EXHIBIT 3.3
CERTIFICATE OF INCORPORATION
OF
HIBBETT SPORTING GOODS, INC.
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FIRST: The name of the Corporation is "Hibbett Sporting Goods, Inc."
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SECOND: The address of its registered office in the State of Delaware
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is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of
New Castle, Delaware 19801. The name of its registered agent at such address is
The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
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activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended
("Delaware Law").
FOURTH: The total number of shares of stock which the Corporation shall
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have authority to issue is 30,000,000, consisting of 20,000,000 shares of Common
Stock, par value $.01 per share (the "Common Stock"), and 10,000,000 shares of
Preferred Stock, par value $.01 per share (the "Preferred Stock").
The Board of Directors is hereby empowered to authorize by resolution or
resolutions from time to time the issuance of one or more classes or series of
Preferred Stock and to fix the designations, powers, preferences and relative,
participating, optional or other rights, if any, and the qualifications,
limitations or restrictions thereof, if any, with respect to each such class or
series of Preferred Stock and the number of shares constituting each such class
or series, and to increase or decrease the number of shares of any such class or
series to the extent permitted by the Delaware Law.
FIFTH: The name and mailing address of the incorporator are:
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Name Mailing Address
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Jina L. Choi c/o Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
The power of the incorporator as such shall terminate upon the filing of this
Certificate of Incorporation.
SIXTH: (a) The business and affairs of the Corporation shall be managed
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by or under the direction of a Board of Directors consisting of not less than
six nor more than nine directors, the exact number of directors to be
determined from time to time solely by resolution adopted by the affirmative
vote of a majority of the entire Board of Directors.
(b) The directors shall be divided into three classes, designated Class
I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire
Board of Directors. Each director shall serve for a term ending on the date of
the third annual meeting of stockholders next following the annual meeting at
which such director was elected, provided that directors initially designated as
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Class I directors shall serve for a term ending on the date of the 1997 annual
meeting, directors initially designated as Class II directors shall serve for a
term ending on the date of the 1998 annual meeting, and directors initially
designated as Class III directors shall serve for a term ending on the date of
the 1999 annual meeting. Notwithstanding the foregoing, each director shall
hold office until such director's successor shall have been duly elected and
qualified or until such director's earlier death, resignation or removal. In
the event of any change in the number of directors, the Board of Directors shall
apportion any newly created directorships among, or reduce the number of
directorships in, such class or classes as shall equalize, as nearly as
possible, the number of directors in each class. In no event will a decrease in
the number of directors shorten the term of any incumbent director.
(c) The names and mailing addresses of the persons who are to serve
initially as directors of each Class are:
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Name Mailing Address
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Class I
Barry H. Feinberg c/o Saunders Karp & Megrue, L.P.
Suite 100
Two Greenwich Plaza
Greenwich, CT 06830
F. Barron Fletcher, III c/o Saunders Karp & Megrue, L.P.
Two Greenwich Plaza
Suite 100
Greenwich, CT 06830
Class II
Michael J. Newsome c/o Hibbett Sporting Goods, Inc.
451 Industrial Lane
Birmingham, AL 35211
Thomas A. Saunders, III c/o Saunders Karp & Megrue, L.P.
Two Greenwich Plaza
Suite 100
Greenwich, CT 06830
Class III
Clyde B. Anderson c/o Books-A-Million, Inc.
402 Industrial Lane
Birmingham, AL 35211
John F. Megrue c/o Saunders Karp & Megrue, L.P.
Two Greenwich Plaza
Suite 100
Greenwich, CT 06830
(d) There shall be no cumulative voting in the election of directors.
Election of directors need not be by written ballot unless the Bylaws of the
Corporation so provide.
(e) Vacancies on the Board of Directors resulting from death, resignation,
removal or otherwise and newly created directorships resulting from any increase
in the number of directors may be filled solely by a majority of the directors
then in office (although less than a quorum) or by the sole remaining director,
and each director so elected shall hold office for a term that shall coincide
with the term of the Class to which such director shall have been elected.
(f) No director may be removed from office by the stockholders except for
cause with the affirmative vote of the holders of not less than two-thirds of
the total voting power of all outstanding securities of the Corporation then
entitled to vote generally in the election of directors, voting together as a
single class.
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(g) Notwithstanding the foregoing, whenever the holders of one or more
classes or series of Preferred Stock shall have the right, voting separately as
a class or series, to elect directors, the election, term of office, filling of
vacancies, removal and other features of such directorships shall be governed by
the terms of the resolution or resolutions adopted by the Board of Directors
pursuant to ARTICLE FOURTH applicable thereto, and such directors so elected
shall not be subject to the provisions of this ARTICLE SIXTH unless otherwise
provided therein.
SEVENTH: The Board of Directors shall have the power to adopt, amend or
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repeal the Bylaws of the Corporation.
The stockholders may adopt, amend or repeal the Bylaws only with the
affirmative vote of the holders of not less than two-thirds of the total voting
power of all outstanding securities of the Corporation then entitled to vote
generally in the election of directors, voting together as a single class.
EIGHTH: (1) A director of the Corporation shall not be liable to the
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Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by Delaware Law.
(2) Neither the amendment nor repeal of this ARTICLE EIGHTH, nor the
adoption of any provision of this Certificate of Incorporation or the Bylaws of
the Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE EIGHTH
in respect of any acts or omissions occurring prior to such amendment, repeal,
adoption or modification.
NINTH: The Corporation reserves the right to amend this Certificate of
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Incorporation in any manner permitted by the Delaware Law and all rights and
powers conferred upon stockholders, directors and officers herein are granted
subject to this reservation. Notwithstanding the foregoing, the provisions set
forth in ARTICLES SIXTH, SEVENTH, EIGHTH, and this ARTICLE NINTH may not be
repealed or amended in any respect, and no other provision may be adopted,
amended or repealed which would have the effect of modifying or permitting the
circumvention of the provisions set forth in ARTICLES SIXTH, SEVENTH, EIGHTH,
and this ARTICLE NINTH, unless such action is approved by the affirmative vote
of the holders of not less than two-thirds of the total voting power of all
outstanding securities of
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the Corporation then entitled to vote generally in the election of directors,
voting together as a single class.
IN WITNESS WHEREOF, I have hereunto signed my name this ____ day of
_________ 1996.
__________________________
Jina L. Choi
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