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EXHIBIT 10.33
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of this
14th day of October, 1996 (the "Effective Date") by and between James G.
Gallagher (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, General Counsel and Secretary
of the Home Shopping Network division of the Company and Vice President,
General Counsel and Secretary 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 October 14, 1996 (the "Commencement Date"). 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 for a two (2) year period from the Commencement Date (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 Thirty Thousand Dollars ($30,000),
net of applicable taxes, as a one time signing bonus.
2.02 Salary. From and after the Commencement Date and
during the remaining Term of this Agreement, the Company shall pay Employee a
salary at the rate of Two Hundred Thousand Dollars ($200,000) per year in
accordance with Company policy. Salary may be reviewed during the Term of this
Agreement in accordance with Company policy and adjusted accordingly hereunder
(but not downward). 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 Participation in Benefit Plans. 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 provided to other senior level executives of the Company. In addition,
Employee shall be granted options to purchase Fifteen Thousand Seven Hundred
Fifty (15,750) shares of HSN, Inc. common stock pursuant to the Company's 1996
Stock Option Plan for Employees (the "Plan"). Such options shall be reflected
in a separate agreement which will, in accordance with the Plan, govern all
rights and obligations with respect to the vesting and expiration of such
options.
2.04 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.
2.05 Bonus Plans. The Employee shall be eligible to
participate in the Company's bonus plans, as the same may exist from time to
time, commencing fiscal year 1996.
2.06 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 to Employee his moving
expenses from his current primary residence to the Tampa Bay area in accordance
with the Company's policies and procedures.
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, 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 and
his failure to remedy such failure or refusal after sixty (60) days written
notice and opportunity to cure. 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
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Agreement during the remainder of the then current Term if this Agreement had
not been terminated 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.
Notwithstanding the foregoing, the Company agrees it shall not make any claim
or assertion of failure to mitigate, if Employee has not secured other
employment, for up to one (1) year following Employee's termination. 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.
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.
5. Covenant and Confidential Information.
(a) Non-Competition. During Employee's employment with
the Company and for eighteen (18) months thereafter (but in no event less than
forty-two (42) months from the Commencement Date), 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 field of on-line retail 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 (whether by a
wrongful discharge or otherwise).
(b) Non-Solicitation. Employee shall not, during the
eighteen (18) months following Employee's employment with the Company (but in
no event less than forty-two (42) months from the Commencement Date), 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.
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(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 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
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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 or available of by 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.
2501 118th Avenue North
St. Petersburg, FL 33716
Attn: Legal Department
(b) To the Employee: James G. Gallagher
837 S. Dakota Avenue
Tampa, FL 33606
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.
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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 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/ James G. Gallagher By: /s/
- --------------------------------- ---------------------------------
James G. Gallagher
Name:
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Title:
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