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EXHIBIT 10.36
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of the
15th day of December, 1995, (the "Effective Date") by and between Xxxx Xxxxx
Xxxxxx ("Employee") and Home Shopping Network, Inc. ("the Company").
WHEREAS, the Company desires to employ Employee; and
WHEREAS, Employee desires to be employed by the Company and commit to
serve the Company on the terms herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, the
parties agree as follows:
1. Position, Responsibilities and Term of Employment.
1.01 Employment and Duties. Subject to the terms and
conditions of this Agreement, the Company agrees to employ Employee as
Executive Vice President of Human Resources and Employee accepts such
employment and agrees to perform in a diligent, careful and proper manner the
responsibilities and duties of such position commencing December 15, 1995 (the
"Commencement Date"). As long as employment with the Company continues,
Employee shall comply with the Company's policies and procedures as in effect
from time to time.
1.02 Term. Subject to the provisions of this Agreement,
the term of this Agreement shall commence upon the Effective Date and shall
continue for a four (4) year period from the Commencement Date (the "Term"),
unless sooner terminated as provided in Section 4. Thereafter, this Agreement
shall automatically renew for one (1) year on each December 15, unless either
party provides notice of non-renewal, on or before October 15 of each year.
2. Compensation.
2.01 Signing Bonus. Upon execution hereof by both
parties, the Company shall pay to Employee Fifty Thousand Dollars ($50,000),
less applicable deductions pursuant to Section 2.06, as a one time signing
bonus.
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2.02 Salary. From and after the Commencement Date and
during the remaining Term of this Agreement, the Company shall pay Employee a
salary at the rate of Two Hundred Thirty-Five Thousand Dollars ($235,000) per
year in accordance with the Company policy. Salary may be reviewed during the
Term of this Agreement in accordance with the Company's policy and adjusted
accordingly. Employee shall be paid once every two (2) weeks or in such other
regular periodic installments, at least as frequently as monthly, as salary
payments are generally made by the Company to its senior executives.
2.03 Participation in Benefit Plans. Employee shall be
entitled to participate in, or receive benefits under, any of the Company's
employee benefit plans as made available to other senior executives of the
Company.
2.04 Stock Options.
(a) Employee shall receive stock options to purchase fifty
thousand (50,000) shares of the Company's common stock at an exercise price of
$8.50 per share pursuant to the Company's 1986 Stock Option Plan for Employees,
or the successor stock option plan thereto (the "Options"). The Options will
be reflected in a separate agreement which shall provide, among other things,
the terms set forth below.
(b) Upon any termination of Employee's employment (i) by the
Company for any reason other than death, disability or for Cause, or (ii) by
Employee for Good Reason, all Options granted hereunder shall vest immediately
and remain exercisable for a period of one year after such termination. Upon a
termination of Employee's employment by the Company for Cause, or by Employee
for other than Good Reason, any non-vested Options shall immediately expire and
any vested Options shall expire three (3) months following such termination.
Upon a termination of Employee's employment by reason of death or disability,
the provisions of the Stock Option Plan as interpreted by the
Compensation/Benefits Committee of the Board of Directors of the Company shall
govern the exercisability of the Options and the period for which the Options
are exercisable.
2.05 Vacation. Employee shall be entitled to four weeks
of paid vacation per year, including during Employee's first year
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of employment. Employee shall receive paid holidays and sick days in accordance
with the Company's policies and procedures.
2.06 Deductions. All amounts payable under this Agreement
shall be subject to such deductions as may from time to time be required to be
made pursuant to law or governmental regulation or by agreement with or consent
of Employee.
3. Relocation The Company shall pay to Employee her moving
expenses from New York, New York to the Tampa Bay area in accordance with the
Company's policies and procedures.
4. Termination of Employment.
4.01 Termination for Cause. Employee's employment under
this Agreement may be terminated by the Company, prior to expiration of the
Term, for Cause upon at least 30 days' prior written notice. The term "Cause"
shall mean only one or more of the following:
(a) Employee's conviction by a court of competent jurisdiction
(which conviction, through lapse of time or otherwise, is not subject to
appeal) of any felony, fraud or business crime;
(b) Employee's possession or use of illegal drugs or
prohibited substance, or Employee's excessive drinking of alcoholic beverages
that impairs her ability to perform her duties under this Agreement;
(c) Employee's commission of a tort or act of fraud upon the
Company or material breach of her fiduciary duty to the Company;
(d) a breach by Employee of any of the covenants made by
Employee in Sections 5 and 6 hereof; or
(e) Employee's continued failure or refusal to perform her
duties under this Agreement, as determined by the Chief Executive Officer of
the Company in good faith.
If the Company terminates this Agreement for Cause, the
Company shall pay to Employee her salary under this Agreement
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through the date of termination specified in the Company's notice of
termination, and her Options shall be exercisable as described in section
2.04(b).
4.02 Termination without Cause. The Company may terminate
Employee's employment under this Agreement without Cause, in which case
Employee's Options shall vest and be exercisable as described in section
2.04(b) and the Company shall pay to Employee: (a) Employee's salary under
this Agreement through the date of termination and (b) the amount of salary
Employee would have received under this Agreement during the remainder of the
then current Term if this Agreement had not been terminated, payable
periodically as provided in Section 2.02. The Company shall also maintain or
pay the cost of maintaining during the remainder of the then current Term all
medical and other health insurance benefits and coverage previously provided to
Employee by the Company. Employee shall be required to mitigate the amount of
any payment provided for in this Section 4.02 by seeking other employment, and
the amount of any payment or benefits due hereunder shall be reduced by any
compensation or benefits received by Employee as a result of her employment by
any other person, firm or corporation. Employment as used in this paragraph
includes self-employment and activities as a consultant, independent contractor
or otherwise. As a condition precedent to receipt of any payment hereunder,
Employee shall be required, at the time of termination, to execute a general
release and waiver in favor of the Company.
4.03 Disability. In the event that Employee shall be
physically or mentally disabled so as not to be able to perform her duties
pursuant to this Agreement for any period of ninety (90) consecutive days or
more, the Company shall have the right to terminate Employee's employment upon
ninety (90) days prior written notice (the "Notice Period") of such termination
to Employee, whereupon the Company shall continue to pay Employee her salary
under this Agreement through the date of termination specified in the Company's
notice of termination; provided, however, that in the event Employee, during
the Notice Period, recovers from such disability to an extent permitting her
to perform her duties hereunder, the notice of termination pursuant to this
clause shall be of no further force and effect.
4.04 Death. This Agreement shall terminate upon the date
of death of Employee, and the Company shall be obligated to
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pay to Employee's estate her salary under this Agreement through the end of the
calendar month in which her death occurred, as well as vacation and sick days
in accordance with the Company policy.
4.05 By Employee. Employee may terminate her employment
for Good Reason. The term "Good Reason" shall mean:
(a) the assignment to Employee of any duties inconsistent
with Employee's position as Executive Vice President of Human Resources,
including status, title and reporting requirements, or any other action by the
Company which results in a material diminution in Employee's position,
authority, duties or responsibilities, excluding for this purpose an isolated,
insubstantial or inadvertent action which is remedied by the Company promptly
after receipt of notice thereof given by Employee;
(b) any material breach of this Agreement by the Company
which is not remedied by the Company promptly after receipt of notice thereof
given by Employee; or
(c) any purported termination by the Company of
Employee's employment otherwise than as expressly permitted by this Agreement.
If Employee believes "Good Reason" exists hereunder, Employee shall
give written notice to the Chief Executive Officer of the Company specifying
the reason for such belief. The Company shall have ten (10) business days after
receipt of said notice to cure or respond to this notice, and during such
period, Employee shall respond in good faith to any efforts made by the Company
to respond to her concerns. Upon failure of the Company to redress the concerns
within said ten (10) days, Employee may terminate her employment upon notice to
the Company. If Employee terminates her employment with the Company in
accordance with this Section 4.05, she shall receive the benefits described in
Section 4.02, subject to the conditions specified in Section 4.02..
5. Covenant and Confidential Information.
(a) Non-Competition. During Employee's employment with
the Company and for eighteen (18) months thereafter (but in no event less than
66 months from the Commencement Date), Employee shall not, directly or
indirectly, on behalf of Employee or on
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behalf of or with any other person, enterprise or entity, in any individual or
representative capacity, engage or participate in any business, anywhere in the
United States of America, that is engaged (a) in the sale of goods or services
through broadcast or cable television or over telephone, cable, satellite
transmission, computer network, or other communication system, or (b) in the
business of mail order or catalog sales. Employee's obligations under this
Section shall continue during the Term and for the period after the Term set
forth above, and shall not, for any reason, cease upon termination of
Employee's employment with the Company (whether for Cause, without Cause, Good
Reason or otherwise).
(b) Non-Solicitation. During Employee's employment with
the Company and for eighteen (18) months thereafter (but in no event less than
66 months from the Commencement Date), Employee shall not solicit the
employment of any employee of the Company or its subsidiaries on behalf of any
other person, firm, corporation, entity or business organization, or otherwise
interfere with the employment relationship between any employee of the Company
and the Company.
(c) Confidential Information.
(i) Definition. "Confidential Information" means
any information that relates to or is used in the business or operations of the
Company or any of its affiliates and that is not generally known to the public,
or that is competitively sensitive to the Company or any of its affiliates,
including without limitation, personnel and employment information, customer
lists, marketing methods, merchandise sources, methods of merchandising deemed
proprietary by the Company, product and assortment selection, sales and price
lists, product research or data, vendors, contractors, financial information,
business plans and methods or other trade secrets of the Company, and all
information that the Company or any of its affiliates is required to keep
confidential pursuant to any confidentiality or non-disclosure agreement or
that is otherwise delivered to the Company or any of its affiliates in
confidence. Confidential Information includes information in any form
whatsoever, including without limitation oral information, any notes,
documents, files, records and information in any other written form, any
magnetic, electric, digital and
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other recording medium, and any products, equipment, technology and any other
tangible object.
(ii) Confidentiality Obligation. Employee shall
preserve and protect the confidentiality of all Confidential Information and
shall not, without the prior written consent of an executive officer of the
Company or except as required in the course of Employee's employment with the
Company, (i) remove any Confidential Information from the Company's premises or
disclose, make available or transmit in any manner any Confidential Information
to any other person, enterprise or entity, or (ii) use, directly or indirectly,
any Confidential Information for Employee's own benefit or for the benefit of
any other person, enterprise or entity. Employee's obligations under this
Section 5(c) shall continue during the term and indefinitely after the term,
and shall not, for any reason, cease upon termination of Employee's employment
with the Company (whether by wrongful discharge or otherwise).
(d) Proprietary Rights; Assignment. All Employee
Developments shall be work made for hire by Employee for the Company.
"Employee Developments" means any idea, discovery, invention, design, method,
technique, improvement, enhancement, development, computer program, machine,
algorithm or other work or authorship that (1) relates to the business or
operations of the Company or any of its affiliates, or (2) results from or is
suggested by any undertaking assigned to Employee or work performed by Employee
for or on behalf of the Company or any of its affiliates, whether created alone
or with others, during or after working hours. All Confidential Information and
all Employee Developments shall remain the sole property of the Company and its
affiliates. Employee shall acquire no proprietary interest in any Confidential
Information or Employee Developments developed or acquired during the term. To
the extent Employee may, by operation of law or otherwise, acquire any right,
title or interest in or to any Confidential Information or Employee
Development, Employee hereby assigns to the Company all such proprietary
rights. Employee shall, both during and after the Term, upon the Company's
request, promptly execute and deliver to the Company all such assignments,
certificates and instruments, and shall promptly perform such other acts, as
the Company may from time to time in
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its discretion deem necessary or desirable to evidence, establish, maintain,
perfect, protect, enforce or defend the Company's rights in Confidential
Information and the Company Developments.
(e) Remedies for Breach. Employee expressly agrees and
understands that the remedy at law for any breach by Employee of this Section 5
will be inadequate and that damages flowing from such breach are not usually
susceptible to being measured in monetary terms. Accordingly, it is
acknowledged that upon Employee's violation of any provision of this Section 5,
the Company shall be entitled to obtain from any court of competent
jurisdiction (including without limitation in Pinellas or Hillsborough County,
Florida) immediate injunctive relief and obtain a temporary order restraining
any threatened or further breach as well as an equitable accounting of all
profits or benefits arising out of such violation. Nothing in this Section 5
shall be deemed to limit the Company's remedies at law or in equity for any
breach by Employee of any of the provisions of this Section 5 which may be
pursued or available of by the Company.
(f) Tolling of Periods. In the event Employee shall
violate any provision of this Section 5 as to which there is a specific time
period during which Employee is prohibited from taking certain actions or from
engaging in certain activities, as set forth in such provision, then, such
violation shall toll the running of such time period from the date of such
violation until such violation shall cease.
(g) Acknowledgment. Employee has carefully considered
the nature and extent of the restrictions upon Employee and the rights and
remedies conferred upon the Company under this Section 5, and Employee
acknowledges and agrees that the same are reasonable in time and territory, are
designed to eliminate competition, which otherwise would be unfair to the
Company, do not stifle the inherent skill and experience of Employee, would not
operate as a bar to Employee's sole means of support, are fully required to
protect the legitimate interests of the Company, do not confer a benefit upon
the Company disproportionate to the detriment to Employee and are material
provisions without which the Company would not employ Employee pursuant to this
Agreement.
6. Time to be Devoted by Employee. Employee agrees to devote
substantially all of her business time, attention, efforts
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and abilities to the business of the Company and to use her best efforts to
promote, protect and advance the interests of the Company.
7. Delivery of Materials. Employee agrees that upon the
termination of her employment she will deliver to the Company all documents,
papers, materials and other property of the Company relating to its affairs
which may then be in her possession or under her control.
8. Indemnification. In addition to any separate agreements
between Employee and the Company relating to indemnification, or any
indemnification provided under the Company's certificate of incorporation or
by-laws, the Company will indemnify and hold harmless Employee, to the fullest
extent permitted by applicable law, in respect of any liability, damage, cost
or expense (including reasonable counsel fees) incurred in connection with the
defense of any claim, action, suit or proceeding to which she is a party, or
threat thereof, by reason of her being or having been an officer or director of
the Company or any subsidiary or affiliate of the Company, or her serving or
having served at the request of the Company as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust,
business organization, enterprise or other entity, including service with
respect to employee benefit plans. Without limiting the generality of the
foregoing, the Company will pay the expenses (including reasonable counsel
fees) of defending any such claim, action, suit or proceeding in advance of its
final disposition, upon receipt of Employee's written agreement to repay all
amounts advanced if it should ultimately be determined that Employee is not
entitled to be indemnified under this Section.
9. Assignment. Neither this Agreement nor any rights or benefits
hereunder may be assigned by the Company or Employee except that this Agreement
may be assigned to a successor upon the Company's merger, consolidation or
disposition of substantially all of its assets.
10. Miscellaneous.
10.01 Entire Agreement. This Agreement embodies the entire
agreement and understanding between the Company and Employee relating to the
subject matter hereof. This Agreement supersedes
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and cancels all prior agreements between the Company and Employee, whether
written or oral, relating to the employment of Employee.
10.02 Governing Law. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the State of
Florida without giving effect to Florida's choice of law principles.
10.03 Notice. Any notice, request, or instruction to be
given hereunder shall be in writing and shall be deemed given when person ally
delivered or sent by telecopy transmission or three days after being sent by
United States mail, postage prepaid to the parties at their respective
addresses set forth below:
(a) To the Company: Home Shopping Club, Inc.
0000 000xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Legal Department
(b) To Employee: Xxxx Xxxxx Xxxxxx
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10.04 Severability. If any section, subsection or
provision hereof is found for any reason whatsoever to be invalid or
inoperative, that section, subsection or provision shall be deemed severable
and shall not affect the force and validity of any other provision of this
Agreement. If any covenant herein is determined by a court to be overly broad
thereby making the covenant unenforceable, the parties agree and it is their
desire that such court shall substitute a reasonable judicially enforceable
limitation in place of the offensive part of the covenant and that as so
modified the covenant shall be as fully enforceable as if set forth herein by
the parties themselves in the modified form. The covenants of Employee in this
Agreement shall each be construed as an agreement independent of any other
provision in this Agreement, and the existence of any claim or cause of action
of Employee against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
the covenants in this Agreement.
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10.05 Amendment and Waiver. This Agreement may not be
amended, supplemented or waived except by a writing signed by the party against
which such amendment or waiver is to be enforced. The waiver by any party of a
breach of any provision of this Agreement shall not operate to, or be construed
as a waiver of, any other breach of that provision nor as a waiver of any
breach of another provision.
10.06 Arbitration of Dispute. Except as set forth in
Section 5, any controversy or claim arising out of or relating to this
Agreement or to the breach thereof or to Employee's employment by the Company
(other than claims expressly excluded by statute) shall be settled exclusively
by binding arbitration conducted in the City of Tampa, Florida in accordance
with the commercial rules of the American Arbitration Association then in
effect (the "Rules"), by a single, independent arbitrator selected by the
Company and Employee . If the parties can not agree on an arbitrator, within
thirty (30) days of the commencement of an arbitration proceeding hereunder,
either party may request that the American Arbitration Association select a
candidate, with experience in employment law, in accordance with the Rules.
The decision of the arbitrator shall be final and binding. Judgment upon the
award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The cost of any arbitration proceeding conducted
hereunder shall be borne equally between Employee and the Company unless
otherwise determined by the arbitrator. By signing this Agreement, Employee
agrees that all disputes, except as set forth in the first sentence hereof,
will be decided by mutual arbitration, and Employee is giving up any right to a
jury trial or court trial.
10.07 Survival of Rights and Obligations. All rights and
obligations of Employee or the Company arising during the Term of this
Agreement shall continue to have full force and effect after the date that this
Agreement terminates or expires.
10.08 Counterparts. This Agreement may be executed in two
counterparts, each of which is an original but which shall together constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the Effective Date.
HOME SHOPPING NETWORK, INC.
By:
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XXXXX X. HELD
President and Chief
Executive Officer
EMPLOYEE
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XXXX XXXXX XXXXXX
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