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EXHIBIT 10.55
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of the13th
day of January, 1997, (the "Effective Date") by and between Xxx X. Xxxxxxx (the
"Employee") and Home Shopping Network, Inc. (the "Company").
WHEREAS, the Company through its divisions or subsidiaries desires to
employ the Employee; and
WHEREAS, the Employee is desirous of being employed by the Company and
committing to serve the Company on the terms herein provided.
NOW, THEREFORE, in consideration of the forgoing 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 the Employee to
perform the duties of Executive Vice President-Chief Financial Officer ("CFO")
of the Company, and Vice President and CFO of HSN, Inc., and the Employee
accepts such employment and agrees to perform in a diligent, careful and proper
manner such reasonable responsibilities and duties commensurate with such
position as may be assigned to Employee by the officers or other designees of
the Company commencing January 13, 1997 (the "Commencement Date"). Employee
acknowledges that his job responsibilities may be revised from time to time at
the direction of management of the Company. During the term and 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
until December 31, 1999 (the "Term"), unless sooner terminated as provided in
paragraph 4.
2. Compensation.
2.01 Signing Bonus. Upon execution hereof by both parties, the
Company shall pay to Employee a net Fifty Thousand Dollars ($50,000) as a one
time signing bonus.
2.02 Salary. From and after the Commencement Date through
September 30, 1997, the Company shall pay Employee a salary at the rate of Two
Hundred Seventy-five Thousand Dollars ($275,000) per year. Commencing on each of
October 1, 1997 and October 1, 1998, Employee shall receive a salary increase of
$25,000 per year. Salary may be reviewed during the Term of this Agreement in
accordance with Company policy and adjusted accordingly hereunder. 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 employees.
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2.03 Severance. In the event that this Employment Agreement is
not renewed following the end of the Term, Employee shall be entitled to payment
of severance in the amount of annual base salary for the twelve months preceding
expiration of the Employment Agreement.
2.04 Participation in Benefit Plans.
(a) The Employee shall be entitled to participate in, or
receive benefits under, any of Company's employee benefit plans solely in
accordance with the terms of such plans and, as applicable, in the discretion of
management. In addition, Employee shall be granted options to purchase Ninety
Thousand (90,000) shares of HSN, Inc.'s common stock pursuant to the HSN, Inc.
1995 Stock Incentive Plan (the "Plan"). Such options shall be reflected in a
separate agreement which will, in accordance with the Plan, which shall provide,
among other things, the terms set forth below, and shall govern all rights and
obligations with respect to the vesting and expiration of such options.
(b) Upon involuntary termination of Employee's employment with
the Company for any reason other than death, disability or for Cause, all stock
options granted to Employee shall vest immediately.
2.05 Vacation Days. The Employee shall be entitled to four
weeks of paid vacation per year which shall accrue and be available in
accordance with Company policy. Employee shall receive paid holidays and sick
days in accordance with the Company's policies and procedures.
2.06 Bonus Plans. The Employee shall be eligible to
participate in the Company's bonus plans, as the same may exist, commencing
fiscal year 1997.
2.07 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. Moving Expenses. The Company shall pay the broker's commission on
the sale of Employee's home, temporary living expenses up to one hundred eighty
(180) days, the packing and shipping of Employee's household goods, including up
to two cars, from current home to new home, and two house-hunting trips prior to
the Commencement Date. Company will also pay all normal and customary closing
costs for Employee's new and old homes. Normal and customary closing costs
include but are not limited to: legal fees, stamp taxes, transfer taxes,
inspections, loan application fees, engineering survey, title company fees,
brokerage commissions and moving expenses.
4. Termination by Company for Any Reason.
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: (i) 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; (ii) Employee's
possession or use of illegal drugs or prohibited substance, or Employee's
excessive drinking of alcoholic beverages that impairs his ability to perform
his duties under this Agreement; (iii) Employee's commission of a tort
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or act of fraud upon the Company; (iv) a breach by Employee of any of the
covenants made by Employee in Sections 5 and 6 hereof; or (v) Employee's
continuous failure or refusal to perform his duties under this Agreement after
written notice from Employer with sixty (60) days for Employee to cure such
performance deficiencies. If the Company terminates this Agreement for Cause,
the Company shall pay to Employee his salary under this Agreement, until the
date of termination specified in the Company's notice of termination.
4.02 Termination without Cause. If the Company terminates this
Agreement without Cause (other than as a result of Employee's death or
disability), Company shall (A) pay to Employee as liquidated damages and not as
a penalty, (1) Employee's salary under this Agreement until the date of
termination and (2) 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, but in no event shall such payment be for a period of less
than twelve (12) months and (B) 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. Payment of
such salary amounts shall be made periodically as described in Section 2.02.
Employee shall be required to mitigate the amount of any payment provided for in
this paragraph 4.02 by seeking other employment or otherwise, and the amount of
any such payment shall be reduced by any compensation received by Employee as a
result of his employment by any other person, firm or corporation. As a
condition precedent to receipt of such damages, Employee shall be required, at
the time of termination, to execute a general release and waiver in favor of the
Company. In the event of termination of employment without cause, the Employer
shall be required to provide Employee with excellent job references.
4.03 Disability. In the event that Employee shall be
physically or mentally disabled so as not to be able to perform his duties
pursuant to this Agreement for any period of three months or more, the Company
shall have the right to terminate Employee's employment upon written notice of
such termination to Employee, whereupon the Company shall continue to pay
Employee his salary under this Agreement until the date of termination specified
in Company's notice of termination.
4.04 Death. This Agreement shall terminate upon the date of
death of Employee, and the Company shall be obligated to pay to the Employee's
estate his salary under this Agreement until the end of the calendar month in
which his death occurred. In the event of Employee's death, the Company shall be
required to provide on a timely basis full disclosure to Employee's spouse of
all benefits to which she would be entitled, including but not limited to,
exercise of stock options.
5. Covenant and Confidential Information.
(a) Non-Competition. During Employee's employment with the
Company and for twelve (12) months thereafter , the Employee shall not, directly
or indirectly, on behalf of the Employee or on behalf of or with any other
person, enterprise or entity, in any individual or representative capacity,
engage or participate in any business that is in competition with any subsidiary
or affiliate of Home Shopping Network, Inc. in the United States of America in
the fields of video or electronic retailing. The Employee's obligations under
this paragraph 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
the Employee's employment with the Company. The Employee's obligations under
this paragraph shall
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become null and void if the Employee's discharge from the Company is determined
in accordance with Section 9.06 hereof to be a wrongful discharge.
(b) Non-Solicitation. Employee shall not, during the twelve
(12) months following Employee's termination of employment with the Company ,
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, 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 other recording medium, and any products,
equipment, technology and any other tangible object.
(ii) Confidentiality Obligation. The 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 the 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 the Employee's own benefit or for
the benefit of any other person, enterprise or entity. The Employee's
obligations under this Paragraph 5(c)(ii) shall continue during the Term and
indefinitely after the term, and shall not, for any reason, cease upon
termination of the Employee's employment with the Company (whether by wrongful
discharge or otherwise).
(d) Proprietary Rights; Assignment. All Employee Developments
shall be made for hire by the 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 (A) relates to the business or operations of the Company or any
of its Affiliates, or (B) results from or is suggested by any undertaking
assigned to the Employee or work performed by the 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.
The Employee shall acquire no proprietary interest in any Confidential
Information or Employee Developments developed or acquired during the term. To
the extent the Employee may, by operation of law or otherwise, acquire any
right, title or interest in or to any Confidential Information or Employee
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Development, the Employee hereby assigns to the Company all such proprietary
rights. The 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 its discretion deem necessary or desirable to
evidence, establish, maintain, perfect, protect, enforce or defend the Company's
rights in Confidential Information and Company Developments.
(e) Remedies for Breach. Employee expressly agrees and
understands that the remedy at law for any breach by Employee of this Paragraph
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 Paragraph 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 Paragraph 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 Paragraph 5 which may be pursued by or available
to the Company.
(f) Tolling of Periods. In the event Employee shall violate
any provision of this Paragraph 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 Paragraph 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 his business time, attention, efforts and abilities to the
business of the Company and to use his best efforts to promote the interests of
the Company.
7. Delivery of Materials. Employee agrees that upon the termination of
his employment he will deliver to the Company all documents, papers, materials
and other property of the Company relating to its affairs which may then be in
his possession or under his control.
8. Assignment.
This Agreement and the rights and obligations of the parties
hereto shall bind and inure to the benefit of each of the parties hereto but,
except as to any such successor or assignee of the Company, neither this
Agreement nor any rights or benefits hereunder may be assigned by the Company or
the Employee.
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9. Miscellaneous.
9.01 Entire Agreement. This Agreement embodies the entire
agreement and understanding between the Company and Employee relating to the
subject matter hereof. This Agreement supersedes and cancels all prior
agreements between Company and Employee, whether written or oral, relating to
the employment of Employee.
9.02 Governing Law. This Agreement shall be construed in
accordance with, and governed for all purposes by, the laws of the State of
Florida.
9.03 Notice. Any notice, request, or instruction to be given
hereunder shall be in writing and shall be deemed given when personally
delivered or three days after being sent by United States certified mail,
postage prepaid, with return receipt requested to, the parties at their
respective addresses set forth below:
(a) To the Company: Home Shopping Network, Inc.
0000 000xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Legal Department
(b) To the Employee: Xxx X. Xxxxxxx
0000 Xxxxxxxx Xx.
Xxxxx, XX 00000
9.04 Severability. If any paragraph, subparagraph or provision
hereof is found for any reason whatsoever to be invalid or inoperative, that
paragraph, subparagraph 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.
9.05 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.
9.06 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
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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.
9.07 Survival of Rights and Obligations. All rights and
obligations of the 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.
9.08 Confidentiality. The parties agree that confidentiality
is an important element of this Agreement and that neither party will disclose
its terms to another employee or other third party, except that the Company may
disclose this Agreement to such of its employees it deems necessary or otherwise
as may be required by any securities law or other law or regulation.
9.09 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.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the Effective Date.
EMPLOYEE HOME SHOPPING NETWORK, INC.
/s/ Xxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
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Xxx X. Xxxxxxx
Name:
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Title:
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