EXHIBIT 10.2
SEPARATION AGREEMENT
This Separation Agreement (Agreement) is made and entered into this
14th day of April, 2003 by and between Xxxxxx Xxxxxxxxx ("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. Termination of Employment Agreement. Employee hereby resigns
as an officer and as an employee of the Company.
2. Benefits and Payments. Company will extend to Employee the
following consideration, pursuant to the terms of the Employment Agreement,
dated February 12, 2001 (the "Employment Agreement"), between Employee and the
Company (any capitalized terms not defined in this Agreement shall have the
meanings given them in the Employment Agreement):
a. Separation Pay and Benefits; Continuing Services. The Company
shall pay Employee an amount equal to one (1) year's Base Salary,
Auto Allowance, and Bonus Salary (calculated as set forth in
Section 6.f.) (collectively, the "Severance Payment"), less
applicable federal and state withholdings. The Severance Payment
shall be made by means of having Employee remain on the Company
payroll (with no interruptions of paychecks) as an inactive
employee for the period of once year from the date hereof
("Separation Period"). At any time during the Separation Period,
Employee may opt to collect the balance of the Severance Payment
in a lump sum, at which time, the Separation Period will
terminate. The Company and Employee agree that the Bonus Salary
to which Employee is entitled to receive shall be zero, based on
the calculation methodology set forth in Section 6.f. In
addition, Company shall continue to provide Employee with
Benefits through the end of the Term. 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. Employee is entitled to all
funds in his 401(k) plan account, and can forward any
distribution requests to the Plan Administrator.
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.
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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. Stock option grants to Employee which have not
yet vested as of the date of this Separation Agreement will
vest according to their terms during the Separation Period;
and any stock options which have not vested as of the day
prior to the last day of the Separation Period 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 Separation Period in which to exercise any options
which have vested prior to or as of 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. The
Employee and the Company agree and confirm that the termination of Employee's
employment with the Company shall be deemed a termination pursuant to Section
6.f. of the Employment Agreement. 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 following the date of this
Separation Agreement; provided, however, that Company agrees that the noncompete
obligations of Employee shall be limited by means of having the term "Restricted
Business" in Section 9 of the Employment Agreement refer only to QVC, HSN and
the Shop At Home networks.
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. Confidentiality. The terms of this agreement will be treated
as forever confidential by Employee and Company and, except as provided in this
agreement, will not be disclosed by Employee to anyone except that Employee may
make such disclosures to his career counselor, attorney, accountant, financial
planner, and spouse and immediate family, and by Company except on a
need-to-know basis. Any disclosures permitted by this paragraph will be made on
the condition that the person to whom such disclosure is made will agree as a
condition to in turn keep the terms of this agreement confidential.
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
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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 is 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 Minnesota Human Rights Act ("MHRA"), the Americans with
Disabilities Act, or any other federal, state, or local civil rights laws;
defamation; infliction of emotional distress; unlawful or wrongful termination
of employment; and any other claims for unlawful employment practices.
9. Rights Concerning Release. 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.
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10. Entire Agreement. This agreement and the employee benefits
plans and stock option 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, 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.
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 April 14, 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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EMPLOYEE
By: /s/ Xxxxxx Xxxxxxxxx
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