SEC Form S-8 POS filed by Dick's Sporting Goods Inc

Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) permits the indemnification of any person against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement (other than judgments, fines and amounts paid in settlement in an action or suit by or in the right of the corporation to procure a judgment in its favor) actually and reasonably incurred by the person in connection with any threatened, pending or completed action, suit or proceeding in which such person is made a party by reason of the person being or having been a director, officer, employee or agent of the corporation, or serving or having served, at the request of the corporation, as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. The statute provides that indemnification pursuant to its provisions is not exclusive of other rights of indemnification to which a person may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise.

 

Section 7 of the Amended and Restated Certificate of Incorporation of DICK’S Sporting Goods, as amended (the “DICK’S Sporting Goods charter”), provides for indemnification, to the extent not prohibited by law, of any person who is or was made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of DICK’S Sporting Goods, to procure a judgment in its favor, by reason of the fact that such person, or a person of whom such person is the legal representative, is or was a director or officer of DICK’S Sporting Goods, or, at the request of DICK’S Sporting Goods, is or was serving as a director or officer of any other corporation or in a capacity with comparable authority or responsibilities for any partnership, joint venture, trust, employee benefit plan or other enterprise, against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges and expenses (including attorneys’ fees, disbursements and other charges). Persons who are not directors or officers of DICK’S Sporting Goods (or otherwise entitled to indemnification pursuant to the preceding sentence) may be similarly indemnified in respect of service to DICK’S Sporting Goods or to a corporation, partnership, joint venture, trust, employee benefit plan or other enterprise at the request of DICK’S Sporting Goods to the extent the DICK’S Sporting Goods board of directors at any time specifies that such persons are entitled to the benefits of such indemnification. The rights to indemnification and reimbursement or advancement of expenses provided by, or granted pursuant to, the DICK’S Sporting Goods charter are not be deemed exclusive of any other rights to which a person seeking indemnification or reimbursement or advancement of expenses may have or hereafter be entitled under any statute, DICK’S Sporting Goods charter, the Second Amended and Restated Bylaws of DICK’S Sporting Goods (the “DICK’S Sporting Goods bylaws”), any agreement, any vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. Article IX of the DICK’S Sporting Goods bylaws also provides indemnification to the extent set forth in the DICK’S Sporting Goods charter.

 

As permitted by Section 102 of DGCL, the DICK’S Sporting Goods charter eliminates the liability of a DICK’S Sporting Goods director or officer to DICK’S Sporting Goods and its stockholders for monetary damages for any breach of fiduciary duty as a director or officer, except that such limitation of liability will not eliminate or limit the liability of (a) a director or officer for any breach of the director’s or officer’s duty of loyalty to DICK’S Sporting Goods or its stockholders, (b) a director or officer for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) a director under Section 174 of the DGCL, (d) a director or officer for any transaction from which the director or officer derived any improper personal benefits, or (e) an officer in any action by or in the right of DICK’S Sporting Goods.

 

Section 145 of the DGCL also permits a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability. Section 7.5 of the DICK’S Sporting Goods charter permits DICK’S Sporting Goods to purchase and maintain such insurance, and DICK’S Sporting Goods has purchased this insurance for its directors and officers.

 

DICK’S Sporting Goods has entered into indemnification agreements with each of its current directors. These agreements provide DICK’S Sporting Goods directors with additional protection regarding the scope of the indemnification set forth in the DICK’S Sporting Goods charter and the DICK’S Sporting Goods bylaws.