ex10.htm


    Exhibit
      10.1

    


    CHANGE
      IN CONTROL SEVERANCE AGREEMENT

    


    This
      Change in Control Severance
      Agreement (this “Agreement”) made this ___ day of _______, 2008, by and between
      _________________ (“Executive”) and Hibbett Sports, Inc. (the
“Company”).

    


    WHEREAS,
      the Compensation Committee of
      the Board of Directors of the Company (the “Board”) has determined that it is in
      the best interest of the Company to assure that the Company will have the
      continued dedication of the Executive, notwithstanding the possibility of a
      Change in Control of the Company.

    


    NOW,
      THEREFORE, in consideration of the
      mutual promises and agreements contained herein, the receipt and sufficiency
      of
      which are hereby acknowledged, the parties agree as follows:

    


    1.           Change
      in Control Payments.  If Executive’s employment with the Company
      is terminated by the Company without Cause or by the Executive for Good Reason
      within: (i) two years following a Change in Control; or (ii) within a six-month
      period prior to a Change in Control if Executive’s termination or resignation is
      also directly related to or occurs in connection with a Change in Control,
      the
      Company shall pay Executive, within thirty (30) days of Executive’s termination
      date or the Change in Control date, whichever is later, severance in the amount
      equal to one and one-half (1.5) times the sum of Executive’s Covered Salary and
      Executive’s Covered Bonus.

    


    To
      the extent that Executive has been
      granted options, stock awards or other equity compensation under the Company’s
      equity compensation plan, Executive’s interest in such awards shall be fully
      exercisable, vested and nonforfeitable as of the Change in Control date, to
      the
      extent not already exercisable or vested as of such date.

    


    2.           Definitions.

    


    (a)           “Cause,”
      for purposes of this Agreement, means felony conviction or plea to same, fraud
      or dishonesty, willful misconduct or failure to perform duties, intentional
      acts
      resulting in material injury to the Company or acts of moral
      turpitude.

    


    (b)           “Change
      in Control,” for purposes of this Agreement, occurs if:

    


    (i)           The
      individuals who, as of the date of this Agreement, constitute the Board of
      Directors of the Company (the “Incumbent Board”), cease for any reason to
      constitute at least a majority of the Board; or

    


    (ii)           The
      acquisition by any individual, entity or group (as defined in Section 13(d)(3)
      of the Securities Exchange Act of 1934), of beneficial ownership of 50% or
      more
      of either (i) the then outstanding shares of common stock of the Company (the
      “Outstanding Company Common Stock”) or (ii) the combined voting power of the
      then outstanding voting securities of the Company that may be cast for the
      election of the Company’s


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    directors
      (the “Outstanding Company Voting Securities”) other than a result of an issuance
      of securities initiated by the Company, or open market purchases approved by
      the
      Board, as long as the majority of the Board approving the purchases is a
      majority at the time the purchases are made; provided, however, that for
      purposes of this Section 2(b)(ii), the following acquisitions shall not
      constitute a Change in Control: (i) any acquisition directly from the Company,
      (ii) any acquisition by the Company or (iii) any acquisition by any Executive
      benefit plan (or related trust) sponsored or maintained by the Company;
      or

    


    (iii)           The
      merger or consolidation or sale or other disposition of all or substantially
      all
      of the assets of the Company (a “Business Combination”), in each case, unless,
      following such Business Combination, (i) all or substantially all of the
      individuals and entities who were the beneficial owners, respectively, of the
      Outstanding Company Common Stock and Outstanding Company Voting Securities
      immediately prior to such Business Combination beneficially own, directly or
      indirectly, more than 50% of, respectively, the then outstanding shares of
      common stock and the combined voting power of the then outstanding voting
      securities entitled to vote generally in the election of directors, as the
      case
      may be, of the corporation resulting from such Business Combination (including,
      without limitation a corporation which as a result of such transaction owns
      the
      Company or all or substantially all of the Company’s assets either directly or
      through one or more subsidiaries) in substantially the same proportions as
      their
      ownership, immediately prior to such Business Combination of the Outstanding
      Company Common Stock and Outstanding Company Voting Securities, as the case
      may
      be, (ii) no Person (excluding any corporation resulting from such Business
      Combination or any Executive benefit plan (or related trust) of the Company
      or
      such corporation resulting from such Business Combination) beneficially owns,
      directly or indirectly, 20% or more of, respectively, the then outstanding
      shares of common stock of the corporation resulting from such Business
      Combination or the combined voting power of the then outstanding voting
      securities of such corporation except to the extent that such ownership existed
      prior to the Business Combination and (iii) at least a majority of the members
      of the board of directors of the corporation resulting from such Business
      Combination were members of the Incumbent Board at the time of the execution
      of
      the initial agreement, or of the action of the Board, providing for such
      Business Combination; or

    


    (iv)           The
      dissolution or liquidation of the Company.

    


    (c)           “Covered
      Bonus,” for purposes of this Agreement, shall mean the average of the actual
      cash bonuses paid to the Executive for the five years prior to the year of
      the
      Executive’s employment termination from the Company (but in no event greater
      than the target bonus for the year in which the termination or resignation
      of
      employment occurs).  Covered Bonus will be calculated over a shorter
      period if the Executive has been employed for a shorter period.

    (d)           “Covered
      Salary,” for purposes of this Agreement, shall mean the highest annual rate of
      base salary paid to the Executive by the Company prior to the termination of
      Executive’s employment or resignation from the Company.

    


    (e)           “Good
      Reason,” for purposes of this Agreement, means the occurrence of any of the
      following, without the prior written consent of the Executive:  (i) a
      change in the


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    location
      of the Executive’s principal place of employment to a location more than 50
      miles from the Executive’s initial work site with the Company, (ii) reduction in
      Executive’s annual base salary or bonus opportunity, (iii) material, adverse
      change in the Executive’s duties or responsibilities, other than in connection
      with the termination of Executive’s employment for Cause; provided, however,
      that the Executive shall not be deemed to have Good Reason pursuant to this
      provision unless the Executive gives the Company written notice that the
      specified conduct or event has occurred and making specific reference to this
      Section 2(e) and the Company fails to cure such conduct or event within thirty
      (30) days of receipt of such notice.

    


    3.           Limitation
      on Change in Control Payments.  Anything in Section 1 above to the
      contrary notwithstanding, if, with respect to Executive, the payments that
      Executive has a right to receive under this Agreement plus any other payments
      from the Company including but not limited to the acceleration of the
      exercisability and/or vesting of any awards of Common Stock options to purchase
      Common Stock, together with any other payments which such Participant has the
      right to receive from the Company or any other affiliated entity, would
      constitute an “excess parachute payment” (as defined in Section 280G of the
      Code), then the payments under this Agreement shall be reduced to (but not
      below
      zero) to the largest amount that will result in no portion of such payments
      being subject to the excise tax imposed by Section 4999 of the
      Code.  The determination of any reduction pursuant to this Section
      must be made by the Company in good faith, before any payments are due and
      payable to Executive.

    


    4.           Nonqualified
      Deferred Compensation Omnibus Provision.  The payments and
      benefits under this Agreement are intended to satisfy the exclusion from Section
      409A of the Code for payments made upon an involuntary separation from
      service.  However, to the extent that any payment or benefit which is
      provided pursuant to or in connection with this Agreement which is considered
      to
      be nonqualified deferred compensation subject to Section 409A of the Code,
      it
      shall be paid and provided in a manner, and at such time and in such form,
      as
      complies with the applicable requirements of Section 409A of the Code to avoid
      the unfavorable tax consequences provided therein for
      non-compliance.  In connection with effecting such compliance with
      Section 409A of the Code, the following shall apply:

    


    (a)           Notwithstanding
      any other provision of this Agreement, the Company is authorized to amend this
      Agreement, to delay the payment of any monies and/or provision of any benefits
      in such manner as may be determined by it to be necessary or appropriate to
      comply, or to evidence or further evidence required compliance, with Section
      409A of the Code (including any transition or grandfather rules
      thereunder).

    


    (b)           Neither
      the Executive nor the Company shall take any action to accelerate or delay
      the
      payment of any monies and/or provision of any benefits in any manner which
      would
      not be in compliance with Section 409A of the Code (including any transition
      or
      grandfather rules thereunder).  Notwithstanding the
      foregoing:

    


    (i)           Payment
      may be delayed for a reasonable period in the event the payment is not
      administratively practical due to events beyond the recipient’s control such as
      where the recipient is not competent to receive the payment, there is a dispute
      as to amount due or


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    the
      proper recipient of such payment, additional time is needed to calculate the
      amount payable, or the payment would jeopardize the solvency of the
      Company.

    


    (ii)           Payments
      shall be delayed in the following circumstances:  (1) where the
      Company reasonably anticipates that the payment will violate the terms of a
      loan
      agreement to which the Company is a party and that the violation would cause
      material harm to the Company; or (2) where the Company reasonably
      anticipates that the payment will violate Federal securities laws or other
      applicable laws; provided that any payment delayed by operation of this clause
      (B) will be made at the earliest date at which the Company reasonably
      anticipates that the payment will not be limited or cause the violations
      described.

    


    (iii)           If
      the Executive is a specified Executive of a publicly traded corporation as
      required by Section 409A(a)(2)(B)(i) of the Code, and any payment or provision
      of any benefit hereunder is subject to Section 409A any payment or provision
      of
      benefits in connection with a separation from service payment event (as
      determined for purposes of Section 409A of the Code), as opposed to another
      payment event permitted under Section 409A, or an amount payable that is not
      subject to Section 409A shall not be made until six months after the Executive’s
      separation from service (the “409A Deferral Period”).

    


    5.           Restrictive
      Covenants.

    


    (a)           Non-Solicitation.  During
      the Executive’s employment with the Company and for a period of twelve (12)
      months after the Termination Date, Executive will not for his own benefit or
      for
      the benefit of any person or entity other than the Company, (i) solicit, or
      assist any person or entity to solicit, any officer, director, or employee
      of
      the Company to leave his  employment, (ii) hire or cause to be hired
      any person who is then, or who was during the one (1) year prior to the
      Termination Date, an officer, director, or employee of the Company, or (iii)
      engage any person who is then, or who was during the one (1) year prior to
      the
      Termination Date, an officer, director, employee or independent contractor
      of
      the Company.

    


    (b)           Non-interference.  During
      the Executive’s employment with the Company and for a period of twelve (12)
      months after the Termination Date, Executive will not solicit, or assist any
      person or entity to solicit, any person or entity who, during the twelve (12)
      month period prior to the Termination Date, paid or engaged the Company for
      products or services, for the purpose of providing services or selling products
      where those services or products compete with the services or products offered
      by the Company as of the Termination Date.

     

    (c)           Blue-Penciling.  If
      the final judgment of a court of competent jurisdiction declares that any term
      or provision of this Section 5 is invalid or unenforceable, the parties agree
      that the court making the determination of invalidity or unenforceability shall
      have the power to reduce the scope, duration, or area of the term or provision,
      to delete specific words or phrases, or to replace any invalid or unenforceable
      term or provision with a term or provision that is valid and enforceable that
      comes closest to expressing the intention of the invalid or unenforceable term
      or provision, and this Agreement shall be enforceable as so modified after
      the
      expiration of the time within which the judgment may be appealed.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    6.           Confidential
      Information.

     

    (a)           Non-Disclosure.  During
      his employment with the Company, and at all times thereafter, Executive agrees
      not to disclose, communicate or divulge to any third party or use, or permit
      others to use, any confidential information of the Company.  For the
      purposes of this Agreement, “confidential information” shall mean all
      information disclosed to Executive, or known to Executive as a consequence
      of or
      through this employment, where such information is not generally known by the
      public or was regarded or treated as proprietary by  the Company
      (including, without limitation, private or sensitive information concerning
      any
      of the Company’s employees and executives, business systems and procedures,
      suppliers, methods, systems, designs and know-how, names of referral sources,
      client records, client lists, pricing lists, business or strategic plans,
      marketing methods or plans or any other non-public information which, if used,
      divulged, published or disclosed by Executive, would be reasonably likely to
      provide a competitive advantage to a competitor).

     

    (b)           Proprietary
      Rights.  All rights, including without limitation any writing,
      discoveries, inventions, innovations, and computer programs and related
      documentation and all intellectual property rights therein, including without
      limitation copyright (collectively “Intellectual Property”) created, designed or
      constructed by Executive during his employment with the Company, that are
      related in any way to Executive’s work with the Company or to any of the
      services provided by the Company, shall be the sole and exclusive property
      of
      the Company.  Executive agrees to deliver and assign to the Company
      all such Intellectual Property and all rights which Executive may have therein
      and Executive agrees to execute all documents, including without limitation
      patent applications, and make all arrangements necessary to further document
      such ownership and/or assignment and to take whatever other steps may be needed
      to give the Company the full benefit thereof.  Executive further
      agrees that if the Company is unable after reasonable effort to secure the
      signature of Executive on any such documents, the Chairman of the Board of
      Directors of the Company shall be entitled to execute any such papers as the
      agent and attorney-in-fact of Executive and Executive hereby irrevocably
      designates and appoints each such officer of the Company as Executive’s agent
      and attorney-in-fact to execute any such papers on Executive’s behalf and to
      take any and all actions required or authorized by the Company pursuant to
      this
      Section 6(b).  Without limitation to the foregoing, Executive
      specifically agrees that all copyrightable materials generated during the term
      of Executive’s employment with the Company, including but not limited to,
      computer programs and related documentation, that are related in any way to
      Executive’s work with the Company or to any of the services provided by the
      Company, shall be considered works made for hire under the copyright laws of
      the
      United States and shall upon creation be owned exclusively by the
      Company.  To the extent that any such materials, under applicable law,
      may not be considered works made for hire, Executive hereby assigns to the
      Company the ownership of all copyrights in such materials, without the necessity
      of any further consideration, and the Company shall be entitled to register
      and
      hold in their own name all copyrights in respect of such materials.

    


    7.           Notices.  All
      notices, consents, and other communications to, upon, and between the respective
      parties hereto shall be in writing and shall be deemed to have been given,
      delivered, or made when sent or mailed by registered or certified mail, postage
      prepaid, and return receipt requested and addressed to the Company at its
      principal office in Birmingham,


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    Alabama
      and to the Executive at his residence as shown upon the employment records
      of
      the Company.

    


    8.           Modification.  No
      provision of this Agreement, including any provision of this Section, may be
      modified, deleted or amended in any manner except by an agreement in writing
      executed by the parties hereto.

    


    9.           Benefit.  All
      of the terms of this Agreement shall be binding upon, inure to the benefit
      of
      and be enforceable by the Company and its successors and assigns and by the
      Executive and his personal representatives.

    


    10.           Severability.  In
      the event that any part of this Agreement shall be held to be unenforceable
      or
      invalid, the remaining parts shall nevertheless continue to be valid and
      enforceable as though the unenforceable or invalid portions were not a part
      hereof.

     

    11.           Entire
      Agreement.  This Agreement contains the entire understanding of
      Executive and Company concerning the subjects it covers and it supersedes all
      prior understandings and representations concerning the subjects it
      covers.

    


    12.           Choice
      of Law.  This Agreement shall be governed by the laws of the state
      of Alabama, without regard to its conflict of laws principles.

    


    13.           Headings.  The
      headings provided herein are for convenience only and shall not affect the
      interpretation of this Agreement.

     

    14.           Counterparts.  This
      Agreement may be executed in one or more counterparts, each of which shall
      be
      deemed an original.

     

    IN
      WITNESS WHEREOF, the parties have caused this Agreement to be duly
      executed as of the day and year first above written.

     

    


    
      	
              Hibbett
                Sports, Inc.

            	
              Executive

            
	 	 
	
              By:
                __________________________________

            	
              ________________________________

            
	 	 
	
              Its:
                __________________________________

            	 
	 	 
	
              Dated:
                ________________________________

            	
              Dated:
                ___________________________