EXHIBIT
10.1
AGREEMENT OF
MERGER AND PLAN OF REORGANIZATION
THIS AGREEMENT OF
MERGER AND PLAN OF REORGANIZATION (“Agreement”), dated
as of February 9, 2007, is entered into by and among Hibbett
Sporting Goods, Inc., a Delaware corporation (the
“Company”), Hibbett Sports, Inc., a Delaware
corporation (“Holdco”) and a direct, wholly owned
subsidiary of the Company, and Hibbett Merger Sub, Inc., a Delaware
corporation (“MergerSub”) and a direct, wholly owned
subsidiary of Holdco.
RECITALS
A. The
Company's authorized capital stock consists of (i) 80,000,000
shares of common stock, par value $.01 per share (“Company
Common Stock”), of which 31, 734, 862 shares were issued and
outstanding as of December 4, 2006 and (ii) 1,000,000 shares of
preferred stock, $.01 per share, none of which is currently
outstanding (“Company Preferred Stock”).
B. As
of the date hereof, Holdco's authorized capital stock consists of
(i) 80,000,000 shares of common stock, par value $.01 per share
(“Holdco Common Stock”), of which 100 shares are issued
and outstanding and (ii) 1,000,000 shares of preferred stock, $.01
par value per share, none of which is currently outstanding
(“Holdco Preferred Stock”).
C. The
designations, rights and preferences, and the qualifications,
limitations and restrictions thereof, of the Holdco Preferred Stock
and the Holdco Common Stock are the same as those of the Company
Preferred Stock and the Company Common Stock.
D. The
Certificate of Incorporation and the Bylaws of Holdco immediately
after the Effective time (as hereinafter defined) will contain
provisions identical to the Certificate of Incorporation and Bylaws
of the Company immediately before the Effective Time (to the extent
required by Section 251(g) of the General Corporation Law of the
State of Delaware (the “DGCL”)).
E. The
directors of the Company immediately prior to the Merger (as
hereinafter defined) will be the directors of Holdco as of the
Effective Time.
F. Holdco
and MergerSub are newly formed corporations organized for the
purpose of participating in the transactions herein
contemplated.
G. The
Company desires to create a new holding company structure in
accordance with Section 251(g) of the DGCL by merging MergerSub
with and into the Company with the Company being the surviving
corporation, and converting each
outstanding share
of Company Common Stock into a like number of shares of Holdco
Common Stock, all in accordance with the terms of this
Agreement.
H. The
Boards of Directors of Holdco, MergerSub and the Company have
approved this Agreement and the merger of MergerSub with and into
the Company upon the terms and subject to the conditions set forth
in this Agreement (the “Merger”).
I. The
Company will, immediately prior to the Effective Time, contribute
to the capital of Holdco, to be converted to Holdco Common Stock
and held in the treasury of Holdco, any shares of Company Common
Stock then held by the Company in its treasury.
J. For
federal income tax purposes, the Merger shall qualify as a
reorganization under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in
consideration of the premises and the covenants and agreements
contained in this Agreement, and intending to be legally bound
hereby, the Company, Holdco and MergerSub hereby agree as
follows:
ARTICLE I
THE MERGER
Section
1.1 The Merger. In
accordance with Section 251(g) of the DGCL and subject to and upon
the terms and conditions of this Agreement, MergerSub shall, at the
Effective Time, be merged with and into the Company, the separate
corporate existence of MergerSub shall cease, and the Company shall
continue as the surviving corporation. The Company as the surviving
corporation after the Merger is hereinafter sometimes referred to
as the “Surviving Corporation.” At the Effective Time,
the effect of the Merger shall be as provided in Section 259 of the
DGCL.
Section
1.2 Effective Time. The
Merger shall become effective at 12:01 a.m. Eastern Standard Time
on February 10, 2007 (such time being referred to herein as the
“Effective Time”).
Section
1.3 Certificate of
Incorporation. From and after the Effective Time the Certificate of
Incorporation of the Company, as in effect immediately prior to the
Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation until thereafter amended as provided by law;
provided, however, that, from and after the Effective
Time:
(a) Article
Fourth shall be amended so as to read in its entirety as
follows:
“FOURTH:
The aggregate
number of shares which the Corporation shall have authority to
issue shall be 10,000, consisting of 10,000 shares of Common Stock,
par value $.01 per share.”
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(b)
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Article Fifth shall be deleted in its
entirety.
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(c) Article
Sixth shall be renumbered Article Fifth and shall be amended by
deleting paragraphs (b), (c), and (g) and renumbering paragraphs
(d) – (f) as paragraphs (b) – (d).
(d) Article
Seventh shall be renumbered as Article Sixth and shall be amended
so as to read in its entirety as follows:
“SIXTH:
In furtherance and
not in limitation of the powers conferred by law, the Board of
Directors is authorized to adopt, amend or repeal the Bylaws of the
Corporation.”
(e) Article
Eighth shall be renumbered Article Seventh, and the reference in
such article to “ARTICLE EIGHTH” shall be amended to
read “ARTICLE SEVENTH.”
(f) Article
Ninth shall be renumbered as Article Eighth, and the reference in
such article to “ARTICLES SIXTH, SEVENTH, EIGHTH and this
ARTICLE NINTH” shall be amended to read “ARTICLES
FIFTH, SIXTH, SEVENTH and this ARTICLE EIGHTH”
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(g)
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A new Article NINTH shall be added thereto which
shall be and read in its entirety as follows:
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“Article
NINTH.
Any act or
transaction by or involving the Corporation, other than the
election or removal of directors, that requires for its adoption
under the General Corporation Law of the State of Delaware or its
certificate of incorporation the approval of the stockholders of
the Corporation shall, by virtue of this reference to Section
251(g)(7)(i) of the General Corporation Law of the State of
Delaware, require, in addition, the approval of the stockholders of
Hibbett Sports, Inc., a Delaware corporation, or any successor
thereto by merger, by the same vote as is required by the General
Corporation Law of the State of Delaware and/or the certificate of
incorporation of this Corporation.”
Section
1.4 Bylaws. From and after
the Effective Time, the Bylaws of MergerSub, as in effect
immediately prior to the Effective time, shall thereafter continue
in full force and effect as the bylaws of the Surviving Corporation
until thereafter amended or repealed as provided
therein.
Section
1.5 Directors. The
directors of MergerSub immediately prior to the Effective Time
shall be the initial directors of the Surviving Corporation and
will hold office from the Effective Time until their successors are
duly elected or appointed and qualified in the manner provided in
the Certificate of Incorporation and the Bylaws of the Surviving
Corporation or as otherwise provided by law.
Section
1.6 Officers. The officers
of the Company immediately prior to the Effective Time shall be the
initial officers of the Surviving Corporation and will hold office
from the Effective Time until their successors are duly elected or
appointed and qualified in the manner provided in the Certificate
of Incorporation and the Bylaws of the Surviving Corporation or as
otherwise provided by law.
Section
1.7 Additional Actions.
Subject to the terms of this Agreement, the parties hereto shall
take all such reasonable and lawful action as may be necessary or
appropriate in order to effectuate the Merger. If, at any time
after the Effective Time, the Surviving Corporation shall consider
or be advised that any deeds, bills of sale, assignments,
assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm, of record or otherwise, in
the Surviving Corporation its right, title or interest in, to or
under any of the rights, properties or assets of either of
MergerSub or the Company acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the
Merger or otherwise to carry out this Agreement, the officers and
directors of the Surviving Corporation shall be authorized to
execute and deliver, in the name and on behalf of each of MergerSub
and the Company, all such deeds, bills of sale, assignments and
assurances and to take and do, in the name and on behalf of each of
MergerSub and the Company or otherwise, all such other actions and
things as may be necessary or desirable to vest, perfect or confirm
any and all right, title and interest in, to and under such rights,
properties or assets in the Surviving Corporation or otherwise to
carry out this Agreement.
Section
1.8 Conversion of
Securities. At the Effective Time, by virtue of the Merger and
without any action on the part of Holdco, MergerSub, the Company or
the holder of any of the following securities:
(a) Each
share or fraction of a share of the Company issued and outstanding
immediately prior to the Effective Time shall, upon compliance with
the procedures specified in Section 1.9 of this Agreement, be
converted in the Merger into the right to receive a duly issued,
fully paid and nonassessable share or
