EXHIBIT 4.8
STOCK PURCHASE AND REGISTRATION AGREEMENT
THIS STOCK PURCHASE AND REGISTRATION AGREEMENT (this "Agreement") is
entered into as of July 8, 2005, between GE Capital Equity Investments, Inc., a
Delaware corporation ("Seller"), and Caxton International Limited, a British
Virgin Island corporation ("Purchaser").
WHEREAS, Seller is the beneficial owner of shares of common stock, par
value $0.01 per share (the "Common Stock"), of ValueVision Media, Inc., a
Minnesota corporation (the "Company"); and
WHEREAS, Seller wishes to sell to Purchaser, and Purchaser wishes to
purchase from Seller, 350,000 shares of Common Stock (as may be adjusted
equitably to reflect any stock dividends, recapitalizations, stock splits or
similar transactions, the "Shares") on the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 Sale and Purchase of Shares. At Closing (as defined below) and
on the terms set forth herein, Seller shall sell and deliver to Purchaser, and
Purchaser shall purchase and accept from Seller, all right, title, and interest
of Seller in and to the Shares, free and clear of all mortgages, liens, pledges,
security interests, charges, restrictions, and other encumbrances ("Liens"). The
closing of the purchase and sale of the Shares shall take place on the earlier
of (i) the second business day following the day on which the Registration
Statement (as defined in Section 4.2 below) is declared effective by the
Securities and Exchange Commission (the "SEC") and (ii) September 15, 2005 (each
such date referred to as the "Closing Date") at the offices of the Seller in New
York City ("Closing").
1.2 Purchase Price. At Closing, Purchaser shall pay to Seller an
aggregate amount equal to $3,850,000 for the Shares (the "Purchase Price") by
wire transfer of immediately available funds to a bank account designated in
writing by Seller.
1.3 Deliveries. At Closing, (i) Seller shall deliver to Purchaser
the certificate or certificates evidencing the Shares, together with a stock
power or stock powers in the form of EXHIBIT A duly executed by Seller; and (ii)
Purchaser shall deliver to Seller, the Purchase Price in accordance with Section
1.2.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as of the date hereof
and as of the Closing Date as follows:
2.1 Organization. Seller is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware.
2.2 Authorization. Seller has the requisite corporate power to
execute and deliver this Agreement and to perform the transactions contemplated
hereby to be performed by it. The execution and delivery by Seller of this
Agreement and the performance by it of the transactions contemplated hereby to
be performed by it have been duly authorized by all necessary corporate action
on the part of Seller. This Agreement has been duly executed and delivered by
the duly authorized officer of Seller and, assuming the due execution and
delivery of this Agreement by Purchaser, constitutes a valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
2.3 Consents and Approvals. Except as set forth in Article IV, and
filings that may be required under Section 13(d) or Section 16 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), no consent, approval,
waiver, order, or authorization of, or registration, declaration, or filing
with, or notice to, any federal, state, or foreign court or governmental agency,
authority, or body or any instrumentality or political subdivision thereof
("Governmental Entity") or any other person or entity is required to be obtained
or made by Seller in connection with the execution and delivery of this
Agreement by Seller, the performance by Seller of the transactions contemplated
hereby to be performed by it, or the consummation of the transactions
contemplated hereby.
2.4 No Conflicts. The execution and delivery of this Agreement does
not, and neither the performance by Seller of the transactions contemplated
hereby to be performed by it, nor the consummation of the transactions
contemplated hereby, will, (i) conflict with the certificate of incorporation or
bylaws of Seller, (ii) conflict with, result in any violation of, or constitute
a default under any agreement to which Seller is a party, (iii) violate any
order, judgment, decree, writ, or injunction ("Order") of any Governmental
Entity applicable to Seller, or (iv) violate any domestic or foreign law,
statute, rule, or regulation ("Law") applicable to Seller.
2.5 Title to Shares. Seller has good and valid title to the Shares.
Seller is the record and beneficial owner of the Shares, free and clear of all
Liens except as set
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forth in a Shareholder Agreement, dated April 15, 1999, among NBC Universal,
Inc. the Seller and the Company (the "Shareholders Agreement") (which agreement
will not bind Purchaser). The delivery by Seller to Purchaser of the certificate
or certificates representing the Shares in accordance with this Agreement will
vest Purchaser with good and valid title to the Shares, free and clear of all
Liens.
2.6 Exempt from Registration. Based in part on the representations
of Purchaser contained in Section 3.5 and 3.6 of this Agreement, the sale of the
Shares hereunder is exempt from registration under the Securities Act of 1933,
as amended (the "Securities Act").
2.7 Information. In the course of discussions relating to this
Agreement and the transaction contemplated hereby, Seller has not conveyed to
Purchaser any material non-public information in respect of the Company and/or
the Company's business, operations, pending transactions, financial condition,
results of operations, or prospects (collectively, "Non-Public Information").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as of the date hereof
and as of the Closing Date as follows:
3.1 Organization. Purchaser is an organization of the type referred
to in the first paragraph of this Agreement and is duly organized, validly
existing, and in good standing under the applicable laws of the jurisdictions
specified.
3.2 Authorization. Purchaser has the requisite power to execute and
deliver this Agreement and to perform the transactions contemplated hereby to be
performed by it. The execution and delivery by Purchaser of this Agreement and
the performance by it of the transactions contemplated hereby to be performed by
it have been duly authorized by all necessary action on the part of Purchaser.
This Agreement has been duly executed and delivered by a duly authorized officer
of Purchaser and, assuming the due execution and delivery of this Agreement by
Seller, constitutes a valid and binding obligation of Purchaser, enforceable
against Purchaser in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
3.3 Consents and Approvals. No consent, approval, waiver, order, or
authorization of, or registration, declaration, or filing with, or notice to,
any Governmental Entity is required to be obtained or made by Purchaser in
connection with the execution and delivery of this Agreement by Purchaser, the
performance by Purchaser of the transactions contemplated hereby to be performed
by it, or the consummation of
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the transactions contemplated hereby, except for any filings that may be
required under Section 13 of the Exchange Act.
3.4 No Conflicts. The execution and delivery of this Agreement does
not, and neither the performance by Purchaser of the transactions contemplated
hereby to be performed by it, nor the consummation of the transactions
contemplated hereby, will, (i) conflict with the organizational documents of
Purchaser, (ii) conflict with, result in any violation of, or constitute a
default under any agreement to which Purchaser is a party, or (iii) violate any
Order of any Governmental Entity or any Law applicable to Purchaser.
3.5 Securities Law Matters. Purchaser understands and acknowledges
that as of the date hereof the Shares have not been registered under the
Securities Act, or the securities laws of any state or foreign jurisdiction,
and, unless so registered, may not be offered, sold, transferred, or otherwise
disposed of except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and any
applicable securities laws of any state or foreign jurisdiction. Purchaser
acknowledges that appropriate legends restricting the transfer of the Shares as
aforesaid shall be placed on the stock certificates representing such Shares.
Purchaser is an "accredited investor" (as defined in Rule 501(a) of Regulation D
under the Securities Act). Purchaser (i) has knowledge and experience in
financial and business matters such that it is capable of evaluating the merits
and risks of purchasing the Shares, and (ii) is able to bear the economic risk
of an investment in the Shares for an indefinite period, including the risk of a
complete loss of any such investment. The Shares were not offered to Purchaser
in any form of general solicitation or general advertisement and Purchaser (i)
is acquiring the Shares for investment for its own account, and not with a view
to, or for sale in connection with, any distribution thereof, (ii) does not have
any agreement or understanding, whether or not legally binding, with any other
person or entity, to sell, pledge, engage in short sales or other hedging
transactions, transfer, or otherwise distribute or dispose of the Shares or any
interest therein; provided, however, that by making the representations herein,
Purchaser does not agree to hold any of the shares for any minimum or specific
term and reserves the right to offer and dispose of the Shares at any time in
accordance with, or pursuant to, an effective registration statement or an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act or otherwise in compliance with applicable
securities laws. Purchaser understands and acknowledges that Seller may be
deemed an "affiliate" of the Company (as defined in Rule 144(a)(1) under the
Securities Act).
3.6 Investigation. Purchaser believes that it has received all the
information it considers necessary or appropriate for deciding whether to
purchase the Shares. Purchaser further represents that it has had an opportunity
to ask questions and receive answers from officers and other personnel of the
Company regarding the Company, its business and financial condition. Purchaser
acknowledges that (i) it is a sophisticated financial institution engaged in the
business of assessing and assuming investment risks in respect of securities,
including securities such as the Shares and is hereby voluntarily assuming the
risks relating to the transactions contemplated hereby, (ii) it is fully
satisfied with the Purchase Price it is paying hereunder to Seller for the
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Shares, (iii) Seller may in the future enter into discussions with holders of
the Company's Common Stock regarding the sale of all or a portion of its other
shares of the Company's Common Stock for consideration greater or lesser than or
different from the Purchase Price, and/or on terms and conditions different from
the terms and conditions set forth herein, (iv) Seller is consummating this
transaction with Purchaser in reliance on Purchaser's acknowledgements and
representations contained in this Agreement and with Purchaser's understanding
and agreement that Seller is privy to Non-Public Information that may be
material to a reasonable investor, such as Purchaser, and has not been provided
to Purchaser by Seller or the Company, (v) Seller is under no duty or other
obligation to disclose any Non-Public Information to Purchaser, and (vi) as of
the date hereof, the Company has neither publicly announced its financial
results for any period after April 30, 2005 nor filed any report for such
period. Purchaser hereby waives and releases to the fullest extent permitted by
applicable law any claim or potential claim it has or may have against Seller,
the Company or their respective officers, directors, stockholders, partners,
affiliates, successors, and assigns, relating to any such person's possession of
Non-Public Information.
ARTICLE IV
COVENANTS OF THE COMPANY
4.1 Stock Certificate Legend. Promptly following the Closing, the
Company agrees to provide Purchaser with stock certificates representing the
Shares such that the appropriate legends restricting the transfer of the Shares
shall not reference the Shareholders Agreement. The Company shall take all
reasonable action necessary (including providing appropriate opinions of counsel
to its transfer agent, if necessary) to remove such legends with respect to
Shares being sold by Purchaser pursuant to the Registration Statement.
4.2 Registration Statement. The Company hereby agrees that it shall
prepare and file with the SEC as soon as practicable but in no event more than
21 business days following the date hereof, a registration statement on Form S-3
(or such other form as is available for the registration of the Shares if the
Company does not meet the requirements for the use of Form S-3) (the
"Registration Statement"), listing Purchaser as a selling stockholder therein,
to enable the resale of the Shares by Purchaser from time to time and use all
commercially reasonable efforts to cause such Registration Statement to be
declared effective as promptly as possible after filing and to remain
continuously effective until the earlier of (1) the second anniversary of the
effective date of the Registration Statement, (2) the date on which all Shares
purchased by Purchaser pursuant to this Agreement have been sold thereunder or
(3) the date on which the Shares can be sold by holders thereof pursuant to Rule
144(k) promulgated under the Securities Act (the "Registration Period"). Before
filing the Registration Statement, or any amendment or supplement thereto, the
Company shall furnish to Purchaser copies of all such documents proposed to be
filed, which documents will be subject to review of Purchaser, and the Company
will not file any such documents to which Purchaser shall reasonably object in
writing within three (3) business days of receipt of such document. The
Registration Statement shall register, pursuant to Rule 416(a) under the
Securities Act, the Shares and any additional shares of Common Stock of the
Company resulting
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from stock splits, stock dividends, or similar transactions with respect to the
Shares. If the Company receives notification from the SEC that the Registration
Statement will be subject to no action or review from the SEC, then the Company
will use its commercially reasonable efforts to cause the Registration Statement
to become effective within five (5) business days after such SEC notification.
In the event that, following the date hereof and prior to the end of the
Registration Period, the Company does not meet the requirements for the use of
Form S-3, the Company shall use such other form as is available for the
registration of the Shares and shall convert such other form into Form S-3, or
file a replacement registration statement on Form S-3, promptly after the first
date on which it meets such requirements. The covenants of the Company pursuant
to this Section 4 shall survive the Closing.
4.3 Registration Procedures and Indemnification. The Company and
Purchaser hereby agree that (i) the registration procedures relating and
applicable to the Registration Statement shall be governed by Sections 5(b)
through Section 5(q), the last two paragraphs of Section 5, and Section 6 of the
Registration Rights Agreement, dated April 15, 1999 (the "Registration Rights
Agreement"), by and among the Company, NBC Universal, Inc. and Seller, which
sections are hereby incorporated herein by reference, provided that: (A) to the
extent of any inconsistency between this Agreement and the Registration Rights
Agreement, this Agreement shall control and (B) the aggregate number of days to
which Purchaser shall be subject to Black-Out (as defined in the Registration
Rights Agreement) shall not exceed ninety (90) days during any period of 12
consecutive months, and (ii) the Company will indemnify Purchaser and Purchaser
will indemnify the Company for matters relating to, or arising out of, the
Registration Statement as set forth in the Registration Rights Agreement and
that the mutual indemnification obligations of the Company and Purchaser
relating to, or arising out of, the Registration Statement shall be governed by
Section 7 of the Registration Rights Agreement, which section is hereby
incorporated herein by reference, except with regard to the limitation on the
Company's liability included in Section 7(a) based on a Holder's failure to
deliver a prospectus, which shall be incorporated by reference herein, only to
the extent such Holder is subject to prospectus delivery requirement under
applicable securities laws. For purposes of this Section 4.3, the term "Holder"
(as defined in the Registration Rights Agreement) shall be deemed to refer to
Purchaser, the term "Registrable Securities" (as defined in the Registration
Rights Agreement) shall be deemed to refer to the Shares and the term
"Registration Statement" shall be deemed to refer to the Registration Statement
(as defined in Section 4.2 hereof) to be filed pursuant to the provisions of
this Agreement.
4.4 Information. In the course of discussions relating to this
Agreement and the transactions contemplated hereby, the Company has not conveyed
and will not convey to Purchaser any Non-Public Information.
4.5 Reports Under the Exchange Act. With a view to making available
to Purchaser the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the SEC that may at any time permit Purchaser to
sell securities of the Company to the public without registration, the Company
agrees to use its commercially reasonable efforts to:
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(a) make available and keep current public information, within the
meaning of Rule 144, at all times at which it is subject to the reporting
requirement of the Exchange Act.
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act.
ARTICLE V
SECURITIES LAWS COMPLIANCE
Purchaser shall not, directly or indirectly, offer, sell, pledge, transfer
or otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any Common Stock of the Company, nor will Purchaser
engage in, or permit any party on behalf of Purchaser or for the benefit of
Purchaser to engage in, any short sale or other hedging transaction that
results, or may result, in a disposition of any of the Shares by Purchaser,
except pursuant to an effective registration statement under the Securities Act
or an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act and any applicable securities laws of any
state or foreign jurisdiction or otherwise in compliance with applicable
securities laws.
ARTICLE VI
MISCELLANEOUS
6.1 Binding Effect. Except as otherwise expressly provided herein,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
6.2 Counterparts. This Agreement may be executed in multiple
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
6.3 Entire Agreement: Survival; Indemnity. This Agreement (including
the Exhibits attached hereto) constitutes the entire agreement of the parties
hereto in respect of the subject matter hereof, and supersedes all prior
agreements or understandings between the parties hereto in respect of the
subject matter hereof. The representations and warranties of the parties will
survive the Closing. Seller and Purchaser will each indemnify the other against
any loss, liability or expense arising out of any material breach of any of its
representations and warranties in this Agreement, provided that total liability
under this indemnity will not exceed the Purchase Price. A party intending to
make a claim under this indemnity will provide the other party with prompt
notice of its claim and, to the extent possible, the opportunity to defend and
dispose of the claim.
6.4 Expenses. Except as otherwise expressly provided in this
Agreement, each of Seller and Purchaser shall bear all of the expenses
(including fees and disbursements of its counsel) incurred by or on behalf of it
in connection with the preparation, negotiation, execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
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6.5 Further Assurances. Each party hereto shall execute and deliver
all such further and additional instruments and agreements and shall take such
further and additional actions, as may be reasonably requested by the other
party in order to evidence or carry out the provisions of this Agreement or to
consummate the transactions contemplated hereby.
6.6 Governing Law. This Agreement shall be enforced, governed, and
construed in all respects in accordance with the laws of the State of New York
applicable to contracts made and performed in such State.
6.7 Jurisdiction; Venue. Any action, suit, or proceeding seeking to
enforce any provision of, or based on any matter arising out of or relating to,
this Agreement or the transactions contemplated hereby can be brought
exclusively in federal court sitting in the Southern District of New York or, if
such court does not have jurisdiction, any district court sitting in the Borough
of Manhattan, the County of New York, New York, and each of the parties hereto
hereby consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such action, suit, or proceeding
and irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such action, suit, or proceeding in any such court or that any such action,
suit, or proceeding that is brought in any such court has been brought in an
inconvenient forum.
6.8 Notices. Any notice, request, demand, or other communication
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if sent by hand delivery, mail (first class,
certified mail, postage prepaid), facsimile, or overnight courier if to any
party hereto, at the address or facsimile number set forth below such party's
name on the signature pages hereto or to such other address or facsimile number
as such party shall have last designated by notice to the other parties hereto
in accordance with this Section. Notices sent by hand delivery shall be deemed
to have been given when received or delivery is refused; notices mailed in
accordance with this Section shall be deemed to have been given three days after
the date so mailed; notices sent by facsimile shall be deemed to have been given
when electronically confirmed; and notices sent by overnight courier shall be
deemed to have been given on the next business day after the date so sent.
6.9 Severability. If any provision of this Agreement or the
application of such provision to any person or circumstance shall be held by a
court of competent jurisdiction to be invalid, illegal, or unenforceable under
the applicable law of any jurisdiction, (i) the remainder of this Agreement or
the application of such provision to other persons or circumstances or in other
jurisdictions shall not be affected thereby, and (ii) such invalid, illegal, or
unenforceable provision shall not affect the validity or enforceability of any
other provision of this Agreement.
6.10 No Third-Party Beneficiaries. Nothing express or implied in
this Agreement, is intended or shall be construed to confer upon or give any
person other than the parties hereto and their respective successors and
permitted assigns any right, benefit, or remedy under or by reason of this
Agreement.
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6.11 WAIVER OF TRIAL BY JURY. TO THE MAXIMUM EXTENT NOT PROHIBITED
BY APPLICABLE LAW, EACH PARTY HERETO, HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
ACTION, SUIT, OR PROCEEDING, DIRECTLY OR INDIRECTLY, AT ANY TIME ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.12 Independent Nature of Obligations. The obligations of Purchaser
under this Agreement or any document ancillary hereto (collectively, the
"Transaction Documents") are several and not joint with the obligations of any
other purchaser of Seller's Common Stock, and Purchaser shall not be responsible
in any way for the performance of the obligations of any other purchaser under
any Transaction Document. Nothing contained herein or in any other Transaction
Document, and no action taken by Purchaser or any other purchaser of Seller's
Common Stock pursuant hereto or thereto, shall be deemed to constitute the
Purchaser and such other purchasers as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that Purchaser and
such other purchasers are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated by the Transaction
Documents. Purchaser confirms that it has independently participated in the
negotiation of the transaction contemplated hereby with the advice of its own
counsel and advisors. Purchaser shall be entitled to independently protect and
enforce its rights, including, without limitation, the rights arising out of
this Agreement or out of any other Transaction Documents, and it shall not be
necessary for any other purchaser to be joined as an additional party in any
proceeding for such purpose.
* * * * *
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
SELLER:
GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
Address: 000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
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PURCHASER:
Caxton International Limited
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: VP & Treasurer
By: /s/ Xxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxx Xxxx
Title: VP & Secretary
Address: c/o Prime Management Limited
Mechanics Xxxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx XX00 Xxxxxxx
Xxxxxxxxx No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
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We hereby (i) consent to the transactions contemplated by this Agreement
and agree in consideration of the benefits that will accrue to the Company by
virtue of such transactions, to the provisions of Article IV of this Agreement,
and (ii) confirm that Purchaser shall not become a party to, or be bound by the
provisions of the Shareholders Agreement by virtue of acquiring the Shares
pursuant to this Agreement.
VALUEVISION MEDIA, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President and
General Counsel
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EXHIBIT A
STOCK POWER
FOR VALUE RECEIVED, GE Capital Equity Investments, Inc., a Delaware
corporation, does hereby sell, assign, and transfer to Caxton International
Limited, an aggregate of 350,000 shares of Common Stock, par value $0.01 per
share (the "Shares"), of ValueVision Media, Inc., a Minnesota corporation (the
"Company"), standing in its name on the books of the Company, represented by
Certificate No. ___ herewith, and does hereby irrevocably constitute and appoint
__________________ attorney to transfer the Shares on the books of the Company
with full power of substitution in the premises.
Dated: ____________, 2005
GE CAPITAL EQUITY INVESTMENTS, INC.
By: ____________________________________
Name:
Title:
