EXHIBIT 10.1
SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is made and entered into this
30th day of June, 2003 by and between Xxxx Xxxx ("Employee") and ValueVision
Media, Inc., a Minnesota corporation ("Company").
In consideration of the terms and conditions set forth below, Company
and Employee agree as follows.
AGREEMENT
1. Resignation as Officer of the Company. Employee hereby resigns as an
officer of the Company as of the date hereof, and shall no longer have the
duties or responsibilities of an active executive for the Company, but shall
continue as an inactive employee and as a consultant to the Company through
August 7, 2004 (the period from the date hereof through August 7, 2004 is the
"Term" for purposes of this Agreement).
2. Benefits and Payments. Company will extend to Employee the following
consideration:
a. Separation Pay and Benefits; Continuing Services. Employee
shall remain on the Company payroll and continue to receive
the annual base salary of $300,000 (the "Base Salary") and
Employee's monthly Auto Allowance, through the end of the
Term, less applicable federal and state withholdings. In
addition, Company shall continue to provide Employee with the
employee benefits as previously provided to Employee
("Benefits") through the end of the Term, and shall pay to
Employee any Bonus Salary to which he may be entitled.
Promptly following the signature by Employee of this
Agreement, Company will pay in a lump sum all accrued and
unpaid vacation time to which Employee is entitled, less
applicable federal and state withholdings. Employee will not
accrue any additional vacation time from or after the date
hereof. Employee will promptly submit the expense forms and
documentation for any unpaid business expenses, and these will
be promptly processed and reimbursed to Employee consistent
with Company policies.
b. COBRA Insurance Coverage. If Employee elects any insurance
coverage under COBRA following the Term, then Employee shall
be responsible for all amounts due for such insurance
coverages under COBRA.
c. No Other Remuneration. Employee agrees that he is not entitled
to any remuneration from the Company except as provided in
this Agreement. This includes back pay, sick pay, vacation and
holiday pay, bonuses or any other compensation.
d. Stock Options and Restricted Stock. Stock option grants and
restricted stock grants to Employee which have not yet vested
as of the date of this Separation Agreement will vest
according to their terms during the Term; and any stock
options and restricted stock grants which have not vested as
of the day prior to the last day of the Term shall be
accelerated and vest as of such date. Pursuant to the
provisions of the stock option agreements with Employee,
Employee will have a period of ninety (90) days from the last
day of the Term in which to exercise any options which have
vested prior to or as of
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such date, and following such 90th day, any remaining
unexercised stock options held by Employee shall be null and
void.
3. Non-Disparagement. Employee will not disparage Company, its
affiliated businesses, or its officers, board members, or employees. The Company
will not issue or release any public statements that are disparaging of
Employee, and the senior executives of the Company will not disparage Employee.
4. Employment Agreement; Continuing Obligations of Employee. Employee
understands and agrees that he continues to be subject to the provisions of
Section 7 (Confidential Information), Section 8 (Inventions and Patents) and
Section 9 (Noncompete and Related Agreements) of the Employment Agreement, dated
August 7, 2001, between Employee and the Company following the date of this
Separation Agreement; provided, however, that Company agrees that the noncompete
obligations of Employee shall end on the last day of the Term; and provided,
further, that the clause "Restricted Business" in Section 9 (Noncompete and
Related Agreements) shall only refer to QVC, the Home Shopping Network (HSN),
and the Shop At Home network. Except for the provisions noted above, the
Employment Agreement shall be terminated and have no further force and effect
upon the execution of this Separation Agreement by the parties.
5. Records, Documents and Property. Employee hereby agrees and
covenants that he has returned or will return all of Company's property,
records, correspondence, and documents in Employee's possession.
6. [Reserved].
7. Non-Admission. Nothing in this agreement is intended to be, nor will
be deemed to be, an admission of liability by Company or Employee that they have
violated any state or federal statute, local ordinance, or principal of common
law, or that Company or Employee has engaged in any wrongdoing.
8. Mutual Release. (a) In consideration of the payments and other
benefits of this agreement, the Company and Employee hereby fully and finally
mutually release, waive, and otherwise relinquish any and all claims that they
have against one another through the date of this Agreement. The Company and
Employee will not bring any lawsuits or make any other demands against one
another, except as necessary to enforce this Agreement. The payments or other
benefits that the Company and Employee will receive under this Agreement are
full and fair consideration for the release of such claims. Company and Employee
do not owe anything other than what is set forth in this Agreement.
For purposes of this section, Company means ValueVision Media, Inc. and
any company related to it in the past or present, and each of them; and past or
present officers, directors, agents and employees of Company and any other
person who acted on behalf of Company or on instructions from Company.
The claims that Employee is releasing, waiving, and otherwise
relinquishing hereunder include all of the rights he has now to any relief of
any kind from Company, including but not limited to, claims for breach of
contract; breach of fiduciary duty; fraud or misrepresentation; discrimination
claims under the Age Discrimination in Employment Act ("ADEA"), the Minnesota
Human Rights Act ("MHRA"), the Americans with Disabilities Act, or any other
federal, state, or local civil rights laws; defamation;
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infliction of emotional distress; unlawful or wrongful termination of
employment; and any other claims for unlawful employment practices.
9. Rights Concerning Release. Employer hereby advises Employee to
consult with an attorney prior to signing this Agreement containing a waiver of
claims under the ADEA or the MHRA.
Employee has been advised to retain counsel of his choice before
signing this Agreement releasing any rights or claims he believes he may have
under the ADEA. Employee has 21 calendar days to consider this release,
beginning on the date hereof, unless earlier waived by Employee. If Employee
signs this Agreement, he is entitled to revoke his release of any rights or
claims under the ADEA within 7 calendar days after executing it, and it shall
not become effective or enforceable until this 7-day period has expired.
Employee understands that he has the right to rescind his release of
discrimination rights and claims under the MHRA within fifteen (15) calendar
days of the date upon which he signs this agreement. He understands that, if he
desires to do so, he must put the rescission in writing and deliver it to
Company, in care of Xxxxxx Xxxxx, Esq., ValueVision Media, Inc., 0000 Xxxxx Xxx
Xxxx, Xxxx Xxxxxxx, XX 00000, by hand or mail within fifteen (15) calendar days
of the date of execution of this Agreement. If he delivers the rescission by
mail, it must be:
a. postmarked within fifteen (15) calendar days of the
day on which he signs this agreement;
b. addressed to Xxxxxx Xxxxx, Esq. at the above address;
and
c. sent by certified mail, return receipt requested.
10. Entire Agreement. This agreement and the employee benefits plans
and stock option agreements and restricted stock agreements in which Employee
may be a participant, constitute the entire agreement between the parties with
respect to the termination of Employee's employment relationship with Company at
the end of the Term, and the parties agree that there were no other inducements
or representations leading to the negotiation, drafting, and execution of this
Agreement. Employee and Company acknowledges that they have read and understand,
and voluntarily enter into, this Agreement.
11. Invalidity. In case any one or more of the provisions of this
agreement should be invalid, illegal, or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained in
this agreement will not in any way be affected or impaired.
12. Heirs and Successors. This agreement shall inure to the benefit of
and shall bind the parties, their heirs, successors, representatives, and
assigns.
13. Governing Law. This agreement shall be construed and interpreted in
accordance with the laws of the state of Minnesota.
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14. Counterparts. This agreement may be executed simultaneously in two
or more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
15. Consultation Services. Employee agrees that, during the period from
the date hereof until August 7, 2004, the Company may from time to time seek his
advice or consult with him, at reasonable times mutually agreed by the parties,
with respect to matters that Employee handled or issues with which Employee has
particular knowledge or expertise.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
on the day and year first above written.
VALUEVISION MEDIA, INC.,
By: /s/ X. Xxxxx Xxxx
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X. Xxxxx Xxxx
EMPLOYEE
By: Xxxx Xxxx
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Xxxx Xxxx
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