EMPLOYMENT AGREEMENT
Exhibit 10.39
THIS AGREEMENT is made effective January 5, 2011 (the “Effective Date”), between HASTINGS
ENTERTAINMENT, INC., a Texas corporation (the “Company”), and Xxxxx Xxxx, an individual (the
“Executive”).
W I T N E S S E T H:
WHEREAS, the Company and the Executive desire to set forth the terms of their agreements
relating to the employment of Executive by the Company; and
NOW, THEREFORE, in consideration of the mutual promises herein contained, the Company and the
Executive agree as follows:
1. Employment. The Company hereby employs the Executive and the Executive hereby accepts such
employment subject to the terms and conditions contained in this Agreement. The Executive is
engaged as an employee of the Company. Neither the Executive nor the Company intend to create a
joint venture, partnership or other relationship that might impose a fiduciary obligation on the
Executive or the Company in the performance of this Agreement, other than as an officer of the
Company.
2. Executive’s Duties. The Executive is employed on a full-time basis. Throughout the term of this
Agreement, the Executive will use the Executive’s best efforts and due diligence to assist the
Company in the objective of achieving the most profitable operation of the Company and the
Company’s affiliated entities consistent with developing and maintaining a quality business
operation.
2.1 Specific Duties. During the term of this Agreement the Executive will serve as Vice
President of Store Operations for the Company and perform the duties of such office as set
forth in the Bylaws of the Company. The Executive agrees to use the Executive’s best efforts
to perform all of the services required to fully and faithfully execute the offices and
positions to which the Executive is appointed and elected and such other services as may be
reasonably directed by the Chief Executive Officer of the Company in accordance with this
Agreement.
2.2 Modifications. The precise duties to be performed by the Executive may be extended or
curtailed in the discretion of the Chief Executive Officer of the Company.
2.3 Responsibility. The Board of Directors of the Company retains ultimate
responsibility to determine the duties of the Executive.
2.4 Rules and Regulations. From time to time, the Company may issue policies and procedures
applicable to all its employees including the Executive. These policies and procedures
include, but are not limited to, the Company’s Associate Handbook and Code of Conduct. The
Executive agrees to comply with such policies and procedures, except to the extent such
policies conflict with a material term or condition contained within this Agreement. Such
policies and procedures may be supplemented, modified, changed or adopted without notice in
the sole discretion of the Company at any time. In the event of a conflict between such
policies and procedures and this Agreement, this Agreement will control unless compliance
with this Agreement will violate any law or regulation applicable to the Company or its
affiliated entities. The Company will apply its existing and future policies and procedures
in a lawful and evenhanded manner.
Exhibit 10.39
3. Other Activities. Except for activities approved by the Board of Directors, during the
period of Executive’s employment, the Executive will not: (a) engage in activities which
require such substantial services on the part of the Executive that the Executive is unable
to perform the duties assigned to the Executive in accordance with this Agreement; (b) serve
as an officer or director of any publicly held entity; or (c) directly or indirectly invest
in, participate in or acquire an interest in any Competing Business as defined in Paragraph
8(a)(i). The limitations in this paragraph 3 will not prohibit an investment by the
Executive in publicly traded securities as allowed in Paragraph 8(a)(i). The Executive is
not restricted from maintaining or making investments, or engaging in other businesses,
enterprises or civic, charitable or public service functions if such activities,
investments, businesses or enterprises do not result in a violation of clauses (a) through
(c) of this paragraph 3.
4. Executive’s Compensation. The Company agrees to compensate the Executive as follows:
4.1 Base Salary. A base salary (the “Base Salary”), in an annual rate of not less than One
Hundred Seventy-Five Thousand Dollars ($175,000.00), will be paid to the Executive in
installments consistent with the Company’s customary payroll practices, during the term of
this Agreement.
4.2 Bonus. In addition to the Base Salary the Executive will participate in the Corporate
Officer Incentive Plan (“COIP”). Executive’s incentive target expressed as a percentage of
Base Salary for the COIP initially shall be twenty-five percent (25%), proportionately
reduced as to any pro-rated performance period during which Executive is employed.
4.3 Equity Compensation. In addition to the compensation set forth in paragraphs 4.1 and
4.2 of this Agreement, the Executive will be allowed to participate in grants of stock
options, restricted stock or other equity related awards from the Company’s stock
compensation plans put into effect from time to time, subject to the terms and conditions of
such plans.
4.4 Benefits. The Company agrees to extend to the Executive retirement benefits, deferred
compensation, reimbursement of reasonable expenditures for dues, travel and entertainment
and any other benefits the Company provides to other executives or officers from time to
time on the same general terms as such benefits are provided to such individuals. The
Company will also provide the Executive the opportunity to apply for coverage under the
Company’s medical, life and disability plans, if any. If the Executive is accepted for
coverage under such plans, the Company will provide such coverage on the same terms as is
customarily provided by the Company to the plan participants as modified from time to time.
The following specific benefits will also be provided to the Executive at the expense of the
Company.
4.4.1 Vacation. The Executive will be entitled to take paid vacation (as approved)
each calendar year during the term of this Agreement in accordance with Company
policy, subject to proration for any portion of a calendar year under this
Agreement. No additional compensation will be paid for failure to take vacation and
no vacation may be carried forward from one calendar year to another.
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Exhibit 10.39
4.5 Gross-Up Payment. In the event it is determined that any payment or distribution by the
Company or the Company’s subsidiaries or affiliates to or for the benefit of the
Executive (whether paid or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise, but determined without regard to any additional payments
required under this paragraph 4.5) (a “Payment”) is subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code (the “Code”) or any interest or penalties related
to such excise tax (collectively, the “Excise Tax”), the Executive will be entitled to
receive an additional payment (a “Gross-Up Payment”) from the Company. The Gross-Up Payment
will be equal to the amount such that after payment by the Executive of all taxes (including
the Excise Tax, income taxes, interest and penalties imposed with respect to such taxes) on
the Gross-Up Payment, the Executive will retain an amount of the Gross-Up Payment equal to
the Excise Tax imposed on the Payment.
4.5.1 Determination. Subject to the provisions of paragraph 4.5.2 all
determinations required to be made under this paragraph 4.5 (including whether and
when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the
assumptions to be utilized) will be made by a nationally recognized certified public
accounting firm designated by the Executive (the “Accounting Firm”). The Accounting
Firm will provide detailed supporting calculations both to the Company and the
Executive within fifteen (15) business days of the receipt of notice from the
Executive that there has been a Payment, or such earlier time as is reasonably
requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting a Change of
Control (as hereinafter defined), the Executive will be entitled to appoint another
nationally recognized accounting firm to make the determinations required under this
paragraph (which accounting firm will then be referred to as the Accounting Firm
hereunder). All fees and expenses of the Accounting Firm will be paid by the
Company. Any Gross-Up Payment required to be paid under this paragraph 4.5 will be
paid by the Company to the Executive within five (5) days of the receipt of the
Accounting Firm’s determination. Any determination by the Accounting Firm will be
binding on the Company and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination by
the Accounting Firm, the Gross-Up Payment made by the Company may be less than
actually required (an “Underpayment”) consistent with the calculations required to
be made hereunder. In the event that the Company exhausts its remedies pursuant to
paragraph 4.5.2 below and the Executive thereafter is required to make a payment of
any Excise Tax, the Accounting Firm will determine the amount of the Underpayment
that has occurred and any such Underpayment will be promptly paid by the Company to
or for the benefit of the Executive.
4.5.2 Contest of Claims. The Executive will notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the payment
by the Company of a Gross-Up Payment. Such notification will be given as soon as
practicable but no later than ten (10) business days after the Executive is informed
in writing of such claim and will apprise the Company of the nature of such claim
and the date on which such claim is requested to be paid. The Executive will not pay
such claim prior to the expiration of the thirty (30) day period following the date
on which the Executive notifies the Company (or such shorter period ending on the
date that any payment of taxes with respect to such claim is due). If the Company
notifies the Executive in writing prior to the expiration of such thirty (30) day
period that the Company desires to contest such claim, the Executive will: (a)
provide to the Company any information reasonably requested by the Company relating
to such claim; (b) take such action in connection with contesting such claim as the
Company reasonably requests in writing including, without limitation, accepting
legal representation with respect to
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Exhibit 10.39
such claim by an attorney reasonably selected by the Company; (c) cooperate with the
Company in good faith as necessary to effectively contest such claim; and (d) permit
the Company to participate in any proceedings relating to such claim. The Company
will bear and pay directly all costs and expenses (including additional interest and
penalties) incurred in connection with the contest of the claim and agrees to
indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax
or income tax (including interest and penalties with respect thereto) imposed as a
result of such protest (including payment of costs and expenses as provided
hereunder). Without limitation on the foregoing provisions, the Company will control
all proceedings related to such contested claim, may at its sole option pursue or
forgo any and all administrative appeals, proceedings, hearings and conferences with
the taxing authority in respect of such claim and may at its sole option either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner. The Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as the Company reasonably determines. If the
Company directs the Executive to pay a claim and xxx for a refund, the Company will
be required to advance the amount of such payment to the Executive on an
interest-free basis and agrees to indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or penalties
with respect thereto) imposed with respect to such advance or with respect to any
imputed income with respect to such advance, provided that any extension of the
statute of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company’s control of the
contested claim will be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive will be entitled to settle or contest,
as the case may be, any other issue raised by the Internal Revenue Service or any
other taxing authority.
4.5.3 Refunds. If, after the receipt by the Executive of an amount advanced by the
Company pursuant to paragraph 4.5.2, the Executive becomes entitled to receive any
refund with respect to such claim the Executive will (subject to the Company’s
complying with the requirements of paragraph 4.5.2) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to paragraph 4.5.2, a determination is made that
the Executive will not be entitled to any refund with respect to such claim and the
Company does not notify the Executive in writing of its intent to contest such
denial of refund prior to the expiration of (30) days after such determination, then
the advance will be forgiven and will not be required to be repaid and the amount of
such advance will offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
4.6 Compensation Review. The compensation of the Executive will be reviewed on a regular
basis by the Board of Directors of the Company (or a Compensation Committee thereof) and
shall be reviewed annually if the compensation of other executive officers of the Company is
reviewed at such frequency. The compensation of the Executive prescribed in paragraph 4 of
this Agreement (including benefits) may be increased at the discretion of the Board of
Directors of the Company or the Compensation Committee.
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Exhibit 10.39
5. Term. In the absence of an earlier termination as set forth in paragraph 6 below, this
Agreement will extend for a term commencing on the Effective Date, and ending on the final day of
the current fiscal year of the Company (the “Expiration Date”). However, unless the Company
provides
written notice of non-extension to the Executive on or before December 1st during the term of this
Agreement, the term and the Expiration Date will be automatically extended for one (1) additional
year.
6. Termination. The Executive’s employment will continue in effect until the expiration of the
term set forth in paragraph 5 of this Agreement unless earlier terminated pursuant to this
paragraph 6.
6.1 Termination by Company. The Company will have the following rights to terminate
Executive’s employment:
6.1.1 Termination without Cause. (a) The Company may terminate Executive’s
employment without Cause at any time by the service of written notice of termination
to the Executive specifying an effective date of such termination not sooner than
ten (10) days after the date of such notice (the “Termination Date”). In the event
the Executive is terminated without Cause (other than a CC Termination under
paragraph 5.3 of this Agreement), the Executive will receive as termination
compensation: (i) for a period of 18 months his Base Salary (as in effect on the
Termination Date) plus bonus payable under COIP (based upon the incentive target
percentage in effect on the Termination Date and assuming Company performance at
100% of target); and (ii) any vacation pay accrued through the Termination Date. The
payment of such amounts shall be made during the remaining term of the Agreement in
installments consistent with the Company’s normal payroll practices (including
proration of bonus and payment of bonus when normally paid by the Company) but, if
on the Termination Date, the Executive is a “specified employee” as defined in
regulations under Section 409A of the Code, such payments will commence on the first
payroll payment date which is more than six (6) months following the Termination
Date and the first payment shall include any amounts that would have otherwise been
payable during the six month period.
(b) In the event Executive becomes employed, either full or part-time and
whether as an employee, consultant or otherwise, during the term payments are due
pursuant to this paragraph 6.1.1(a), payments due Executive under Section 6.1.1(a)
shall be reduced by the amount of compensation received by Executive as a result of
such other employment. In no event shall payments due under Section 6.3 be reduced
as a result of Executive’s employment. In all events, Executive shall retain any
rights to continue medical insurance coverage under the COBRA continuation
provisions of the group medical insurance plan by paying the applicable premium
therefor.
6.1.2 Termination for Cause. The Company may terminate Executive’s employment for
Cause. For purposes of this Agreement, “Cause” means either of the following:
(a) the engagement by the Executive in illegal conduct, gross misconduct or a
clearly established material violation of the Company’s written policies and
procedures; or
(b) the failure of the Executive to perform substantially the Executive’s
duties with the Company or its subsidiaries or affiliates (other than a failure
resulting from incapacity due to physical or mental illness), after a written demand
for substantial performance is delivered to the Executive by the Chief Executive
Officer which identifies the manner in which the Chief Executive Officer believes
that the Executive has not substantially performed the Executive’s duties.
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Exhibit 10.39
For purposes of paragraph 6.1.2(a) of this Agreement, “gross misconduct” means
conduct evidencing a willful or wanton disregard for the legitimate business
interests of the Company, deliberate violations of Company policy or flagrant
disregard for standards of behavior the Company has a right to expect from one of
its corporate officers, to the extent such policy or standards of behavior do not
violate any law or regulation.
Any act, or failure to act, based on authority given pursuant to a resolution
duly adopted by the Board of Directors or based on the advice of counsel for the
Company will be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. In the event
Executive’s employment is terminated for Cause, the Company will not have any
obligation to provide any further payments or benefits to the Executive after the
effective date of such termination, except for prorated bonus, vacation and any
other amounts required by applicable law or policy.
6.2 Termination by Executive. The Executive may voluntarily terminate his employment with
or without Cause by the service of written notice of such termination to the Company
specifying an effective date of such termination thirty (30) days after the date of such
notice, during which time the Executive may use remaining accrued vacation days, or at the
Company’s option, be paid for such days. In the event his employment is terminated by the
Executive, neither the Company nor the Executive will have any further obligations
hereunder, except for any obligations which expressly survive termination of employment
including, without limitation, any obligation of the Company to provide any further payments
or benefits to the Executive after the effective date of such termination.
6.3 Termination After Change in Control. If during the term of this Agreement there is a
“Change of Control” and within twenty-four (24) months thereafter notwithstanding any
termination pursuant to Section 5, there is a CC Termination (as hereafter defined), then
the Executive will be entitled to a severance payment (in addition to any other rights and
other amounts payable to the Executive or under Company plans in which Executive is a
participant) payable in a lump sum in cash within 10 days following the CC Termination in an
amount equal to the sum of the following: (a) the Executive’s Base Salary for the last
eighteen (18) calendar months ending immediately prior to the CC Termination and bonus paid
pursuant to Section 4.2 (based on the average of the last three years annual bonuses or such
lesser number of years as Executive may have been employed); plus (b) any applicable
Gross-Up Payment. If the foregoing amount is not paid within ten (10) days after the CC
Termination, the unpaid amount will bear interest at the per annum rate of 12%, but in no
event higher than the highest rate allowed by applicable law. Notwithstanding the
foregoing, if at the time of a CC Termination, the Executive is a “specified employee” as
defined in regulations under Section 409A of the Code, such payment will be made on the
first day which is more than six months following the CC Termination. In connection with any
Change of Control, the Company shall obtain the assumption of this Agreement, without
limitation or reduction, by any successor to the Company or any parent corporation of the
Company.
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Exhibit 10.39
6.3.1 Change of Control. For the purpose of this Agreement, a “Change of Control”
means the occurrence of any of the following:
(a) The acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”), other than Xxxx X. Xxxxxxxxx or his affiliates (the
“Exempt Persons”), of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 40% 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 entitled to vote generally in the election of directors
(the “Outstanding Company Voting Securities”). For purposes of this paragraph (a)
the following acquisitions by a Person will not constitute a Change of Control: (i)
any acquisition directly from the Company; (ii) any acquisition by the Company;
(iii) any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company; or (iv) any
acquisition by any corporation pursuant to a transaction which complies with clauses
(i), (ii) and (iii) of paragraph (c) of this paragraph 6.3.1.
(b) The individuals who, as of the date hereof, constitute the Board of
Directors (the “Incumbent Board”) cease for any reason to constitute at least a
majority of the Board of Directors. Any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by the Company’s
shareholders, is approved by a vote of at least a majority of the directors then
comprising the Incumbent Board will be considered a member of the Incumbent Board as
of the date hereof, but any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Incumbent Board will
not be deemed a member of the Incumbent Board as of the date hereof.
(c) The consummation of a reorganization, merger, consolidation or sale or
other disposition of all or substantially all of the assets of the Company (a
“Business Combination”), unless following such Business Combination: (i) 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 60% 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 employee benefit
plan (or related trust) of the Company or such corporation resulting from such
Business Combination) other than one or more of the Exempt Persons beneficially
owns, directly or indirectly, 40% 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.
(d) The approval by the shareholders of the Company of a complete liquidation
or dissolution of the Company.
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Exhibit 10.39
6.3.2 CC Termination. The term “CC Termination” means any of the following: (a) the
Executive’s employment is terminated by the Company other than under paragraphs
6.1.2, 6.4 or 6.5; or (b) the Executive resigns as a result of change in the
Executive’s duties or title, a reduction in the Executive’s then current Base Salary
that is not generally applicable to all or substantially all of the Company’s
executives or a significant reduction in the Executive’s then current benefits as
provided in Section 4, a relocation of more than 25 miles from the Executive’s then
current place of employment being required by the Board of Directors or a default by
the Company under this Agreement
6.4 Incapacity of Executive. If the Executive suffers from a medically diagnosed physical
or mental condition, which in the reasonable business judgment of the Company’s Board of
Directors, prevents the Executive (in whole or in part) from performing the duties specified
herein for a period of four (4) consecutive months, the Executive’s employment may be
terminated by the Company, in which event, the Company will pay Executive his Base Salary
and Bonus (computed at up to 100% of plan based on actual performance, but in no event more
than 100% of plan regardless of actual performance) in effect on the date of termination
through the lesser of (i) the death of Executive; or (ii) the remaining term of this
Agreement, but in any event through the Expiration Date, reduced by any disability payments
received by Executive from any third party. The payment of such amounts shall be made during
the remaining term of the Agreement in installments consistent with the Company’s normal
payroll practices, but, if on the termination date, the Executive is a “specified employee”
as defined in regulations under Section 409A of the Code, such payments will commence on the
first payroll payment date which is more than six months following the termination date and
the first payment shall include any amounts that would have otherwise been payable during
the six (6) month period. Notwithstanding the foregoing, the amount payable hereunder will
be reduced by any benefits payable under any disability plans provided by the Company under
paragraph 4.4 of this Agreement. Nothing in paragraph will be interpreted or applied so as
to lessen the Executive’s rights under state or federal disability or medical leave laws.
6.5 Death of Executive. If the Executive dies during the term of this Agreement,
Executive’s employment will terminate without compensation to the Executive’s estate except:
(a) the obligation to continue the Base Salary payments under paragraph 4.1 of this
Agreement for twelve (12) months after the date of death of the Executive, and (b) the
benefits described in paragraph 4.4 of this Agreement accrued through the date of death of
the Executive, including a pro-ration of accrued bonus.
6.6 Resignation Following Constructive Discharge. If at any time, except in connection
with a termination otherwise pursuant to this Agreement, Executive is Constructively
Discharged (as that term is defined in this Section 6) then Executive shall have the right,
by written notice to Company within sixty (60) days of such Constructive Discharge, to
terminate his services hereunder, effective as of thirty (30) days after such notice.
Executive shall in such event be entitled to the compensation and benefits as if such
employment were terminated pursuant to Section 6.1.1.
For purposes of this Agreement, Executive shall be “Constructively Discharged” upon the
occurrence of any one of the following events:
(a) Executive is removed from his position with the Company other than as a result of
Executive’s appointment to a position of equal or superior scope and responsibility; or
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Exhibit 10.39
(b) Executive’s targeted total compensation is reduced by more than 20% (other than
across-the-board reductions similarly affecting all executive officers of Company).
6.7 Effect of Termination. The termination of Executive’s employment will terminate all
obligations of the Executive to render services on behalf of the Company. The Executive
will maintain the confidentiality of all information acquired by the Executive during the
term of his employment in accordance with paragraph 7 of this Agreement and the covenants
set forth in paragraph 8 of this Agreement. Except as otherwise provided in this paragraph
6, no accrued bonus, severance pay or other form of compensation will be payable by the
Company to the Executive by reason of the termination of his employment. In the event that
payments are required to be made by the Company under this paragraph 6, the Executive will
not be required to seek other employment as a means of mitigating the Company’s obligations
hereunder resulting from termination of the Executive’s employment and the Company’s
obligations hereunder (including payment of severance benefits) will not be terminated,
reduced or modified as a result of the Executive’s earnings from other employment or
self-employment. All keys, entry cards, credit cards, files, records, financial information,
furniture, furnishings, equipment, supplies and other items relating to the Company will
remain the property of the Company. The Executive will have the right to retain and remove
all personal property and effects that are owned by the Executive and located in the offices
of the Company, subject to inspection by the Company. All such personal items will be
removed from such offices no later than ten (10) days after the effective date of
termination, and the Company is hereby authorized to discard any items remaining and to
reassign the Executive’s office space after such date. Prior to the effective date of
termination, the Executive will cooperate with the Company to provide for the orderly
termination of the Executive’s employment.
7. Confidentiality. The Executive recognizes that the nature of the Executive’s services are
such that the Executive is being provided and will have access to information which constitutes
trade secrets, is of a confidential nature, is of great value to the Company or is the foundation
on which the business of the Company is predicated. The Executive agrees not to disclose to any
person other than the Company’s employees or the Company’s legal counsel or other parties
authorized by the Company to receive confidential information (“Confidential Information”) nor use
for any purpose, other than the performance of this Agreement, any Confidential Information.
Confidential Information includes data or material (regardless of form) which is: (a) a trade
secret; (b) provided, disclosed or delivered to Executive by the Company, any officer, director,
employee, agent, attorney, accountant, consultant, or other person or entity employed by the
Company in any capacity, any customer, borrower or business associate of the Company or any public
authority having jurisdiction over the Company of any business activity conducted by the Company;
or (c) produced, developed, obtained or prepared by or on behalf of Executive or the Company
(whether or not such information was developed in the performance of this Agreement) with respect
to the Company or any assets oil and gas prospects, business activities, officers, directors,
employees, borrowers or customers of the foregoing. However, Confidential Information will not
include any information, data or material which at the time of disclosure or use was generally
available to the public other than by a breach of this Agreement, was available to the party to
whom disclosed on a non-confidential basis by disclosure or access provided by the Company or a
third party, or was otherwise developed or obtained independently by the person to whom disclosed
without a breach of this Agreement. On request by the Company, the Company will be entitled to a
copy of any Confidential Information in the possession of the Executive. The provisions of this
paragraph 7 will survive the termination, expiration or cancellation of Executive’s employment for
a period of eighteen (18) months after the date of termination. The Executive will deliver to the
Company all originals and copies of the documents or materials containing Confidential Information.
For purposes of paragraphs 7, 8, and 9 of this Agreement, the Company expressly includes any of the
Company’s subsidiaries or affiliates.
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Exhibit 10.39
8. Non-Competition.
(a) Scope. During the effectiveness of this Agreement (the “Term”), Executive shall devote
substantially all of his business, time, attention and energies to the business and interests of
Company, and except as otherwise provided herein, shall not be engaged (whether or not during
normal business hours) in any other business or professional activity (whether or not such activity
is pursued for gain, profit or other pecuniary advantage) without first obtaining the written
consent of the Board of Directors of Company. In return for Company’s disclosure of Confidential
Information and trade secrets in paragraph 7, above, and Company’s provision of specialized
training related to Company’s products, services, business model, and operations, during the Term
of and for a period of eighteen (18) months after the expiration or termination of this Agreement,
for any reason or for no reason at all, Executive agrees that she will not directly or indirectly:
(i) Own, have any interest in or be, serve or act as an individual proprietor, partner,
agent, stock holder, officer, employee, consultant, director, joint venturer, investor, lender, or
in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the
total outstanding stock of a publicly held company) of or with, or assist in any way, any
corporation, partnership, firm or business enterprise at least 20% of whose sales (in dollar
volume) are books, music or video sales or rentals (whether such book, music or video [including
games] is new or pre-owned) (individually or in the aggregate with all affiliates thereof) and
which does business in any state in which Company does business on the date Executive ceases to be
employed (a “Competing Business”);
(ii) Solicit or induce, or attempt to induce, any employee or independent contractor of
Company or any other person who shall be in the service of Company to terminate his employment with
or otherwise cease his relationship with Company; or
(iii) Solicit, divert or take away, or attempt to solicit, divert or take away, the business
or patronage of any of the clients, customers (whether any such customer has done business once or
more than once), suppliers or accounts, or prospective clients, customers or accounts, or suppliers
to Company, but Executive shall not be prevented from doing business with such persons or entities.
(b) It is hereby expressly agreed that if any portion of this paragraph 8 or any of the
covenants and provisions set forth in this Agreement regarding restrictions on competition,
confidentiality or solicitation is held to be unreasonable, arbitrary, against public policy or
otherwise unenforceable for any reason, then each such covenant or provision shall be considered
divisible as to scope, time and geographical area, with each month of a specified period being
deemed a separate period of time and each county within any geographical area being deemed a
separate geographic area. The parties to this agreement also expressly agree that notwithstanding
their mutual expectation that the covenants and restrictions contained herein will be enforceable
and enforced, a lesser scope, period of time or geographic area shall be enforced to the extent
that the covenants contained herein may be unenforceable as written.
9. Proprietary Matters. The Executive expressly understands and agrees that any and all
improvements, inventions, discoveries, processes or know-how that are generated or conceived by the
Executive during the term of this Agreement, whether generated or conceived during the Executive’s
regular working hours or otherwise, will be the sole and exclusive property of the Company.
Whenever requested by the Company (either during the term of this Agreement or thereafter), the
Executive will assign or execute any and all applications, assignments and or other instruments and
do all things which the Company deems necessary or appropriate in order to permit the Company to:
(a) assign and convey or otherwise make available to the Company the sole and exclusive right,
title, and interest in and to said improvements, inventions, discoveries, processes, know-how,
applications, patents, copyrights, trade
| Employment Agreement — Xxxxx Xxxx | 10 |
Exhibit 10.39
names or trademarks; or (b) apply for, obtain, maintain, enforce and defend patents, copyrights,
trade names, or trademarks of the United States or of foreign countries for said improvements,
inventions, discoveries, processes or know-how. However, the improvements, inventions, discoveries,
processes or know-how generated or conceived by the Executive and referred to above (except as they
may be included in the patents, copyrights or registered trade names or trademarks of the Company,
or corporations, partnerships or other entities which may be affiliated with the Company) will not
be exclusive property of the Company at any time after having been disclosed or revealed or have
otherwise become available to the public or to a third party on a non-confidential basis other than
by a breach of this Agreement, or after they have been independently developed or discussed without
a breach of this Agreement by a third party who has no obligation to the Company or the Company
Entities.
10. Arbitration. The parties will attempt to promptly resolve any dispute or controversy arising
out of or relating to this Agreement or termination of the Executive by the Company. Any
negotiations pursuant to this paragraph 10 are confidential and will be treated as compromise and
settlement negotiations for all purposes. If the parties are unable to reach a settlement amicably,
the dispute will be submitted to binding arbitration before a single arbitrator in accordance with
the Employment Dispute Resolution Rules of the American Arbitration Association. The arbitrator
will be instructed and empowered to take reasonable steps to expedite the arbitration and the
arbitrator’s judgment will be final and binding upon the parties subject solely to challenge on the
grounds of fraud or gross misconduct. Except for damages arising out of a breach of paragraphs 6,
7, 8 or 9 of this Agreement, the arbitrator is not empowered to award total damages (including
compensatory damages) that exceed 300% of compensatory damages and each party hereby irrevocably
waives any damages in excess of that amount. The arbitration will be held in Potter County, Texas.
Judgment upon any verdict in arbitration may be entered in any court of competent jurisdiction and
the parties hereby consent to the jurisdiction of, and proper venue in, the federal and state
courts located in Potter County, Texas. The Company will pay the costs and expenses of the
arbitration including, without implied limitation, the fees for the arbitrators. Subject to the
provisions of Section 11.7, Executive shall pay for the fees and expenses of his counsel, experts
and any other advisors. Unless otherwise expressly set forth in this Agreement, the procedures
specified in this paragraph 10 will be the sole and exclusive procedures for the resolution of
disputes and controversies between the parties arising out of or relating to this Agreement.
Notwithstanding the foregoing, a party may seek a preliminary injunction or other provisional
judicial relief if in such party’s judgment such action is necessary to avoid irreparable damage or
to preserve the status quo.
11. Miscellaneous. The parties further agree as follows:
11.1 Time. Time is of the essence of each provision of this Agreement.
11.2 Notices. Any notice, payment, demand or communication required or permitted to be
given by any provision of this Agreement will be in writing and will be deemed to have been
given when received by personal delivery, by facsimile, by overnight courier, or by
certified mail, postage and charges prepaid, directed to the following address or to such
other or additional addresses as any party might designate by written notice to the other
party:
| To the Company: | Hastings Entertainment, Inc. Attn: President P. O. Xxx 00000 (79120) 0000 Xxxxxx Xxxx. Xxxxxxxx, XX 00000 |
| Employment Agreement — Xxxxx Xxxx | 11 |
Exhibit 10.39
| With a copy to: | ||||
| Xxxxxxx Xxxxxxx Xxxxx P.C. Attn: Xxxxxxx X. Xxxxxxx P. O. Box 15008 (79105) 000 X. Xxxxxx, Xxxxx 000 Xxxxxxxx, XX 00000 |
||||
| To the Executive: | Xxxxx Xxxx Hastings Entertainment, Inc. P. O. Xxx 00000 (79120) 0000 Xxxxxx Xxxx. Xxxxxxxx, Xxxxx 00000 |
11.3 Assignment. Neither this Agreement nor any of the parties’ rights or obligations
hereunder can be transferred or assigned without the prior written consent of the other
parties to this Agreement.
11.4 Construction, Choice of Law & Choice of Forum. This Agreement is intended to be
interpreted, construed and enforced in accordance with the laws of the state of Texas.
Further, any claim or cause of action or judicial proceedings that arise under or relate to
this Agreement must be brought in a court of competent jurisdiction in and for Potter
County, Texas which shall be the exclusive forum.
If any provision of this Agreement or the application thereof to any person or
circumstances is determined, to any extent, to be invalid or unenforceable, the remainder of
this Agreement, or the application of such provision to persons or circumstances other than
those as to which the same is held invalid or unenforceable, will not be affected thereby,
and each term and provision of this Agreement will be valid and enforceable to the fullest
extent permitted by law.
11.5 Entire Agreement. Except as provided in paragraph 2.3 of this Agreement, this
Agreement constitutes the entire agreement between the parties hereto with respect to the
subject matter herein contained, and no modification hereof will be effective unless made by
a supplemental written agreement executed by all of the parties hereto.
11.6 Binding Effect. This Agreement will be binding on the parties and their respective
successors, legal representatives and permitted assigns. In the event of a merger,
consolidation, combination, dissolution or liquidation of the Company, the performance of
this Agreement will be assumed by any entity which succeeds to or is transferred the
business of the Company as a result thereof.
11.7 Attorneys’ Fees. If any party institutes an action, proceeding or arbitration against
any other party relating to the provisions of this Agreement or any default hereunder, each
Party will be responsible for paying their own legal fees and expenses, unless an award of
fees by the arbitrator or court provides otherwise, including any costs of appeal.
11.8 Supercession. This Agreement is the final, complete and exclusive expression of the
agreement between the Company and the Executive and supersedes and replaces in all respects
any prior oral or written employment agreements. On execution of this Agreement by the
Company and the Executive, the relationship between the Company and the Executive after the
effective date of this Agreement will be governed by the terms of this Agreement and not by
any other agreements, oral or otherwise.
| Employment Agreement — Xxxxx Xxxx | 12 |
Exhibit 10.39
11.9 Non-Contravention. Executive represents and warrants to the Company that the execution
and performance of this Agreement will not violate, constitute a default under, or otherwise
give rights to any third party, pursuant to the terms of any Agreement to which Executive is
a party.
11.10 Indemnity. EXECUTIVE AGREES TO INDEMNIFY AND HOLD HARMLESS THE COMPANY, ITS
DIRECTORS, OFFICERS AND EMPLOYEES AND AGENTS (THE “INDEMNIFIED PARTIES”) AGAINST ANY LOSS,
CLAIM, DAMAGE, LIABILITY OR EXPENSE, AS INCURRED, (“LOSS”) TO WHICH THE INDEMNIFIED PARTIES
MAY BECOME SUBJECT OR INCUR, INSOFAR AS SUCH LOSS ARISES OUT OF OR IS BASED UPON ANY
INACCURACY IN ANY REPRESENTATION OR WARRANTY GIVEN BY EMPLOYEE IN SECTION 11.9 OF THIS
AGREEMENT AND TO REIMBURSE THE INDEMNIFIED PARTIES FOR ANY AND ALL EXPENSES (INCLUDING THE
FEES AND DISBURSEMENTS OF COUNSEL CHOSEN BY THE INDEMNIFIED PARTIES) AS SUCH EXPENSES ARE
REASONABLY INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH INVESTIGATING, DEFENDING,
SETTLING, COMPROMISING OR PAYING ANY SUCH LOSS.
11.11 Compliance with Section 409A of the Code. This Agreement is intended to comply with
Section 409A of the Code and shall be construed and interpreted in accordance with such
intent. To the extent any benefit paid under this Agreement shall be subject to Section 409A
of the Code, such benefit shall be paid in a manner that will comply with Section 409A,
including any IRS 409A Guidance. Any provision of this Agreement that would cause the
payment of any benefit to fail to satisfy Section 409A of the Code shall have no force and
effect until amended to comply with Section 409A (which amendment may be retroactive to the
extent permitted by the IRS 409A Guidance.
11.12 Termination of Any Prior Employment Agreements. Any prior employment agreement
or contract between Executive and Company is terminated as of the Effective Date.
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective the Effective Date.
| HASTINGS ENTERTAINMENT, INC. | ||||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||||
| Xxxx X. Xxxxxxxxx | ||||||
| President | ||||||
| (the “Company”) | ||||||
| By: | /s/ Xxxxx Xxxx | |||||
| Xxxxx Xxxx, Vice President of Store Operations | ||||||
| (the “Executive”) | ||||||
| Employment Agreement — Xxxxx Xxxx | 13 |
