UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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) April 26, 2019


Hibbett Sports, Inc.
(Exact Name of Registrant as Specified In Its Charter)

Delaware
000-20969
20-8159608
(State of Incorporation)
(Commission
(IRS Employer
 
File Number)
Identification No.)

2700 Milan Court
Birmingham, Alabama  35211
(Address of principal executive offices)

(205) 942-4292
(Registrant’s telephone number, including area code)

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:

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).   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.  ☐

Item 5.02.  Departure of Directors or Certain Officers; Election of Directors;  Appointment of Certain Officers; Compensatory Arrangements of Certain   Officers.

On April 26, 2019, the Compensation Committee of the Board of Directors of Hibbett Sports, Inc. (the “Company”) approved changes in the Company’s compensation arrangements with certain Named Executive Officers and other members of senior management in order to retain the services of such persons during the Company’s current management transition.  In particular, the Compensation Committee approved:


•
an increase in the salary of Jared Briskin, Senior Vice President and Chief Merchant of the Company, from $325,000 to $350,000 per year, effective immediately;


•
special awards of restricted stock units (“RSUs”) in the amount of $100,000 to Mr. Briskin and to Cathy Pryor, Senior Vice President of Store Operations of the Company, pursuant to the Company’s 2015 Equity Incentive Plan; and


•
the Company’s entry into a Retention Agreement with Mr. Briskin and Ms. Pryor providing for severance benefits to each executive in the event the executive’s employment is terminated by the Company under certain circumstances described below.

The RSUs awarded to Mr. Briskin and Ms. Pryor will have a grant date of May 6, 2019 and are subject to the terms of a Special 2019 Restricted Stock Unit Award Agreement (“RSU Agreement”) between the Company and each executive.  Pursuant to the RSU Agreement, one half of the RSUs will vest on each of the first and second anniversaries of the date of grant (each anniversary date being the end of a “Restricted Period”), provided the executive is employed by the Company at the end of the applicable Restricted Period.  However, if the executive’s employment with the Company terminates prior to the first or second anniversary of the date of grant, then all unvested RSUs are forfeited, unless the termination occurs by reason of the executive’s death or disability, or under certain circumstances involving a change in control of the Company, or if the executive is entitled to a severance payment under the Retention Agreement.  In addition, unvested RSUs will be forfeited if the Compensation Committee determines that the executive has materially violated either the confidentiality provisions of the RSU Agreement or any non-competition agreement which the executive may have entered into with the Company. The Compensation Committee has the discretion to settle the RSUs in stock, cash or a combination of stock and cash.

The Retention Agreement that is being offered to Mr. Briskin and Ms. Pryor provides for a lump sum severance payment equal to one times the executive’s base salary, less deductions for applicable taxes, in the event that the executive is terminated by the Company during the two-year term of the agreement without “cause” or if the executive resigns for “good reason” (as those terms are defined in the agreement).  However, the severance payment will not be paid if the executive is also entitled to receive benefits under any change of control severance agreement of the Company or if the separation from service is due to retirement or disability.  In addition, the payment will be forfeited if the executive breaches certain confidentiality, nondisclosure or noncompetition covenants contained in existing agreements between the Company and the executive.   
 
In the event the executive becomes entitled to a severance payment under the Retention Agreement, the outstanding RSUs awarded to the executive pursuant to the RSU Agreement will automatically vest upon termination of the executive’s employment. All other outstanding equity-based awards to the executive will continue to be governed by the applicable terms of such awards and will not be modified or amended by the Retention Agreement.
 
In addition to the compensation arrangements with Mr. Briskin and Ms. Pryor described above, the Compensation Committee approved similar arrangements for other designated employees of the Company which included salary increases, an increase in the percent of base salary used for purposes of determining annual bonuses, an award of RSUs under the RSU Agreement and the Company’s entry into the Retention Agreement with such employees.

The foregoing summaries of the RSU Agreement and the Retention Agreement are not intended to be complete and are qualified in their entirety by reference to the copies of those agreements attached to this Form 8-K as Exhibits 10.1 and 10.2, respectively, and incorporated herein by reference.
  
Item 9.01.  Financial Statements and Exhibits.

(d)  Exhibits.
  
Exhibit No.   Description


10.1
Form of Special 2019 Restricted Stock Unit Award Agreement.

10.2
Form of Retention Agreement.


SIGNATURES

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.


 
HIBBETT SPORTS, INC.
     
 April 30, 2019
By:
/s/ David M. Benck
   
David M. Benck
   
Vice President and General Counsel

Exhibit Index
 
Exhibit No.   Description


10.1
Form of Special 2019 Restricted Stock Unit Award Agreement.

10.2
Form of Retention Agreement.

EXHIBIT 10.1

HIBBETT SPORTS, INC.
SPECIAL 2019 RESTRICTED STOCK UNIT AWARD AGREEMENT
Effective April 26, 2019

NOTE:  This document incorporates the accompanying Grant Letter, and together they constitute a single Agreement which governs the terms and conditions of your Award in accordance with the Company’s 2015 Equity Incentive Plan.

THIS AGREEMENT (Agreement) is effective as of the Grant Date specified in the accompanying Grant Letter, by and between the Participant and Hibbett Sports, Inc. (together with its subsidiaries (Company)).

A.   The Company maintains the 2015 Equity Incentive Plan (EIP or Plan).

B.   The Participant has been selected by the committee administering the EIP (Committee) to receive a Restricted Stock Unit Award under the Plan.

C.   Key terms and important conditions of the Award are set forth in the cover letter (Grant Letter) which was delivered to the Participant at the same time as this document.  This Agreement contains general provisions relating to the Award.

IT IS AGREED, by and between the Company and the Participant, as follows:

1.   Terms of Award . The following terms used in this Agreement shall have the meanings set forth in this paragraph 1:

(a)  The Participant is the individual named in the Grant Letter.
(b)  The Grant Date is the date of the Grant Letter.
(c)  The Units means an award denominated in shares of the Company’s Common Stock as specified in the Grant Letter.
(d)  The Restricted Periods shall begin on the Grant Date and end, as applicable, on the first anniversary (such Restricted Period, the “First Restricted Period”) or the second anniversary (such Restricted Period, the “Second Restricted Period”) of the date of the Grant Letter.

Other terms used in this Agreement are defined pursuant to paragraph 8 or elsewhere in this Agreement.

2.   Award . Subject to the terms and conditions of this Agreement, the Participant is hereby granted the number of Units set forth in paragraph 1.

3.   Settlement of Awards . The Company shall deliver to the Participant one share of Stock (or cash equal to the Fair Market Value of one share of Stock) for each vested Unit, as determined in accordance with the provisions of the Grant Letter and this Agreement.  One half of the Units payable to the Participant in accordance with the provisions of this paragraph 3 shall be paid solely in shares of Stock, solely in cash based on the Fair Market Value of the Stock (determined as of the closing price on the last day of the First Restricted Period, or if not a business day, the first business day preceding the last day of the First Restricted Period), or in a combination of the two, as determined by the Committee in its sole discretion, except that cash shall be distributed in lieu of any fractional share of Stock.  The second half of the Units payable to the Participant in accordance with the provisions of this paragraph 3 shall be paid solely in shares of Stock, solely in cash based on the Fair Market Value of the Stock (determined as of the closing price on the last day of the Second Restricted Period, or if not a business day, the first business day preceding the last day of the Second Restricted Period), or in a combination of the two, as determined by the Committee in its sole discretion, except that cash shall be distributed in lieu of any fractional share of Stock.  For purposes of the foregoing and if Units vest under paragraph 5 other than at the end of a Restricted Period, the closing price will be determined with respect to the applicable vesting date.

4.   Time of Payment . Except as otherwise provided in this Agreement, payment of Units vested in accordance with the provisions of paragraph 5 will be delivered as soon as practicable after the applicable vesting date (but in no event more than 45 days after the applicable vesting date).

5.   Vesting and Forfeiture of Units .

(a)  Units shall vest, and the Participant shall be entitled to settlement on Units, when the applicable Restricted Period has ended. Except in the situations described below, if the Participant's Date of Termination occurs during either Restricted Period, then unvested Units shall be forfeited.

(b)  Units shall vest prior to the end of either Restricted Period, and the Participant shall become entitled to settlement on Units, in the following situations:

(i)  If the Participant's Date of Termination occurs by reason of the Participant's death or Disability, then the Units vest as of the Participant's Date of Termination.

(ii)  If (x) a Change in Control occurs prior to the end of either Restricted Period, (y) the Participant's Date of Termination does not occur before the Change in Control date, and (z) the Committee determines to accelerate such vesting, then the Units vest as of the date of the Change in Control.

(c)  The Participant shall forfeit all unvested Units as of the date on which the Committee determines the Participant materially violated (A) the provisions of paragraph 10 below or (B) any non-competition agreement which the Participant may have entered into with the Company.

6.   Withholding . All deliveries and distributions under this Agreement are subject to withholding of all applicable taxes. The Company is entitled to (a) withhold and deduct from future wages of the Participant (or from other amounts due to Participant) or make other arrangements for the collection of all legally required amounts necessary to satisfy such withholding or (b) require the Participant promptly to remit such amounts to the Company.  Subject to such rules and limitations as may be established by the Committee from time to time, the withholding obligations described in this Section 6 may be satisfied through the surrender of shares of Stock which the Participant already owns, or to which the Participant is otherwise entitled under the Plan, including shares of Stock to be settled under this Agreement.

7.   Transferability . Units may not be sold, assigned, transferred, pledged or otherwise encumbered until the expiration of the Restricted Period or, if earlier, until the Participant is vested in the Units.   Transfers at death are governed by paragraph 9(c) below.

8.   Definitions . For purposes of this Agreement, the terms used in this Agreement shall have the following meanings:

(a)  Change in Control. The term Change in Control shall mean (a) the sale, lease, exchange or other transfer of all or substantially all of the assets of the Company (in one transaction or in a series of related transactions) to a corporation that is not controlled by the Company, (b) the approval by the shareholders of the Company of any plan or proposal for the liquidation or dissolution of the Company, (c) a successful tender offer for the Common Stock of the Company, after which the tendering party holds more than 30% of the issued and outstanding Common Stock of the Company, or (d) a merger, consolidation, share exchange, or other transaction to which the Company is a party pursuant to which the holders of all of the shares of the Company outstanding prior to such transaction do not hold, directly or indirectly, at least 70% of the outstanding shares of the surviving company after the transaction.

(b)  Date of Termination. The Participant’s Date of Termination shall be the day immediately prior to the first day on which the Participant is not employed by the Company or any subsidiary of the Company (a “Subsidiary”), regardless of the reason for the termination of employment; provided that a termination of employment shall not be deemed to occur by reason of a transfer of the Participant between the Company and a Subsidiary or between two Subsidiaries; and further provided that the Participant’s employment shall not be considered terminated while the Participant is on a leave of absence legally required or approved by the Participant’s employer.

(c)  Disability. Except as otherwise provided by the Committee, the Participant shall be considered to have a Disability during the period in which the Participant is unable, by reason of a medically determinable physical or mental impairment, to engage in any substantial gainful activity, which condition, in the opinion of a physician approved by the Committee, can be expected to  result  in death or can be expected to last for a continuous period of not less than 12 months.

(d)  Plan Definitions. Except where the context clearly implies or indicates the contrary, a word, term, or phrase used in the Plan is similarly used in this Agreement.

9.   Binding Effect; Heirs and Successors .

(a)  The terms and conditions of this Agreement shall be effective upon delivery to the Participant, with or without execution by the Participant.

(b)  This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, all or substantially all of the Company’s assets and business.

(c)  If any rights exercisable by the Participant or benefits deliverable to the Participant under this Agreement have not been exercised or delivered, respectively, at the time of the Participant’s death, such rights shall be exercisable by the Designated Beneficiary, and such benefits shall be delivered to the Designated Beneficiary, in accordance with the provisions of this Agreement and the Plan. The “Designated Beneficiary” shall be the beneficiary or beneficiaries designated by the Participant in a writing filed with the Committee in such form and at such time as the Committee shall require. If a deceased Participant fails to designate a beneficiary, or if the Designated Beneficiary does not survive the Participant, any rights that would have been exercisable by the Participant and any benefits distributable to the Participant shall be exercised by or distributed to the legal representative of the estate of the Participant. If a deceased Participant designates a beneficiary and the Designated Beneficiary survives the Participant but dies before the Designated Beneficiary’s exercise of all rights under this Agreement or before the complete distribution of benefits to the Designated Beneficiary under this Agreement, then any rights that would have been exercisable by the Designated Beneficiary shall be exercised by the legal representative of the estate of the Designated Beneficiary, and any benefits distributable to the Designated Beneficiary shall be distributed to the legal representative of the estate of the Designated Beneficiary.

10.   Disclosure of Information .  The Participant recognizes and acknowledges that the Company’s trade secrets, confidential information, and proprietary information, including customer and vendor lists and computer data and programs (collectively “Confidential Information”), are valuable, special and unique assets of the Company’s business, access to and knowledge of which are essential to the performance of the Participant’s duties.  The Participant will not, before or after his Date of Termination, in whole or in part, disclose such Confidential Information to any person or entity or make such Confidential Information public for any purpose whatsoever, nor shall the Participant make use of such Confidential Information for the Participant’s own purposes or for the benefit of any person or entity other than the Company under any circumstances before or after the Participant’s Date of Termination; provided that this prohibition shall not apply after the Participant’s Date of Termination to Confidential Information that has become publicly known through no action of the Participant.  The Participant shall consider and treat as the Company’s property all memoranda, books, records, papers, letters, computer data or programs, or customer lists, including any copies thereof in human- or machine-readable form, in any way relating to the Company’s business or affairs, financial or otherwise, whether created by the Participant or coming into his or her possession, and shall deliver the same to the Company on the Date of Termination or, on demand of the Company, at any earlier time.

11.   Administration . The authority to manage and control the operation and administration of this Agreement shall be vested in the Committee, and the Committee shall have all powers with respect to this Agreement as it has with respect to the Plan. Any interpretation of the Agreement by the Committee and any decision made by it with respect to the Agreement are final and binding on all persons.  Such powers or decision-making may be delegated, to the extent permitted by the Plan, to one or more of Committee members or any other person or persons selected by the Committee.

12.   Plan Governs . Notwithstanding anything in this Agreement to the contrary, the terms of this Agreement shall wholly incorporate and be subject to the terms of the Plan, a copy of which may be obtained from the Chief Financial Officer of the Company (or such other party as the Company may designate); and this Agreement is subject to all interpretations, amendments, rules and regulations promulgated by the Committee from time to time pursuant to the Plan.

13.   No Implied Rights .

(a)  The award of Units will not confer on the Participant any right with respect to continuance of employment or other service with the Company or any Subsidiary, nor will it interfere in any way with any right the Company or any Subsidiary would otherwise have to terminate or modify the terms of such Participant’s employment or other service at any time.

(b)  The Participant shall not have any rights of a shareholder with respect to the Units until shares of Stock have been duly issued following settlement of the Award as provided herein.

14.   Notices . Any written notices provided for in this Agreement or the Plan shall be in writing and shall be deemed sufficiently given if either hand delivered or if sent by fax or overnight courier, or by postage paid first class mail. Notices sent by mail shall be deemed received three business days after mailing but in no event later than the date of actual receipt. Notices shall be directed, if to the Participant, at the Participant’s address indicated by the Company’s records, or if to the Company, at the Company’s principal executive office.

15.   Amendment . This Agreement may be amended by written agreement of the Participant and the Company, without the consent of any other person.

16.   Governing Law; Jurisdiction; Class Action Waiver .  This Agreement shall be governed by the laws of the State of Alabama without giving effect to the choice-of-law provisions thereof.  The Circuit Court of the City of Birmingham and the United States District Court, Northern District of Alabama, Birmingham Division shall be the exclusive courts of jurisdiction and venue for any litigation, special proceeding or other proceeding as between the parties that may be brought, or arise out of, in connection with, or by reason of this Agreement.  The parties hereby consent to the jurisdiction of such courts.  The Participant agrees to litigate any dispute only as an individual and agrees not to pursue or participate in any action as a class, collective, representative or group action, or that seeks to award relief to a group in a single proceeding.  Notwithstanding the waiver of Participant’s right to bring or participate in a class, collective or other representative proceeding, Participant may have a statutory right (for example, under the National Labor Relations Act) to act concertedly on behalf of themselves and others to challenge this Agreement in any forum, and if an employee acts concertedly to pursue any such proceeding, the Company will not retaliate against an employee for doing so.  The Company is entitled, however, to enforce this Agreement, including Employee’s agreement to forego pursuing any covered dispute on a class, collective or representative basis, and is entitled to seek dismissal of any such class, collective or representative action and otherwise assert this Agreement as a defense in any proceeding.

END OF EXHIBIT 10.1

EXHIBIT 10.2

RETENTION AGREEMENT
 
THIS RETENTION AGREEMENT (the “Agreement”) is made and entered into effective as of ______, 2019 (the “Effective Date”), between Hibbett Sporting Goods, Inc., a Delaware corporation (together with its subsidiaries, the “Company”) and _________________________ (the “Executive”).  Certain capitalized terms used in this Agreement are defined in Section 4.

WHEREAS, the Company acknowledges that the Executive has made, and is expected to make, significant contributions to the growth and success of the Company and its Affiliates; and

WHEREAS, the Company recognizes that the possibility of an unexpected termination of the Executive’s employment may contribute to uncertainty on the part of the Executive and may result in the distraction of the Executive from operating responsibilities to the Company and its Affiliates; and

WHEREAS, the Company wishes to provide the Executive assurances regarding the benefits that will be payable to the Executive in the event employment with the Company is terminated without Cause or on account of resignation with Good Reason, subject to the terms and conditions set forth in this Agreement; and

WHEREAS, the Company is willing to provide such assurances only in accordance with the terms and conditions of this Agreement;

NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth in this Agreement and the compensation and benefits the Company agrees herein to pay the Executive and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Executive agree as follows:

1.   Term of Agreement .   The Term of this Agreement begins on the Effective Date and ends on the second anniversary of the Effective Date.  

2.   Severance Benefits .

2.01.   Eligibility for Benefits .  The Executive shall be entitled to receive the benefits described in this Section 2 (the “Severance Benefits”) if during the Term of this Agreement (i) the Company terminates the Executive’s employment with the Company without Cause, or (ii) the Executive resigns from the employment of the Company and its Affiliates and the Executive has Good Reason to resign; provided however that Executive shall be entitled to no benefits under this Section 2 if Executive is otherwise also entitled to receive benefits under any Hibbett Sports, Inc. Change of Control Severance Agreement (the “Change of Control Agreement”).

2.02.   Severance Pay .  If the requirements of Section 2.01 are satisfied, the Company shall pay the Executive the amount described in the following paragraph (the “Severance Pay”). The amount of Severance Pay that the Company shall pay the Executive is equal to one (1) times the Executive’s Base Salary. The Severance Pay shall be paid in a single cash payment, less deductions for applicable income and employment taxes.  Subject to Section 5, the Severance Pay shall be paid within five business days after the date the Executive’s employment with the Company terminates (the “Termination Date”).

2.03.   Certain Equity Incentives .  If the requirements of Section 2.01 are satisfied, outstanding equity-based awards granted to the Executive on or about May 6, 2019 pursuant to that certain Special 2019 Restricted Stock Unit Award Agreement under the Hibbett Sports, Inc. 2015 Equity Incentive Plan shall become vested on the Termination Date and settled, in accordance with the terms of such Award Agreement, within 45 days of the Termination Date.

2.04.   Other Benefits; Coordination .  Except as specifically provided in this Section 2, the Executive’s right to receive benefits under other equity awards, plans, programs and arrangements maintained by the Company or an Affiliate, including, where applicable, the Change of Control Agreement, shall be governed by the terms of such other awards, plans, programs and arrangements that are applicable to terminated participants, which are not deemed modified or amended hereby.

2.05.   Forfeiture of Severance Benefits .  The Executive shall forfeit the right to receive the Severance Benefits (other than the benefits described in Section 2.04 which shall be governed thereby) if the Executive breaches any of the covenants set forth in that certain Employee Confidential Information Agreement and Nondisclosure Noncompetition Agreement previously executed by the Executive (“Existing Covenants”).  If the Executive breaches any of the Existing Covenants Executive shall be liable to the Company for the repayment of any Severance Benefits (other than the benefits described in Section 2.04) previously paid to Executive.
 
3.   [Reserved.]

4.   Definitions .   As used in this Agreement, certain terms have the definitions set forth below.

4.01.   Affiliate .  “Affiliate” means any trade or business, whether or not incorporated, which together with the Company is treated as a single employer under Code section 414(b) or is deemed to be under common control under Code section 414(c).

4.02.   Base Salary .  “Base Salary” means the Executive’s annual rate of base salary as in effect on the date that the Executive’s employment with the Company terminates; provided, however, that if the Executive resigns from the employment of the Company for Good Reason and the basis for the resignation is, or includes, a reduction in the Executive’s annual rate of base salary, then “Base Salary” means the Executive’s annual rate of base salary as in effect prior to such reduction.  “Base Salary” for 2019 means Executive’s annual rate of base salary in effect on May 1, 2019.

4.03.   Board .  “Board” means the Board of Directors of Hibbett Sports, Inc.

4.04.   Cause .  “Cause” means (i) the Executive’s willful conduct that is demonstrably and materially injurious to the Company or an Affiliate, monetarily or otherwise; (ii)  the Executive’s breach of an Existing Covenant; (iii) the Executive’s breach of the Executive’s fiduciary duties to the Company or an Affiliate that is demonstrably and materially injurious to the Company or an Affiliate, monetarily or otherwise; (iv) the Executive’s conviction of any crime (or entering a plea of guilty or nolo contendere to any crime) constituting a felony; (v) the Executive’s entering into an agreement or consent decree or being the subject of any regulatory order that in any of such cases prohibits the Executive from serving as an officer or director of a company that has publicly traded securities; or (vi) willful and continuous nonperformance, lack of performance of or refusal to perform a reasonable order, policy or rule of the Board or the Company involving a material issue concerning the Company after written notice delivered to the Executive describing with specificity the elements of the nonperformance, lack of performance or refusal to perform and the relevant order, policy or rule, and the failure of the Executive to have cured such nonperformance, lack of performance or refusal to perform within thirty (30) days following receipt of such written notice.  A termination of the Executive shall not be for “Cause” unless the decision to terminate the Executive is set forth in a resolution of the Board to that effect and which specifies the particulars thereof and that is approved by a majority of the members of the Board (exclusive of the Executive if the Executive is a member of the Board) adopted at a meeting called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive to be heard before the Board).  No act or failure to act by the Executive will be deemed “willful” if it was done or omitted to be done by the Executive in good faith or with a reasonable belief on the part of the Executive that the action or omission was in the best interest of the Company or an Affiliate.  Any act or failure to act by the Executive based upon authority given pursuant to a resolution duly adopted by the Board or based on the advice of counsel to the Company shall be conclusively presumed to be done or omitted to be done by the Executive in good faith and in the best interest of the Company and its Affiliates.

4.05.   Code .  “Code” means the Internal Revenue Code of 1986, as amended.  Any reference to a particular section of the Code includes any successor provision to that particular Code section.

4.06.   Good Reason .  “Good Reason” means, without the express written consent of the Executive (i) a change in the Executive’s position with the Company or an Affiliate which results in a material diminution of the Executive’s authority, duties or responsibilities; (ii) a reduction by the Company in the annual rate of the Executive’s base salary or Target Bonus; (iii) a change in the location of the Executive’s principal office to a different place that is more than fifty (50) miles from the Executive’s principal office immediately prior to such change; (iv) a restriction or prohibition on Executive’s participation in outside activities that have historically been permitted, such as third-party board, committee, panel or association membership, or (v) the Company’s material breach of this Agreement.  Notwithstanding the two preceding sentences, Executive’s termination of employment for Cause, disability or retirement, shall not constitute Good Reason, and items (i) through (v) above shall be the sole basis for a termination by the Executive for Good Reason.  A resignation by the Executive shall not be with “Good Reason” unless the Executive gives the Company written notice specifying the event or condition that the Executive asserts constitutes Good Reason, the notice is given no more than ninety (90) days after the occurrence of the event or initial existence of the condition that the Executive asserts constitutes Good Reason and the Company has failed to remedy or cure the event or condition during the thirty (30) day period after such written notice is given to the Company.

4.07.   Separation from Service .  “Separation from Service” means the termination of the Executive’s employment with the Company and its Affiliates, determined in a manner consistent with the requirements of Treasury Regulation section 1.409A-1(b).  In accordance with, and subject to, the requirements of Treasury Regulation section 1.409A-1(b), the Executive will experience a Separation from Service when the facts and circumstances indicate that the Executive and the Company reasonably anticipate that either (i) no further services will be performed by the Executive for the Company or an Affiliate after such date (whether as an employee or independent contractor) or (ii) the bona fide services to be performed by the Executive (whether as an employee or independent contractor) after such date would permanently decrease to no more than twenty percent (20%) of the average level of such services provided by the Executive over the thirty-six (36) month period immediately preceding such date.  If the Executive provides services to the Company or an Affiliate both as an employee and a member of the Board or a member of the board of directors of an Affiliate, the services that the Executive provides as a director shall not be taken into account in determining whether the Executive has experienced a Separation from Service to the extent provided in Treasury Regulation section 1.409A-1(h).

4.08.   Specified Employee .  “Specified Employee” means a “specified employee” as defined in Treasury Regulation section 1.409A-1(i).  

4.09.   Target Bonus .  “Target Bonus” means the target annual bonus established for the Executive for the calendar year that includes the date on which the Executive’s employment with the Company terminates.  If the target annual bonus has not been established for the Executive on the date that such employment terminates, the “Target Bonus” shall be the target annual bonus established for the Executive for the preceding calendar year.

5.   Code Section 409A .   This Agreement and the amounts payable and other benefits provided under this Agreement are intended to comply with, or otherwise be exempt from, Section 409A of the Code (“Section 409A”), after giving effect to the exemptions in Treasury Regulation section 1.409A-1(b)(3) through (b)(12).  This Agreement shall be administered, interpreted and construed in a manner consistent with Section 409A.  If any provision of this Agreement is found not to comply with, or otherwise not be exempt from, the provisions of Section 409A, it shall be modified and given effect, in the sole discretion of the Board and without requiring the Executive’s consent, in such manner as the Board determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A; provided, however, that in exercising its discretion under this Section 5, the Board shall modify this Agreement in the least restrictive manner necessary.  Each payment under this Agreement shall be treated as a separate identified payment for purposes of Section 409A.

If a payment obligation under this Agreement arises on account of the Executive’s termination of employment and such payment obligation constitutes “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation section 1.409A-1(b)(3) through (b)(12)), it shall be payable only after the Executive’s Separation from Service; provided, however, that if the Executive is a Specified Employee, any payment that is scheduled to be paid within six months after such Separation from Service shall accrue without interest and shall be paid on the first day of the seventh month beginning after the date of the Executive’s Separation from Service or, if earlier, within fifteen days after the appointment of the personal representative or executor of the Executive’s estate following Executive’s death.

6.   No Employment Rights .   Nothing in this Agreement confers on the Executive any right to continuance of employment or service by the Company or an Affiliate.  Nothing in this Agreement interferes with the right of the Company or an Affiliate to terminate the Executive’s employment or service at any time for any reason, with or without Cause, subject to the requirements of this Agreement.  Nothing in this Agreement restricts the right of the Executive to terminate employment with the Company or an Affiliate at any time, for any reason, with or without Good Reason.  If the Executive is elected or appointed to the Board, the Executive agrees that Executive will promptly resign from membership on the Board if at any time the Board adopts a resolution that requests resignation from the Board.

7.   Governing Law; Venue .   The laws of the Alabama shall govern all matters arising out of or relating to this Agreement including, without limitation, its validity, interpretation, construction and performance but without giving effect to the conflict of laws principles that may require the application of the laws of another jurisdiction.  Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall continue to be bound by the Mutual Arbitration Agreement between the parties. The arbitrator shall have the discretion to award attorney’s fees to the prevailing party.  Each party waives, to the fullest extent permitted by law (i) any objection it may now or later have to the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in the tribunal covered by the preceding sentence and (ii) any claim that any legal action or proceeding brought in any such tribunal has been brought in an inconvenient forum.

8.   Binding Agreement .   This Agreement shall be binding on and inure to the benefit of, and be enforceable by or against the Company and its successors and the Executive (and the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees).  If the Executive dies while any amount remains payable under this Agreement, all such amounts shall be paid in accordance with the terms of this Agreement to the Executive’s devises, legatee or other designee, of if there is none, to the Executive’s estate.

9.   No Assignment .   Except as required by applicable law, no right to receive payments under this Agreement shall be subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge or hypothecation or to execution, attachment, levy or similar process or assignment by operation of law and any attempt to affect any such action shall be null, void and no effect.

10.   Entire Agreement .   Unless specifically provided herein, this Agreement and the agreements referred to herein contain all the understandings and representations between Executive and the Company pertaining to the subject matter hereof and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

11.   Counterparts .   This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together constitute on and the same instrument.

12.   Modification of Agreement .   No waiver or modification of this Agreement shall be valid unless in writing and duly executed by the party to be charged therewith.  No evidence of any waiver or modification shall be offered or received in evidence at any proceeding, arbitration or litigation between the parties unless such waiver or modification is in writing, duly authorized and executed.

13.   Notices .   All notices, requests and other communications to any party under this Agreement shall be in writing and shall be given to such party at its address set forth below or such other address as such party may hereafter specify for the purpose of notice to the other party:

If to the Company:                  Hibbett Sporting Goods, Inc.
c/o David Benck, Esq.
VP & General Counsel
2700 Milan Court
Birmingham, AL 35211

If to the Executive:                  At the address indicated below the Executive’s
signature hereto, unless subsequently updated
in the Company’s employment files, in which case
the superseding address shall apply.

    Each notice, request or other communication shall be effective (i) if given by mail, seventy-two hours after such communication is deposited in the mails with first class postage prepaid and addressed as set forth above or (ii) if given by other means, when delivered at the address prescribed by this Section 13.

[Signature page follows]

IN WITNESS WHEREOF, the parties have executed this Retention Agreement, effective as of the date first stated above.


 
 HIBBETT SPORTING GOODS, INC.


 
 
Date: 
 
 
EXECUTIVE:


 
[SIGNATURE]


 
[PRINT NAME]

Date:
 
 
Address:
 
 

 
 





END OF EXHIBIT 10.2