SEVERANCE AGREEMENT AND
RELEASE
This Severance
Agreement and Release (“Agreement”) is entered into as
of the 10 th
day of March, 2006 (the
“Effective Date”). The parties to this Agreement are
Hastings Entertainment, Inc. (“Hastings” or the
“Company”) and Dave Moffatt
(“Moffatt”).
1. Moffatt
was employed by Hastings as Vice President Human Resources and has
been separated from the Company effective as of March 10,
2006.
2. Hastings
and Moffatt do not anticipate that there will be any dispute
between them or legal claims arising out of Moffatt’s
employment or subsequent separation from the Company, but
nevertheless desire to settle fully and finally any and all
differences, causes of action, claims, or disputes that might
otherwise arise out of Moffatts’ employment with the
Company.
IN CONSIDERATION
OF THE MUTUAL PROMISES CONTAINED HEREIN, IT IS AGREED AS
FOLLOWS:
1
. Continuation of Pay.
Hastings will continue to pay Moffatt his regular base salary of $
135,200 per annum without any break in pay, from March 10,
2006, through September 10, 2007. Payments will be made in
equal installments in arrears every two weeks of each month,
beginning April 13, 2006, and will be issued through the
Company’s payroll less all applicable taxes and withholding.
Moffatt will also receive bonuses payable through the period ending
September 10, 2007, as if Moffatt was still employed through
that date, payable when bonuses earned during that period are paid
to other corporate officers. Moffatt shall also be paid for one
hundred twenty (120) hours of accrued but unused vacation
time, on or before April 13, 2006, and shall also receive the
following payments or contributions as of March 10, 2006 with
no additional accrual.
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$
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4,786.29
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$
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475.80
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$
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1,011.52
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The bonus payable
for the period beginning August 1, 2007 and ending January
31 st
, 2008 shall be prorated based upon
the number of days between August 1, 2007 and
September 10, 2007 that fall within the award period and the
total number of days in the award period. All bonuses shall be
computed based upon 40% of annual base salary and assume that 100%
of the performance targets are met, regardless of actual
results.
2. Agreement
Confidentiality. Moffatt
represents and agrees that the existence, terms and conditions of
this Agreement shall be kept strictly and completely confidential
subject only to the following exceptions:
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A.
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Moffatt may tell, on condition of
confidentiality, his immediate family, appropriate governmental
agencies, such as the Internal Revenue Service, Bankruptcy trustee,
his
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SEVERANCE
AGREEMENT AND RELEASE -Moffatt
Severance Agreement Release — Moffatt 3-28-06
Page 1
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investment adviser, attorneys, and
accountant; and any other person he is required to tell by law or
must do so to effectuate this Agreement.
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B.
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Moffatt may disclose relevant
information regarding the terms and conditions of this Agreement in
response to a validly executed and served subpoena or other court
order. However, in so responding. Moffatt will advise the court and
all interested parties of the existence and substance of this
confidentiality agreement and will take all reasonable steps
necessary to limit his disclosure of confidential information
governed by this Agreement. Moffatt will further advise (in any
reasonable manner given the circumstances) Hastings of his receipt
of subpoena or court order within three business days.
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The phrase,
“terms and conditions of this Agreement” means those
terms and conditions that appear on the face of the Agreement and
any and all discussions, information and documentation used,
generated and/or relied upon in producing this Agreement. Except to
the extent necessary to enforce this Agreement, it is further
agreed that neither this Agreement nor any part thereof is to be
used or admitted into evidence in any proceeding of any character,
judicial or otherwise, now pending or hereafter
instituted.
3. Release. In consideration of the severance pay,
severance benefits, and other promises contained herein, and as a
material inducement to Hastings to enter into this Agreement,
Moffatt hereby irrevocably and unconditionally releases, acquits,
forever discharges, and agrees to hold harmless Hastings and its
agents, assigns, directors, officers, employees, representatives,
attorneys, divisions, subsidiaries, affiliates and all persons
acting by, through, under, or in concert with any of them
(hereinafter “the releasees”), from any and all claims,
causes of action, demands or liabilities whatsoever, whether known
or unknown or suspected to exist by Moffatt that he ever had or may
now have against the releasees, or any of them, including, without
limitation, any claims, causes of action, demands, or liabilities
in connection with either Moffatt’s employment with the
Company or his resignation from the Company. This Agreement
expressly covers, but is not limited to, any claims that Moffatt
may have raised under any state or federal statutory or common law
prohibiting discrimination in employment on the basis of age,
gender, disability, race, national origin, religion,
“whistleblower” or on any other basis prohibited by law
including claims arising under Title VII of the Civil Rights Act of
1964, Section 21.051 of the Texas Labor Code, and the
Americans with Disabilities Act, except as otherwise specifically
stated herein.
In addition and in
consideration of the promises contained in this Agreement, Moffatt
hereby waives, releases and forever discharges, and agrees that he
will not in any manner institute, prosecute, or pursue, any
complaint, claim, charge, demand, or suit, whether in law or in
equity, which asserts or could assert at common law or any statute,
rule or any grounds whatsoever, any claim or claims under the
federal Age Discrimination in Employment Act, 29 U.S.C.
§621 et seq., against any one or all of the releasees
with respect to any event, matter, claim, damage, or injury,
whether known or unknown, arising out of his employment and
resignation of employment with the Company and its subsidiaries
and/or the execution of this Agreement.
4. COBRA. Moffatt hereby acknowledges that Hastings or
its authorized designee has advised him that pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985
(COBRA) he has the right, if Moffatt elects COBRA coverage, to
elect continued coverage under the Company’s group health
plan at his own expense, provided that Hastings will pay the
premium cost of such coverage for Moffatt and his wife for the
lesser of (i) six months, or (ii) the date Moffatt
becomes eligible for coverage as a full-time employee elsewhere.
Such election must be made no later than sixty (60) days after
his resignation. Documentation and instructions for making a COBRA
election will be subsequently provided to Moffatt in a timely
manner.
SEVERANCE
AGREEMENT AND RELEASE -Moffatt
Severance Agreement Release — Moffatt 3-28-06
Page 2
5. No
Admission of Fault on Behalf of Hastings. This Agreement shall
not in any way be construed as an admission by Hastings, its
agents, employees, directors, officers, representatives, or
assigns, or its subsidiaries, of any act of wrongdoing whatsoever
against Moffatt or any other person.
6. Complete Agreement. This Agreement sets forth the
entire agreement between the parties hereto and fully supersedes
any and all prior agreements or understandings between the
parties
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