Frank Agreement
Wright Severance
Agreement
EX-10.01 2 a6627537ex10_01.htm EXHIBIT
10.01
Exhibit 10.01
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Conn’s, Inc. |
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3295 College Street |
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Beaumont, Texas 77701 |
February 27, 2011
Timothy L. Frank
5010 Eaheart Circle
Beaumont, Texas 77706
Re: Your Resignation as Chief Executive Officer and
President
Dear Tim:
This letter agreement (the “Agreement”) is intended to confirm the
details of your resignation as Chief Executive Officer and President of Conn’s,
Inc. and all of its subsidiaries, affiliates, and related entities (referred to
collectively as the “Company,” “we,” or “our”). In consideration of
the promises and conditions set forth below, and intending to be legally bound,
you and the Company agree as follows:
1. Resignation;
Continued Employment: (a) You agree
to resign as an officer and director of the Company effective February 27, 2011
(your “Resignation Date”).
(b) You
will continue to be employed by the Company in a non-executive capacity on an
at-will basis. You agree to assist the Company in the orderly
transition of your responsibilities, and to perform other services as
reasonably requested by the Company.
2. Return
of Company Property: At any time upon request by the
Company, you agree that you will return to the Company all Company property,
including without limitation, reports, files, memoranda, records, computer
hardware, software, credit cards, door and file keys, computer access codes or
disks and instructional manuals, and that you will not retain any copies,
duplicates, reproductions or excerpts thereof.
3. Compensation
and Benefits: Provided you (a) sign this Agreement, (b)
comply with the terms of this Agreement, including without limitation,
assisting the Company with its transition, and (c) do not resign your
employment, or are not terminated by the Company for cause prior to February
27, 2013, the Company will provide you with the following compensation and
other benefits:
Timothy L. Frank
Page 2 of 5
(i) Your
annualized salary for the 12 months following your Resignation Date will be
$450,000.00 (less applicable withholding) paid in accordance with the Company’s
standard payroll practices; and
(ii) Your
annualize salary for the 12 months following the first anniversary of your
Resignation Date will be $18,000.00 (less applicable withholding) paid in
accordance with the Company’s standard payroll practices; and
(iii) Notwithstanding
any limitations regarding eligibility contained in the Company’s employee
welfare benefit programs (medical, dental, vision, and other insurance programs
available to the Company’s employees), you will be allowed to continue
participation in those benefit programs for up to 24 months following your
Resignation Date. During this time, the Company will contribute
towards the cost of your coverage at the same level that applies to active
employees of the Company. The Company’s contributions will be
imputed to you as taxable income. Your monthly contribution towards
the cost of your coverage will be deducted from the payments referenced in (i) and (ii) above on an after-tax basis.
You acknowledge that the
compensation and benefits stated above include compensation and/or benefits in
addition to what you would otherwise be entitled to receive. You
authorize the Company to deduct from the amounts set forth in this Paragraph 3
amounts, if any, owed by you to the Company for personal expenditures charged
to the Company or other amounts that you have agreed to pay to or are
contractually obligated to pay the Company.
If you accept an offer
of employment or to provide other services to a competitor of the Company at
any time following the effective date of this Agreement and ending 24 months
following your Resignation Date, you will forfeit your right to any payments under
this Paragraph 3 and must repay to the Company any amounts previously paid to
you under this Paragraph 3 within 5 business days following the date you accept
employment or are engaged to provide other services to a
competitor. For purposes of this paragraph, a competitor of the
Company is defined as (y) hhgregg, Inc., and any
of hhgregg, Inc.’s subsidiaries or affiliates,
and (z) any retailer that markets appliances, consumer electronics, lawn and
garden products, furniture, or mattresses in any Metropolitan Statistical Area
where the Company maintains a retail store. You must notify the
Company immediately if you accept an offer or employment or to provide services
to any entity that could be considered a competitor of the Company.
4. Cooperation: You
agree that, upon reasonable notice, you will make yourself available to the
Company regarding any inquiry associated with any internal investigation or
administrative, regulatory, or judicial proceeding. You understand and
agree that your cooperation may include, but is not limited to, making yourself
available upon reasonable notice for interviews and factual investigations,
appearing at the Company’s request to give testimony without requiring service
of a subpoena or other legal process, meeting with the Company and/or its
attorneys, and providing the Company with pertinent information and/or relevant
documents which are in, or may come into, your possession. You
further agree that any communications to or by you, whether written, verbal, or
electronic, regarding any dispute or litigation in which the Company is
involved or may become involved with a third party or parties will require you
to give notice to the Company and may not take place outside of the attendance
and/or participation by Company counsel or the Company’s Corporate Counsel.
Timothy L. Frank
Page 3 of 5
5.
Waiver
and Release: (a) In exchange for the special separation
benefits promised to you in this Agreement, and as a material inducement for
that promise, you hereby WAIVE, RELEASE and FOREVER DISCHARGE the Company
and/or related persons from any and all claims, demands, causes of action, attorneys fees, rights and liabilities of every kind
(whether or not you now know them to exist) which you ever had, now have or may
have against the Company and/or related persons for any reason any matter,
cause or thing whatsoever, through the date you sign this Agreement including
but not limited to, claims arising out of or related to your employment with
the Company. This WAIVER and RELEASE includes, but is not limited
to, any claim for unlawful discrimination under Title VII of the Civil Rights
Act of 1964, as amended; the Americans with Disabilities Act of 1990, 42 U.S.C.
§ 1981; the Worker Adjustment and Retraining Notification Act; the Family and
Medical Leave Act of 1993; the Employee Retirement Income Security Act of 1974;
the Civil Rights Act of 1991; the Equal Pay Act; and any claim under any other
federal, state or local constitution, statute, rule, regulation or ordinance
relating to your employment, or for breach of contract, wrongful discharge,
tort or other civil wrong. To the fullest extent permitted by law,
you PROMISE NOT TO SUE or bring any lawsuit related to the claims you are
waiving by this Agreement against the Company and/or related persons in the
future, individually or as a member of a class. You will immediately
withdraw with prejudice any such lawsuit that you have initiated before the
Effective Date of this Agreement. You acknowledge that although this
provision prohibits you from filing or maintaining a lawsuit concerning claims
covered by this Agreement, it does not prohibit you from lodging a charge or
complaint with any governmental agency or participating in a governmental
agency investigation. Notwithstanding the foregoing, you agree to
waive your right to recover monetary damages in any charge, complaint or
lawsuit filed by you or by anyone else on your behalf.
(b)
If you violate this Agreement by bringing or maintaining a lawsuit contrary to
this Paragraph 5, you will pay all costs and expenses of the Company and/or
related persons in defending against such charges, claims or actions brought by
you or on your behalf, including reasonable attorney’s fees, and will be
required to give back, at the Company’s sole discretion, the value of anything
paid by the Company in exchange for this Agreement. Any such action
permitted to the Company by this paragraph, however, will not affect or impair
any of your obligations under this Agreement, including without limitation, the
release of claims in Paragraph 5(a).
(c) As
referred to in this Agreement, “the Company and/or related persons” includes
the Company, its parents, subsidiaries, affiliates and divisions, any employee
benefit plan or trust sponsored by the Company, its parents, subsidiaries,
affiliates and divisions, any fiduciaries or administrative personnel involved
with those employee benefit plans, the respective successors and assigns of all
the aforementioned individuals and entities, and all of their past and present
directors, officers, representatives, shareholders, agents, employees, whether
as individuals or in their official capacity, and the respective heirs and
personal representatives of any of them.
(d) This
Agreement and your promise not to sue are binding on you, your heirs, legal
representatives and assigns.
(e) You
do not waive any rights to vested benefits under the Company’s retirement plans
or any rights under applicable Workers’ Compensation laws.
6. Employee
Review: You acknowledge that you have read this Agreement in
its entirety, fully understand its meaning and are executing this Agreement
voluntarily and of your own free will with full knowledge of its significance.
Timothy L. Frank
Page 4 of 5
7. Non-disparagement: You
will not disparage, denigrate or defame the Company and/or related persons, or
any of their business products or services.
8. Liability
Insurance and Indemnification: You will continue to be
indemnified against personal liability to the extent that it involves actions
taken by you while actively employed by the Company and further taken in good
faith on behalf of the Company to the extent provided in the bylaws, benefit
programs, fiduciary liability insurance policies, and any other policy held by,
adopted, or sponsored by the Company covering former officers of the Company.
9. Entire
Agreement: Unless otherwise stated herein, this Agreement
sets forth the entire agreement between the parties, and fully supersedes any
and all prior agreements or understandings between the parties pertaining to
the subject matter in this Agreement. Prior agreements between the
parties concerning confidentiality, non-disclosure, non-competition and
non-solicitation will, however, remain in full force and effect to the extent
that the agreements protect confidentiality, prohibit specific disclosures,
prohibit competition and/or restrict solicitation of Company employees.
10. No
Solicitation of Company Employees: You agree that for two
years following the effective date of this Agreement, you will not, directly or
indirectly, solicit any employee of the Company to leave their employment with
the Company nor will you otherwise participate in or assist any such
solicitation by any other person or entity.
11. Confidential
and Proprietary Information: You agree that you will not at
any time, except as required by law, disclose to anyone any confidential and
proprietary information of the Company or utilize such confidential and
proprietary information for your own benefit or for the benefit of third
parties. The term “confidential and proprietary information” as used
in this Agreement means (a) confidential and proprietary information of the
Company, including without limitation, information received from third parties
under confidential conditions, and (b) other technical, business or financial
information or trade secrets or proprietary information (including, but not
limited to, information relating to customers, pricing, costs, employees, legal
affairs, business plans, technology services, data and information, financial
matters and any other information of economic value to the Company that is not
in the public domain).
12. Attorney-Client
Privilege: Nothing in this Agreement may be construed as a
waiver of attorney-client privilege by the Company.
13. No
Other Assurances: You acknowledge that in deciding to sign
this Agreement you have not relied on any promises or commitments, whether
spoken or in writing, made to you by any Company representative, except for
those expressly stated in this Agreement. This Agreement constitutes
the entire understanding and agreement between you and
the Company, and replaces and cancels all previous agreements and commitments,
whether spoken or written, in connection with the matters described.
14. Binding
Effect: This Agreement will be binding on you and your
heirs, administrators, representatives, executors, successors and assigns, and
will inure to the benefit of their heirs, administrators, representatives,
executors, successors, and assigns.
15. Governing
Law and Jurisdiction; Waiver of Jury Trial: This Agreement
will be governed by and enforced in accordance with the laws of the State of
Texas, without regard to its conflicts of law principles. Any action arising
out of or relating to this Agreement must be brought and prosecuted only in
Beaumont, Texas. The Parties agree to waive any right they may have
to a jury trial in any action arising out of or relating to this Agreement.
Timothy L. Frank
Page 5 of 5
16. Modification
in Writing: This Agreement cannot be changed or modified
except by written agreement signed by both you and a Company authorized
representative.
17. No
Admission of Liability: This Agreement does not constitute
an admission of any unlawful discriminatory acts or liability of any kind by
the Company and/or related persons, or anyone acting under their supervision or
on their behalf. This Agreement may
not be used or introduced as evidence in any legal proceeding, except to
enforce its terms.
18. Counterparts: This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered will be an original, but all such
counterparts will together constitute one and the same
instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all of the parties
hereto. Photographic and fax copies of such signed counterparts may be used in
lieu of the originals of this Agreement for any purpose.
***************
I have read this
AGREEMENT AND GENERAL RELEASE and I understand all of its terms. I enter into
and sign this AGREEMENT AND GENERAL RELEASE knowingly and voluntarily, with
full knowledge of what it means.
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CONN’S, INC. |
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By: |
/s/ Theodore M. Wright |
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Theodore M. Wright, |
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Chairman of the Board |
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/s/ Timothy L. Frank |
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Timothy L. Frank |
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Date: |
February 27, 2011 |
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EX-10.12 2 a50099727ex10_12.htm EXHIBIT 10.12
EXHIBIT
10.12
EXECUTIVE
SEVERANCE AGREEMENT
THIS EXECUTIVE SEVERANCE AGREEMENT
(this “Agreement”) is made as of December 5, 2011 (“Effective Date”),
by and between Conn’s, Inc., a Delaware corporation with its principle offices
at 3295 College Street, Beaumont, Texas 77701 (“Conn’s”), and Theodore
M. Wright, an individual (the “Executive”).
WHEREAS, Executive has been previously employed by Conn’s as its
Interim Chief Executive Officer and President, and as such had entered with
Conn’s an Executive Severance Agreement (“Previous Agreement”);
WHEREAS, Executive is now permanently employed by Conn’s as its
Chief Executive Officer and President as of the Effective Date;
WHEREAS, Conn’s and the Executive desire to replace the Previous
Agreement as of the date hereof with this Agreement, and to provide the
Executive certain benefits in the event of a termination of Executive’s
employment, subject to the terms and conditions set forth herein from and after
the Effective Date.
NOW, THEREFORE, in consideration of the foregoing and in consideration of
the mutual promises and agreements contained herein, the parties hereto agree
as follows:
1. Term
of Agreement. This Agreement will commence on the Effective Date
and will continue in effect for one (1) year, and shall automatically renew for
successive one (1) year periods unless terminated by Conn’s at the expiration
of the term (or automatically succeeding term) upon prior written notice to
Executive.
2. At-Will
Employment. Conn’s and Executive acknowledge that the
Executive’s employment is and will continue to be at-will, as defined under
applicable law.
3. Severance
Benefits Under this Agreement.
(a) Termination
of Employment for Any Reason. The following payments will be
paid to Executive upon Executive’s termination of employment for any reason:
(i) Earned
but unpaid Base Salary through the date of termination;
(ii) Any
annual incentive plan bonus, or other form of incentive compensation, for which
the performance measurement period has ended, but which is unpaid at the time
of termination;
(iii) Any
accrued but unpaid vacation and unused sick days;
(iv) Unreimbursed business expenses incurred by the Executive on behalf of
Conn’s.
(b) Termination
Without Cause, or
Voluntary Termination by the Executive for Good Reason not in Connection with a
Change of Control. Except as otherwise
provided in Section 3(c), if (x) Conn’s terminates Executive’s employment other
than for Cause or as a result of Executive’s death or Disability, or (y)
Executive voluntarily terminates his employment for Good Reason, Conn will pay
Executive the following amounts and provide the following benefits:
(i) Executive
shall continue to receive his Base Salary for the eighteen (18) month period
(the “Severance Period”) following such termination, payable in
accordance with Conn’s normal payroll practices.
(ii) During
the Severance Period, Executive shall receive continued coverage under the
Conn’s medical, dental, life, disability, and other employee welfare benefit
plans in which senior executives of Conn’s are eligible to participate, to the
extent Executive is eligible under the terms of such plans immediately prior to
Executive’s termination. For purposes of clarity, during the term of
this Agreement Conn’s shall provide Executive coverage under a major medical
plan. Conn’s obligation to provide the foregoing benefits shall
terminate upon Executive’s becoming eligible for comparable employee welfare
benefits under a plan or arrangement provided by a new
employer. Executive agrees to promptly notify Conn’s of any such employment
and the material terms of any employee welfare benefits offered to Executive in
connection with such employment.
(iii) All
awards held by Executive under the Conn’s Amended and Restated 2003 Incentive
Stock Option Plan and/or the Conn’s 2011 Omnibus Incentive Plan shall continue
to vest and, if applicable, be exercisable, during the Severance Period as if
Executive had remained an employee of Conn’s.
(c) Termination
in Connection with a Change of Control. If during the two (2)
year period that begins on the date that is one (1) year prior to a Change of
Control and ends on that date which is one (1) year following a Change of
Control, Conn’s (or its successor) terminates Executive’s employment other than
for Cause or as a result of Executive’s death or Disability, or Executive
voluntarily terminates his employment for Good Reason, Conn’s will pay the
following amounts and provide the following benefits:
(i) A
lump-sum cash payment in an amount equal to three (3) times the Executive’s
Base Salary, payable not later than ten (10) days following (A) Executive’s
termination (if Executive’s employment terminates on or after the date of the
Change of Control), or (B) the date of the Change of Control (if Executive’s employment
terminates during the one-year period prior to the date of the Change of
Control). Notwithstanding the provisions of Section 3(c)(i)(B), the amount payable to
Executive under this Section 3(c)(i) shall be reduced
by the payments, if any, received by Executive pursuant to Section 3(b)(i).
(ii) During
the eighteen (18) month period following such termination (the “Change of
Control Severance Period”), Executive shall receive continued coverage under
the Conn’s medical, dental, life, disability, and other employee welfare
benefit plans in which senior executives of Conn’s are eligible to participate,
to the extent Executive is eligible under the terms of such plans immediately
prior to Executive’s termination. For purposes of clarity, during
the term of this Agreement Conn’s shall provide Executive coverage under a
major medical plan. Conn’s obligation to provide the foregoing
benefits shall terminate upon Executive’s becoming eligible for comparable
employee welfare benefits under a plan or arrangement provided by a new
employer. Executive agrees to promptly notify Conn’s of any such
employment and the material terms of any employee welfare benefits offered to
Executive in connection with such employment.
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(iii) All
awards held by Executive under the Conn’s Amended and Restated 2003 Incentive
Stock Option Plan and/or the Conn’s 2011 Omnibus Incentive Plan shall
immediately vest and, if applicable, continue to be exercisable during the
Change of Control Severance Period as if Executive had remained an employee of
Conn’s.
The terms of this Section 3(c) are
continuing in nature and shall survive until the one (1) year anniversary of
the earlier of Executive’s termination of employment or termination of this
Agreement.
4. Attorneys’
Fees, Costs and Expenses. Conn’s will reimburse Executive for
the reasonable attorney fees, costs and expenses incurred by the Executive in
connection with any claim made or action brought by Executive to enforce his
rights hereunder, provided such action is not decided in favor of Conn’s.
5. Limitation
on Payments. In the event that the benefits provided for under
Section 3(c) of this Agreement (a) constitute “parachute payments” within the
meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)
and (b) but for this Section 5, would be subject to the excise tax imposed by
Section 4999 of the Code, then the Executive’s benefits under Section 3(c) will
be reduced (not below zero) to the amount which would result in no portion of
such severance benefits being subject to excise tax under Section 4999 of the
Code. Any taxes due under Section 4999 of the Code will be the sole
responsibility of the Executive.
6. Certain
Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) “Affiliate”
shall mean, with respect to a person, any other person controlling, controlled
by or under common control with the first person.
(b) “Base
Salary” shall mean Executive’s annual base salary, as approved by the
Compensation Committee of the Board, and effective as of the date immediately
prior to the Executive’s termination of employment.
(c) “Board” shall
mean the Board of Directors of Conn’s.
(d) “Cause”
shall mean (i) behavior of Executive which is adverse
to Conn’s interests, (ii) Executive’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.
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(e) “Change
of Control” means the occurrence of any of the following events:
(i) Any “person” (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the “Act”)) becomes the “beneficial owner” (as defined
in Rule 13d-3 under the Act), directly or indirectly, of securities of the
Company representing thirty-five percent (35%) or more of the total voting
power represented by the Company’s then outstanding voting securities. Notwithstanding
the immediately preceding sentence, any affiliation between Conn’s Voting Trust
and SG-1890, LLC shall be disregarded for purposes of this Section 6(e)(i);
(ii)
A change in the composition of the Board occurring within a twelve-month
period, as a result of which fewer than a majority of
the directors are Incumbent Directors. “Incumbent Directors” will mean
directors who either (A) are directors of Conn’s as of the effective date of
this Agreement, or (B) are elected, or nominated for election, to the Board
with the affirmative votes of at least a majority of the Incumbent Directors at
the time of such election or nomination (but will not include an individual
whose election or nomination is in connection with an actual or threatened
proxy contest relating to the election of directors to Conn’s);
(iii) The
consummation of a merger or consolidation of Conn’s with any other entity or
corporation, other than a merger or consolidation that would result in the voting
securities of Conn’s outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity or such surviving entity’s parent) at least
fifty percent (50%) of the total voting power represented by the voting
securities of Conn’s or such surviving entity or such surviving entity’s parent
outstanding immediately after such merger or consolidation; or
(iv) The sale, lease, exchange or other transfer, directly or
indirectly, of (A) all or substantially all of the assets of Conn’s (in one
transaction or in a series of related transactions), or (B) one of the
significant operating divisions of Conn’s, including the Retail and Credit
Divisions.
(f) “Confidential
Information” shall mean information: (i)
disclosed to or known by the Executive 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 Executive was generally available to the public,
(b) prior to its use by Executive, becomes generally available to the
public through no act or failure of Executive, (c) is received by
Executive 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 Executive by virtue of his experience and
know-how gained prior to employment with Conn’s.
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(g) “Control” and
correlative terms shall mean the power, whether by contract, equity ownership
or otherwise, to direct the policies or management of a person.
(h) “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.
(i) “Disability”
shall mean Executive’s permanent disability (A) as determined in accordance
with the disability insurance that Conn’s may then have in effect, if any, or
(B) if no such insurance is in effect, shall mean that Executive is subject to
a medical determination that he, because of a medically determinable disease,
injury, or other mental or physical disability, is unable to perform
substantially all of his then regular duties, and that such disability is
determined or reasonably expected to last at least twelve (12) months, based on
then-available medical information.
(j) “Good Reason” shall
mean, (A) without Executive’s express written consent, the material diminution
of the Executive’s title, duties, authority or responsibilities, relative to
Executive’s duties, authority or responsibilities as in effect immediately
prior to such reduction, or the assignment to Executive of such reduced duties,
authority or responsibilities, (B) without Executive’s express written consent,
a substantial reduction, without good business reasons, of the facilities and
perquisites (including office space and location) available to the Executive
immediately prior to such reduction, (C) a material reduction of Executive’s
Base Salary or annual bonus opportunity, each as in effect as of the Effective
Date, (D) a material reduction in the kind or level of employee benefits,
including additional bonus opportunities, to which the Executive was entitled
immediately prior to such reduction with the result that the Executive’s
overall benefits package is significantly reduced, (F) for purposes of Section
3(c) only, the failure of Conn’s to obtain the assumption of this Agreement by
any successors contemplated in Section 9 below, or (G) for purposes of Section
3(c) only, the transfer of Executive’s principal place of employment to a
location that is more than one-hundred (100) miles from Executive’s principal
place of employment immediately prior to the Change of Control, or (H) any act
or set of facts or circumstances that would, under case law or statute,
constitute a constructive termination of Executive, provided, in each case,
that Executive terminates employment within sixty (60) days of the
occurrence of such circumstances.
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(k) “Person”
shall mean an individual, partnership, corporation, limited liability company,
trust or unincorporated organization, or a government or agency or political
subdivision thereof.
(l) “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 Executive in the course of his employment by Conn’s.
7. Non-Disclosure,
Non-Competition and Non-Solicitation. Executive 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 Executive in order to allow Executive to fulfill his
obligations as an executive of a publicly-held company and under this
Agreement. In consideration of the special and unique opportunities
afforded to Executive by Conn’s as a result of Executive’s employment, as
outlined in the previous sentence, Executive hereby agrees as follows:
(a) Executive agrees that
Executive 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 Executive’s employment with Conn’s. This Section
7(a) shall continue in full force and effect after termination of Executive’s
employment for any reason. Executive’s obligations under this
Section 7(a) 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 Executive, 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 Executive conceives or
develops, as well as matters Executive learns from other executives of Conn’s
and any of its Affiliates.
(b) Executive agrees that for
the duration of this Agreement, and for a period of eighteen (18) months
following Executive’s termination of employment for any reason other than in
connection with a Change of Control (as described in Section 3(c)), Executive shall
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
7(b) 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, including the NASDAQ Global
Select Market.
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(c) Executive agrees that for
the duration of this Agreement, and for a period of eighteen (18) months
following Executive’s termination of employment for any reason, Executive shall
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 Executive or for another entity, firm, corporation, or
individual.
(d) Executive 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. Executive further acknowledges that Conn’s
would suffer irreparable harm if Executive were to use or enable others to use
such knowledge, information, and business acumen in competition with Conn’s.
Executive 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 Executive with specialized knowledge,
training, and insight regarding Conn’s operations as a publicly-held
company. Executive 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 Executive than is necessary to protect the goodwill,
Confidential Information and other legitimate business interests of
Conn’s. Executive agrees that any breach of this Section 7
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 Executive 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.
(e) Executive 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 Executive’s custody or possession that has been obtained or
prepared in the course of Executive’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 Executive’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 Executive’s office, work area, and on
the premises of Conn’s upon termination of Executive’s employment and at any
time during Executive’s employment, to ensure compliance with the terms of this
Agreement.
The terms of this Section 7 are
continuing in nature and shall survive the termination or expiration of this
Agreement.
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8. 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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Theodore M Wright |
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to Conn’s: |
Conn’s, Inc. |
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3295 College Street |
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Beaumont, Texas 77701 |
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Attn: Office of the
General Counsel |
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Fax No: (409) 212-9521 |
9. 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 (or, if applicable, a material division of Conn’s, including
the Retail or Credit division) 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 Executive
under this Agreement may not be sold, assigned, transferred, pledged or
hypothecated by Executive.
10. Binding
Agreement. Executive understands that his obligations under this
Agreement are binding upon Executive’s heirs, successors, personal
representatives and legal representatives.
11. Arbitration. Except
for any controversy or claim relating to Section 7 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 Executive’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
11. 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 the city of
Conn’s corporate offices 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 11. All fees and
expenses of the arbitration shall be borne by the parties equally.
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12. 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.
13. 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 no 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 7 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.
14. Entire
Agreement; Amendment. This Agreement shall constitute the entire
agreement between the parties with respect to compensation and benefits payable
to Executive upon his termination of employment with Conn’s. This
Agreement replaces and supersedes any and all existing agreements entered into
between Executive and Conn’s, whether oral or written, regarding the subject
matter of this Agreement, except that this Agreement shall modify and supersede
any equity award agreement between Executive and Conn’s under the Conn’s
Amended and Restated 2003 Incentive Stock Option Plan and/or the Conn’s 2011
Omnibus Incentive Plan as expressly set forth herein. The terms of
this Agreement shall prevail to the extent of any conflict between the terms of
this Agreement and any equity award agreement between Executive and Conn’s
under the Conn’s Amended and Restated 2003 Incentive Stock Option Plan and/or
the Conn’s 2011 Omnibus Incentive Plan. 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.
15. Understand
Agreement. Executive 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.
16. Section
409A of the Code. Conn’s intends that all amounts payable under
this agreement be exempt from Section 409A of the Code as “short-term
deferrals” within the meaning of Treasury Regulation §1.409A-1(b)(4) and/or as payments under a “separation pay plan” within
the meaning of Treasury Regulation § 1.409A-1(b)(9). This Agreement
will be construed and administered accordingly.
17. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas and is performable in the city
of Conn’s corporate offices.
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18. Professional/Personal. Membership
by Executive on corporate and civic boards should be accepted only after
consideration of conflict of interest and consultation with the Chairman of the
Board. Conn’s requires Executive to have a comprehensive annual medical
physical examination, at the expense of Conn’s.
19. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
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EXECUTIVE |
CONN’S, INC. |
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/s/ Theodore M. Wright |
By: /s/ Sydney K.
Boone |
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Theodore M. Wright |
Sydney K. Boone, |
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Corporate General Counsel |
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Date: December 5,
2011 |
Date: December 5,
2011 |
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