p.m., New York City time, on the last Scheduled Trading Day of the Hedge Unwind Period, and (ii) deliver to the Company the Net Termination Payment by 1:00 p.m., New York City time, on the Settlement Date; provided that Dealer may make such delivery on the Settlement Date after 1:00 p.m., New York City time, if the requisite administrative or operational requirements have not been completed prior to such time.
(c) Notwithstanding anything to the contrary in this Agreement, (i) Dealer may postpone the Initial Unwind Date or extend the Hedge Unwind Period by one or more Scheduled Trading Days if Dealer determines, in its reasonable discretion, that such postponement or extension is reasonably necessary or advisable to preserve Dealer’s hedge unwind activity hereunder in light of existing liquidity conditions or, based upon the advice of counsel, to enable Dealer or its affiliate or agent to effect transactions with respect to Shares in connection with its hedge unwind or settlement activity hereunder in a manner that would be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer, and (ii) if a Disrupted Day occurs in the Hedge Unwind Period, (a) the Calculation Agent may extend the Hedge Unwind Period and (b) the Calculation Agent may also determine that (1) such Disrupted Day is a Disrupted Day in full, in which case the Daily VWAP Price for such Disrupted Day shall not be included for purposes of determining the Average VWAP Price or (2) such Disrupted Day is a Disrupted Day in part, in which case the Daily VWAP Price for such Disrupted Day shall be determined by the Calculation Agent taking into account the nature and duration of the relevant Market Disruption Event, and the volume, historical trading patterns and price of the Shares. If a Disrupted Day occurs in the Hedge Unwind Period, and each of the eight immediately following Scheduled Trading Days is a Disrupted Day, then the Calculation Agent may determine such eighth Scheduled Trading Day to be an Exchange Business Day that is not a Disrupted Day and determine the Daily VWAP Price for such eighth Scheduled Trading Day using its good faith estimate of the value of the Shares on such eighth Scheduled Trading Day.
(d) The parties acknowledge that the Calculation Agent will be subject to the applicable requirements under the Warrant Confirmations, including under the provisions of Section 4 of each of the Warrant Confirmations. Dealer shall use its reasonable efforts to notify the Company of any extension or postponement of the Hedge Unwind Period pursuant to this Section 4.
5. Representations and Warranties of the Parties. Each party hereto re-makes, as of the date hereof, the representations and warranties contained in Section 3(a) of the Agreement (as such term is defined in the Warrant Confirmations) as if such representations and warranties applied to this Agreement.
6. Representations, Warranties and Agreements of the Company. The Company represents and warrants to, and agrees with, Dealer as of the date hereof that:
a.The Company is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act or any other antifraud or anti-manipulation provisions of the federal or applicable state securities laws and has not entered into or altered and will not enter into or alter any “corresponding or hedging transaction or position” (within the meaning of Rule 10b5-1 under the Exchange Act) with respect to the Shares.
b.The Company does not have, and shall not attempt to exercise, any control or influence over how, when or whether Dealer (or its agents or affiliates) makes any
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“purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3) under the Exchange Act) in connection with this Agreement.
c.The Company is not in possession of any material non-public information regarding the Company or the Shares.
d.The Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.
e.The Company is not entering into this Agreement to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares).
f.On each of the date hereof and the Settlement Date, the Company is not, or will not be, “insolvent” (as such term is defined under Section 101(32) of the Bankruptcy Code).
g.The Company is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
h.Neither the Company nor any of its Affiliates or agents shall take any action that would cause Regulation M under the Exchange Act (“Regulation M”) to be applicable to any purchases of Shares, or any security for which the Shares are a reference security (as defined in Regulation M), by Company or any of its affiliated purchasers (as defined in Regulation M) on any Trading Day during the Hedge Unwind Period.
i.The Company (A) will not during the Hedge Unwind Period make, or (to the extent within Company’s control) permit to be made, any public announcement (as defined in Rule 165(f) under the Securities Act of 1933, as amended (the “Securities Act”)) of any Merger Transaction or potential Merger Transaction unless such public announcement is made prior to the opening or after the close of the regular trading session on the Exchange for the Shares; (B) shall promptly (but in any event prior to the next opening of the regular trading session on the Exchange) notify Dealer following any such announcement that such announcement has been made; and (C) shall promptly (but in any event prior to the next opening of the regular trading session on the Exchange) provide Dealer with written notice specifying (x) the Company’s average daily Rule 10b-18 purchases (as defined in Rule 10b-18) during the three full calendar months immediately preceding the announcement date that were not effected through Dealer or its affiliates and (y) the number of Shares purchased pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange Act for the three full calendar months preceding the announcement date. Such written notice shall be deemed to be a certification by the Company to Dealer that such information is true and correct. In addition, the Company shall promptly notify Dealer of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. “Merger Transaction” means any merger, acquisition or similar transaction involving a recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the Exchange Act.
j.Except in connection with the Repurchase (as defined in the Call Option Unwind Agreement), the Company shall not, and shall cause its affiliates and affiliated purchasers (each as defined in Rule 10b-18) not to, directly or indirectly (including, without limitation, by means of a cash-settled or other derivative instrument), without the prior written consent of Dealer, purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares during the Hedge Unwind Period.
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k.On the date hereof, and on each day during the Hedge Unwind Period and on the Settlement Date, the Company is not, and will not be, “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) and Company would be able to purchase a number of Shares equal to the Call Option Settlement Amount in compliance with the corporate laws of the jurisdiction of its incorporation.
7. Agreements and Acknowledgements Regarding Hedge Unwind. The Company understands, acknowledges and agrees that: (A) at any time during the Hedge Unwind Period, Dealer and its affiliates or agents may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to each Transaction and this Agreement; (B) Dealer and its affiliates or agents also may be active in the market for Shares other than in connection with hedging activities in relation to each Transaction and this Agreement; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to each Transaction and this Agreement; and (D) any market activities of Dealer and its affiliates or agents with respect to Shares may affect the market price and volatility of Shares, as well as the Average VWAP Price and/or any Daily VWAP Price, each in a manner that may be adverse to the Company.
8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine).
9. No Other Changes. Except as expressly set forth herein, all of the terms and conditions of each of the Warrant Confirmations shall remain in full force and effect and are hereby confirmed in all respects.
10. Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all of the signatures thereto and hereto were upon the same instrument.
11. No Reliance, etc. The Company hereby confirms that it has relied on the advice of its own counsel and other advisors (to the extent it deems appropriate) with respect to any legal, tax, accounting, or regulatory consequences of this Agreement, that it has not relied on Dealer or its affiliates or agents in any respect in connection therewith, and that it will not hold Dealer or its affiliates accountable for any such consequences.
12. Adjustment of Unwound Warrants. The parties agree that the Calculation Agent may, in good faith and a commercially reasonable manner, adjust the Warrants Settlement Amount upon the occurrence of any event or condition that would have allowed the Calculation Agent to adjust the terms of the Transactions under the Warrant Confirmations, and any such adjustments shall be made in order to account for the economic effect of such adjustment event on the unwind contemplated by this Agreement, as determined in good faith and in a commercially reasonable manner by the Calculation Agent.
13. Designation by Dealer. Notwithstanding any other provision in this Agreement to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from the Company, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such shares or other securities and otherwise to perform Dealer’s obligations in respect of the transactions contemplated by this Agreement and any such designee may assume such obligations. Dealer shall be discharged of its obligations to the Company to the extent of any such performance.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and the year first above written.
| DICK’S SPORTING GOODS, INC. | |||||||||||
| By: | |||||||||||
Name: Title: | |||||||||||
| [DEALER] | |||||||||||
| By: | |||||||||||
Name: Title: | |||||||||||
[Signature Page to Warrant Partial Unwind Agreement]
EXHIBIT A
| Average VWAP Price | Cash Settlement Amount | ||||
“Cash Settlement Amount” means the amount of cash in USD set forth above in the “Cash Settlement Amount” column opposite the applicable Average VWAP Price, subject to adjustment pursuant to Sections 4 and 12 of this Agreement. If the Average VWAP Price is not specified on the grid above, the Cash Settlement Amount shall be determined by the Calculation Agent based on a straight-line interpolation between the Average VWAP Prices or extrapolation from the Average VWAP Prices (as the case may be) specified on the grid above.
“Average VWAP Price” means the arithmetic average of the Daily VWAP Prices for each of the Exchange Business Days in the Hedge Unwind Period, as determined by the Calculation Agent in good faith and a commercially reasonable manner, subject to adjustment pursuant to Section 4(c) of this Agreement.
“Daily VWAP Price” for any Exchange Business Day means the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “DKS <equity> AQR” (or any successor thereto) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Exchange Business Day (or if such volume-weighted average price is unavailable, the market value of one Share on such Exchange Business Day, as determined by the Calculation Agent using, if practicable, a volume-weighted method), subject to adjustment pursuant to Section 4(c) of this Agreement and provided that the Daily VWAP Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session.
CALL OPTION TOTAL UNWIND AGREEMENT dated as of July 8, 2022 with respect to Base Call Option Confirmation, dated April 14, 2020, as amended and Additional Call Option Confirmation, dated April 20, 2020, as amended | ||
between DICK’S Sporting Goods, Inc. and [Dealer] | ||
THIS CALL OPTION TOTAL UNWIND AGREEMENT (this “Agreement”) is made as of July 8, 2022, between DICK’S Sporting Goods, Inc. (the “Company”) and [__________] (“Dealer”) acting through its agent [__________] (the “Agent”).
WHEREAS, the Company and Dealer are party to a Base Call Option Transaction pursuant to an ISDA confirmation, dated April 14, 2020 (as amended, modified, adjusted or supplemented from time to time, the “Base Call Option Confirmation”), relating to the Company’s 3.25% Convertible Senior Notes due 2025 (the “Convertible Notes”);
WHEREAS, the Company and Dealer are party to an Additional Call Option Transaction pursuant to an ISDA confirmation, dated April 20, 2020 (as amended, modified, adjusted or supplemented from time to time, the “Additional Call Option Confirmation” and, collectively with the Base Call Option Confirmation, the “Call Option Confirmations”), also relating to the Convertible Notes;
WHEREAS, the Company and certain holders (each, a “Holder”) of the Convertible Notes, have entered into privately negotiated transactions, through the Company’s broker-dealer agent, pursuant to which the Company has agreed as of the date hereof to repurchase from such Holders (the “Repurchase”) an aggregate of $50,000,000 principal amount of Convertible Notes for a combination of cash and common stock of the Company;
WHEREAS, in connection with the Repurchase, the Company has requested, and Dealer has agreed, to unwind the Call Option Confirmations with respect to a portion of the Number of Options included therein;
NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:
1. Defined Terms. Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the Base Call Option Confirmation or the Additional Call Option Confirmation, as the case may be.
2. Base Call Option Total Unwind. On the Settlement Date (as such term is defined below), the Number of Options in the Base Call Option Confirmation shall be reduced to zero Options. Effective as of the Settlement Date, all of the respective rights and obligations of the parties under the Base Call Option Confirmation shall be terminated, cancelled and extinguished in their entirety. In addition, the parties acknowledge and agree that the provisions of Sections 9(j)(ii) and 9(m) of each of the Call Option Confirmations will not apply to any Convertible Notes subject to the Repurchase or to this Agreement.
3. Additional Call Option Total Unwind. On the Settlement Date, the Number of Options in the Additional Call Option Confirmation shall be reduced to zero Options. Effective as of the Settlement
Date, all of the respective rights and obligations of the parties under the Additional Call Option Confirmation shall be terminated, cancelled and extinguished in their entirety.
4. Settlement. (a) In consideration for the foregoing total unwinds, no later than 10:00 a.m., New York City time, on the date three Scheduled Trading Days immediately following the last day of the Hedge Unwind Period (the “Settlement Date”), Dealer shall deliver a number of Shares to the Company equal to the product of [●] and the applicable “Cash Settlement Amount” opposite the Average VWAP Price in the table in Exhibit A hereto divided by the Average VWAP Price (the “Call Option Settlement Amount”). For the avoidance of doubt, no additional amount shall be payable or deliverable by either party pursuant to the Equity Definitions, either of the Call Option Confirmations, or the Agreement (as such term is defined in each of the Call Option Confirmations) in respect of the amendments to, and total unwind of, each of the Call Option Confirmations pursuant to Sections 2 and 3 above. “Hedge Unwind Period” means the two Scheduled Trading Day period commencing on and including July 11, 2022 (the “Initial Unwind Date”), subject to Section 4(c) of this Agreement. “Warrants Settlement Amount” has the meaning assigned to such term in that certain Warrants Total Unwind Agreement, dated as of the date hereof, between Dealer and the Company (the “Warrants Unwind Agreement”).
(b) Notwithstanding anything to the contrary herein, the Company and Dealer agree to net the Call Option Settlement Amount and the Warrants Settlement Amount such that a single delivery of Shares shall be made in respect of this Agreement and the Warrants Unwind Agreement (such net delivery, the “Net Termination Payment”), and such Net Termination Payment shall satisfy (i) Dealer’s obligation to deliver the Call Option Settlement Amount pursuant to this Agreement and (ii) the obligation of the Company to deliver the Warrants Settlement Amount pursuant to the Warrants Unwind Agreement. Dealer shall (i) notify the Company of the applicable Call Option Settlement Amount, Warrants Settlement Amount and the amount of the Net Termination Payment as soon as reasonably practicable after 5:00 p.m., New York City time, on the last Scheduled Trading Day of the Hedge Unwind Period, and (ii) deliver to the Company the Net Termination Payment by 10:00 a.m., New York City time, on the Settlement Date; provided that Dealer may make such delivery to the Company on the Settlement Date after 10:00 a.m., New York City time, if the requisite administrative or operational requirements have not been completed prior to such time.
(c) Notwithstanding anything to the contrary in this Agreement, (i) Dealer may postpone the Initial Unwind Date or extend the Hedge Unwind Period by one or more Scheduled Trading Days if Dealer determines, in its reasonable discretion, that such postponement or extension is reasonably necessary or advisable to preserve Dealer’s hedge unwind activity hereunder in light of existing liquidity conditions or, based upon the advice of counsel, to enable Dealer or its affiliate or agent to effect transactions with respect to Shares in connection with its hedge unwind or settlement activity hereunder in a manner that would be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer, and (ii) if a Disrupted Day occurs in the Hedge Unwind Period, (a) the Calculation Agent may extend the Hedge Unwind Period and (b) the Calculation Agent may also determine that (1) such Disrupted Day is a Disrupted Day in full, in which case the Daily VWAP Price for such Disrupted Day shall not be included for purposes of determining the Average VWAP Price or (2) such Disrupted Day is a Disrupted Day in part, in which case the Daily VWAP Price for such Disrupted Day shall be determined by the Calculation Agent taking into account the nature and duration of the relevant Market Disruption Event, and the volume, historical trading patterns and price of the Shares. If a Disrupted Day occurs in the Hedge Unwind Period, and each of the eight immediately following Scheduled Trading Days is a Disrupted Day, then the Calculation Agent may determine such eighth Scheduled Trading Day to be an Exchange Business Day that is not a Disrupted Day and determine the Daily VWAP Price for such eighth Scheduled Trading Day using its good faith estimate of the value of the Shares on such eighth Scheduled Trading Day. “Disrupted Day” means any Scheduled Trading Day on which (i) The New York Stock Exchange (the “NYSE”) fails to open for trading during its regular trading session or (ii) a Trading Halt occurs (any such event as described in clauses (i) and (ii), a “Market Disruption Event”). “Trading Halt” means the occurrence or existence prior to 1:00 p.m., New York City time, on any scheduled trading day for the Shares for more than one 45 minute period in the aggregate during regular trading hours of any suspension of trading (by reason of movements in price exceeding limits permitted by the NYSE or otherwise) in the Shares.
(d) The parties acknowledge that the Calculation Agent will be subject to the applicable requirements under the Call Option Confirmations, including under the provisions of Section 4 of each
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of the Call Option Confirmations. Dealer shall use its reasonable efforts to notify the Company in writing of any extension or postponement of the Hedge Unwind Period pursuant to this Section 4.
5. Representations and Warranties of the Parties. Each party hereto re-makes, as of the date hereof, the representations and warranties contained in Section 3(a) of the “Agreement” (as such term is defined in the Call Option Confirmations) as if such representations and warranties applied to this Agreement.
6. Representations and Warranties of the Company. The Company represents and warrants to Dealer as of the date hereof that:
a.The Company is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act or any other antifraud or anti-manipulation provisions of the federal or applicable state securities laws and has not entered into or altered and will not enter into or alter any “corresponding or hedging transaction or position” (within the meaning of Rule 10b5-1 under the Exchange Act) with respect to the Shares.
b.The Company does not have, and shall not attempt to exercise, any control or influence over how, when or whether Dealer (or its agents or affiliates) makes any “purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3) under the Exchange Act) in connection with this Agreement.
c.The Company is not in possession of any material non-public information regarding the Company or the Shares.
d.The Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.
e.The Company is not entering into this Agreement to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares).
f.On each of the date hereof and the Settlement Date, the Company is not, or will not be, “insolvent” (as such term is defined under Section 101(32) of the Bankruptcy Code).
g.The Company is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
7. Agreements and Acknowledgements Regarding Hedge Unwind. The Company understands, acknowledges and agrees that: (A) at any time during the Hedge Unwind Period, Dealer and its affiliates or agents may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to each Transaction and this Agreement; (B) Dealer and its affiliates or agents also may be active in the market for Shares other than in connection with hedging activities in relation to each Transaction and this Agreement; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to each Transaction and this Agreement; and (D) any market activities of Dealer and its affiliates or agents with respect to Shares may affect the market price and volatility of Shares, as well as the Average VWAP Price and/or any Daily VWAP Price, each in a manner that may be adverse to the Company.
8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine).
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9. No Other Changes. Except as expressly set forth herein, all of the terms and conditions of each of the Call Option Confirmations shall remain in full force and effect and are hereby confirmed in all respects.
10. Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all of the signatures thereto and hereto were upon the same instrument.
11. No Reliance, etc. The Company hereby confirms that it has relied on the advice of its own counsel and other advisors (to the extent it deems appropriate) with respect to any legal, tax, accounting, or regulatory consequences of this Agreement, that it has not relied on Dealer or its affiliates or agents in any respect in connection therewith, and that it will not hold Dealer or its affiliates accountable for any such consequences.
12. Adjustment of Unwound Call Options. The parties agree that, upon the occurrence of any event that would result in an adjustment of the Warrants Settlement Amount under the Warrants Unwind Agreement, the Calculation Agent may adjust the Call Option Settlement Amount to account for the economic effect of such adjustment event on the unwind contemplated by this Agreement, as determined in good faith and in a commercially reasonable manner by the Calculation Agent.
13. Designation by Dealer. Notwithstanding any other provision in this Agreement to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from the Company, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such shares or other securities and otherwise to perform Dealer’s obligations in respect of the transactions contemplated by this Agreement and any such designee may assume such obligations. Dealer shall be discharged of its obligations to the Company to the extent of any such performance.
14. Role of Agent. Each of Dealer and the Company acknowledges to and agrees with the other party hereto and to and with the Agent that (i) the Agent is acting as agent for Dealer in respect of the transactions contemplated by this Agreement pursuant to instructions from such party, (ii) the Agent is not a principal or party to the transactions contemplated by this Agreement, and may transfer its rights and obligations with respect to the transactions contemplated by this Agreement, (iii) the Agent shall have no responsibility, obligation or liability, by way of issuance, guaranty, endorsement or otherwise in any manner with respect to the performance of either party under the transactions contemplated by this Agreement, (iv) Dealer and the Agent have not given, and the Company is not relying (for purposes of making any investment decision or otherwise) upon, any statements, opinions or representations (whether written or oral) of Dealer or the Agent, other than the representations expressly set forth in this Agreement, and (v) each party agrees to proceed solely against the other party, and not the Agent, to collect or recover any money or securities owed to it in connection with the transactions contemplated by this Agreement. Each party hereto acknowledges and agrees that the Agent is an intended third party beneficiary hereunder. The Company acknowledges that the Agent is an affiliate of Dealer. Dealer will be acting for its own account in respect of this Agreement and the transactions contemplated hereunder.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and the year first above written.
| DICK’S SPORTING GOODS, INC. | |||||||||||
| By: | |||||||||||
Name: Title: | |||||||||||
| [Dealer] | |||||||||||
| By: | |||||||||||
Name: Title: | |||||||||||
[Signature Page to Call Option Total Unwind Agreement]
EXHIBIT A
| Average VWAP Price | Cash Settlement Amount | ||||
If the Average VWAP Price is not specified on the grid above, the Cash Settlement Amount shall be determined based on a straight-line interpolation between the Average VWAP Prices or extrapolation from the Average VWAP Prices (as the case may be) specified on the grid above.
“Average VWAP Price” means the arithmetic average of the Daily VWAP Prices for each of the Exchange Business Days in the Hedge Unwind Period, as determined by the Calculation Agent in good faith and a commercially reasonable manner, subject to adjustment pursuant to Section 4(c) of this Agreement.
“Daily VWAP Price” for any Exchange Business Day means the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “DKS <equity> AQR” (or any successor thereto) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Exchange Business Day (or if such volume-weighted average price is unavailable, the market value of one Share on such Exchange Business Day, as determined by the Calculation Agent using, if practicable, a volume-weighted method), subject to adjustment pursuant to Section 4(c) of this Agreement and provided that the Daily VWAP Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session.
WARRANTS TOTAL UNWIND AGREEMENT dated as of July 8, 2022 with respect to Base Warrant Confirmation, dated April 14, 2020, as amended and Additional Warrant Confirmation, dated April 20, 2020, as amended | ||
between DICK’S Sporting Goods, Inc. and [Dealer] | ||
THIS WARRANTS TOTAL UNWIND AGREEMENT (this “Agreement”) is made as of July 8, 2022 between DICK’S Sporting Goods, Inc. (the “Company”) and [__________] (“Dealer”) acting through its agent [__________] (the “Agent”).
WHEREAS, the Company and Dealer are party to a Base Warrant Transaction pursuant to an ISDA confirmation, dated April 14, 2020 (amended, modified, adjusted or supplemented from time to time, the “Base Warrant Confirmation”);
WHEREAS, the Company and Dealer are party to an Additional Warrant Transaction pursuant to an ISDA confirmation, dated April 20, 2020 (as amended, modified, adjusted or supplemented from time to time, the “Additional Warrant Confirmation” and, collectively with the Base Warrant Confirmation, the “Warrant Confirmations”);
WHEREAS, the Company has requested, and Dealer has agreed, to unwind the Warrant Confirmations with respect to a portion of the Number of Warrants included therein;
NOW, THEREFORE, in consideration of their mutual covenants herein contained, the parties hereto, intending to be legally bound, hereby mutually covenant and agree as follows:
1. Defined Terms. Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the Base Warrant Confirmation or the Additional Warrant Confirmation, as the case may be.
2. Base Warrant Total Unwind. On the Settlement Date (as such term is defined below), the Number of Warrants in the Base Warrant Confirmation shall be reduced by [●] Warrants (the “Unwound Base Warrants”) to zero Warrants. Effective as of the Settlement Date, all of the respective rights and obligations of the parties under the Base Warrant Confirmation shall be terminated, cancelled and extinguished. In addition, the parties acknowledge and agree that the provisions of Section 9(j) of each of the Warrant Confirmations will not apply to any of the Unwound Base Warrants.
3. Additional Warrant Total Unwind. On the Settlement Date, the Number of Warrants in the Additional Warrant Confirmation shall be reduced by [●] Warrants (the “Unwound Additional Warrants” and, collectively with the Unwound Base Warrants, the “Unwound Warrants”) to zero Warrants. Effective as of the Settlement Date, all of the respective rights and obligations of the parties under the Additional Warrant Confirmation shall be terminated, cancelled and extinguished. In addition, the parties acknowledge and agree that the provisions of Section 9(j) of each of the Warrant Confirmations will not apply to any of the Unwound Additional Warrants.
4. Settlement. (a) In consideration for the foregoing total unwind, no later than 10:00 a.m., New York City time, on the date three Scheduled Trading Days immediately following the last day of the Hedge Unwind Period (the “Settlement Date”), the Company shall deliver a number of Shares to Dealer equal to the product of the Unwound Warrants and the applicable “Cash Settlement Amount”
opposite the Average VWAP Price in the table in Exhibit A hereto divided by the Average VWAP Price (the “Warrants Settlement Amount”). For the avoidance of doubt, no additional amount shall be payable or deliverable by either party pursuant to the Equity Definitions, either of the Warrant Confirmations, or the Agreement (as such term is defined in each of the Warrant Confirmations) in respect of the amendments to, and total unwind of, each of the Warrant Confirmations pursuant to Sections 2 and 3 above. “Hedge Unwind Period” means the two Scheduled Trading Day period commencing on and including July 11, 2022 (the “Initial Unwind Date”), subject to Section 4(c) of this Agreement. “Call Option Settlement Amount” has the meaning assigned to such term in that certain Call Option Total Unwind Agreement, dated as of the date hereof, between Dealer and the Company (the “Call Option Unwind Agreement”).
(b) Notwithstanding anything to the contrary herein, the Company and Dealer agree to net the Call Option Settlement Amount and the Warrants Settlement Amount such that a single delivery of Shares shall be made in respect of this Agreement and the Call Option Unwind Agreement (such net delivery, the “Net Termination Payment”), and such Net Termination Payment shall satisfy (i) Dealer’s obligation to deliver the Call Option Settlement Amount pursuant to the Call Option Unwind Agreement and (ii) the Company’s obligation to deliver the Warrants Settlement Amount pursuant to this Agreement. Dealer shall (i) notify the Company of the applicable Call Option Settlement Amount, Warrants Settlement Amount and the amount of the Net Termination Payment as soon as reasonably practicable after 5:00 p.m., New York City time, on the last Scheduled Trading Day of the Hedge Unwind Period, and (ii) deliver to the Company the Net Termination Payment by 10:00 a.m., New York City time, on the Settlement Date; provided that Dealer may make such delivery on the Settlement Date after 10:00 a.m., New York City time, if the requisite administrative or operational requirements have not been completed prior to such time.
(c) Notwithstanding anything to the contrary in this Agreement, (i) Dealer may postpone the Initial Unwind Date or extend the Hedge Unwind Period by one or more Scheduled Trading Days if Dealer determines, in its reasonable discretion, that such postponement or extension is reasonably necessary or advisable to preserve Dealer’s hedge unwind activity hereunder in light of existing liquidity conditions or, based upon the advice of counsel, to enable Dealer or its affiliate or agent to effect transactions with respect to Shares in connection with its hedge unwind or settlement activity hereunder in a manner that would be in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer, and (ii) if a Disrupted Day occurs in the Hedge Unwind Period, (a) the Calculation Agent may extend the Hedge Unwind Period and (b) the Calculation Agent may also determine that (1) such Disrupted Day is a Disrupted Day in full, in which case the Daily VWAP Price for such Disrupted Day shall not be included for purposes of determining the Average VWAP Price or (2) such Disrupted Day is a Disrupted Day in part, in which case the Daily VWAP Price for such Disrupted Day shall be determined by the Calculation Agent taking into account the nature and duration of the relevant Market Disruption Event, and the volume, historical trading patterns and price of the Shares. If a Disrupted Day occurs in the Hedge Unwind Period, and each of the eight immediately following Scheduled Trading Days is a Disrupted Day, then the Calculation Agent may determine such eighth Scheduled Trading Day to be an Exchange Business Day that is not a Disrupted Day and determine the Daily VWAP Price for such eighth Scheduled Trading Day using its good faith estimate of the value of the Shares on such eighth Scheduled Trading Day. “Disrupted Day” means any Scheduled Trading Day on which (i) The New York Stock Exchange (the “NYSE”) fails to open for trading during its regular trading session or (ii) a Trading Halt occurs (any such event as described in clauses (i) and (ii), a “Market Disruption Event”). “Trading Halt” means the occurrence or existence prior to 1:00 p.m., New York City time, on any scheduled trading day for the Shares for more than one 45 minute period in the aggregate during regular trading hours of any suspension of trading (by reason of movements in price exceeding limits permitted by the NYSE or otherwise) in the Shares.
(d) The parties acknowledge that the Calculation Agent will be subject to the applicable requirements under the Warrant Confirmations, including under the provisions of Section 4 of each of the Warrant Confirmations. Dealer shall use its reasonable efforts to notify the Company of any extension or postponement of the Hedge Unwind Period pursuant to this Section 4.
5. Representations and Warranties of the Parties. Each party hereto re-makes, as of the date hereof, the representations and warranties contained in Section 3(a) of the Agreement (as such term is defined in the Warrant Confirmations) as if such representations and warranties applied to this Agreement.
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6. Representations and Warranties of the Company. The Company represents and warrants to Dealer as of the date hereof that:
a.The Company is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act or any other antifraud or anti-manipulation provisions of the federal or applicable state securities laws and has not entered into or altered and will not enter into or alter any “corresponding or hedging transaction or position” (within the meaning of Rule 10b5-1 under the Exchange Act) with respect to the Shares.
b.The Company does not have, and shall not attempt to exercise, any control or influence over how, when or whether Dealer (or its agents or affiliates) makes any “purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3) under the Exchange Act) in connection with this Agreement.
c.The Company is not in possession of any material non-public information regarding the Company or the Shares.
d.The Company (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.
e.The Company is not entering into this Agreement to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares).
f.On each of the date hereof and the Settlement Date, the Company is not, or will not be, “insolvent” (as such term is defined under Section 101(32) of the Bankruptcy Code).
g.The Company is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
7. Agreements and Acknowledgements Regarding Hedge Unwind. The Company understands, acknowledges and agrees that: (A) at any time during the Hedge Unwind Period, Dealer and its affiliates or agents may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to each Transaction and this Agreement; (B) Dealer and its affiliates or agents also may be active in the market for Shares other than in connection with hedging activities in relation to each Transaction and this Agreement; (C) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in securities of Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to each Transaction and this Agreement; and (D) any market activities of Dealer and its affiliates or agents with respect to Shares may affect the market price and volatility of Shares, as well as the Average VWAP Price and/or any Daily VWAP Price, each in a manner that may be adverse to the Company.
8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine).
9. No Other Changes. Except as expressly set forth herein, all of the terms and conditions of each of the Warrant Confirmations shall remain in full force and effect and are hereby confirmed in all respects.
10. Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all of the signatures thereto and hereto were upon the same instrument.
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11. No Reliance, etc. The Company hereby confirms that it has relied on the advice of its own counsel and other advisors (to the extent it deems appropriate) with respect to any legal, tax, accounting, or regulatory consequences of this Agreement, that it has not relied on Dealer or its affiliates or agents in any respect in connection therewith, and that it will not hold Dealer or its affiliates accountable for any such consequences.
12. Adjustment of Unwound Warrants. The parties agree that the Calculation Agent may, in good faith and a commercially reasonable manner, adjust the Warrants Settlement Amount upon the occurrence of any event or condition that would have allowed the Calculation Agent to adjust the terms of the Transactions under the Warrant Confirmations, and any such adjustments shall be made in order to account for the economic effect of such adjustment event on the unwind contemplated by this Agreement, as determined in good faith and in a commercially reasonable manner by the Calculation Agent.
13. Designation by Dealer. Notwithstanding any other provision in this Agreement to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from the Company, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such shares or other securities and otherwise to perform Dealer’s obligations in respect of the transactions contemplated by this Agreement and any such designee may assume such obligations. Dealer shall be discharged of its obligations to the Company to the extent of any such performance.
14. Role of Agent. Each of Dealer and the Company acknowledges to and agrees with the other party hereto and to and with the Agent that (i) the Agent is acting as agent for Dealer in respect of the transactions contemplated by this Agreement pursuant to instructions from such party, (ii) the Agent is not a principal or party to the transactions contemplated by this Agreement, and may transfer its rights and obligations with respect to the transactions contemplated by this Agreement, (iii) the Agent shall have no responsibility, obligation or liability, by way of issuance, guaranty, endorsement or otherwise in any manner with respect to the performance of either party under the transactions contemplated by this Agreement, (iv) Dealer and the Agent have not given, and the Company is not relying (for purposes of making any investment decision or otherwise) upon, any statements, opinions or representations (whether written or oral) of Dealer or the Agent, other than the representations expressly set forth in this Agreement, and (v) each party agrees to proceed solely against the other party, and not the Agent, to collect or recover any money or securities owed to it in connection with the transactions contemplated by this Agreement. Each party hereto acknowledges and agrees that the Agent is an intended third party beneficiary hereunder. The Company acknowledges that the Agent is an affiliate of Dealer. Dealer will be acting for its own account in respect of this Agreement and the transactions contemplated hereunder.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and the year first above written.
| DICK’S SPORTING GOODS, INC. | |||||||||||
| By: | |||||||||||
Name: Title: | |||||||||||
| [Dealer] | |||||||||||
| By: | |||||||||||
Name: Title: | |||||||||||
[Signature Page to Warrant Total Unwind Agreement]
EXHIBIT A
| Average VWAP Price | Cash Settlement Amount | ||||
If the Average VWAP Price is not specified on the grid above, the Cash Settlement Amount shall be determined based on a straight-line interpolation between the Average VWAP Prices or extrapolation from the Average VWAP Prices (as the case may be) specified on the grid above.
“Average VWAP Price” means the arithmetic average of the Daily VWAP Prices for each of the Exchange Business Days in the Hedge Unwind Period, as determined by the Calculation Agent in good faith and a commercially reasonable manner, subject to adjustment pursuant to Section 4(c) of this Agreement.
“Daily VWAP Price” for any Exchange Business Day means the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “DKS <equity> AQR” (or any successor thereto) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Exchange Business Day (or if such volume-weighted average price is unavailable, the market value of one Share on such Exchange Business Day, as determined by the Calculation Agent using, if practicable, a volume-weighted method), subject to adjustment pursuant to Section 4(c) of this Agreement and provided that the Daily VWAP Price will be determined without regard to after-hours trading or any other trading outside of the regular trading session.
DICK’S SPORTING GOODS, INC.
EXCHANGE AGREEMENT
Dated as of July 8, 2022
[__________] (the “Undersigned”), for itself and on behalf of the beneficial owners listed on Exhibit A hereto (collectively, the “Accounts”) for whom the Undersigned holds contractual and investment authority (each Account, as well as the Undersigned if it is a beneficial owner of the outstanding 3.25% Convertible Senior Notes due 2025 (the “Outstanding Notes”) issued by DICK’S Sporting Goods, Inc., a Delaware corporation (the “Company”), a “Holder”), enters into this Exchange Agreement (this “Agreement”) with the Company as of the date first written above, whereby the Holders will exchange the Exchanged Notes (as defined below) for a combination of shares of the Company’s common stock, par value $0.01 (“Common Stock”), and cash, plus cash in respect of accrued and unpaid interest on such Holder’s Exchanged Notes, in each case determined as set forth herein.
On and subject to the terms hereof, and in consideration of the mutual covenants, agreements and understandings herein contained, the Undersigned, the Holders and the Company hereto agree as follows:
Article I
Exchange
Section 1.1 Exchange. On and subject to the terms set forth in this Agreement, at the Closing (as defined below), the Undersigned hereby agrees to cause each Holder that accepts the Company’s offer as set forth in this Article I to deliver to the Company at the Closing the aggregate principal amount of Outstanding Notes specified for such Holder on Exhibit A under the heading “Exchanged Notes” (the aggregate principal amount of Outstanding Notes delivered for exchange pursuant to this Agreement, the “Exchanged Notes”), and in exchange therefor the Company hereby agrees to pay or deliver, as applicable, to the Holders in the manner set forth in this Agreement for each $1,000 principal amount of Exchanged Notes:
(a) a cash payment (collectively, the “Cash Payment”) equal to:
(i) the lesser of $1,000.00 and the Exchange Price; and
(ii) Accrued Interest (as defined herein, as calculated per $1,000 principal amount of Exchanged Notes); and
(b) if the Exchange Price is greater than $1,000.00, a number of shares of Common Stock equal to the lesser of (x) the Share Cap and (y)(1) the Exchange Price minus $1,000.00 divided by (2) the average of the Daily VWAPs for each Trading Day in the Measurement Period (the “Exchange Shares”).
The Company shall pay cash in lieu of issuing any fractional share pursuant to clause (b) above based on the Daily VWAP on the last Trading Day of the Measurement Period, computed based on the total principal amount of Exchanged Notes by such Holder.
The Cash Payment and the Exchange Shares, together with cash in lieu of any fractional share, in respect of a Holder’s Exchanged Notes are referred to herein as the “Exchange Consideration.”
For the avoidance of doubt, no Holder’s exchange of its Exchanged Notes shall be contingent upon any other Holder’s exchange of its Exchanged Notes.
Any Accrued Interest shall be determined based on a Holder’s total number of Exchanged Notes, rounded to the nearest cent.
The issuance, delivery and acceptance of the Exchange Consideration and the exchange of the Exchanged Notes are collectively referred to herein as the “Transactions.”
For purposes of this Agreement:
“Accrued Interest” means, with respect to each Holder, accrued and unpaid interest on such Holder’s Exchanged Notes from and including April 15, 2022, to but excluding the Closing Date.
“Bond Reference Price” means $[●].
“Business Day” means any day other than a Saturday, a Sunday, or any day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.
“Conversion Rate” shall mean the Conversion Rate as set forth in the Indenture (and subject to the same adjustments as set forth therein). For the avoidance of doubt, the Conversion Rate as of the date hereof is 30.8281, taking into account all adjustments to the Conversion Rate through the date hereof, and without regard to the adjustment thresholds set forth in Section 5.05(C) of the Indenture.
“Daily Conversion Rate Fraction” means, with respect to each Trading Day in the Measurement Period, the Conversion Rate on such Trading Day divided by two.
“Daily Conversion Value” means, with respect to each Trading Day in the Measurement Period, the Daily Conversion Rate Fraction for such Trading Day multiplied by the Daily VWAP for such Trading Day.
“Daily Exchange Price Fraction” means, with respect to each Trading Day in the Measurement Period (i) the Bond Reference Price divided by two plus (ii) (A) the Hedge Ratio multiplied by (B)(I) the Daily Conversion Value for such Trading Day minus (II) the Signing Date Conversion Value divided by two.
“Daily VWAP” means, for any Trading Day, the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg VWAP” on Bloomberg page “DKS <equity> AQR” (or, if such page is not available, its equivalent successor page) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such Trading Day, determined using a volume-weighted average price method, by a nationally recognized independent investment banking firm selected by the Company). The “Daily VWAP” will be determined without regard to after-hours trading or any other trading outside of the regular trading session.
“Exchange Price” means the sum of the Daily Exchange Price Fractions for each Trading Day in the Measurement Period.
“Hedge Ratio” means the “Hedge Ratio” of the Holder set forth in Exhibit A hereto.
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“Indenture” means the Indenture, dated as of April 17, 2020, by and between the Company and U.S. Bank Trust Company, National Association (as successor to U.S. Bank National Association), as trustee, pursuant to which the Company issued the Outstanding Notes.
“Market Disruption Event” means (i) a failure by NYSE to open for trading during its regular trading session or (ii) a Trading Halt.
“Measurement Period” means the two Trading Day period commencing on, and including, the Trading Day immediately following the date of this Agreement.
“Share Cap” means 30.8281, subject to the same adjustment in the same manner and at the same time as adjustments to the Conversion Rate pursuant to the Indenture.
“Signing Date Conversion Value” means $[●].
“Trading Day” means a day on which (i) there is no Market Disruption Event and (ii) trading in the Common Stock generally occurs on NYSE.
“Trading Halt” means the occurrence or existence prior to 1:00 p.m., New York City time, on any scheduled trading day for the Common Stock for more than one 45 minute period in the aggregate during regular trading hours of any suspension of trading (by reason of movements in price exceeding limits permitted by NYSE or otherwise) in the Common Stock.
Section 1.2 Closing. Subject to the satisfaction (or waiver by the applicable parties) of the conditions set forth in Section 4.1 below, the closing of the Transactions (the “Closing”) will take place remotely via the exchange of documents and signatures on the third Business Day following the last Trading Day of the Measurement Period or at such other time and place as the Company and the Undersigned may agree in writing (the “Closing Date”).
At the Closing, (a) each Holder shall, and the Undersigned shall cause each Holder to, deliver or cause to be delivered to the Company all right, title and interest in and to its Exchanged Notes as specified on Exhibit A hereto (and no other consideration), free and clear of any mortgage, lien, pledge, charge, security interest, encumbrance, title retention agreement, option, equity or other adverse claim thereto (collectively, “Liens”), together with any documents of conveyance or transfer that the Company may deem necessary or desirable to transfer to and confirm in the Company all right, title and interest in and to the Exchanged Notes, free and clear of any Liens (no later than 10:00 a.m. (New York City time) on the Closing Date), and (b) the Company shall deliver or cause to be delivered to each Holder (i) the aggregate Cash Payment, together with cash in lieu of any fractional share, applicable thereto pursuant to the wire instructions provided by such Holder pursuant to Section 2.10, and (ii) the applicable number of Exchange Shares pursuant to the delivery instructions provided by such Holder pursuant to Section 2.10; provided, that the parties acknowledge that the delivery of the Exchange Shares may be delayed due to procedures and mechanics within the system of The Depository Trust Company (“DTC”) or The New York Stock Exchange (“NYSE”) (including the procedures and mechanics regarding the listing of the Exchange Shares on such exchange) or other events beyond the Company’s control and that such delay will not be a default under this Agreement so long as the Company is using its reasonable best efforts to effect the issuance of the Exchange Shares; provided, further, that no delivery of Exchange Shares will be made until such Exchanged Notes have been properly submitted for withdrawal through the Deposit/Withdrawal at Custodian (“DWAC”) program at DTC, and no accrued interest will be payable by reason of any delay in making such delivery.
For the avoidance of doubt, in the event of any delay in the Closing as described above, the Holders shall not be required to deliver the Exchanged Notes until the Closing occurs. The
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Company may at any time (whether before, simultaneously with or after the Closing) deliver Exchange Consideration to one or more other holders of Outstanding Notes or to other investors (any such issuances pursuant to agreements dated as of the date hereof, the “Aggregated Transactions”).
Upon delivery by the Holders of the Exchanged Notes and delivery by the Company of the Exchange Consideration, in each case in accordance with the terms hereof, the Undersigned and the Company shall enter into a customary cross-receipt pursuant to which the Undersigned will acknowledge (on behalf of each Holder) receipt of the Exchange Consideration and the Company will acknowledge receipt of the Exchanged Notes.
Article II
Covenants, Representations and Warranties of the Holders
Each Holder (and, where specified below, the Undersigned) hereby covenants as follows, and makes the following representations and warranties, each of which is and shall be true and correct on the date hereof and at and as of the Closing, to the Company and to HudsonWest LLC (the “Financial Advisor”), and all such covenants, representations and warranties shall survive the Closing.
Section 2.1 Power and Authorization. Each of the Undersigned and each Holder is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation, and the Undersigned has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Transactions. If the Undersigned is executing this Agreement on behalf of Accounts, the Undersigned has all requisite discretionary and contractual authority to enter into this Agreement on behalf of, and to bind, each Account. Exhibit A hereto is a true, correct and complete list of (a) the name of each Holder, (b) the principal amount of Outstanding Notes owned by such Holder that is to be delivered for exchange pursuant to this Agreement, and (c) the Accrued Interest (assuming the Closing Date occurs on July 15, 2022) applicable to such Holder in respect of its Exchanged Notes.
Section 2.2 Valid and Enforceable Agreement; No Violations. This Agreement has been duly authorized, executed and delivered by the Undersigned and constitutes a legal, valid and binding obligation of the Undersigned and the applicable Holder, enforceable against the Undersigned and the applicable Holder in accordance with its terms, except as may be subject to (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting or relating to enforcement of creditors’ rights generally, and (b) general principles of equity, whether such enforceability is considered in a proceeding at law or in equity (the “Enforceability Exceptions”). This Agreement and consummation of the Transactions will not violate, conflict with or result in a breach of or default under (i) the Undersigned or the applicable Holder’s organizational documents (or any similar documents governing each Account), (ii) any agreement or instrument to which the Undersigned or the applicable Holder is a party or by which the Undersigned or the applicable Holder or any of their respective assets are bound, or (iii) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Undersigned or the applicable Holder. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Holders of this Agreement and the consummation of the Transactions. The Undersigned is not and will not, nor is any Holder nor will any Holder be, a party to any agreement, arrangement or understanding with any individual, corporation, company, association, partnership, limited liability company, joint venture, trust or unincorporated organization, or a government or any agency or political subdivision thereof, which could result in the Undersigned or any Holder
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having any obligation or liability for any brokerage fees, commissions, underwriting discounts or other similar fees or expenses relating to the Transactions.
Section 2.3 Title to the Exchanged Notes. (a) Each Holder is the sole legal and beneficial owner of the Exchanged Notes (including any Accrued Interest) set forth opposite its name on Exhibit A hereto; (b) each Holder has good, valid and marketable title to its Exchanged Notes, free and clear of any Liens (other than pledges or security interests that such Holder may have created in favor of a prime broker under and in accordance with its prime brokerage agreement with such broker, which will be terminated and released prior to or at the Closing); (c) no Holder has, in whole or in part, except as described in the preceding clause (b), (i) assigned, transferred, hypothecated, pledged, exchanged or otherwise disposed of any of its Exchanged Notes or its rights, title or interest in or to its Exchanged Notes or (ii) given any person or entity (other than the Undersigned) any transfer order, power of attorney or other authority of any nature whatsoever with respect to its Exchanged Notes; (d) each Holder has the sole right to dispose or direct the disposition of the Exchanged Notes being exchanged by such Holder hereunder; and (e) upon each Holder’s delivery of its Exchanged Notes to the Company pursuant to the Transactions, good, valid and marketable title to such Exchanged Notes shall vest in the Company free and clear of all Liens. Such Exchanged Notes are unrestricted and freely tradeable (including pursuant to Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”)) and are free and clear of any restrictions on transfer, taxes, options, warrants, purchase rights, contracts, commitments, equities, claims, and demands.
Section 2.4 Qualified Institutional Buyer. Each Holder is (a) a “qualified institutional buyer” within the meaning of Rule 144A promulgated under the Securities Act, and (b) an “Institutional Account” as defined in FINRA Rule 4512(c). The Undersigned and each Holder is aware that issuance of the Exchange Shares is being made in reliance on a private placement exemption from registration under the Securities Act. Each Holder is acquiring the Exchange Shares for its own account, and not with a view toward, or for sale in connection with, any distribution thereof in violation of any federal or state securities or “blue sky” law. Each Holder is capable of bearing the economic risks of such investment. The Holder agrees not to reoffer or resell the Exchange Shares except pursuant to an exemption from registration under the Securities Act.
Section 2.5 Sole Consideration; Full Satisfaction of Obligations under the Notes. The sole consideration paid, given or otherwise provided to the Company for the Exchange Consideration consists of the Outstanding Notes delivered to the Company pursuant to the terms hereof. Each Holder expressly acknowledges that upon issuance and delivery, as applicable, of the Exchange Consideration by the Company, the obligations of the Company to the Holder in respect of the Exchanged Notes shall have been satisfied in full.
Section 2.6 No Affiliate Status; Etc. The Undersigned is not and no Holder is, or has been at any time during the consecutive three-month period preceding the date hereof or the Closing Date, a director, officer or “affiliate” within the meaning of Rule 144 promulgated under the Securities Act (an “Affiliate”) of the Company. To the Undersigned’s and each Holder’s knowledge, no Holder acquired any of the Exchanged Notes, directly or indirectly, from an Affiliate of the Company. None of the Undersigned or any Holder “controls” (as defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Company. A period of at least one year (calculated in the manner provided in Rule 144(d) under the Securities Act) has lapsed since the Exchanged Notes of the Holder were acquired from the Company or from a person known by the Holder or the Undersigned to be an Affiliate of the Company.
Section 2.7 No Illegal Transactions. Each of the Undersigned and each Holder has not, directly or indirectly, and no person acting on behalf of or pursuant to any understanding with it
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has, disclosed to a third party any information regarding the Transactions nor engaged in any transactions in the securities of the Company (including, without limitation, any Short Sales (as defined below) involving any of the Company’s securities) since the time that the Undersigned was first contacted by either the Company, the Financial Advisor or any other person regarding the Aggregated Transactions, this Agreement or an investment in the Exchange Shares or the Company. Each of the Undersigned and the Holder covenants that neither it nor any person acting on its behalf or pursuant to any understanding with it shall disclose to a third party any information regarding the Transactions or engage, directly or indirectly, in any transactions in the securities of the Company (including Short Sales) prior to the time the Aggregated Transactions are publicly disclosed by the Company. “Short Sales” include all “short sales” as defined in Rule 200 of Regulation SHO promulgated under the Exchange Act, and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, short sales, swaps, derivatives and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker-dealers or foreign regulated brokers. Solely for purposes of this Section 2.7, subject to the Undersigned’s and each Holder’s compliance with their respective obligations under the U.S. federal securities laws and the Undersigned’s and such Holder’s respective internal policies, (a) “Undersigned” and “Holder” shall not be deemed to include any employees, subsidiaries, desks, groups or Affiliates of the Undersigned or the applicable Holder that are effectively walled off by appropriate “Fire Wall” information barriers approved by the Undersigned’s or such Holder’s respective legal or compliance department (and thus such walled off parties have not been privy to any information concerning the Aggregated Transactions), and (b) the foregoing representations and covenants of this Section 2.7 shall not apply to any transaction by or on behalf of an Account that was effected without the advice or participation of, or such Account’s receipt of information regarding the Aggregated Transactions provided by, the Undersigned or the applicable Holder.
Section 2.8 Adequate Information; No Reliance. The Undersigned acknowledges and agrees on behalf of itself and each Holder that (a) the Undersigned has been furnished with all materials it considers relevant to making an investment decision to enter into the Transactions and has had the opportunity to review (and has carefully reviewed) the Company’s filings and submissions with the SEC, including, without limitation, all information filed or furnished pursuant to the Exchange Act, (b) the Undersigned has had a full opportunity to ask questions of and receive answers from the Company or any person or persons acting on behalf of the Company concerning the Company, its business, operations, financial performance, financial condition and prospects and the terms and conditions of the Transactions, (c) the Undersigned and each Holder has had the opportunity to consult with their respective accounting, tax, financial and legal advisors to be able to evaluate the risks involved in the Transactions and to make an informed investment decision with respect to such Transactions, (d) each Holder has evaluated the tax and other consequences of the Transactions and ownership of the Exchange Shares with its tax, accounting, financial and legal advisors to be able to evaluate the risks involved in the transactions contemplated by this Agreement and to make an informed investment decision with respect to the Transactions, including, without limitation, whether the exchange contemplated hereby will result in any adverse tax consequences to the such Holder, (e) neither the Company nor the Financial Advisor is acting as a fiduciary or financial or investment advisor to the Undersigned or any Holder, (f) neither the Undersigned nor any Holder is relying, and none of them has relied, upon any statement, advice (whether accounting, tax, financial, legal or other), representation or warranty made by the Company or any of its Affiliates or representatives including, without limitation, the Financial Advisor, except for the representations and warranties expressly made by the Company in Article III, (g) neither the Financial Advisor nor any of its affiliates or any of its control persons, officers, directors or employees shall be liable to the Holders in connection with the Transactions and (h) each Holder had a sufficient amount of time to consider whether to participate in the Transactions and that neither the Company nor the Financial Advisor has placed any pressure on such Holder to respond to the opportunity to participate in the Transactions. Each of the Undersigned and each
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Holder is able to fend for itself in the Transactions; has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its prospective investment in the Exchange Shares; has the ability to bear the economic risks of its prospective investment and can afford the complete loss of such investment; acknowledges that investment in the Exchange Shares involves a high degree of risk; has, independently and without reliance upon the Company or the Financial Advisor, made its own analysis and decision to participate in the exchange contemplated hereby on the terms and conditions set forth in this Agreement; and was given a meaningful opportunity to negotiate the terms of the Transactions.
Section 2.9 Taxpayer Information. The Undersigned agrees that it shall obtain from each Holder and deliver to the Company an accurately completed and duly executed IRS Form W-9 or applicable IRS Form W-8, as appropriate.
Section 2.10 Further Action. The Undersigned and each Holder, as applicable, agrees that it shall (a) no later than the 2:00 p.m. (New York City time) on the Business Day immediately following the date hereof, deliver to the Company the information for such Holder set forth in, and substantially in the form of, Exhibit B and (b) upon request, execute and deliver any additional documents deemed by the Company to be necessary or desirable to complete the Transactions.
Section 2.11 No Reliance. Each of the Undersigned and each Holder represents that it is not relying upon, and has not relied upon, any statement, representation or warranty made by the Financial Advisor or any of its affiliates or any of its control persons, officers, director or employees, in making the exchange of the Exchanged Notes or decision to exchange the Exchanged Notes.
Section 2.12 No Liability. Each of the Undersigned and each Holder represents that neither the Financial Advisor nor any of its affiliates or any of its control persons, officers, directors or employees shall be liable with respect to any transaction in connection with its exchange of the Exchanged Notes.
Section 2.13 Advisory Fee. Each of the Undersigned and each Holder acknowledges that it understands that the Company intends to pay the Financial Advisor a fee in respect of the Transactions.
Article III
Covenants, Representations and Warranties of the Company
The Company hereby covenants as follows, and makes the following representations and warranties, each of which is and shall be true and correct on the date hereof and at the Closing, to the Holders, and all such covenants, representations and warranties shall survive the Closing:
Section 3.1 Power and Authorization; No Consents Required. The Company is duly organized, validly existing and in good standing under the laws of the state of Delaware, and has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Transactions. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company in connection with the execution, delivery and performance by it of this Agreement and the consummation by the Company of the Transactions, except as may be required under any state or federal securities laws or that may be obtained after the Closing without penalty or such that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the financial position or results of operations of the Company and its subsidiaries, taken as a whole.
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Section 3.2 Valid and Enforceable Agreements; No Violations. This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be subject to the Enforceability Exceptions. This Agreement and consummation of the Transactions will not violate, conflict with or result in a breach of or default under (a) the Amended and Restated Articles of Incorporation or the Amended and Restated By-laws, or (b) any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company, except where such violations, conflicts, breaches or defaults would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the financial position or results of operations of the Company and its subsidiaries, taken as a whole, or affect the Company’s ability to consummate the Transactions in any material respect.
Section 3.3 Validity of the Exchange Shares. When delivered to the applicable Holder pursuant to the Transactions against delivery of the Exchanged Notes therefor in accordance with the terms of this Agreement, the Exchange Shares will (a) be validly issued, fully paid and non-assessable, (b) be free and clear of any Liens, including claims or rights under any voting trust agreements, shareholder agreements or other agreements and (c) will not be subject to any preemptive, participation, rights of first refusal or other similar rights (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Undersigned’s representations and warranties hereunder, the Exchange Shares (i) will be issued in the Transactions exempt from the registration requirements of the Securities Act pursuant to Section 4(a)(2) of the Securities Act and (ii) will be issued in compliance with all applicable state and federal laws.
Section 3.4 Listing Approval. At or prior to the Closing, the Company shall have delivered a Supplemental Listing Application to the NYSE covering the Exchange Shares.
Article IV
Closing Conditions
Section 4.1 Conditions to Obligations of the Undersigned, each Holder and the Company. The obligations of the Undersigned to cause each Holder to deliver the Exchanged Notes and of the Company to deliver the Exchange Consideration are subject to the satisfaction at or prior to the Closing of the following condition precedents: (a) the representations and warranties of the Company and the Undersigned and the Holders contained in Articles III and II, respectively, shall be true and correct as of the date hereof and as of the Closing with the same effect as though such representations and warranties had been made as of the Closing and (b) no provision of any applicable law or any judgment, ruling, order, writ, injunction, award or decree of any governmental authority shall be in effect prohibiting or making illegal the consummation of the transactions contemplated by this Agreement.
Article V
Miscellaneous
Section 5.1 Notice. Any notice provided for in this Agreement shall be in writing and shall be personally delivered, mailed first class mail (postage prepaid) with return receipt requested, sent by reputable overnight courier service (charges prepaid) or delivered through electronic email (with receipt confirmed by the recipient). Notices will be deemed to have been given hereunder when delivered personally, when delivered by electronic email and receipt confirmed by the recipient, three Business Days after deposit in the U.S. mail postage prepaid with return receipt requested and one Business Day after deposit postage prepaid with a
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reputable overnight courier service for delivery on the next Business Day. The addresses for any such notices shall be, unless changed by the applicable party via notice to the other parties in accordance herewith:
| If to the Company: | ||||||||
| To: | DICK’S Sporting Goods, Inc. 345 Court Street Coraopolis, PA 15108 | |||||||
| Attention: | John E. Hayes III – SVP, General Counsel & Corporate Secretary | |||||||
| Email: | legal.department@dcgs.com | |||||||
| With a copy to (which shall not constitute notice): | ||||||||
Covington & Burling LLP The New York Times Building 620 Eighth Avenue New York, New York 10018 | ||||||||
| Attention: | Bruce Bennett and Ronald Hewitt | |||||||
| Email: | bbennett@cov.com; rhewitt@cov.com | |||||||
If to the Holders, to the address on the signature page to this Agreement.
Section 5.2 Entire Agreement. This Agreement and any documents and agreements executed in connection with the Transactions embody the entire agreement and understanding of the parties hereto with respect to the Transactions and supersede all prior and contemporaneous oral or written agreements, representations, warranties, contracts, correspondence, conversations, memoranda and understandings between or among the parties or any of their agents (including the Financial Advisor), representatives or Affiliates relative to such subject matter, including, without limitation, any term sheets, emails or draft documents.
Section 5.3 Assignment; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their successors and assigns. No party shall assign this Agreement or any rights or obligations hereunder or, in the case of the Holders, any of the Exchanged Notes held by such Holders, without the prior written consent of the Company (in the case of assignment by a Holder) or the applicable Holders (in the case of assignment by the Company).
Section 5.4 Further Assurances. The parties hereto each hereby agree to execute and deliver, or cause to be executed and delivered, such other documents, instruments and agreements, and take such other actions, including giving any further assurances, as any party may reasonably request in connection with the Transactions contemplated by this Agreement. In addition, subject to the terms and conditions set forth in this Agreement, each of the parties shall use its reasonable best efforts (subject to, and in accordance with, applicable law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable
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under applicable laws to consummate and make effective the Transactions contemplated hereby, including the obtaining of all necessary, proper or advisable consents, approvals or waivers from third parties and the execution and delivery of any additional instruments reasonably necessary, proper or advisable to consummate the Transactions contemplated hereby. For the avoidance of doubt, the Undersigned shall cause each of the Holders to comply with such Holder’s obligations under this Agreement.
Section 5.5 Waiver; Consent. This Agreement may not be changed, amended, terminated, augmented, rescinded or discharged (other than in accordance with its terms), in whole or in part, except by a writing executed by each of the parties hereto. No waiver of any of the provisions or conditions of this Agreement or any of the rights of a party hereto shall be effective or binding unless such waiver shall be in writing and signed by the party claimed to have given or consented thereto. Except to the extent otherwise agreed in writing, no waiver of any term, condition or other provision of this Agreement, or any breach thereof shall be deemed to be a waiver of any other term, condition or provision or any breach thereof, or any subsequent breach of the same term, condition or provision, nor shall any forbearance to seek a remedy for any non-compliance or breach be deemed to be a waiver of a party’s rights and remedies with respect to such non-compliance or breach.
Section 5.6 Release. The Undersigned and each Holder hereby waives and releases, to the fullest extent permitted by law, any and all claims and causes of action it has or may have against the Company and its Affiliates, officers, directors, employees, agents and representatives based upon, relating to or arising out of nondisclosure of any information or the exchange of the Exchanged Notes pursuant to the terms hereof. The Undersigned and each Holder acknowledges that none of the Company or any of its directors, officers, subsidiaries or Affiliates has made or makes any representations or warranties, whether express or implied, of any kind except as expressly set forth in this Agreement.
Section 5.7 Termination. This Agreement may be terminated at any time prior to the Closing (a) by the mutual written consent of the parties hereto; (b) by the Company if there has been a material misrepresentation or a material breach of warranty by a Holder in the representations and warranties set forth in this Agreement or the Exhibits attached hereto; and (c) by the Undersigned if there has been a material misrepresentation or a material breach of warranty by the Company in the representations and warranties set forth in this Agreement or the Exhibits attached hereto.
Section 5.8 Construction. References in the singular shall include the plural, and vice versa, unless the context otherwise requires. References in the masculine shall include the feminine and neuter, and vice versa, unless the context otherwise requires. Headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meanings of the provisions hereof. Neither party, nor its respective counsel, shall be deemed the drafter of this Agreement for purposes of construing the provisions of this Agreement, and all language in all parts of this Agreement shall be construed in accordance with its fair meaning, and not strictly for or against either party.
Section 5.9 Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall in all respects be construed in accordance with and governed by the substantive laws of the State of New York, without reference to its choice of law rules (whether of the State of New York or any other jurisdiction). Any suit, action or proceeding brought by a party arising out of or in connection this Agreement may be instituted in any state or federal court in the Borough of Manhattan, New York, State of New York, and any appellate court thereof, and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Each party irrevocably waives, to the fullest extent permitted by law, any objection to any such suit, action or proceeding in such courts on the grounds of venue, residence or
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domicile or that any such suit, action or proceeding in such courts has been brought in an inconvenient forum. Each of the Company and the Undersigned irrevocably waive any and all right to trial by jury with respect to any legal proceeding arising out of the transactions contemplated by this Agreement.
Section 5.10 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Any counterpart or other signature hereon delivered by facsimile or any standard form of telecommunication or e-mail shall be deemed for all purposes as constituting good and valid execution and delivery of this Agreement by such party. Unless otherwise provided in this Agreement, the words “execute”, “execution”, “signed”, and “signature” and words of similar import used in or related to any document to be signed in connection with this Agreement or any of the transactions contemplated hereby shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act.
Section 5.11 Third Party Beneficiaries. Nothing herein shall grant to or create in any person not a party hereto (other than the Financial Advisor, solely with respect to Article II and Article III), or any such person’s dependents or heirs, any right to any benefits hereunder, and no such party shall be entitled to sue any party to this Agreement with respect thereto. Notwithstanding anything in this Agreement to the contrary, any internal or outside counsel to the Company may rely on any and all of the representations, warranties, covenants and agreements contained in this Agreement.
Section 5.12 Withholding. The Company and its agents shall be entitled to deduct and withhold from any consideration payable pursuant to this Agreement such amounts as may be required to be deducted or withheld under applicable law; provided that no amount shall be withheld in respect of U.S. federal income taxes with respect to any consideration paid to a Holder that has provided to the Company or its agents an accurately completed and duly executed IRS Form W-9 certifying that such Holder is exempt from backup withholding or an accurately completed and duly executed appropriate series of IRS Form W-8, as applicable, other than any required withholding with respect to payments characterized as interest paid to a non-U.S. Holder that is not otherwise exempt from such withholding under applicable U.S. federal income tax law. Any such amounts withheld or deducted shall be treated for all purposes as having been paid to the Holder to whom such amounts otherwise would have been paid and such amounts shall be remitted to the appropriate taxing authority.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the date first above written.
| DICK’S SPORTING GOODS, INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
[Signature page to Exchange Agreement]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of the date first above written.
| [LEGAL NAME OF SIGNATORY]: | ||
| (in its capacities described in the first paragraph hereof) | ||
| By: | ||
| Name: | ||
| Title: | ||
| Address: | ||
| Email: | ||
[Signature page to Exchange Agreement]
EXHIBIT A
Exchanging Beneficial Owners
| Holder Name | Exchanged Notes | Accrued Interest | Hedge Ratio | |||||||||||||||||||||||||||||||||||
| $ | $ | % | ||||||||||||||||||||||||||||||||||||
EXHIBIT B ***Please provide requested information for each Holder Listed on Exhibit A*** Holder Name: | ||
| Contact Information | ||
Holder Address: | ||
Holder Phone Number: | ||
Holder Email Address: | ||
| DTC Participant Information | ||
DTC Participant Number: | ||
DTC Participant Name: | ||
DTC Participant Phone Number: | ||
DTC Participant Email: | ||
FFC Account #: | ||
Account # at Bank/Broker: | ||
| Bank Account Information into which Payment of the Cash Payment (and Cash in Lieu of Any Fractional Share) Shall be Made | ||
Account Name: | ||
Bank: | ||
Attention: | ||
Account Number: | ||
ABA Number: FFC Account Number: FFC Account Name: | ||
SWIFT: | ||
Contact Name: | ||
Contact Telephone: | ||
EXHIBIT C
Exchange Procedures
NOTICE TO INVESTOR
These are the Investor Exchange Procedures for the settlement of the exchange of 3.25% Convertible Senior Notes due 2025, CUSIP 253393 AD4 (the “Exchanged Notes”) of DICK’S Sporting Goods, Inc., a Delaware corporation (the “Company”), for the Exchange Consideration (as defined in and pursuant to the Agreement between you and the Company), which is expected to occur on or about July 15, 2022. To ensure timely payment and delivery, as the case may be, of the cash and shares of Common Stock constituting the Exchange Consideration, please follow the instructions as set forth below.
These instructions supersede any prior instructions you received. Your failure to comply with these instructions may delay your receipt of the Exchange Consideration.
To deliver Exchanged Notes:
You must post, no later than 9:00 a.m., New York City time, a withdrawal request for the Exchanged Notes through The Depository Trust Company (“DTC”) via DWAC. It is important that this instruction be submitted and the DWAC posted on July 15, 2022.
To receive Exchange Consideration:
You must:
(1)provide valid wire instructions and DTC participant information to the Company in the form included as Exhibit B to the Agreement; and
(2)direct the eligible DTC participant on July 15, 2022, no later than 9:00 a.m., New York City time, to post withdrawal instructions through DTC via DWAC for the aggregate principal amount of Exchanged Notes set forth on Exhibit A of the Agreement.
American Stock Transfer & Trust Company is the Transfer Agent and Registrar for the Common Stock.
You must comply with both procedures described above to complete the Exchange and to receive the Exchange Consideration in respect of the Exchanged Notes.
Closing: July 15, 2022, after the Company receives your delivery instructions as set forth above and a withdrawal request in respect of the Exchanged Notes has been posted as specified above, and subject to the satisfaction of the conditions to Closing as set forth in your Agreement, the Company will deliver the Exchange Consideration in respect of the Exchanged Notes in accordance with the delivery instructions above.