Exhibit
10.1
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT
(Agreement) is entered into by and between Mark Ethier (Employee) and HSN
General Partner LLC, a Delaware limited liability company (the Company), and
is effective December 1, 2004 (the Effective Date).
WHEREAS, the Company
desires to establish its right to the services of Employee, in the capacity
described below, on the terms and conditions hereinafter set forth, and
Employee is willing to accept such employment on such terms and conditions.
NOW, THEREFORE, in
consideration of the mutual agreements hereinafter set forth, Employee and the
Company have agreed and do hereby agree as follows:
1A. EMPLOYMENT. The Company agrees to employ Employee as
Chief Operations Officer, and Employee accepts and agrees to such
employment. During Employees employment
with the Company, Employee shall do and perform all services and acts necessary
or advisable to fulfill the duties and responsibilities as are commensurate and
consistent with Employees position and shall render such services on the terms
set forth herein. During Employees
employment with the Company, Employee shall report directly such
person(s) as from time to time may be designated by the Company
(hereinafter referred to as the Reporting Officer). Employee shall have such powers and duties
with respect to the Company as may reasonably be assigned to Employee by the
Reporting Officer, to the extent consistent with Employees position and status. Employee agrees to devote all of Employees
working time, attention and efforts to the Company and to perform the duties of
Employees position in accordance with the Companys policies as in effect from
time to time. Employees principal place
of employment shall be the Companys offices located in St. Petersburg,
Florida.
2A. TERM
OF AGREEMENT. The term (Term) of
this Agreement shall commence on the Effective Date and shall continue until
March 1, 2008, unless sooner terminated in accordance with the provisions
of Section 1 of the Standard Terms and Conditions attached hereto.
3A. COMPENSATION.
(a) BASE
SALARY. During the Term of this
Agreement, the Company shall pay Employee an annual base salary of $360,000
through February 28, 2005 and then effective March 1, 2005 an annual
base salary of $400,000 for the remainder of the Term (the Base Salary), payable in equal
biweekly installments or in accordance with the Companys payroll practice as
in effect from time to time. For all
purposes under this Agreement, the term Base Salary shall refer to Base
Salary as in effect from time to time.
(b) DISCRETIONARY
BONUS. During the Term, Employee
shall be eligible to receive discretionary annual bonuses.
(c) BENEFITS. From the Effective Date through the date of
termination of Employees employment with the Company for any reason, Employee
shall be entitled to participate in any welfare, health and life insurance and
pension benefit and incentive programs
as may be adopted from time to time by the Company on the same basis as
that provided to similarly situated employees of the Company. Without limiting the generality of the
foregoing, Employee shall be entitled to the following benefits:
(i) Reimbursement
for Business Expenses. During the
Term, the Company shall reimburse Employee for all reasonable and necessary
expenses incurred by Employee in performing Employees duties for the Company,
on the same basis as similarly situated employees and in accordance with the
Companys policies as in effect from time to time.
(ii) Paid
Time Off (PTO). During the Term,
Employee shall be entitled to paid time off per year, in accordance with the
plans, policies, programs and practices of the Company applicable to similarly
situated employees of the Company generally.
4A. NOTICES. All notices and other communications under
this Agreement shall be in writing and shall be given by first-class mail,
certified or registered with return receipt requested or hand delivery
acknowledged in writing by the recipient personally, and shall be deemed to
have been duly given three days after mailing or immediately upon duly
acknowledged hand delivery to the respective persons named below:
If to the Company:
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HSN General Partner LLC
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1 HSN Drive
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St. Petersburg, FL
33729
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Attention: General
Counsel
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If to Employee:
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Mark Ethier
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4309 Beach Park Drive
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Tampa, FL 33609
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Either party may change
such partys address for notices by notice duly given pursuant hereto.
5A. GOVERNING
LAW; JURISDICTION. This Agreement
and the legal relations thus created between the parties hereto shall be
governed by and construed under and in accordance with the internal laws of the
State of Florida without reference to the principles of conflicts of laws. Any and all disputes between the parties
which may arise pursuant to this Agreement will be heard and determined before
an appropriate federal court in Pinellas or Hillsborough Counties or, if not
maintainable therein, then in an appropriate Florida state court. The parties acknowledge that such courts have
jurisdiction to interpret and enforce the provisions of this Agreement, and the
parties consent to, and waive any and all objections that they may have as to,
personal jurisdiction and/or venue in such courts.
6A. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument. Employee expressly understands and
acknowledges that the Standard Terms and Conditions attached hereto are incorporated
herein by reference, deemed a part of this Agreement and are binding and
enforceable provisions of this Agreement.
References to this
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Agreement or the use of
the term hereof shall refer to this Agreement and the Standard Terms and
Conditions attached hereto, taken as a whole.
IN WITNESS WHEREOF, the
Company has caused this Agreement to be executed and delivered by its duly
authorized officer, and Employee has executed and delivered this Agreement on
December 1st, 2004.
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HSN GENERAL PARTNER LLC
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/s/ Lisa Letizo
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By: Lisa Letizio
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Title: Executive VP Human Resources
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/s/ Mark Ethier
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MARK ETHIER
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STANDARD TERMS AND
CONDITIONS
1. TERMINATION
OF EMPLOYEES EMPLOYMENT.
(a) DEATH. In the event Employees employment hereunder
is terminated by reason of Employees death, the Company shall pay Employees
designated beneficiary or beneficiaries, within 30 days of Employees death in
a lump sum in cash, Employees Base Salary through the end of the month in
which death occurs and any Accrued Obligations (as defined in paragraph
1(f) below).
(b) DISABILITY. If, as a result of Employees incapacity due
to physical or mental illness (Disability), Employee shall have been absent
from the full-time performance of Employees duties with the Company for a
period of four consecutive months and, within 30 days after written notice is
provided to Employee by the Company (in accordance with Section 6 hereof),
Employee shall not have returned to the full-time performance of Employees
duties, Employees employment under this Agreement may be terminated by the
Company for Disability. During any
period prior to such termination during which Employee is absent from the
full-time performance of Employees duties with the Company due to Disability,
the Company shall continue to pay Employees Base Salary at the rate in effect
at the commencement of such period of Disability, offset by any amounts payable
to Employee under any disability insurance plan or policy provided by the
Company. Upon termination of Employees
employment due to Disability, the Company shall pay Employee within 30 days of
such termination (i) Employees Base Salary through the end of the month
in which termination occurs in a lump sum in cash, offset by any amounts
payable to Employee under any disability insurance plan or policy provided by
the Company; and (ii) any Accrued Obligations (as defined in paragraph 1(f) below).
(c) TERMINATION
FOR CAUSE. The Company may terminate
Employees employment under this Agreement for Cause at any time prior to the
expiration of the Term. As used herein,
Cause shall mean: (i) the plea
of guilty or nolo contendere to, or conviction for, the commission of a felony
offense by Employee; provided, however, that after indictment,
the Company may suspend Employee from the rendition of services, but without
limiting or modifying in any other way the Companys obligations under this Agreement;
(ii) a material breach by Employee of a fiduciary duty owed to the
Company; (iii) a material breach by Employee of any of the covenants made
by Employee in Section 2 hereof; (iv) the willful or gross neglect by
Employee of the material duties required by this Agreement; or (v) a
violation of any Company policy pertaining to ethics, wrongdoing or conflicts
of interest. In the event of Employees termination for Cause, this
Agreement shall terminate without further obligation by the Company, except for
the payment of any Accrued Obligations (as defined in paragraph
1(f) below).
(d) TERMINATION
BY THE COMPANY OTHER THAN FOR DEATH, DISABILITY OR CAUSE. If Employees employment is terminated by the
Company for any reason other than Employees death or Disability or for Cause,
then (i) the Company shall pay Employee the Base Salary through the end of
the Term over the course of the then remaining
Term; and (ii) the Company shall pay Employee within 30 days of
the date of such termination in a lump sum in cash any Accrued Obligations (as
defined in paragraph 1(f) below).
The payment to Employee of the severance benefits described in this
Section 1(d) shall be subject to Employees execution and non-revocation
of a general release of the Company and its affiliates in a form substantially
similar to that used for similarly situated executives of the Company and its
affiliates.
(e) MITIGATION;
OFFSET. In the event of termination
of Employees employment prior to the end of the Term, Employee shall use
reasonable best efforts to seek other employment and to take other reasonable
actions to mitigate the amounts payable under Section 1 hereof. If Employee obtains other employment during
the Term, the amount of any payment or benefit provided for under Section 1
hereof which has been paid to Employee shall be refunded to the Company by
Employee in an amount equal to any compensation earned by Employee as a result
of employment with or services provided to another employer after the date of
Employees termination of employment and prior to the otherwise applicable
expiration of the Term, and all future amounts payable by the Company to
Employee during the remainder of the Term shall be offset by the amount earned
by Employee from another employer. For
purposes of this Section 1(e), Employee shall have an obligation to inform
the Company regarding Employees employment status following termination and
during the period encompassing the Term.
(f) ACCRUED
OBLIGATIONS. As used in this
Agreement, Accrued Obligations shall mean the sum of (i) any portion of
Employees Base Salary through the date of death or termination of employment
for any reason, as the case may be, which has not yet been paid; and
(ii) any compensation previously earned but deferred by Employee (together
with any interest or earnings thereon) that has not yet been paid.
2. CONFIDENTIAL
INFORMATION; NON-COMPETITION; NON-SOLICITATION; AND PROPRIETARY RIGHTS.
(a) CONFIDENTIALITY. Employee acknowledges that while employed by
the Company Employee will occupy a position of trust and confidence. Employee shall not, except as may be required
to perform Employees duties hereunder or as required by applicable law,
without limitation in time or until such information shall have become public
other than by Employees unauthorized disclosure, disclose to others or use,
whether directly or indirectly, any Confidential Information regarding the
Company or any of its subsidiaries or affiliates. Confidential Information shall mean
information about the Company or any of its subsidiaries or affiliates, and
their clients and customers that is not disclosed by the Company or any of its
subsidiaries or affiliates for financial reporting purposes and that was
learned by Employee in the course of employment by the Company or any of its
subsidiaries or affiliates, including (without limitation) any proprietary
knowledge, trade secrets, data, formulae, information and client and customer
lists and all papers, resumes, and records (including computer records) of the
documents containing such Confidential Information. Employee acknowledges that such Confidential
Information is specialized, unique in nature and of great value to the Company
and its subsidiaries or affiliates, and that such information gives the Company
and its subsidiaries or affiliates a competitive advantage. Employee agrees to deliver or return to the
Company, at the Companys request at any time or upon termination or expiration
of Employees employment or
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as soon thereafter as possible, all documents, computer tapes and
disks, records, lists, data, drawings, prints, notes and written information
(and all copies thereof) furnished by the Company and its subsidiaries or
affiliates or prepared by Employee in the course of Employees employment by
the Company and its subsidiaries or affiliates.
As used in this Agreement, subsidiaries and affiliates shall mean any company
controlled by, controlling or under common control with the Company.
(b) NON-COMPETITION. During
Employees employment with the Company and for twelve (12) months thereafter,
Employee shall not, directly or indirectly, on behalf of 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, including its
affiliated Internet entities, that is in competition with the Company or any
subsidiary or affiliate of the Company in the United States of America in the
field of television retailing, including, without limitation, QVC, Shop NBC
(formerly called ValueVision) or Shop at Home, as well as any company which
subsequently enters the field of television retailing as its primary business
(collectively, the Competing Companies). Employees obligations under this
Section 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
Employees employment with the Company.
Notwithstanding anything else contained in this Section, Employee may
own, for investment purposes only, up to five percent (5%) of the stock of any
Competing Company if it is a publicly-held corporation whose stock is either
listed on a national stock exchange or on the NASDAQ National Market System and
if Employee is not otherwise affiliated with or participating in such
corporation. As used herein,
participate means lending ones name to, acting as consultant or advisor to,
being employed by or acquiring any direct or indirect interest in any business
or enterprise, whether as a stockholder, partner, officer, director, employee,
consultant or otherwise. In the event
that (1) the Company or any of its subsidiaries or affiliates places, or
has placed for it, all or substantially all of its assets up for sale within
one (1) year after termination of Employees employment hereunder or
(2) Employees employment is terminated in connection with the disposition
of all or substantially all of such assets (whether by sale of assets, equity
or otherwise), Employee agrees to be bound by, and to execute such additional
instruments as may be necessary or desirable to evidence Employees agreement
to be bound by, the terms and conditions of any non-competition provisions
relating to the purchase and sale agreement for such assets, without any
consideration beyond that expressed in this Agreement, provided that the
purchase and sale agreement is negotiated in good faith with customary terms
and provisions and the transaction contemplated thereby is consummated. Notwithstanding the foregoing, in no event
shall Employee be bound by, or obligated to enter into, any non-competition
provisions referred to in this Section 2(b) which extend beyond
twelve (12) months, in each case from the date of termination of Employees
employment hereunder or whose scope extends the scope of the non-competition
provisions set forth in this Section 2(b).
The twelve (12) month time period referred to above shall be tolled on a
day-for-day basis for each day during which Employee participates in any
activity in violation of this Section 2(b) so that Employee is
restricted from engaging in the conduct referred to in this
Section 2(b) for a full twelve (12) months.
(c) NON-SOLICITATION
OF EMPLOYEES. Employee recognizes
that he will possess confidential information about other employees of the
Company and its subsidiaries or
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affiliates relating to their education, experience, skills, abilities,
compensation and benefits, and inter-personal relationships with suppliers to
and customers of the Company and its subsidiaries or affiliates. Employee recognizes that the information he
will possess about these other employees is not generally known, is of
substantial value to the Company and its subsidiaries or affiliates in
developing their respective businesses and in securing and retaining customers,
and will be acquired by Employee because of Employees business position with
the Company. Employee agrees that,
during the Term (and for a period of 24 months beyond the expiration of the
Term), Employee will not, directly or indirectly, solicit or recruit any
employee of the Company or any of its subsidiaries or affiliates for the
purpose of being employed by Employee or by any business, individual,
partnership, firm, corporation or other entity on whose behalf Employee is
acting as an agent, representative or employee and that Employee will not
convey any such confidential information or trade secrets about other employees
of the Company or any of its subsidiaries or affiliates to any other person
except within the scope of Employees duties hereunder.
(d) PROPRIETARY
RIGHTS; ASSIGNMENT. All Employee
Developments shall be made for hire by the Employee for the Company or any of
its subsidiaries or affiliates.
Employee Developments means any idea, discovery, invention, design,
method, technique, improvement, enhancement, development, computer program,
machine, algorithm or other work or authorship that (i) relates to the
business or operations of the Company or any of its subsidiaries or affiliates,
or (ii) 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 subsidiaries or 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 or any of its subsidiaries or 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 Development, the
Employee hereby assigns to the Company all such proprietary rights. The Employee shall, both during and after the
Term, upon the Companys 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, enforce or
defend the Companys rights in Confidential Information and Employee
Developments.
(e) COMPLIANCE
WITH POLICIES AND PROCEDURES. During
the Term, Employee shall adhere to the policies and standards of
professionalism set forth in the Companys Policies and Procedures as they may
exist from time to time.
(f) REMEDIES
FOR BREACH. Employee expressly
agrees and understands that Employee will notify the Company in writing of any
alleged breach of this Agreement by the Company, and the Company will have 30
days from receipt of Employees notice to cure any such breach.
Employee expressly agrees and understands that the
remedy at law for any breach by Employee of this Section 2 will be
inadequate and that damages flowing from such breach are
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not usually susceptible to being measured in monetary terms. Accordingly, it is acknowledged that upon
Employees violation of any provision of this Section 2 the Company shall
be entitled to obtain from any court of competent jurisdiction 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 Section 2 shall be deemed to limit the Companys remedies at law
or in equity for any breach by Employee of any of the provisions of this
Section 2, which may be pursued by or available to the Company.
(g) SURVIVAL
OF PROVISIONS. The obligations
contained in this Section 2 shall, to the extent provided in this
Section 2, survive the termination or expiration of Employees employment
with the Company and, as applicable, shall be fully enforceable thereafter in
accordance with the terms of this Agreement.
If it is determined by a court of competent jurisdiction in any state
that any restriction in this Section 2 is excessive in duration or scope
or is unreasonable or unenforceable under the laws of that state, it is the
intention of the parties that such restriction may be modified or amended by
the court to render it enforceable to the maximum extent permitted by the law
of that state.
3. TERMINATION
OF PRIOR AGREEMENTS. This Agreement
constitutes the entire agreement between the parties and terminates and
supersedes any and all prior agreements and understandings (whether written or
oral) between the parties with respect to the subject matter of this
Agreement. Employee acknowledges and
agrees that neither the Company nor anyone acting on its behalf has made, and
is not making, and in executing this Agreement, the Employee has not relied
upon, any representations, promises or inducements except to the extent the
same is expressly set forth in this Agreement.
Employee hereby represents and warrants that by entering into this
Agreement, Employee will not rescind or otherwise breach an employment
agreement with Employees current employer prior to the natural expiration date
of such agreement
4. ASSIGNMENT;
SUCCESSORS. This Agreement is
personal in its nature and none of the parties hereto shall, without the
consent of the others, assign or transfer this Agreement or any rights or
obligations hereunder, provided that, in the event of the merger,
consolidation, transfer, or sale of all or substantially all of the assets of
the Company with or to any other individual or entity, this Agreement shall,
subject to the provisions hereof, be binding upon and inure to the benefit of
such successor and such successor shall discharge and perform all the promises,
covenants, duties, and obligations of the Company hereunder, and all references
herein to the Company shall refer to such successor.
5. WITHHOLDING. The Company shall make such deductions and
withhold such amounts from each payment and benefit made or provided to
Employee hereunder, as may be required from time to time by applicable law,
governmental regulation or order.
6. HEADING
REFERENCES. Section headings in
this Agreement are included herein for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose. References to this Agreement or the use of
the term hereof shall refer to these Standard Terms and Conditions and the
Employment Agreement attached hereto, taken as a whole.
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7. WAIVER;
MODIFICATION. Failure to insist upon
strict compliance with any of the terms, covenants, or conditions hereof shall
not be deemed a waiver of such term, covenant, or condition, nor shall any
waiver or relinquishment of, or failure to insist upon strict compliance with,
any right or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times. This Agreement shall not be modified in any
respect except by a writing executed by each party hereto. Notwithstanding anything to the contrary
herein, neither the assignment of Employee to a different Reporting Officer due
to a reorganization or an internal restructuring of the Company or its
affiliated companies nor a change in the title of the Reporting Officer shall
constitute a modification or a breach of this Agreement.
8. SEVERABILITY. In the event that a court of competent
jurisdiction determines that any portion of this Agreement is in violation of
any law or public policy, only the portions of this Agreement that violate such
law or public policy shall be stricken.
All portions of this Agreement that do not violate any statute or public
policy shall continue in full force and effect.
Further, any court order striking any portion of this Agreement shall
modify the stricken terms as narrowly as possible to give as much effect as
possible to the intentions of the parties under this Agreement.
9. INDEMNIFICATION. The Company shall indemnify and hold Employee
harmless for acts and omissions in Employees capacity as an officer, director
or employee of the Company to the maximum extent permitted under applicable
law; provided, however, that neither the Company, nor any of its
subsidiaries or affiliates shall indemnify Employee for any losses incurred by
Employee as a result of acts described in Section 1(c) of this
Agreement.
ACKNOWLEDGED AND
AGREED:
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Date: 12/1/04
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HSN GENERAL PARTNER LLC
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/s/ Lisa Letizo
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By: Lisa Letizio
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Title: Executive VP Human Resources
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/s/ Mark Ethier
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MARK ETHIER
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FIRST
AMENDMENT TO EMPLOYMENT AGREEMENT
This FIRST AMENDMENT TO
EMPLOYMENT AGREEMENT (First Amendment) is entered into by and between Mark
Ethier (Employee) and HSN General Partner LLC, a Delaware limited liability
company (the Company), and is effective as of the date signed below
(Effective Date).
WHEREAS, Employee and
Company previously entered into an Employment Agreement as of December 1,
2004; and
WHEREAS, Employee and
Company now wish to modify that Employment Agreement with this First Amendment.
NOW, THEREFORE, in
consideration of the mutual agreements hereinafter set forth, Employee and
Company have agreed and do hereby agree as follows:
A. Section 2A, TERM
OF AGREEMENT, shall extend two (2) years from March 1, 2008
unless sooner terminated in accordance with the provisions of Section 1 of
the Standard Terms and Conditions.
B. Section 3A, BASE SALARY, shall remain the same during the
Term.
C. Unless specifically
changed by this First Amendment, all other terms and conditions in the
Employment Agreement shall remain in full force and effect.
D. The Employment
Agreement and this First Amendment shall be referred to collectively as the
Agreement.
IN WITNESS WHEREOF,
Employee and Company have executed this First Amendment on this 9th
day of July, 2007.
/s/ Lisa Letizio
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/s/ Mark Ethier
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Lisa Letizio
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Mark Ethier
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VP Human Resources
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SECOND
AMENDMENT TO EMPLOYMENT AGREEMENT
This SECOND AMENDMENT TO
EMPLOYMENT AGREEMENT (Second Amendment) is entered into by and between Mark
Ethier (Employee) and HSN General Partner LLC, a Delaware limited liability
company (the Company), and is effective as of the date signed below
(Effective Date).
WHEREAS, Employee and
Company previously entered into an Employment Agreement as of December 1, 2004,
and a First Amendment to Employment Agreement as of July 9, 2007 ( collectively
the Employment Agreement); and
WHEREAS, Employee and
Company now wish to modify that Employment Agreement with this Second
Amendment.
NOW, THEREFORE, in
consideration of the mutual agreements hereinafter set forth, Employee and
Company have agreed and do hereby agree as follows:
A. Section 3A, BASE SALARY, shall be $450,000 during the
Term.
B. Unless specifically
changed by this Second Amendment, all other terms and conditions in the
Employment Agreement shall remain in full force and effect.
C. The Employment
Agreement and this Second Amendment shall be referred to collectively as the
Agreement.
IN WITNESS WHEREOF,
Employee and Company have executed this First Amendment on this 23rd
day of June, 2008.
/s/ Lisa Letizio
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/s/ Mark Ethier
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Lisa Letizio
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Mark Ethier
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VP Human Resources
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