EXHIBIT 99.3
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into as of February 21,
2001, by and between ▇▇▇▇▇▇'▇ Sporting Goods, Inc., a Delaware corporation
("▇▇▇▇▇▇'▇"), and Green Equity Investors, L.P., a Delaware limited partnership
(the "Stockholder").
WHEREAS, as of the date hereof, the Stockholder beneficially owns a
majority in interest of the common stock, par value $.01 per share (the "Common
Stock"), of Gart Sports Company, a Delaware corporation (the "Company");
WHEREAS, the Company, ▇▇▇▇▇▇'▇ and GSC Acquisition Corp., a Delaware
corporation ("MergerSub"), are entering into an Agreement and Plan of Merger,
dated as of the date hereof (as it may be amended from time to time, the "Merger
Agreement"), which provides, among other things, for the merger of ▇▇▇▇▇▇'▇ with
and into MergerSub, with MergerSub as the surviving corporation (the "Merger");
WHEREAS, in connection with the Merger Agreement, ▇▇▇▇▇▇'▇ has required
that the Stockholder make certain agreements with respect to all of the
Stockholder's Subject Shares (as defined below), upon the terms and subject to
the conditions of this Agreement; and
WHEREAS, the Stockholder is willing to make certain agreements with respect
to the Subject Shares, in order to induce ▇▇▇▇▇▇'▇ to enter into the Merger
Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth in this Agreement, the parties hereto agree as follows:
1. Voting Agreements. For so long as this Agreement is in effect, at any
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meeting (whether annual, special or adjourned) of the stockholders of the
Company, and in any action by consent of the stockholders of the Company, the
Stockholder shall vote, or, if applicable, give consents with respect to, all of
the Subject Shares that are held by the Stockholder on the record date
applicable to the meeting or consent (i) in favor of approval of the issuance of
Common Stock (as defined below) contemplated by the Merger Agreement; (ii)
against any proposal inconsistent with the Merger Agreement or that may delay or
adversely affect the likelihood of the completion of the transactions
contemplated by the Merger Agreement; (iii) against any change in a majority of
the persons who constitute the board of directors of the Company inconsistent
with the Merger Agreement or the transactions contemplated by the Merger
Agreement; (iv) against any change in the capitalization of the Company or any
amendment of the Company's certificate of incorporation or by-laws inconsistent
with the Merger Agreement or the transactions contemplated by the Merger
Agreement; and (v) in favor of any other matter necessary for consummation of
the transactions contemplated by the Merger Agreement that is considered at any
such meeting or in any such consent. The Stockholder also agrees to vote in
favor of the election of each of the Designated Directors (as defined in the
Merger Agreement) or any replacement nominee that is chosen in accordance with
Section 7.24 of the Merger Agreement to the Company's board of Directors at the
Company's 2001 annual meeting of stockholders and at the Company's 2002 annual
meeting of stockholders, in each case as
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contemplated by such Section 7.24. The Stockholder shall not enter into any
agreement or understanding with any person the effect of which would be
inconsistent with or violate the provisions of agreements contained in this
Section 1. The Stockholder shall cast the Stockholder's vote or give the
Stockholder's consent in accordance with the procedures communicated to the
Stockholder by the Company relating thereto so that the vote or consent shall be
duly counted for purposes of determining that a quorum is present and for
purposes of recording the results of that vote or consent. The Stockholder
acknowledges receipt of a copy of the Merger Agreement.
2. Proxy. The Stockholder hereby irrevocably appoints ▇▇▇▇▇▇'▇ (and any
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officer of ▇▇▇▇▇▇'▇), with full power of substitution, the proxy of the
Stockholder with full power and authority, in the event that the Stockholder
shall at any time fail to perform such Stockholder's obligations under Section 1
of this Agreement, to vote or act by consent in respect of such Stockholder's
Subject Shares and all of such Stockholder's other voting securities of the
Company exclusively as provided in Section 1 of this Agreement. The proxy
hereby granted shall, for the term of this Agreement, be irrevocable and shall
be deemed coupled with an interest in accordance with Section 212 of the
Delaware General Corporation Law.
3. Subject Shares. The term "Subject Shares" shall mean all of the shares
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of Common Stock beneficially owned by the Stockholder (such shares of Common
Stock, as of the date hereof, are set forth on Schedule A hereto), together with
any and all shares of the Company's capital stock as to which the Stockholder
acquires beneficial ownership after the date of this Agreement. For all purposes
of this Agreement, "beneficial ownership" has the meaning given in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated by the Securities and Exchange Commission thereunder
(the "Exchange Act").
4. Covenants. For so long as this Agreement is in effect, except as
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otherwise contemplated by the transactions contemplated by the Merger Agreement,
the Stockholder agrees not to (i) sell, transfer, pledge, assign, hypothecate,
encumber, tender or otherwise dispose of, or enter into any contract with
respect to the sale, transfer, pledge, assignment, hypothecation, encumbrance,
tender or other disposition of (each such disposition or contract, a
"Transfer"), any Subject Shares or any shares of the Company's capital stock
that the Stockholder then has or will have the right to acquire pursuant to
options, warrants, convertible securities or other such rights to purchase
shares of the Company's capital stock granted to the Stockholder by the Company;
(ii) grant any powers of attorney, consents or proxies with respect to any
shares of the Company's capital stock that then constitute Subject Shares (other
than pursuant to this Agreement), deposit any of the Subject Shares into a
voting trust, enter into a voting or option agreement with respect to any of the
Subject Shares inconsistent with the transactions contemplated by the Merger
Agreement or this Agreement, or otherwise restrict or take any action adversely
affecting the ability of the Stockholder freely to exercise all voting rights
with respect to the Subject Shares; or (iii) permit, cause, take any action, or
fail to take any action that would make any representation, warranty, covenant
or other undertaking of the Stockholder in this Agreement untrue or incorrect,
or prevent, burden or materially delay the consummation of the transactions
contemplated by this Agreement. As used in this Agreement, "person" shall have
the meaning specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
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5. Representations and Warranties of the Stockholder. The Stockholder
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represents and warrants to ▇▇▇▇▇▇'▇ that:
(a) Capacity; No Violations. The Stockholder is duly organized and
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validly existing under the laws of the jurisdiction of its organization. The
Stockholder has the legal capacity to enter into this Agreement and to
consummate the transactions contemplated by this Agreement. This Agreement has
been duly executed and delivered by the Stockholder and constitutes a valid and
binding agreement of the Stockholder enforceable against the Stockholder in
accordance with its terms except as such enforceability may be limited by
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and general principles of equity (whether considered in a proceeding
in equity or at law). The execution, delivery and performance by the Stockholder
of this Agreement will not (i) conflict with, require a consent, waiver or
approval under, or result in a breach or default under, any of the terms of any
contract, commitment or other obligation to which the Stockholder is a party or
by which the Stockholder is bound, (ii) violate any order, writ, injunction,
decree or statute, or any law, rule or regulation applicable to the Stockholder
or, to the Stockholder's knowledge, the Subject Shares; or (iii) result in the
creation of, or impose any obligation on the Stockholder to create, any Lien
upon the Subject Shares that would prevent the Stockholder from voting the
Subject Shares. In this Agreement, "Lien" shall mean any lien, pledge, security
interest, claim, third party right or other encumbrance.
(b) Subject Shares. The Stockholder has the power to vote or direct the
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voting of the Subject Shares. The Subject Shares are the only shares of any
class of capital stock of the Company that the Stockholder has the right, power
or authority (sole or shared) to sell or vote, and the Stockholder does not have
any right to acquire, nor is the Stockholder the beneficial owner of, any other
shares of any class of capital stock of the Company or any other securities of
the Company or any securities convertible into, or exchangeable or exercisable
for, any shares of any class of capital stock of the Company or any other
securities of the Company. The Stockholder is not a party to any contracts
(including proxies, voting trusts or voting agreements) that would prevent the
Stockholder from voting the Subject Shares or that conflict with the provisions
of this Agreement.
(c) Title to Shares. The Stockholder is the sole record and beneficial
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owner of the Subject Shares, free and clear of any pledge, Lien, security
interest, mortgage, charge, claim, equity, option, proxy, voting restriction,
voting trust or agreement, understanding, arrangement, right of first refusal,
limitation on disposition, adverse claim of ownership or use or encumbrance of
any kind, other than restrictions imposed by the securities laws or pursuant to
this Agreement or the Merger Agreement and, with respect to any Subject Shares
held by the Stockholder as trustee for the benefit of any other person, other
than the rights of all beneficiaries under such trusts, which such rights are
not inconsistent with the provisions of this Agreement.
(d) No Finder's Fees. Except as disclosed in the Merger Agreement, no
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broker, investment banker, financial advisor, or other person is entitled to any
broker's, finder's, financial advisor's, or other similar fee or commission in
connection with the transactions contemplated hereby based upon arrangements
made by, or on behalf of, the Stockholder the payment of which could become the
obligation of ▇▇▇▇▇▇'▇.
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6. Expenses. Each party hereto shall pay its own expenses incurred in
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connection with this Agreement.
7. Specific Performance. The Stockholder acknowledges and agrees that, if
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the Stockholder fails to perform any of the Stockholder's obligations under this
Agreement, immediate and irreparable harm or injury would be caused to ▇▇▇▇▇▇'▇
for which money damages would not be an adequate remedy. Accordingly, the
Stockholder agrees that ▇▇▇▇▇▇'▇ shall have the right, in addition to any other
rights ▇▇▇▇▇▇'▇ may have, to specific performance of this Agreement. If ▇▇▇▇▇▇'▇
should institute an action or proceeding seeking specific enforcement of the
provisions of this Agreement, the Stockholder hereby waives the claim or defense
that ▇▇▇▇▇▇'▇ has an adequate remedy at law and hereby agrees not to assert in
that action or proceeding the claim or defense that a remedy at law exists. The
Stockholder further agrees to waive any requirements for the securing or posting
of any bond in connection with obtaining any equitable relief.
8. Notices. All notices and other communications given or made pursuant to
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this Agreement shall be in writing and shall be deemed to have been duly given
or made as of the date of receipt and shall be delivered personally, mailed by
registered or certified mail (postage prepaid, return receipt requested), sent
by overnight courier, or sent by telecopy, to the applicable party at the
following addresses or telecopy numbers (or at any other address or telecopy
number for a party as shall be specified by like notice):
If to ▇▇▇▇▇▇'▇, to: ▇▇▇▇▇▇'▇ Sporting Goods, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Mayor, Day, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Stockholder, to: Green Equity Investors, L.P.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Irell & ▇▇▇▇▇▇▇ LLP
1800 Avenue of the Stars, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
9. Parties in Interest. This Agreement shall inure to the benefit of, and
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be binding upon, the parties hereto and their respective successors and
permitted assigns;
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provided, however, that any successor in interest or assignee shall agree to be
bound by the provisions of this Agreement. Except for the Designated Directors,
each of whom is an intended third party beneficiary of this Agreement solely
with respect to the second sentence of Section 1 of this Agreement, and not
otherwise, nothing in this Agreement, express or implied, is intended to confer
upon any Person other than ▇▇▇▇▇▇'▇, the Stockholder or their successors or
assigns, any rights or remedies under, or by reason of, this Agreement.
10. Entire Agreement; Amendments. Other than the Merger Agreement and the
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transactions contemplated thereby, this Agreement contains the entire agreement
between the Stockholder and ▇▇▇▇▇▇'▇ with respect to the subject matter of this
Agreement and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to such subject matter. This
Agreement may not be changed, amended or modified orally, but may be changed
only by an agreement in writing signed by the party against whom any waiver,
change, amendment, modification or discharge may be sought.
11. Assignment. No party to this Agreement may assign any of its rights or
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obligations under this Agreement without the prior written consent of the other
party to this Agreement, except that (a) ▇▇▇▇▇▇'▇ may assign its rights and
obligations under this Agreement to any of its direct indirect wholly owned
subsidiaries or Affiliates, and (b) the Stockholder may transfer the Subject
Shares to the extent permitted by Section 4 of this Agreement.
12. Headings. The section headings in this Agreement are for convenience of
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reference only and shall not affect the construction of this Agreement.
13. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same instrument.
14. Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of Delaware without giving effect to any
choice or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
15. Term. This Agreement shall become effective on the date hereof and
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shall terminate automatically and without further action on behalf of any party
hereto at the earlier of (i) the Effective Time (as defined in the Merger
Agreement) and (ii) the date on which the Merger Agreement is terminated
pursuant to, and in accordance with, its terms.
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IN WITNESS WHEREOF, ▇▇▇▇▇▇'▇ and the Stockholder have caused this Agreement
to be duly executed and delivered on the day and year first above written.
▇▇▇▇▇▇'▇ SPORTING GOODS, INC.,
a Delaware corporation
By: ______________________________
Name:
Title:
GREEN EQUITY INVESTORS, L.P.,
a Delaware limited partnership
By: ______________________________
By: ______________________________
Name:
Title:
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SCHEDULE A
Shares Owned
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4,713,200 shares of Common Stock of the Company
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