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EXHIBIT 10.2.3
SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT AND WAIVER
SECOND AMENDMENT and WAIVER (the "Amendment") dated as of October 5,
1996 to the Stockholders Agreement dated as of November 1, 1995, as amended
(the "Agreement"), by and among The SK Equity Fund, L.P. and SK Investment
Fund, L.P., each a Delaware limited partnership (the "Funds"), the Stockholders
listed an the signature pages thereof (the "Stockholders") and Hibbett Sporting
Goods, Inc., a Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, the parties hereto desire to amend the Agreement in
anticipation of the Company's initial public offering (the "Initial Public
Offering") of its Common Stock, par value $.01 per share (the "Common Stock");
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions. Unless otherwise specifically defined
herein, each term used herein which is defined in the Agreement has the meaning
assigned to such term in the Agreement.
SECTION 2. Amendment of Section 2.1(a) of the Agreement. Section
2.1(a) of the Agreement is amended to read in its entirety as follows:
"For so long as the number of Shares held by the Xxxxxxxx Group equals
or exceeds 50% of the Original Xxxxxxxx Shares, the Board shall
consist of not less than six nor more than nine directors, one of whom
shall be designated by the Xxxxxxxx Designee (the "Xxxxxxxx Director")
and the rest of whom shall be designated by the Funds (including one
director who shall also be an officer of the Company and the two
independent directors to be nominated within 90 days of the
consummation of the Company's initial public offering of its Common
Stock required in connection with a listing of the Common Stock on The
Nasdaq National Market). One of the directors designated by the Funds
(other than the officer of the Company or any of the two independent
directors) shall be elected as Chairman of the Board. After the
number of shares held by the Xxxxxxxx Group falls below 50% of the
number of the Original Xxxxxxxx Shares, all the directors shall be
elected in accordance with the Charter, the Bylaws and the applicable
provisions of law."
SECTION 3. Amendment of Section 2.4(a). The first sentence of
Section 2.4(a) of the Agreement is hereby amended to read in its entirety as
follows: "A majority of the total number of directors shall constitute a quorum
for the transaction of business by the Board; provided that a majority of the
directors constituting a
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quorum must be the designees of the Funds who are not the independent directors
required in connection with a listing of the Common Stock on The Nasdaq
National Market."
SECTION 4. Option Granted to Xxxxx X. Xxxxxxxx. The parties hereto
agree to waive Sections 2.6(iii), 2.8 and any other provisions of the Agreement
to the extent necessary to permit (a) the grant as of August 1, 1996 by the
Company to Xxxxx X. Xxxxxxxx of an option to acquire 70,820 shares of the
Company's Common Stock at an exercise price of $8.48 per share (the "Option
Grant") and (b) the issuance of any shares of Common Stock pursuant to the
terms of the Option Grant (the "Option Stock Issuance"). Notwithstanding
Section 3.5 of the Agreement, the parties hereto agree that neither the Option
Grant nor any Option Stock Issuance shall give rise to any preemptive rights
under Section 3.5. Each party hereto hereby agrees that the shares of Common
Stock issuable to Xxxxx X. Xxxxxxxx in the Option Stock Issuance shall be
subject to the provisions of Articles IV and V of the Agreement.
SECTION 5. Amendment of Section 3.1(e). Section 3.1(e) of the
Agreement is hereby amended by inserting at the end thereof a new clause (iii)
to read in its entirety as follows: "(iii) Upon payment in full of all amounts
outstanding under the Xxxxxxxx Subordinated Notes, all Callable Shares shall
cease to be "Callable Shares" and shall become "Shares" hereunder subject to
all the provisions of this Agreement."
SECTION 6. Amendment of Section 3.2. Section 3.2 of the Agreement is
hereby amended by deleting clause (ii) of the proviso thereto and renumbering
clause (iii) thereof as new clause (ii).
SECTION 7. Deletion of Section 6.1. Section 6.1 of the Agreement is
hereby deleted effective upon the closing of the Initial Public Offering.
SECTION 8. Governing Law; Counterparts. This Amendment shall be
governed by, and construed in accordance with, the laws of the State of New
York without regard to the conflicts of law rules of such state. This
Amendment may be signed in a number of counterparts which together constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
THE SK EQUITY FUND, L.P.
By SKM Partners, L.P., the General
Partner
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: General Partner
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SK INVESTMENT FUND, L.P.,
By SKM Partners, L.P., the General
Partner
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: General Partner
XXXXXXX X. XXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
XXXX X. XXXXXXXX
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxx
XXXXXXX X. XXXXXXXX, XX.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxxx, Xx.
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, for
himself and as attorney-in
fact for each of the
following stockholders:
Xxxxxxx X. Xxxxxxxx, Xx.
Xxxxxxx X. Xxxxxxxx, Xx.
Xxxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxx
First Xxxxxxxx Grandchildren's
Trust, f/b/o
Xxxxxxx X. Xxxxxxxx, III
First Xxxxxxxx Grandchildren's
Trust, f/b/o
Xxxxxx X. Xxxxxxxx
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First Xxxxxxxx Grandchildren's
Trust, f/b/o
Xxxxxx X. Xxxxxxxx
Second Xxxxxxxx Grandchildren's
Trust, f/b/o
Xxxxxxxxx X. Xxxxxxxx
Third Xxxxxxxx Grandchildren's
Trust, f/b/x
Xxxxxx Xxxxxx Xxxxxxxx
Fourth Xxxxxxxx Grandchildren's
Trust, f/b/o
Xxxxxx Xxxxx Xxxxxxxx
Fifth Xxxxxxxx Grandchildren's
Trust, f/b/o
Xxxxxx X. Xxxxxxxx, Xx.
Sixth Xxxxxxxx Grandchildren's
Trust, f/b/o
Bentley Xxxxxxx Xxxxxxxx
Seventh Xxxxxxxx Grandchildren's
Trust, f/b/o
Xxxxxx Xxxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx
The Xxxxxx X. Xxxxxxxx Trust
Xxxx X. Xxxxxxxx XX Trust
Alexandra Xxxx Xxxxxxxx
Irrevocable Trust
Xxxxxx Xxxxxxx Xxxxxxxx
1995 Trust
Xxxxx Xxxxxxxxx Xxxxxxxx
1996 Trust
Xxxxxx Xxxxx Xxxxxxxx
1995 Trust
Bentley Xxxxxxx Xxxxxxxx
1995 Trust
Xxxxxx Xxxxxxx Xxxxxxxx
1996 Trust
Xxxxxx Xxxxxx Xxxxxxxx
1996 Trust
Xxxxxx X. Xxxxxxxx, Xx.
1996 Trust
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, for himself
and as attorney-in-fact for each
of the following stockholders:
Xxxx Xxxxx Xxxxxxx
First Xxxxxxx X. Xxxxxxx
Child's Trust
Second Xxxxxxx X. Xxxxxxx
Child's Trust
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