EXECUTION COPY
Exhibit 10.1
VOTING
AGREEMENT , dated as of November 13, 2006 (this “
Agreement ”), by and between DICK’S SPORTING
GOODS, INC., a Delaware corporation (“ Parent
”), YANKEES ACQUISITION CORP., a Minnesota corporation and
wholly owned subsidiary of Parent (“ Subsidiary
”) and certain shareholders of GOLF GALAXY, INC., a Minnesota
corporation (the “ Company ”), each identified
as a signatory hereto (each a “ Shareholder ”
and collectively, the “ Shareholders
”).
WHEREAS ,
simultaneously with the execution of this Agreement, Parent,
Subsidiary and the Company are entering into an Agreement and Plan
of Merger, dated as of the date hereof, substantially in the form
previously provided to the Shareholders (the “ Merger
Agreement ”), pursuant to which Subsidiary will merge
with and into the Company with the Company being the surviving
corporation (the “ Merger ”);
WHEREAS ,
as of the date hereof, each Shareholder is the Beneficial Owner of
the outstanding shares of Company Common Stock set forth opposite
such Shareholder’s name on Schedule A
hereto;
WHEREAS,
as an inducement and a condition to Parent and Subsidiary entering
into the Merger Agreement and incurring the obligations set forth
therein, the Shareholders have agreed to enter into this
Agreement;
WHEREAS ,
the Company represents and warrants in Section 4.1.1(a) of the
Merger Agreement that the issued and outstanding capital stock of
the Company as of the date hereof is as set forth in Recital 2 of
the Merger Agreement, which representation is a material fact to
Parent and Subsidiary upon which Parent and Subsidiary rely as an
inducement to enter into this Agreement; and
WHEREAS,
the Shareholders will benefit directly and substantially from the
Merger Agreement.
NOW,
THEREFORE , in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements
contained herein and in the Merger Agreement, the parties hereto,
intending to be legally bound hereby, agree as follows:
1.
Certain Definitions . Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Merger
Agreement. In addition, for purposes of this Agreement:
“
Affiliate ” means, with respect to any specified
Person, any Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, the Person specified. For purposes of this Agreement,
with respect to any Shareholder, “Affiliate” shall not
include the Company or the Persons that directly, or indirectly
through one or more intermediaries, are controlled by the
Company.
“
Beneficially Owned ” or “ Beneficial
Ownership ” with respect to any securities means having
voting power and/or investment power (as determined pursuant to
Rule 13d-3(a) under
the Exchange
Act) over such securities, including pursuant to any agreement,
arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all Affiliates of such Person and all other
Persons with whom such Person would constitute a
“Group” within the meaning of Section 13(d) of the
Exchange Act and the rules promulgated thereunder.
“
Beneficial Owner ” with respect to any securities
means a Person who has Beneficial Ownership of such
securities.
“
Person ” means an individual, corporation,
partnership, limited liability company, association, trust or other
entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
“
Transfer ” means, with respect to a security, the
sale, transfer, pledge, hypothecation, encumbrance, assignment or
disposition of such security or the Beneficial Ownership thereof
(other than by operation of law), the offer to make such a sale,
transfer or other disposition, and each option, agreement,
arrangement or understanding, whether or not in writing, to effect
any of the foregoing. As a verb, “Transfer” shall have
a correlative meaning.
“ Subject
Shares ” means, as to any Shareholder, that number of
Owned Shares set forth on Schedule B hereto opposite
such Shareholder’s name.
2.
Representations and Warranties; Beneficial Ownership . Each
Shareholder hereby individually (and not jointly or severally)
represents and warrants to Parent that:
(a) Such
Shareholder Beneficially Owns or controls (regardless of in what
capacity) the number of shares of the Company’s common stock,
par value $0.01 per share, set forth on Schedule A
hereto (each Shareholder’s “ Owned Shares
”) free from any lien, encumbrance or restriction whatsoever
and with full power to vote the Owned Shares without the consent or
approval of any other person, and that the Owned Shares constitute
all of the capital stock of the Company Beneficially Owned by such
Shareholder, except options to acquire shares of Company Common
Stock.
(b) Such
Shareholder has all necessary power and authority and legal
capacity to execute and deliver this Agreement and perform its
obligations hereunder. In the case of each Shareholder who is not a
natural person, no other proceedings or actions on the part of such
Shareholder are necessary to authorize the execution, delivery or
performance of this Agreement or the consummation of the
transactions contemplated hereby;
(c) This
Agreement has been duly and validly executed and delivered by such
Shareholder and when duly and validly executed and delivered by
Parent and Subsidiary will constitute a valid and binding agreement
of such Shareholder, enforceable in accordance with its terms;
and
2
(d) Each
Shareholder understands and acknowledges that Parent and Subsidiary
are entering into the Merger Agreement in reliance upon such
Shareholder’s execution, delivery and performance of this
Agreement.
3. Agreement
to Vote . From the date hereof until the termination of this
Agreement pursuant to Section 7, each Shareholder agrees that
he, she or it will (a) at such time as the Company conducts a
meeting (including any adjournment thereof) of or otherwise seeks a
vote or consent of its shareholders for the purpose of approving
the Merger Agreement and the transactions contemplated by the
Merger Agreement, including the Merger, such Shareholder will vote,
or provide a consent with respect to, the Subject Shares in favor
of approving the Merger Agreement and the transactions contemplated
by such Agreement, including the Merger, and (b) such
Shareholder will (at any meeting of shareholders or in connection
with any consent solicitation) vote all Subject Shares against, and
will not consent to, any Takeover Proposal with a Person other than
Parent and Subsidiary or any action that would or is designed to
delay, prevent or frustrate the Merger.
4. No
Transfer or Solicitation . Each Shareholder agrees that from
and after the date hereof and other than as contemplated by the
Merger Agreement or as a re
|
