EMPLOYMENT AGREEMENT
Exhibit
10.14.3
THIS
EMPLOYMENT AGREEMENT (this "Agreement")
is made this the 19th day of June, 2009, to be effective as of close of business
June 2, 2009, by and between Conn's, Inc, a Delaware corporation with its
principle offices at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 ("Conn's"),
and Xxxxxx X. Xxxxx, Xx., an individual (the "Xxxxx").
WHEREAS, Xxxxx and Conn's have
previously entered into that certain Amended and Restated Xxxxx Employment
Agreement, dated June 1, 2007 (the "Prior
Agreement");
WHEREAS, Conn’s and Xxxxx have
previously entered into that certain “Executive Retirement Agreement”, effective
as of June 2, 2009, when it was contemplated that Xxxxx would provide only
consulting services to Conn’s;
WHEREAS, Conn’s and
Xxxxx have determined that rather than Xxxxx providing Consulting Services and
provided in the “Executive Retirement Agreement”, Conn’s desires to continue to
employ Xxxxx on a part time basis, whereby Xxxxx will be paid a salary of
$144,000 per annum, on regular payroll intervals.
WHEREAS, Conn's and
Xxxxx desire to amend and restate the Prior Agreement and the Executive
Retirement Agreement to reflect the part time employment of Xxxxx of
Conn’s as provided herein;
WHEREAS, Conn's desires
to continue to retain Xxxxx as a part time employee to provide services in an
advisory capacity, when and where needed until the expiration of this Agreement,
as provided herein.
NOW, THEREFORE, in
consideration of the foregoing and in consideration of the mutual promises and
agreements contained herein, the parties hereto agree as
follows:
X.
Xxxxx
Employment. The full time employment period of Xxxxx provided
in the Prior Agreement shall end as of the end of the business day, June 2,
2009, at which time Xxxxx will continue to be an employee of Conn’s on a part
time basis. Xxxxx shall be entitled to the following continued rights
and compensation:
1. Conn’s
shall continue to employ Xxxxx on a part time basis to provide such advisory and
other employment services as appropriate and necessary for a period of
thirty-six (36) months from the effective date hereof. At the end of
the thirty-six (36) month period, this Agreement shall renew and extend for
successive twelve (12) month periods unless terminated by Xxxxx or Conn’s at the
end of the thirty-six (36) months and each twelve (12) month period
thereafter. This obligation shall additionally terminate upon the
death of Xxxxx.
2. Conn's
shall pay Incentive Compensation, if any, earned and accrued but unpaid through
the date of this Agreement.
3. Conn’s
shall pay Xxxxx a base salary of One Hundred Forty-Four Thousand Dollars
($144,000) per annum, payable on Conn’s normal payroll payment schedule, subject
to standard Conn’s payroll deductions, and those authorized by Xxxxx as provided
in Conn’s policies and procedures.
4. Xxxxx
(and his spouse) shall be entitled to participate in Conn's major medical/health
insurance plan (the "Health Plan") until Frank’s death, or the death of Frank’s
spouse if she should survive Xxxxx, provided that Xxxxx, or his spouse, as the
case may be, will pay the unsubsidized premium associated with such amount and
shall participate in Medicare to the extent eligible. In the event
Xxxxx is ineligible to participate in the Health Plan, Conn's shall procure a
comparable insurance policy for Xxxxx and his spouse (a "Replacement
Policy"). Xxxxx shall pay an amount equal to unsubsidized premium he
would have paid to participate in the Health Plan had he been eligible, and any
costs in excess of such amounts for the Replacement Policy shall be paid by
Conn's.
5. Conn’s
shall continue to provide Xxxxx an automobile/truck of his choice, or the sum of
one thousand dollars ($1,000) per month, at Frank’s election, together with a
Company gasoline credit card until Frank’s death for his use in providing his
services hereunder.
6. If
Conn's maintains any liability insurance covering members of its Board of
Directors, Xxxxx will be included within the covered class of individuals under
such policy.
B.
Termination. This
Agreement shall not terminate upon Frank's death, but shall continue to benefit
Frank’s spouse until this Agreement expires as provided herein
above.
C.
Certain
Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
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1.
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"Affiliate"
shall mean, with respect to a person, any other person controlling,
controlled by or under common control with the first
person.
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2.
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"Cause"
shall mean (i) behavior of Xxxxx which is adverse to Conn's interests,
(ii) Frank's dishonesty, criminal charge or conviction, grossly negligent
misconduct, willful misconduct, acts of bad faith, neglect of duty or
(iii) material breach of this Agreement which is not cured within the
thirty (30) day cure period pursuant to Section
D.3.
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3.
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"Confidential
Information" shall mean information: (i) disclosed to or known
by the Xxxxx as a consequence of or through his employment with Conn's,
(ii) not generally known outside Conn's and (iii) which relates to any
aspect of Conn's or its business, research, or
development. "Confidential Information" includes, but is not
limited to Conn's trade secrets, proprietary information, business plans,
marketing plans, methodologies, computer code and programs, formulas,
processes, compilations of information, results of research, proposals,
reports, records, financial information, compensation and benefit
information, cost and pricing information, customer lists and contact
information, supplier lists and contact information, vendor lists and
contact information, and information provided to Conn's by a third party
under restrictions against disclosure or use by Conn's or others; provided,
however, that the term "Confidential Information" does not include
information that (a) at the time it was received by Xxxxx was
generally available to the public, (b) prior to its use by Xxxxx,
becomes generally available to the public through no act or failure of
Xxxxx, (c) is received by Xxxxx from a person or entity other than
Conn's or an Affiliate of Conn's who is not under an obligation of
confidence with respect to such information or (d) was generally
known by Xxxxx by virtue of his experience and know how gained prior to
employment with Conn's.
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4.
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"Control"
and correlative terms shall mean the power, whether by contract, equity
ownership or otherwise, to direct the policies or management of a
person.
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5.
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"Copyright
Works" shall mean materials for which copyright protection may be obtained
including, but not limited to literary works (including all written
material), computer programs, artistic and graphic works (including
designs, graphs, drawings, blueprints, and other works), recordings,
models, photographs, slides, motion pictures, and audio-visual works,
regardless of the form or manner in which documented or
recorded.
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6.
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"Person"
shall mean an individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency
or political subdivision thereof.
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7.
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"Work
Product" shall mean all methods, analyses, reports, plans, computer files
and all similar or related information which (i) relate to Conn's or
any of its Affiliates and (ii) are conceived, developed or made by
Xxxxx in the course of his employment by
Conn's.
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D.
Non-Disclosure,
Non-Competition and Non-Solicitation. Xxxxx and Conn's
acknowledge and agree that during and solely as a result of his employment by
Conn's, Conn's has provided and will continue to provide Confidential
Information and special training to Xxxxx in order to allow Xxxxx to fulfill his
obligations as an Xxxxx of a publicly-held company and under this
Agreement. In consideration of the special and unique opportunities
afforded to Xxxxx by Conn's as a result of Frank's employment, as outlined in
the previous sentence, Xxxxx hereby agrees as follows:
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1.
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Xxxxx
agrees that Xxxxx will not, except as Conn's may otherwise consent or
direct in writing, reveal or disclose, sell, use, lecture upon, publish or
otherwise disclose to any third party any Confidential Information of
Conn's or any of its Affiliates, or authorize anyone else to do these
things at any time either during or subsequent to Frank's employment with
Conn's. This Section G.1 shall continue in full force and
effect after termination of Frank's employment for any
reason. Frank's obligations under this Section G.1 with respect
to any specific Confidential Information shall cease only when that
specific portion of the Confidential Information becomes publicly known,
other than as a result of disclosure by Xxxxx, in its entirety and without
combining portions of such information obtained separately. It
is understood that such Confidential Information of Conn's and any of its
Affiliates includes matters that Xxxxx conceives or develops, as well as
matters Xxxxx learns from other Franks of Conn's and any of its
Affiliates.
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2.
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During
the period of this Agreement, Xxxxx will not (other than for the benefit
of Conn's or any of its Affiliates pursuant to this Agreement) compete
with Conn's or any of its Affiliates by engaging in the conception,
design, development, production, marketing, or servicing of any product or
service that is substantially similar to the products or services which
Conn's or any of its Affiliates provides, and that he will not work for,
assist, loan money, extend credit or become affiliated with as an
individual, owner, partner, director, officer, stockholder,
employee, advisor, independent contractor, joint
venturer, consultant, agent, representative, salesman or any other
capacity, either directly or indirectly, any individual or business which
offers or performs services, or offers or provides products substantially
similar to the services and products provided by Conn's or any of its
Affiliates. The restrictions of this Section G.2 shall not be
violated by the ownership of no more than 1% of the outstanding securities
of any company whose equity securities are traded on a national securities
exchange or is quoted on the NASDAQ National
Market.
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3.
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Xxxxx
agrees that he shall not, directly or indirectly, at any time during the
period of one (1) year after the termination of this Agreement for any
reason, including expiration of the Agreement, within the geographical
area of 100 miles of any existing or specifically contemplated Conn's
retail or support location at the time of termination, as an individual,
owner, partner, director, officer, stockholder, employee, advisor,
independent contractor, joint venturer, consultant, agent, representative,
salesman or any other capacity, work for, assist, loan money, extend
credit or become affiliated with, either directly or indirectly, any
individual or business which offers or performs services, or offers or
provides products substantially similar to the services and products
provided by Conn's or any of its Affiliates. The restrictions
of this Section G.3 shall not be violated by the ownership of no more than
1% of the outstanding securities of any company whose equity securities
are traded on a national securities exchange or is quoted on the NASDAQ
National Market. It is understood that the geographical area
set forth in this covenant is divisible so that if this clause is invalid
or unenforceable in an included geographic area, that area is severable
and the clause remains in effect for the remaining included geographic
areas in which the clause is valid.
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4.
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Xxxxx
agrees that for the duration of this Agreement, and for a period of two
(2) years after the expiration of this Agreement, Xxxxx will not either
directly or indirectly, on his behalf or on behalf of others, solicit,
attempt to hire, or hire any person employed by Conn's and any of its
Affiliates to work for Xxxxx or for another entity, firm, corporation, or
individual.
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5.
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Xxxxx
acknowledges that Conn's has taken reasonable steps to maintain the
confidentiality of its Confidential Information and the ownership of its
Work Product and Copyright Works, which is extremely valuable to Conn's
and provides Conn's with a competitive advantage in its market. Xxxxx
further acknowledges that Conn's would suffer irreparable harm if Xxxxx
were to use or enable others to use such knowledge, information, and
business acumen in competition with Conn's. Xxxxx acknowledges the
necessity of the restrictive covenants set forth herein to: protect Conn's
legitimate interests in Conn's Confidential Information; protect Conn's
customer relations and the goodwill with customers and suppliers that
Conn's has established at its substantial investment; and protect Conn's
as a result of providing Xxxxx with specialized knowledge, training, and
insight regarding Conn's operations as a publicly-held
company. Xxxxx further agrees and acknowledges that these
restrictive covenants are reasonably limited as to time, geographic area,
and scope of activities to be restricted and that such promises do not
impose a greater restraint on Xxxxx than is necessary to protect the
goodwill, Confidential Information and other legitimate business interests
of Conn's. Xxxxx agrees that any breach of this Section G
cannot be remedied solely by money damages, and that in addition to any
other remedies Conn's may have, Conn's is entitled to obtain injunctive
relief against Xxxxx without the requirement of posting bond or other
security. Nothing herein, however, shall be construed as
limiting Conn's right to pursue any other available remedy at law or in
equity, including recovery of damages and termination of this
Agreement.
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6.
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Xxxxx
acknowledges that all writings, records, and other documents and things
comprising, containing, describing, discussing, explaining, or evidencing
any Confidential Information, Work Product, and/or Copyright Works of
Conn's, any Affiliate of Conn's, or any third party with which Conn's has
a confidential relationship, is the property of Conn's or such
Affiliate. All property belonging to Conn's in Frank's custody
or possession that has been obtained or prepared in the course of Frank's
employment with Conn's shall be the exclusive property of Conn's, shall
not be copied and/or removed from the premises of Conn's, except in
pursuit of the business of Conn's, and shall be delivered to Conn's, along
with all copies or reproductions of same, upon notification of the
termination of Frank's employment or at any other time requested by
Conn's. Conn's shall have the right to retain, access, and
inspect all property of any kind in Frank's office, work area, and on the
premises of Conn's upon termination of Frank's employment and at any time
during Frank's employment, to ensure compliance with the terms of this
Agreement.
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7.
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The
terms of this Section D are continuing in nature and shall survive the
termination or expiration of this
Agreement.
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E.
Notices. All
notices and other communications under this Agreement shall be in writing and
shall be delivered personally or by facsimile or electronic delivery, given by
hand delivery to the other party, sent by overnight courier or sent by
registered or certified mail, return receipt requested, postage prepaid,
to:
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If
to Xxxxx:
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Xxxxxx
X. Xxxxx, Xx.
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0000
Xxxxxxx Xxxxxx
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Xxxxxxxx,
Xxxxx 00000
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Fax
No.: (000) 000-0000
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If
to Company:
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Conn's,
Inc.
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0000
Xxxxxxx Xxxxxx
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Xxxxxxxx,
Xxxxx 00000
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Attn: General
Counsel
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Fax
No.: (000)
000-0000
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F.
Assignment. Conn's
shall require any successors (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to a controlling interest in the business, assets or
equity of Conn's to assume and agree to perform this Agreement in the same
manner and to the same extent that Conn's would be required to perform if no
such succession had taken place. This Agreement is a personal
employment contract and the rights, obligations and interests of Xxxxx under
this Agreement may not be sold, assigned, transferred, pledged or hypothecated
by Xxxxx.
G.
Binding
Agreement. Xxxxx understands that his obligations under this
Agreement are binding upon Frank's heirs, successors, personal representatives
and legal representatives.
H.
Arbitration. Except
for any controversy or claim relating to Section G of this Agreement, any
controversy or claim arising out of or relating to this Agreement or the breach
of any provision of this Agreement, including the arbitrability of any
controversy or claim, shall be settled by arbitration administered by the
American Arbitration Association ("AAA")
under its National Rules for the Resolution of Employment Disputes and the
Optional Rules for Emergency Measures of Protection of the AAA, and judgment
upon the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Any provisional remedy which would be available
from a court of law, shall be available from the arbitrator to the parties to
this Agreement pending arbitration. Arbitration of disputes is mandatory and in
lieu of any and all civil causes of action and lawsuits either party may have
against the other arising out of Frank's employment with Conn's. Civil discovery
shall be permitted for the production of documents and taking of
depositions. The arbitrator(s) shall be guided by the Texas Rules of
Civil Procedure in allowing discovery and all issues regarding compliance with
discovery requests shall be decided by the arbitrator(s). The Federal
Arbitration Act shall govern this Section K. This Agreement shall in
all other respects be governed and interpreted by the laws of the State of
Texas, excluding any conflicts or choice of law rule or principles that might
otherwise refer construction or interpretation of this Agreement to the
substantive law of another jurisdiction. The arbitration shall be
conducted in Beaumont, Texas by one neutral arbitrator chosen by AAA according
to its National Rules for the Resolution of Employment Disputes if the amount of
the claim is one million dollars ($1,000,000.00) or less and by three neutral
arbitrators chosen by AAA in the same manner if the amount of the claim is more
than one million dollars ($1,000,000.00). Neither party nor the
arbitrator(s) may disclose the existence, content, or results of any arbitration
hereunder without the prior written consent of both parties unless compelled to
do so either by judicial process or in order to enforce an arbitration award
rendered pursuant to this Section H. All fees and expenses of the
arbitration shall be borne by the parties equally. However, each
party shall bear the expense of its own counsel, experts, witnesses, and
preparation and presentation of proofs. The prevailing party,
according to the arbitrator(s), shall be entitled to an award of its reasonable
attorneys' fees.
I.
Waiver. No
waiver by either party to this Agreement of any right to enforce any term or
condition of this Agreement, or of any breach of this Agreement, shall be deemed
a waiver of such right in the future or of any other right or remedy available
under this Agreement.
J.
Severability. If
any provision of this Agreement as applied to either party or to any
circumstances shall be adjudged by a court of competent jurisdiction or
arbitrator to be void or unenforceable the same shall in now way affect any
other provision of this Agreement or the validity or enforceability of this
Agreement. If any court or arbitrator construes any of the provisions
of Section G of this Agreement, or any part thereof, to be unreasonable because
of the duration of such provision or the geographic or other scope thereof, such
court or arbitrator shall reduce the duration or restrict the geographic or
other scope of such provision or enforce such provision to the maximum extent
possible as so reduced or restricted.
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K.
Entire
Agreement; Amendment. This Agreement, the Indemnification
Agreement entered into by Conn's and Xxxxx and any agreements evidencing any
stock options granted to Xxxxx shall constitute the entire agreement between the
parties with respect to Frank's employment with Conn's. This
Agreement replaces and supersedes any and all existing agreements entered into
between Xxxxx and Conn's, whether oral or written, regarding the subject matter
of this Agreement. This Agreement may not be amended or modified
other than by a written agreement executed by the parties to this Agreement or
their respective successors and legal representatives.
L.
Understand
Agreement. Xxxxx represents and warrants that he has (i) read
and understood each and every provision of this Agreement, (ii) been given the
opportunity to obtain advice from legal counsel of choice, if necessary and
desired, in order to interpret any and all provisions of this Agreement and
(iii) freely and voluntarily entered into this Agreement.
M.
Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas and is performable in Beaumont,
Texas.
N.
Professional/Personal. Membership
by Xxxxx on corporate and civic boards should be accepted only after
consideration of conflict of interest and consultation with the
Board. Conn's requires Xxxxx to have a comprehensive annual medical
physical examination.
O.
Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one
and the same instrument.
P.
Titles;
Pronouns and Plurals. The titles to the sections of this
Agreement are inserted for convenience of reference only and should not be
deemed a part hereof or affect the construction or interpretation of any
provision hereof. Whenever the context may require, any pronoun used
in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns, pronouns, and verbs shall include the
plural and vice versa.
Q.
Survival. The
provisions of this Agreement shall survive the expiration of this
Agreement.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first written
above.
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XXXXX
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XXXX'X,
INC.
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/s/ Xxxxxx X. Xxxxx, Xx.
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By: |
/s/ Xxxxxxx X. Xxxxx,
Xx.
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| Xxxxxx X. Xxxxx, Xx. | Xxxxxxx X. Xxxxx, Xx. | |
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Chairman
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