Exhibit 10.18
AMENDMENT TO EMPLOYMENT
AGREEMENT
This AMENDMENT TO EMPLOYMENT
AGREEMENT (“Amendment”) is entered into by and between
Mark Ethier (“Employee”) and HSN, Inc., a Delaware
corporation (the “Company”), and is effective as of
December 31, 2008 (the “Effective
Date”).
WHEREAS, Employee and the Company
previously entered into an Employment Agreement dated as of
December 1, 2004 and a First Amendment to Employment Agreement
on July 9, 2007 between Employee and HSN General Partner LLC
(collectively the “Employment Agreement”);
and
WHEREAS, Employee and the Company
now wish to amend that Employment Agreement with this
Amendment.
NOW, THEREFORE, in consideration of
the mutual agreements hereinafter set forth, Employee and the
Company have agreed and do hereby agree as follows:
1. Capitalized terms used herein
without definition shall have the meanings ascribed to such terms
in the Employment Agreement.
2. The following section shall be
added as Section 7A of the Employment Agreement:
7A. SECTION 409A OF THE
INTERNAL REVENUE CODE . This Agreement is not intended to
constitute a “nonqualified deferred compensation plan”
within the meaning of Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”), and the rules
and regulations issued thereunder (“Section 409A”),
except as provided in Section 1(g) of the Standard Terms and
Conditions. It is intended that the amounts payable under this
Agreement and the Company’s and Executive’s exercise of
authority or discretion hereunder shall comply with and avoid the
imputation of any tax, penalty or interest under Section 409A
of the Code. This Agreement shall be construed and interpreted
consistent with that intent. In no event shall the Company be
required to pay Employee any “gross up” or other
payment with respect to any taxes or penalties imposed under
Section 409A with respect to any benefit paid to Employee
hereunder.
3. Sections 1(d) (e) and
(f) of the Standard Terms and Conditions attached to the
Employment Agreement and incorporated therein shall be amended and
restated to read as follows:
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(d)
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TERMINATION BY THE COMPANY
OTHER THAN FOR DEATH, DISABILITY OR CAUSE . If Employee’s employment is terminated
by the Company for any reason other than Employee’s death or
Disability or for Cause, then
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(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 any Accrued Obligations (as defined in paragraph 1(f)
below) in accordance with the terms of the plans, programs or
arrangements under which such obligations arose. The payment to
Employee of the severance benefits described in this
Section 1(d) shall be subject to Employee’s 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.
Such release shall be furnished to Employee as soon as practical
following the termination of employment , and shall be executed and
promptly returned to the Company (and in no event later than 21
days following Executive’s termination of employment, or such
longer period as may be required by applicable law). All amounts of
severance that would otherwise have been paid to Employee prior to
the date upon which the revocation period provided for in such
release shall be paid to Employee in a lump sum, without
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