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EXHIBIT 10.5
HASTINGS BOOKS, MUSIC & VIDEO, INC.
1994 STOCK OPTION PLAN
ARTICLE 1 - GENERAL
1.1 Purpose. The purposes of this 1994 Stock Option Plan
(the "Plan") are to: (1) closely associate the interests of the management of
Hastings Books, Music & Video, Inc. ("Hastings") and its subsidiaries and
affiliates (collectively referred to as the "Company") with the shareholders by
reinforcing the relationship between participants' rewards and shareholder
gains; (2) provide management with an equity ownership in the Company
commensurate with Company performance, as reflected in increased shareholder
value; (3) maintain competitive compensation levels; and (4) provide an
incentive to management for continuous employment with the Company.
1.2 Administration.
(a) The Plan shall be administered by the Board of
Directors of Hastings or by a committee named by the Board (either being
referred to herein as the "Committee").
(b) The Committee shall have the authority, in its sole
discretion and from time to time to:
(i) designate the employees, classes of
employees, directors, or other individuals eligible to participate in the Plan;
(ii) award options under the Plan in form and
amount as the Committee shall determine;
(iii) impose limitations, restrictions and
conditions upon any award as the Committee shall deem appropriate; and
(iv) interpret the Plan, adopt, amend, and rescind
rules and regulations relating to the Plan, and make all other determinations
and take all other action necessary or advisable for the implementation and
administration of the Plan.
(c) Decisions and determinations of the Committee on all
matters relating to the Plan shall be in its sole discretion and shall be
conclusive. No member of the Committee shall be liable for any action taken or
decision made in good faith relating to the Plan or any award thereunder.
1.3 Eligibility for Participation. Participants in the Plan shall
be selected by the Committee from the directors, the
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executive officers and other key employees of the Company who occupy
responsible managerial or professional positions and who have the capability of
making a substantial contribution to the success of the Company, or any other
individual whose participation the Committee determines is in the best interest
of the Company. In making this selection and in determining the form and
amount of awards, the Committee shall consider any factors deemed relevant,
including the individual's functions, responsibilities, value of services to
the Company, and past and potential contributions to the Company's
profitability and sound growth.
1.4 Types of Awards Under Plan. Awards under the Plan may be
in the form of: (i) Stock Options, as described in Article 2; or (ii)
Incentive Stock Options, as described in Article 3.
1.5 Aggregate Limitation on Awards.Shares of stock which may be
issued under the Plan shall be authorized and unissued or treasury shares of
Common Stock of Hastings ("Common Stock"). The maximum number of shares of
Common Stock which may be issued under the Plan shall be 100,000.
1.6 Effective Date and Term of Plan.
(a) The Plan shall become effective on the date approved
by the holders of a majority of the shares of Common Stock present in person or
by proxy and entitled to vote at the 1994 Annual Meeting of Shareholders of
Hastings.
(b) No awards of Incentive Stock Options shall be made
under the Plan after the tenth anniversary of its effective date, provided,
however, that the Plan and all awards made under the Plan prior to that date
shall remain in effect until the awards have been satisfied or terminated in
accordance with the Plan and the terms of the awards.
ARTICLE 2 - STOCK OPTIONS
2.1 Award of Stock Options. The Committee may from time to time,
and subject to the provisions of the Plan and the other terms and conditions
the Committee prescribes, grant to any participant in the Plan one or more
options to purchase for cash or shares of previously owned Common Stock the
number of shares of Common Stock ("Stock Options") allotted by the Committee.
The date a Stock Option is granted shall mean the date selected by the
Committee as of which the Committee allots a specific number of shares to a
participant pursuant to the Plan.
2.2 Stock Option Agreements. The grant of a Stock Option shall be
evidenced by a written Award of Stock Option ("Agreement"), executed by the
Company and the employee receiving the Stock Option (the "optionee"), in the
form the Committee determines.
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2.3 Stock Option Price. The option price per share of Common
Stock shall be established by the Committee for the particular award.
2.4 Term and Exercise. Each Stock Option shall be
exercisable at the times and in the amounts the Committee specifies in the
Agreement and unless a different period is provided by the Committee or another
section of this Plan, may be exercised during a period of ten (10) years from
the date of grant (the "option term"). No Stock Option shall be exercisable
after the expiration of its option term.
2.5 Manner of Payment. Each Agreement shall set forth the
procedure governing its exercise, and shall provide that, upon exercise the
optionee shall pay to the Company, in full, the option price with cash or with
previously owned Common Stock.
ARTICLE 3 - INCENTIVE STOCK OPTIONS
3.1 Award of Incentive Stock Options. The Committee may,
from time to time and subject to the provisions of the Plan and other terms and
conditions the Committee prescribes, grant to any participant in the Plan one
or more incentive stock options (intended to qualify under Section 422 of the
Internal Revenue Code of 1986, as amended) ("Incentive Stock Options") to
purchase for cash or shares of previously owned Common Stock the number of
shares of Common Stock allotted by the Committee. The date an Incentive Stock
Option is granted means the date selected by the Committee as of which the
Committee allots a specific number of shares to a participant pursuant to the
Plan. Notwithstanding the foregoing, Incentive Stock Options shall not be
granted to any owner of 10% or more of the total combined voting powers of
Hastings unless the option price per share shall be 110% of the fair market
value of a share of Common Stock on the date of grant and the option states
that it is not exercisable after the expiration of 5 years from the date of its
grant.
3.2 Incentive Stock Option Agreements. The grant of an
Incentive Stock Option shall be evidenced by a written Incentive Stock Option
Agreement ("Agreement"), executed by the Company and the employee receiving the
Incentive Stock Option (the "optionee"), stating the number of shares of Common
Stock subject to the Incentive Stock Option in the form the Committee
determines.
3.3 Incentive Stock Option Price. The option price per share of
Common Stock deliverable upon the exercise of an Incentive Stock Option shall
be 100% of the fair market value of a share of Common Stock on the date the
Incentive Stock Option is granted, provided that Incentive Stock Options
granted to any owner of 10% or more of the total combined voting powers of
Hastings shall be 110% of the fair market value of a share of common stock on
the date of grant.
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3.4 Term and Exercise. Each Incentive Stock Option shall be
exercisable at such times and in the amounts the Committee specifies in the
Incentive Stock Option Agreement and unless a shorter period is provided by the
Committee or another section of this Plan, may be exercised during a period of
ten years from the date of grant (the "option term"). No Incentive Stock
Option shall be exercisable after the expiration of its option term.
3.5 Applicability of Stock Options Sections.Section 2.5, Manner of
Payment, applicable to Stock Options, shall apply equally to Incentive Stock
Options.
3.6 Maximum Amount of Incentive Stock Options.The aggregate fair
market value (determined on the date the option is granted) of Common Stock
with respect to which an Incentive Stock Option may become exercisable for the
first time during any calendar year by an optionee shall not exceed $100,000.
3.7 Death of an Optionee.
(a) Upon the death of the optionee, any Incentive Stock
Option exercisable on the date of death may be exercised by the optionee's
estate or by a person who acquires the right to exercise Incentive Stock Option
by bequest or inheritance or by reason of the death of the optionee, provided
that the exercise occurs within both the remaining option term and one year
after the optionee's death.
(b) The provisions of this Section shall apply
notwithstanding the fact that the optionee's employment may have terminated
prior to death, but only to the extent of any Incentive Stock Options
exercisable on the date of death.
3.8 Retirement or Disability.Upon the termination of the
optionee's employment by reason of permanent disability (as determined by the
Committee), the optionee may, within 12 months from the date of termination,
exercise any Incentive Stock Options to the extent such options are exercisable
during the 12-month period. Upon termination of optionee's employment due to
retirement with the consent of the Company, the optionee may, within 3 months
after termination, exercise any Options to the extent the options were
exercisable on the date of termination of employment.
3.9 Termination for Other Reasons.Except as provided in Sections
3.7 and 3.8 or except as otherwise determined by the Committee, all Incentive
Stock Options shall terminate upon the termination of the optionee's
employment.
ARTICLE 4 - MISCELLANEOUS
4.1 General Restriction. Each award under the Plan shall be
subject to the requirement that, if at any time the Committee shall determine
that (i) the listing, registration, or
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qualification of the shares of Common Stock subject or related thereto upon any
securities exchange or under any state or federal law, or (ii) the consent or
approval of any government regulatory body, or (iii) an agreement by the
grantee of an award with respect to the disposition of shares of Common Stock,
is necessary or desirable as a condition of, or in connection with, the
granting of the award or the issue or purchase of shares of Common Stock
thereunder, the award may not be consummated in whole or in part unless the
listing, registration, qualification, consent, approval, or agreement shall
have been effected or obtained free of any conditions not acceptable to the
Committee.
4.2 Non-Assignability. No award under the Plan shall be
assignable or transferable by the optionee, except by will or by the laws of
descent and distribution. During the life of the optionee, an award shall be
exercisable only by the optionee or by optionee's guardian or legal
representative.
4.3 Withholding Taxes. Whenever the Company proposes or is
required to issue or transfer shares of Common Stock under the Plan, the
Company shall have the right to require the grantee to remit to the Company an
amount sufficient to satisfy any federal, state and/or local withholding tax
requirements prior to the delivery of any certificate for the shares.
Alternatively, the Company may issue or transfer the shares of Common Stock net
of the number of shares sufficient to satisfy the withholding tax requirements.
For withholding tax purposes, the shares of Common Stock shall be valued at
their fair market value on the date the withholding obligation is incurred.
4.4 Right to Terminate Employment. Nothing in the Plan or in any
agreement entered into pursuant to the Plan shall confer upon any participant
the right to continued employment by the Company or effect any right which the
Company may have to terminate the employment of the participant.
4.5 Non-Uniform Determinations. The Committee's
determinations under the Plan (including without limitation determinations of
the persons to receive awards, the form, amount and timing of such awards, the
terms and provisions of awards, and the agreements evidencing same) need not be
uniform and may be made by it selectively among persons who receive, or are
eligible to receive, awards under the Plan, whether or not the persons are
similarly situated.
4.6 Rights as a Shareholder. The recipient of any award under the
Plan shall have no rights as a shareholder with respect to the award unless and
until certificates for shares of Common Stock are issued to the recipient.
4.7 Definitions. In this Plan:
(a) "Subsidiary" means any corporation of which, at the
time more than 50% of the shares entitled to vote generally in an
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election of directors are owned directly or indirectly by Hastings or any
subsidiary thereof.
(b) "Affiliate" means any person or entity which
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with Hastings.
(c) "Fair market value" as of any date of any share of
Common Stock means the fair market value of shares determined by the Committee
in the manner it may deem appropriate. In no event shall the fair market value
of any share of Common Stock be less than its par value.
(d) "Option" means Stock Option and Incentive Stock
Option.
(e) "Option price" means the purchase price per share of
Common Stock deliverable upon the exercise of a Stock Option or Incentive Stock
Option.
(f) "Change of Control" means any merger, transfer of
assets, or transfer of voting shares in the Company resulting in members of the
Marmaduke family owning, directly or indirectly, less than 50% of the voting
shares of the Company.
4.8 Leaves of Absence. The Committee shall be entitled to
make such rules, and regulations, and determinations as it deems appropriate
under the Plan in respect to any leave of absence taken by the recipient of any
award. Without limiting the generality of the foregoing, the Committee shall
be entitled to determine (i) whether or not any leave of absence shall
constitute a termination of employment within the meaning of the Plan, and (ii)
the impact, if any, of any leave of absence on awards under the Plan
theretofore made to any recipient who takes leave of absence.
4.9 Adjustments. If the outstanding Common Stock changes by
reason of a stock dividend or distribution, recapitalization, merger,
consolidation, split-up, combination, exchange of shares, or the like, the
Committee may appropriately adjust the number of shares of Common Stock which
may be issued under the Plan, the number of shares of Common Stock subject to
Options theretofore granted under the Plan, the Option Price of Options
theretofore granted under the Plant, and any and all other matters deemed
appropriate by the Committee.
4.10 Acceleration. Unless the Committee provides otherwise in an
Option Agreement, the exercise date of all Options shall be accelerated and
such options may be exercised immediately if a Change of Control occurs.
4.11 Amendment of the Plan. The Committee may, without further
action by the shareholders and without receiving further
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consideration from the participants, amend this Plan or condition or modify
awards under this Plan except for amendments which applicable law or regulation
require approval by the Shareholders.