EXHIBIT 10
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 3rd day of May, 2004, by and between
ValueVision Media, Inc., a Minnesota corporation (hereinafter referred to as
"Company"), and Xxxxx Xxxxxxx (hereinafter referred to as "Employee").
WITNESSETH:
WHEREAS, Company desires to obtain the services of Employee and
Employee desires to be employed by Company as an employee on the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of the premises and mutual promises
contained in this Agreement, the parties hereto agree as follows:
1. Employment. Company agrees to employ Employee and Employee agrees to be
employed by Company on the terms and conditions set forth in this Agreement.
2. Term. The term of Employee's employment hereunder shall commence on May
3, 2004 (the "Commencement Date") and shall continue on a full-time basis until
the second (2nd) anniversary of the Commencement Date (the "Term"). The
"Employment Period" for purposes of this Agreement shall be the period beginning
on the Commencement Date and ending at the time Employee shall cease to act as
an employee of Company.
3. Duties. Employee shall serve as Vice President - Human Resources of
Company reporting to Company's Senior Vice President of Human Resources and
shall perform the duties as assigned by Company, from time to time, and shall
faithfully, and to the best of his ability, perform such reasonable duties and
services of an active, executive, administrative and managerial nature as shall
be specified and designated, from time to time, by Company. Employee agrees to
devote his full time and skills to such employment while he is so employed,
subject to a vacation allowance of not less than four (4) weeks during each year
of the Term, or such additional vacation allowance as may be granted in the sole
discretion of the Company. The Company's Senior Vice President of Human
Resources shall provide Employee with a performance review at least annually.
4. Compensation. Employee's compensation for the services performed under
this Agreement shall be as follows:
a) Base Salary. Employee shall receive a base salary of at least
Two Hundred and Five Thousand Dollars ($205,000.00) per year
for the Term of this Agreement
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("Base Salary").
b) Bonus Salary. Employee shall have a bonus objective of One
Hundred Thousand Dollars ($100,000) for each fiscal year, and
the award of Bonus Salary in each fiscal year shall be
determined pursuant to the bonus plan and performance goals
set for Employee each year. In order to receive a Bonus Salary
with respect to any given fiscal year, Employee must be
employed by Company as of the last day of such fiscal year.
For the fiscal year ending January 31, 2005, the Employee
shall have a guaranteed bonus minimum payment of One Hundred
Thousand dollars ($100,000).
c) Signing Bonus. The Company shall pay Employee a signing bonus
of Fifty Thousand dollars ($50,000), payable within five (5)
business days of the commencement of employment with the
Company by Employee.
5. Other Benefits During the Employment Period.
a) Employee shall receive all other benefits made available to
officers of the Company, from time to time, at its discretion
("Benefits"). It is understood and agreed that the Company may
terminate such Benefits or change any benefit programs at its sole
discretion, as they are not contractual for the term hereof.
b) The Company shall reimburse Employee for all reasonable and
necessary out-of-pocket business expenses incurred during the regular
performance of services for the Company, including, but not limited to,
entertainment and related expenses so long as Company has received
proper documentation of such expenses from Employee.
c) The Company shall furnish Employee with such working
facilities and other services as are suitable to Employee's position
with the Company and adequate to the performance of his duties under
this Agreement.
6. Termination of Employment.
a. Death. In the event of Employee's death, this
Agreement shall terminate and Employee shall cease to
receive Base Salary, Bonus Salary, Auto Allowance,
and Benefits as of the date on which his death
occurs, except that Employee shall receive Bonus
Salary prorated for the number of months to date of
death.
b. Disability. If Employee becomes disabled such that
Employee cannot perform the essential functions of
his job, and the disability shall have continued for
a period of more than one hundred twenty (120)
consecutive days, then Company may, in its sole
discretion, terminate this Agreement
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and Employee shall then cease to receive Base Salary,
Bonus Salary, Auto Allowance, and all other Benefits,
on the date this Agreement is so terminated, except
that Employee shall receive Bonus Salary prorated for
the number of months to date of disability; provided
however, Employee shall then be entitled to such
disability, medical, life insurance, and other
benefits as may be provided generally for disabled
employees of Company when payments and benefits
hereunder ceases.
c. Voluntary Termination. In the event that Employee
voluntarily terminates his employment, he shall cease
to receive Base Salary, Bonus Salary, Auto Allowance,
and all other Benefits as of the date of such
termination.
d. Termination With Cause. Company shall be entitled to
terminate this Agreement and Employee's employment
hereunder for Cause (as herein defined), and in the
event that Company elects to do so, Employee shall
cease to receive Base Salary, Bonus Salary, Auto
Allowance, and Benefits as of the date of such
termination specified by Company. For purposes of
this Agreement, "Cause" shall mean: (i) a material
act or act of fraud which results in or is intended
to result in Employee's personal enrichment at the
direct expense of Company, including without
limitation, theft or embezzlement from Company; (ii)
public conduct by Employee substantially detrimental
to the reputation of Company, (iii) material
violation by Employee of any Company policy,
regulation or practice; (iv) conviction of a felony;
or (v) habitual intoxication, drug use or chemical
substance use by any intoxicating or chemical
substance. Notwithstanding the forgoing, Employee
shall not be deemed to have been terminated for Cause
unless and until Employee has received thirty (30)
days' prior written notice (a "Dismissal Notice") of
such termination. In the event Employee does not
dispute such determination within thirty (30) days
after receipt of the Dismissal Notice, Employee shall
not have the remedies provided pursuant to Section
6.g. of this Agreement.
e. By Employee for Company Cause. Employee may terminate
this Agreement upon thirty (30) days written notice
to Company (the "Employee Notice") upon the
occurrences without Employee's express written
consent, of any one or more of the following events,
provided, however, that Employee shall not have the
right to terminate this Agreement if Company is able
to cure such event within thirty (30) days (ten (10)
days with regard to Subsection (ii) hereof) following
delivery of such notice:
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(i) Company substantially diminishes Employee's
duties such that they are no longer of an
executive nature as contemplated by Section
3 hereof; or
(ii) Company materially breaches its obligations
to pay Employee as provided for herein and
such failure to pay is not a result of a
good faith dispute between Company and
Employee.
f. Other. If Company terminates this Agreement for any
reason other than as set forth in Sections 6.a, 6.b.,
6.c or 6.d. above, or if Employee terminates this
Agreement pursuant to Section 6.e. above, Company
shall pay Employee by means of regular bi-weekly
paychecks an amount equal to all Base Salary, Bonus
Salary and Auto Allowance which would otherwise be
payable until the end of the Term (collectively, the
"Severance Payment"). In addition, Company shall
continue to provide Employee with medical and dental
benefits on the same terms as made available to
active employees until the end of the Term.
g. Arbitration. In the event that Employee disputes a
determination that Cause exists for terminating his
employment pursuant to Section 6.d. of this
Agreement, or Company disputes the determination that
cause exists for Employee's termination of his
employment pursuant to Section 6.e of this Agreement,
either such disputing party may, in accordance with
the Rules of the American Arbitration Association
("AAA"), and within 30 days of receiving a Dismissal
Notice or Employee Notice, as applicable, file a
petition with the AAA for arbitration of the dispute,
the costs thereof (including legal fees and expenses)
to be shared equally by the Company and Employee
unless an order of the AAA provides otherwise. Such
proceeding shall also determine all other items then
in dispute between the parties relating to this
Agreement, and the parties covenant and agree that
the decision of the AAA shall be final and binding
and hereby waive their rights to appeal thereof.
7. Confidential Information. Employee acknowledges that the confidential
information and data obtained by him during the course of his performance under
this Agreement concerning the business or affairs of Company, or any entity
related thereto are the property of Company and will be confidential to Company.
Such confidential information may include, but is not limited to,
specifications, designs, and processes, product formulae, manufacturing,
distributing, marketing or selling processes, systems, procedures, plans,
know-how, services or material, trade secrets, devices (whether or not patented
or patentable), customer or supplier lists, price lists, financial information
including, without limitation, costs of materials, manufacturing processes and
distribution costs, business plans, prospects or opportunities, and software and
development
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or research work, but does not include Employee's general business or direct
marketing knowledge (the "Confidential Information"). All the Confidential
Information shall remain the property of Company and Employee agrees that he
will not disclose to any unauthorized persons or use for his own account or for
the benefit of any third party any of the Confidential Information without
Company's written consent. Employee agrees to deliver to Company at the
termination of his employment, all memoranda, notes, plans, records, reports,
video and audio tapes and any and all other documentation (and copies thereof)
relating to the business of Company, or any entity related thereto, which he may
then possess or have under his direct or indirect control. Notwithstanding any
provision herein to the contrary, the Confidential Information shall
specifically exclude information which is publicly available to Employee and
others by proper means, readily ascertainable from public sources known to
Employee at the time the information was disclosed or which is rightfully
obtained from a third party, information required to be disclosed by law
provided Employee provides notice to Company to seek a protective order, or
information disclosed by Employee to his attorney regarding litigation with
Company.
8. Inventions and Patents. Employee agrees that all inventions,
innovations or improvements in the method of conducting Company's business or
otherwise related to Company's business (including new contributions,
improvements, ideas and discoveries, whether patentable or not) conceived or
made by him during the Employment Period belong to Company. Employee will
promptly disclose such inventions, innovations and improvements to Company and
perform all actions reasonably requested by Company to establish and confirm
such ownership.
9. Noncompete and Related Agreements.
a) Employee agrees that during the Noncompetition Period (as
herein defined), he will not: (i) directly or indirectly own, manage,
control, participate in, lend his name to, act as consultant or advisor
to or render services alone or in association with any other person,
firm, corporation or other business organization for any other person
or entity engaged in the television home shopping and infomercial
business, or any mail order or internet business that is affiliated
with a television home shopping network or infomercial company (the
"Restricted Business"), anywhere that Company or any of its affiliates
operates during the Term of this Agreement within the continental
United States (the "Restricted Area"); (ii) have any interest directly
or indirectly in any business engaged in the Restricted Business in the
Restricted Area other than Company (provided that nothing herein will
prevent Employee from owning in the aggregate not more than one percent
(1%) of the outstanding stock of any class of a corporation engaged in
the Restricted Business in the Restricted Area which is publicly
traded, so long as Employee has no participation in the management or
conduct of business of such corporation), (iii) induce or attempt to
induce any employee of Company or any entity related to Company to
leave his, his or their employ, or in any other way interfere with the
relationship between Company or any entity related to Company and any
other employee of Company or any
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entity related to Company, or (iv) induce or attempt to induce any
customer, supplier, franchisee, licensee, other business relation of
any member of Company or any entity related to Company to cease doing
business with Company or any entity related to Company, or in any way
interfere with the relationship between any customer, franchisee or
other business relation and Company or any entity related to Company,
without the prior written consent of Company. For purposes of this
Agreement, "Noncompetition Period" shall mean the period commencing as
of the date of this Agreement and ending on either (i) the date on
which Employee ceases to be employed, if no Severance is paid (except
in the case of a voluntary departure by Employee), or (ii) the last day
of the twelfth (12th) month following either the date on which the
Employee voluntarily departs or the date on which Employee is
terminated during the Term of this Agreement if Severance is paid.
b) If, at the time of enforcement of any provisions of Section 9,
a court of competent jurisdiction holds that the restrictions stated
therein are unreasonable under circumstances then existing, the parties
hereto agree that the maximum period, scope or geographical area
reasonable under such circumstances will be substituted for the stated
period, scope or area.
c. Employee agrees that the covenants made in this Section 9
shall be construed as an agreement independent of any other provision
of this Agreement and shall survive the termination of this Agreement.
d. Employee represents and warrants to Company that he is not
subject to any existing noncompetition or confidentiality agreements
which would in any way limit him from working in the television home
shopping, catalog, infomercial or internet businesses, or from
performing his duties hereunder or subject Company to any liability as
a result of his employment hereunder. Employee agrees to indemnify and
hold Company and its affiliates harmless from and against any and all
claims, liabilities, losses, costs, damages and expenses (including
reasonable attorneys' fees) arising as a result of any noncompete or
confidentiality agreements applicable to Employee.
10. Termination of Existing Agreements. This Agreement supersedes and
preempts any prior understandings, agreements or representations, written or
oral, by or between Employee and Company, which may have related to the
employment of Employee, and upon this Agreement becoming effective, all such
understandings, agreements and representations shall terminate and shall be of
no further force or effect.
11. Specific Performance. Employee and Company acknowledge that in the
event of a breach of this Agreement by either party, money damages would be
inadequate and the nonbreaching party would have no adequate remedy at law.
Accordingly, in the event of any controversy concerning the rights or
obligations under this Agreement, such rights or obligations shall be
enforceable in a court of equity by a decree of specific performance. Such
remedy,
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however, shall be cumulative and nonexclusive and shall be in addition to any
other remedy to which the parties may be entitled.
12. Sale, Consolidation or Merger. In the event of a sale of the stock,
or substantially all of the stock, of Company, or consolidation or merger of
Company with or into another corporation or entity, or the sale of substantially
all of the operating assets of Company to another corporation, entity or
individual, Company may assign its rights and obligations under this Agreement
to its successor-in-interest and such successor-in-interest shall be deemed to
have acquired all rights and assumed all obligations of Company hereunder.
13. Stock Options. Employee shall be granted stock options for 75,000
shares of ValueVision Media, Inc. common stock ("Stock Options") with an
exercise price per share to be determined, subject to the provisions thereof and
exercisable at the time or times established by the stock option agreement
representing the Stock Options (the "Stock Option Agreement"). The Stock Options
vest in equal amounts as follows: one-third on the first anniversary of the date
of grant, one-third on the second anniversary of the date of grant, and
one-third on the third anniversary of the date of grant.
14. No Offset - No Mitigation. Employee shall not be required to mitigate
damages under this Agreement by seeking other comparable employment. The amount
of any payment or benefit provided for in this Agreement, including welfare
benefits, shall not be reduced by any compensation or benefits earned by or
provided to Employee as the result of employment by another Company.
15. Waiver. The failure of either party to insist, in any one or more
instances, upon performance of the terms or conditions of this Agreement shall
not be construed as a waiver or relinquishment of any right granted hereunder or
of the future performance of any such term, covenant or condition.
16. Attorney's Fees. In the event of any action for breach of, to enforce
the provisions of, or otherwise arising out of or in connection with this
Agreement, the prevailing party in such action, as determined by a court of
competent jurisdiction in such action, shall be entitled to receive its
reasonable attorney fees and costs from the other party. If a party voluntarily
dismisses an action it has brought hereunder, it shall pay to the other party
its reasonable attorney fees and costs.
17. Notices. Any notice to be given hereunder shall be deemed sufficient
if addressed in writing, and delivered by registered or certified mail or
delivered personally: (I) in the case of Company, to Company's principal
business office; and (ii) in the case of Employee, to his address appearing on
the records of Company, or to such other address as he may designate in writing
to Company.
18. Severability. In the event that any provision shall be held to be
invalid or unenforceable for any reason whatsoever, it is agreed such invalidity
or unenforceability shall not affect any
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other provision of this Agreement and the remaining covenants, restrictions and
provisions hereof shall remain in full force and effect and any court of
competent jurisdiction may so modify the objectionable provisions as to make it
valid, reasonable and enforceable.
19. Amendment. This Agreement may be amended only by an agreement in
writing signed by the parties hereto.
20. Benefit. This Agreement shall be binding upon and inure to the
benefit of and shall be enforceable by and against Employee's heirs,
beneficiaries and legal representatives. It is agreed that the rights and
obligations of Employee may not be delegated or assigned except as specifically
set forth in this Agreement.
21. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed as of the day, month and year first above written.
COMPANY: VALUEVISION MEDIA, INC.
By: /s/ Stann Xxxx
--------------------------------
Stann Xxxx
Senior Vice President
EMPLOYEE:
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Xxxxx Xxxxxxx
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