EXHIBIT 10.48
AMENDMENT NO. 1 TO SHAREHOLDER AGREEMENT AND ACKNOWLEDGEMENT
This Amendment No. 1 to Shareholder Agreement and Acknowledgement (this
"AMENDMENT") is dated as of March 19, 2004, by and among ValueVision Media,
Inc., a Minnesota corporation previously known as ValueVision International,
Inc. (together with its successors, the "COMPANY"), GE Capital Equity
Investments, Inc., a Delaware corporation (together with its successors, "GE
CAPITAL EQUITY INVESTMENTS"), and National Broadcasting Company, Inc., a
Delaware corporation (together with its successors, "NBC").
BACKGROUND
A. The Company, GE Capital Equity Investments and NBC have previously
entered into that certain Shareholder Agreement dated as of April 15, 1999 (the
"ORIGINAL SHAREHOLDER AGREEMENT"; terms used herein but not otherwise defined
have the meanings ascribed to such terms in the Original Shareholder Agreement).
B. The Company desires to:
(1) expand the authorized size of its Board of Directors from seven to
nine members;
(2) permit the Investor to elect three of such members in accordance
with the terms of the Original Shareholder Agreement, as amended by
this Amendment; and
(3) ensure that the Company's obligation to appoint certain of its
directors to committees of the Board of Directors complies with the
requirements of applicable law.
C. The Original Shareholder Agreement must be amended in order to permit
the Company to effectuate the actions set forth in the foregoing
paragraph.
D. The parties desire to amend the Original Shareholder Agreement upon the
terms and conditions set forth herein and desire to enter into this
Amendment in order to effectuate that purpose.
E. In consideration of the mutual agreements and understandings set forth
herein, the parties hereto hereby agree as follows.
AGREEMENT
1. The first sentence of Section 2.1(a) of the Original Shareholder Agreement
is deleted in its entirety and replaced with the following sentence:
"The Company shall immediately expand the size of the Board of Directors to
nine directors and, pursuant to the terms of the Certificate of
Designation, appoint to the Board of Directors three individuals designated
by the Investor as the holder of a majority of the outstanding shares of
Preferred Stock."
2. Section 2.1(b) of the Original Shareholder Agreement is deleted in its
entirety and replaced with the following:
" (b) If the Shareholder Approval is obtained, (i) as long as the
Restricted Parties continue to Beneficially Own an aggregate number of
shares of Common Stock
equal to or greater than 50% of the number of shares of Common Stock which
the Restricted Parties Beneficially Own on the date hereof (making
equitable adjustments for any conversions, reclassifications,
reorganizations, stock dividends, stock splits, reverse splits and similar
events which occur with respect to the Common Stock), the Investor shall be
entitled to designate three individuals to be nominated to the Board of
Directors or (ii) if the condition in clause (i) of this paragraph (b) is
not satisfied, then as long as the Restricted Parties shall continue to
Beneficially Own at least 10% of the Adjusted Outstanding Common Stock, the
Investor shall be entitled to designate two individuals to be nominated to
the Board of Directors. For purpose of clause (i) above, the Preferred
Stock and the Purchase Warrant will be treated as outstanding and
exercisable as of the date hereof."
2. Section 2.1(i) of the Original Shareholder Agreement is deleted in its
entirety and replaced with the following:
" (i) As long as the Investor is entitled to designate three persons for
nomination as directors, the then current Investor may assign pursuant to
Section 5.6 the right to designate pursuant to the terms and conditions
hereof one or two of such nominees to any other Restricted Party (such that
one Restricted Party will have the right to designate two nominees and the
other Restricted Party will have the right to designate one nominee; it
being understood that in such a case for all purposes of this Agreement
where rights or obligations of the Investor or the Restricted Parties are
determined by the number of nominees the Investor is entitled to designate,
the Investor will be deemed to have the right to designate three
nominees)."
3. Section 2.2 of the Original Shareholder Agreement is deleted in its
entirety and replaced with the following:
"Section 2.2 Board Committees. As long as the Investor has the right to
designate at least one nominee to the Board of Directors, unless otherwise
agreed to by the Investor or otherwise prohibited by applicable law or the
rules and regulations of the securities exchange or automated quotation
system upon which the Common Stock is listed, (a) so long as applicable law
or the rules and regulations of the securities exchange or automated
quotation system upon which the Common Stock is listed do not permit the
Investor's Designees to serve on the Audit Committee, Compensation
Committee or Nominating and Governance Committees pursuant to the
independence requirements of such law or rules and regulations or
otherwise, the Investor shall have the right to designate one observer to
each of the Audit Committee, Compensation Committee and Nominating and
Governance Committee of the Board of Directors; provided, however, that in
the event such law or rules and regulations in the future do permit the
Investor's Designees to serve on such Committees, effective as of the time
of such change in applicable law or rules and regulations, the Investor
shall have the right to designate at least one Designee to each of the
Audit Committee, Compensation Committee, and Nominating and Governance
Committee, and (b) each other committee of the Board of Directors shall
contain a number of Designees (to the extent available), rounded upward to
the nearest whole number, equal to the total number of directors on such
committee multiplied by the percentage of the entire Board of Directors who
are Designees."
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4. Except as hereby specifically amended, the Original Shareholder Agreement
and all of the terms and provisions thereof will remain unchanged and in
full force and effect.
ACKNOWLEDGEMENT
Pursuant to Section VI(b)(vii) of the Company's Certificate of Designation
of Series A Redeemable Convertible Preferred Stock, GE Capital Equity
Investments and NBC, as holders of a majority of the Company's outstanding
shares of Series A Redeemable Convertible Preferred Stock, hereby acknowledge
and agree that the number of directors constituting the Company's Board of
Directors may be as many as nine.
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This Amendment may be executed in counterparts, each of which is deemed an
original but which together constitute one instrument. This Amendment has been
executed by the parties hereto or by their respective duly authorized
representatives, all as of the date first above written
VALUEVISION MEDIA, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Its: SVP and General Counsel
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GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxx, Xx.
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Its: President
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NATIONAL BROADCASTING COMPANY, INC.
By: /s/ Xxxxxxxx Tu
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Name: Xxxxxxxx Tu
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Its: EVP and General Counsel
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[Signature Page to Amendment No. 1 to ValueVision Shareholder Agreement
and Acknowledgement]
