EXHIBIT 10.80
EMPLOYMENT AGREEMENT MODIFICATION AND RESTATEMENT
(XXXXXX X. XXXXXXXXX)
This EMPLOYMENT AGREEMENT MODIFICATION AND RESTATEMENT (the
"Modification"), dated as of October 31, 2003, is by and between SUMMIT AMERICA
TELEVISION, INC., a Tennessee corporation formerly known as Shop At Home, Inc.
("Corporation"), and XXXXXX X. XXXXXXXXX, a resident of the Commonwealth of
Massachusetts ("Employee"), and modifies, restates and replaces in full the
Employment Agreement between the parties dated as of March 20, 2002 (the
"Previous Agreement").
The following recitals are set forth for the purpose of stating the
facts and circumstances which form the background and basis for this
Modification:
[A] Under the Previous Agreement, the Corporation employed the Employee as
the Corporation's Chief Executive Officer for an initial term of two
years beginning on March 20, 2002.
[B] Section 4(e) of the Previous Agreement provided that if the Employee
resigned within one year of a Change of Control (this and any other
capitalized term, not otherwise defined herein, is defined in the
Previous Agreement), Corporation would be obligated to pay the Employee
a lump-sum payment equal to twice his Base Salary of $200,000 per annum
and any Earned Bonus (the "Lump-Sum Payment").
[C] The Lump-Sum Payment was an obligation previously accrued by the
Corporation insofar as the Corporation's Board of Directors previously
determined that a Change of Control of the Corporation took place on
October 31, 2002.
[D] The Corporation has already recognized the Lump-Sum Payment as a
compensation expense of the Corporation during the fourth quarter of
2002.
[E] Employee has advised the Corporation that he intends to resign as Chief
Executive Officer of the Corporation prior to October 31, 2003, and
thereby will be entitled to the Lump-Sum Payment.
[F] The Board of Directors of the Corporation recognizes that the Employee
is a valuable employee of the Corporation and wishes to retain his
services as Chief Executive Officer of the Corporation.
[G] The Corporation and the Employee have agreed that, in exchange for a
one year renewal and extension of Employee's employment with the
Corporation, terminable upon 60 days advance written notice by either
Employee or Corporation, Employee will receive the financial
consideration set forth in this Modification, subject to and
conditioned upon the terms and condition set forth below.
AGREEMENTS OF THE PARTIES
IN CONSIDERATION OF THE ABOVE RECITALS AND THE MUTUAL TERMS AND
CONDITIONS SET OUT HEREIN, THE PARTIES AGREE AS FOLLOWS:
1. EMPLOYMENT AND TERM. The Corporation hereby continues to
employ Employee as its Chief Executive Officer to perform such services and
duties as the Board of Directors of the Corporation may from time to time
designate during the term hereof, and Employee accepts such continued
employment, all subject to the terms and conditions of this Modification.
Employee's employment under the terms of this Modification shall commence on the
date of this Modification and shall continue until the earlier of [a] the first
anniversary of the date of this Modification or [b] 60 days after either party
delivers written notice to the other party to this Modification stating that the
Employee's employment is terminated (for any reason or for no reason).
Corporation and Employee hereby acknowledge and agree that, upon delivering such
notice of termination, neither party shall be required to provide a reason for
the termination of Employee's employment.
2. DUTIES. Employee, during the term of this Modification, will
devote his full-time attention and energies to the diligent performance of his
duties as an employee of the Corporation. During the term of this Modification,
Employee will not accept employment with any other Person, or engage in any
venture for profit which the Corporation may consider to be in conflict with its
best interests or to be in competition with the Corporation's business or which
may interfere with Employee's performance of his duties hereunder.
3. COMPENSATION AND BENEFITS.
[a] Upon the execution of this Modification, the
Corporation shall pay the previously accrued Lump-Sum Payment to the Employee.
[b] The Corporation will pay to Employee as compensation
for the services to be performed by him after the date of this Modification, and
until this Modification is terminated or amended, a monthly salary of $16,667.
[c] The Corporation will reimburse Employee for expenses
incurred in the course and scope of the Corporation's business, upon the
presentation by Employee, from time to time, of an account of such expenditures,
setting forth the purposes for which incurred, and the amounts thereof, together
with such receipts showing payments as Employee has reasonably been able to
retain. All such reimbursable expenses must comply with the policies and
procedures of the Corporation and any budget limitations for such expenses.
[d] The Corporation shall provide Employee with health,
life and disability insurance pursuant to its group insurance plan as now or
hereafter in effect. In addition, Employee shall receive vacation and holiday
benefits in accordance with the Corporation's policies as now or hereafter in
effect.
2
[e] No bonus, which may have been payable to Employee
under the terms of the Previous Agreement, shall be paid to Employee. There is
no agreement between the Corporation and the Employee for the payment of any
future bonuses.
4. STOCK OPTIONS. Corporation and Employee acknowledge and agree
that the Corporation has previously granted to Employee options to purchase
shares of the Corporation's common stock in consideration for his prior services
as Chief Executive Officer and as a director of the Corporation. Employee and
Corporation acknowledge and agree as follows: [a] all such options have
previously vested; and [b] with respect to the Corporation's common stock, no
new options are being granted and no new legal rights are being created by, in,
or under this Modification.
5. COVENANTS AGAINST POST-TERMINATION CONDUCT.
[a] Covenant Against Disclosure or Use of Confidential
Information. Employee agrees that, for a period of two years immediately after
the termination or expiration of his employment hereunder, he will not:
[1] disclose to any Person, or
[2] otherwise use for his own purposes,
any Confidential Information obtained by Employee while employed by the
Corporation; provided, however, that Employee may make disclosures required by a
valid order or subpoena issued by a court or administrative agency of competent
jurisdiction. In such event, Employee will promptly notify the Corporation of
such order or subpoena to provide the Corporation an opportunity to protect its
interest.
6. INVENTIONS, DISCOVERIES AND IMPROVEMENTS.
[a] Disclosure to Corporation. Employee will promptly
disclose in writing to the Corporation any and all inventions, discoveries and
improvements, directly or indirectly related to the business of the Corporation,
whether conceived or made solely by Employee or jointly with others during the
period of Employee's employment hereunder. All of Employee's right, title and
interest in and to all such inventions, discoveries and improvements developed
or conceived by Employee during the period of his employment shall be the sole
property of the Corporation.
[b] Documents of Assignment. At the Corporation's request
and expense, both during and subsequent to Employee's employment hereunder,
Employee will promptly execute a specific assignment of title to the Corporation
of each invention, discovery or improvement belonging to the Corporation and
will perform all other acts reasonably necessary to enable the Corporation to
secure a patent therefor in the United States and in foreign countries, and to
maintain, defend and assert such patents. This Section shall survive the
expiration or termination of this Modification.
3
[c] Prior Inventions. Any inventions, discoveries or
improvements, patented or unpatented, that Employee can demonstrate were
conceived or made by him prior to the date hereof shall be excluded from the
provisions of this Section.
7. RETURN OF CLIENT LISTS, OTHER DOCUMENTS AND EQUIPMENT. Upon
the termination or expiration of his employment hereunder, Employee shall
deliver promptly to the Corporation all Corporation files, customer lists,
memoranda, research, drawings, blueprints, Corporation forms and other documents
supplied to or created by him in connection with his employment hereunder
(including all copies of the foregoing) in his possession or control and all of
the Corporation equipment and other materials in his possession or control.
Employee acknowledges that all items described in this Section are and will
remain at all times the sole and exclusive property of the Corporation.
8. SURVIVAL OF RESTRICTIONS. Notwithstanding the breach of any of
the provisions of this Modification by either party hereto, all of the
provisions of Sections 5, 6 and 7 of this Modification shall survive the
termination or expiration of Employee's employment with the Corporation for any
reason and shall continue in full force and effect in the same manner and to the
same extent as if they were set forth in a separate agreement between the
Corporation and Employee, and all of such provisions shall be binding on the
heirs, legatees and legal representative(s) of Employee.
9. HOLD HARMLESS. Employee and the Corporation covenant and agree
that they will indemnify and hold harmless the other from (i) any and all
losses, damages, liabilities, expenses of claims resulting from or arising out
of any nonfulfillment by the defaulting party of any material provision of this
Modification, and (ii) any and all losses or damages resulting from the
defaulting party's malfeasance or gross negligence.
10. CONTRACT NONASSIGNABLE. The parties acknowledge that this
Modification has been entered into due to, among other things, the special
skills of Employee, and agree that this Modification may not be assigned or
transferred by Employee, in whole or in part, without the prior written consent
of the Corporation. This Modification shall be binding and shall inure to the
benefit of the Corporation and its successors and assigns.
11. NOTICES. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission, by registered or certified mail, postage
pre-paid, or by courier or overnight carrier, to the persons at their customary
addresses, and shall be deemed to have been delivered as of the date so
delivered in the case of delivery by hand or facsimile (provided confirmation of
delivery is obtained), on the next business day if sent by overnight courier or
mail service or the third business day following mail deposit in the case of
regular mail delivery.
12. CUMULATIVE AND SEVERABLE NATURE OF RIGHTS AND AGREEMENTS.
Employee acknowledges and agrees that the Corporation's various rights and
remedies in this Modification are cumulative and nonexclusive of one another and
that Employee's several undertakings and agreements contained herein, including,
without limitation, those contained in Sections 5, 6 and 7 of this Modification,
are severable covenants independent of one another and of any other
4
provision or covenant of this Modification. Employee agrees that the existence
of any claim by him against the Corporation, whether predicated on this
Modification or otherwise, shall not constitute a defense to enforcement by the
Corporation of any or all of such provisions or covenants. If any provision or
covenant, or any part thereof, of this Modification should be held by any court
to be invalid, illegal or unenforceable, either in whole or in part, such
invalidity, illegality or unenforceability of the remaining provisions or
covenants, or any part thereof, of this Modification, all of which shall remain
in full force and effect.
13. WAIVER. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Modification shall not be deemed a waiver or relinquishment
of any right granted in this Modification or of the future performance of any
such condition or of any other term or condition of this Modification, unless
such waiver is contained in a writing signed by the party making the waiver.
14. AMENDMENTS AND MODIFICATIONS. This Modification may be amended
or modified only by a writing signed by both parties hereto.
15. EXECUTION TO COUNTERPARTS.This Modification may be executed in
two or more counterparts, each of which shall be deemed an original, and all of
which shall constitute one and the same instrument.
16. HEADINGS. The headings set out in this Modification are for
convenience of reference and shall not be deemed a part of this Modification and
shall not affect the meaning or construction of any of the provisions hereof.
17. ENTIRE AGREEMENT. This Modification (including the documents
referred to herein) constitutes the entire agreement among the parties and
supersedes any prior understandings, agreements, or representations by or among
the parties, written or oral, to the extent they relate in any way to the
subject matter hereof.
18. GOVERNING LAW. This Modification shall be governed by and
construed in accordance with the domestic laws of the State of Tennessee without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Tennessee or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Tennessee.
[Remainder of this page left blank intentionally]
5
EXECUTION
THE PARTIES HAVE EXECUTED THIS MODIFICATION AS OF THE DATE AND YEAR
FIRST ABOVE WRITTEN. BY THEIR EXECUTION OF THIS MODIFICATION, THE PARTIES
REPRESENT TO ONE ANOTHER THAT THEY HAVE READ THIS MODIFICATION, UNDERSTAND ITS
TERMS AND CONDITIONS AND INTEND TO BE BOUND THEREBY.
CORPORATION:
SUMMIT AMERICA TELEVISION, INC.
By: /s/ X.X. Xxxxxxx
---------------------------------------
Name: X.X. Xxxxxxx
Title: Chairman
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxxx
6
