agrees that Executive may continue such service so long as such service is otherwise in accordance with the preceding sentence.  The Company further approves Executive’s service on the Board of the National Retail Federation.  Executive’s principal place of employment shall be New York, New York, with substantial and regular travel outside of New York to the various businesses for which Executive is responsible, principally to St. Petersburg, Florida, and Executive acknowledges that it may be necessary, depending on the circumstances, that she spend the majority of her time outside of New York.

 

2A.                             TERM.  Subject to Section 10A hereof, the terms and conditions of this Agreement shall commence on the Effective Date and, unless a longer period is otherwise provided herein, shall continue through January 31, 2012 (the “Initial Term”); provided, however, that at the end of the Initial Term and on each succeeding anniversary thereof, the employment of Executive will be automatically continued upon the terms and conditions set forth herein for one additional year (each, a “Renewal Term”), unless either party to this Agreement gives the other party written notice (in accordance with Section 4A) of such party’s intention to terminate this Agreement and the employment of Executive at least ninety (90) days prior to the end of such initial or extended term.  For purposes of this Agreement, the Initial Term and any Renewal Term shall collectively be referred to as the “Term.”

 

3A.                             COMPENSATION.

 

(a)                                  BASE SALARY.  During the period that Executive is employed with the Company hereunder, the Company shall pay Executive an annual base salary of $1,000,000 (the “Base Salary”), payable in equal biweekly installments or in accordance with the Company’s payroll practice as in effect from time to time.  For all purposes under this Agreement, the term “Base Salary” shall refer to the Base Salary as in effect from time to time.  The Base Salary is subject to increase, but not decrease, in the sole discretion of the Compensation and Human Resources Committee (or such other committee responsible for compensation and related matters) of the Board of Directors of the Company (the “Compensation Committee”).

 

(b)                                 ANNUAL BONUS.  During the Term, Executive shall be eligible to receive an annual cash bonus (the “Bonus”) in respect of each fiscal year of the Company ending during the Term (a “Fiscal Year”).  The Bonus shall have a high performance target of 100% of the Base Salary (the “Target Bonus”), with the actual amount determined in the sole discretion of the Compensation Committee, based on the factors it deems relevant with respect to any particular year, which may include, among other factors, the performance of the Company and its subsidiaries, as applicable, against pre-established performance criteria (including their competition, their prior year results, the achievement of established initiatives, etc.), and the contribution and performance of Executive.   Bonus payments in respect of any Fiscal Year shall be made to Executive no later than the 15th day of the third month following the close of such Fiscal Year unless Executive shall elect to defer the receipt of such Bonus pursuant to an arrangement that meets the requirements of Section 409A (as defined below).

 

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(c)                                  LONG TERM INCENTIVE PLAN.               In addition to and not in lieu of the Bonus that Executive is eligible to receive pursuant to Section 3A(b) of this Agreement, Executive and the Company hereby agree to the long term incentive plan set forth on Exhibit A hereto.

 

(d)                                 INITIAL EQUITY AWARDS.  On the Effective Date, Executive shall be granted three separate options to acquire shares of common stock of the Company (“Common Stock”).  Each option shall vest annually in equal installments over four years, subject to Executive’s continued employment with the Company through the applicable vesting date, and otherwise shall be subject to the terms and conditions of the Company equity plan (the “Equity Plan”) and applicable award agreement.  The per share exercise price of the options shall be established at the time of grant as follows:

 

(i)                                     Option 1: Exercise price = $2.1 billion minus the Initial Debt divided by the Share Count;

 

(ii)                                  Option 2: Exercise price = $2.5 billion minus the Initial Debt divided by the Share Count; and

 

(iii)                               Option 3: Exercise price = $2.9 billion minus the Initial Debt divided by the Share Count.

 

Notwithstanding the foregoing, in the event any of the foregoing formulae would result in the grant of an option with an exercise price below the Fair Market Value (as defined in the Equity Plan) of the Common Stock on the date of grant, such exercise price shall instead be the Fair Market Value (as defined in the Equity Plan) of the Common Stock on such date of grant.

 

The number of shares of Common Stock subject to each option shall be determined by dividing (a) $3.3 million, by (b) (i) (x) $3.4 billion, minus (y) the Initial Debt, divided by (ii) the Share Count, minus (iii) the per share exercise price of such option (for the avoidance of doubt, the amount represented by clause (iii) shall be subtracted from the quotient of clause (i) divided by clause (ii)).  The “Initial Debt” shall be the total borrowings of the Company outstanding at the time of the HSN Spin-Off under any bank facility or other long-term indebtedness, and the “Share Count” shall be the number of absolute shares of Common Stock outstanding immediately following the HSN Spin-Off.

 

By way of example only, if the Initial Debt was $400 million and the Initial Share Count was 56.5 million, then the per share exercise price of Option 1 would be $30.08 and the number of shares subject to the option would be 143,370.

 

(e)                                  SUBSEQUENT INCENTIVE AWARDS.  During the Term, Executive shall be eligible to receive equity incentive awards pursuant to annual or other grants under any equity-based compensation plan or plans that may be established or maintained by the Company and cash incentive awards pursuant to any incentive, bonus or similar plan that may be established or maintained by the Company.  In determining whether and to what extent Executive shall participate in any such plans or programs, the Board (or the Compensation Committee thereof)

 

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shall exercise its reasonable discretion, taking into account Executive’s position and responsibilities; Executive’s and the Company’s performance; Executive’s then-existing equity position with the Company; prior equity and/or cash incentive awards granted to Executive; and equity and/or cash incentive awards granted to other executives of the Company.

 

(f)                                    BENEFITS.  From the Effective Date through the date of termination of Executive’s employment with the Company for any reason, Executive shall be entitled to participate in any welfare, health and life insurance and pension benefit programs as may be adopted from time to time by the Company on at least as favorable a basis as that provided to similarly situated employees of the Company.  Without limiting the generality of the foregoing, Executive shall be entitled to the following benefits:

 

(i)                                     Reimbursement for Business Expenses.  During the period that Executive is employed with the Company hereunder, the Company shall reimburse Executive for all reasonable and necessary expenses (including reasonable and documented costs of first/business class commercial air travel) incurred by Executive in performing Executive’s duties for the Company, on the same basis as similarly situated employees and in accordance with the Company’s policies as in effect from time to time.  Executive understands that her employment will require regular, weekly travel outside of New York to the various businesses under her direction, principally to St. Petersburg, Florida.  Additionally, during the Term and prior to any “Relocation” (as defined below), the Company will reimburse Executive for the cost of housing rental in Florida in a location within reasonable commuting distance by car to the Company’s offices in St. Petersburg, Florida, auto lease payments and auto insurance (regardless of any Company policy to the contrary), and other miscellaneous expenses associated with her regular stays in Florida (such reimbursable expenses, the “Commuting Expenses”), such total amount not to exceed $75,000 in any given fiscal year (provided, that such maximum amount may be annually increased (but not decreased) at the Board’s discretion to reflect annual increases in the Commuting Expenses).  In the event that Executive decides to relocate to St. Petersburg, Florida on a full-time basis (the “Relocation”), (A) the Company will reimburse Executive in accordance with the Company’s standard relocation policy for all reasonable relocation expenses Executive incurs and (B) Executive shall thereafter cease to be eligible for reimbursement for any of the Commuting Expenses.  In the event that any such payments or reimbursements in respect of the Commuting Expenses or the Relocation are determined to be taxable compensation to Executive, the Company shall make Executive whole for such tax obligations.  Any such make-whole tax payment made to Executive pursuant to the immediately preceding sentence shall be paid by the Company to Executive no later than the end of Executive’s taxable year next following Executive’s taxable year in which the taxes on any payments/reimbursements to Executive pursuant to this Section 3(A)(f)(i) are remitted to the Internal Revenue Service or any other applicable taxing authority.  The amount of any such fees and expenses that the Company is obligated to pay pursuant to this Section 3A(f)(i) in any given calendar year shall not affect the fees and expenses that the Company is obligated to pay in any

 

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other calendar year, and Executive’s right to have the Company pay such fees and expenses may not be liquidated or exchanged for any other benefit.

 

(ii)                                  Reimbursement for Attorneys’ Fees.  The Company shall reimburse Executive for up to $25,000 in reasonable attorneys’ fees and disembursements incurred in connection with the negotiation of this Agreement.  The amount of any such fees and expenses that the Company is obligated to pay pursuant to this Section 3A(f)(ii) in any given calendar year shall not affect the fees and expenses that the Company is obligated to pay in any other calendar year, and Executive’s right to have the Company pay such fees and expenses may not be liquidated or exchanged for any other benefit.

 

(iii)                               Vacation.  During the period that Executive is employed with the Company hereunder, Executive shall be entitled to not less than four (4) weeks of paid vacation each 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 (3) days after mailing or immediately upon duly acknowledged hand delivery to the respective persons named below:

 

If to the Company:		to the General Counsel of the Company.
If to Executive:		Mindy Grossman
		180 E. 79th Street
		Apt. 3C
		New York, New York    10021

 

Either party may change such party’s address for notices by notice duly given pursuant hereto.

 

5A.                             GOVERNING LAW; JURISDICTION.  This Agreement (including its Exhibits) 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 Delaware without reference to the principles of conflicts of laws which could cause the application of the law of any jurisdiction other than the State of New York.  Any and all disputes between the parties which may arise pursuant to this Agreement will be heard and determined before an appropriate federal court located in the County of New York, or, if not maintainable therein, then in an appropriate New York state court located in the County of New York.  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.  If Executive materially prevails in a dispute with the Company, the Company shall promptly reimburse the reasonable attorneys’ fees and related expenses incurred by Executive in such dispute at any time from the Effective Date of this Agreement through Executive’s remaining lifetime (or, if longer, through the 20^th anniversary of the Effective Date).

 

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In order to comply with Section 409A (as defined below), in no event shall the payments by the Company under this Section 5A be made later than the end of the calendar year next following the calendar year in which such fees and expenses were incurred, provided, that Executive shall have submitted an invoice for such fees and expenses at least ten (10) days before the end of the calendar year next following the calendar year in which such fees and expenses were incurred.  The amount of such legal fees and expenses that the Company is obligated to pay in any given calendar year shall not affect the legal fees and expenses that the Company is obligated to pay in any other calendar year, and Executive’s right to have the Company pay such legal fees and expenses may not be liquidated or exchanged for any other benefit.  For these purposes, if there are a series of disputes which are adjudicated in a single proceeding, whether or not a party has materially prevailed shall be evaluated in terms of the aggregate disputes.

 

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.

 

7A.                             STANDARD TERMS AND CONDITIONS.  Executive 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 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.  Capitalized terms used but not defined in the Standard Terms and Conditions shall have the meanings assigned to such terms in this Agreement.

 

8A.                             SECTION 409A OF THE INTERNAL REVENUE CODE.  This Agreement is intended to comply with the requirements of Section 409A of the of the Internal Revenue Code of 1986, as amended (the “Code”), and the rules and regulations issued thereunder (“Section 409A”)  or an exemption and shall in all respects be administered in accordance with Section 409A.    Notwithstanding anything in the Agreement to the contrary, distributions upon termination of employment may only be made upon a “separation from service” as determined under Section 409A.  Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A.  In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement that is “nonqualified deferred compensation” within the meaning of Section 409A.  All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A.   In the event the parties determine that the terms of this Agreement do not comply with Section 409A, they will negotiate reasonably and in good faith to amend the terms of this Agreement such that it complies (in a manner that attempts to minimize the economic impact of such amendment on Executive and the Company) within the time period permitted by the applicable Treasury Regulations.  In no event shall the Company be required to pay Executive any “gross-up” or other payment with respect to any taxes or penalties imposed under Section 409A with respect to any benefit paid or promised to Executive hereunder based on the Company’s reasonable good-faith interpretation of Section 409A.

 

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9A.                             CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.

 

(a)                                  If it is determined (as hereafter provided) that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement of the Company, including without limitation any restricted stock unit, stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto), or any interest or penalties with respect to such excise tax (such tax or taxes, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), then Executive will be entitled to receive an additional payment or payments (a “Gross-Up Payment”) in an amount such that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed upon the Gross-Up Payment, but excluding in all cases any income taxes and penalties imposed pursuant to Section 409A on amounts paid or promised to Executive based on the Company’s reasonable good-faith interpretation of Section 409A, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments.  Notwithstanding the foregoing provisions of this Section 9A(a), if it shall be determined in accordance with this Section 9A that Executive is entitled to the Gross-Up Payment, but that the “Parachute Value” (as defined below) of all Payments does not exceed 110% of the “Safe Harbor Amount” (as defined below), then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under this Agreement, if applicable, shall be made by reducing the payments and benefits under the following sections of the Standard Terms and Conditions in the following order: (i) Section 1(d)(i), (ii) Section 1(d)(iii), (iii) Section 1(d)(v) and (iv) Section 1(d)(iv).  For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other payments) shall be reduced. If the reduction of the amount payable under this Agreement would not result in a  reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 9A(a).  The Company’s obligation to make Gross-Up Payments under this Section 9 shall not be conditioned upon Executive’s termination of employment.

 

(b)                                 Subject to the provisions of Section 9A(f) of this Agreement, all determinations required to be made under this Section 9A, including whether an Excise Tax is payable by Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, will be made by a nationally recognized firm of certified public accountants (the “Accounting Firm”) chosen by the Company.  The Company will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and Executive within fifteen (15) calendar days after the date of the event giving rise to the Payment or the date of Executive’s termination of employment, if applicable, and any other such time or times as may be reasonably requested by the Company or Executive.  If the Accounting Firm determines that any Excise Tax is

 

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payable by Executive, the Company will pay the required Gross-Up Payment to Executive within fifteen (15) business days after receipt of such determination and calculations.  If the Accounting Firm determines that no Excise Tax is payable by Executive, it will, at the same time as it makes such determination, furnish Executive with an opinion that she has substantial authority not to report any Excise Tax on her federal, state, local income or other tax return.  Any determination by the Accounting Firm as to the amount of the Gross-Up Payment will be binding upon the Company and Executive.  As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder.  In the event that the Company exhausts or fails to pursue its remedies pursuant to Section 9A(f) hereof and Executive thereafter is required to make a payment of any Excise Tax, Executive will direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and Executive as promptly as possible.  Any such Underpayment will be promptly paid by the Company to, or for the benefit of, Executive within fifteen (15) business days after receipt of such determination and calculations.

 

(c)                                  The Company and Executive will each cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 9A(b) of this Agreement.

 

(d)                                 The federal, state and local income or other tax returns filed by Executive will be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by Executive.  Executive will make proper payment of the amount of any Excise Tax, and, at the request of the Company, provide to the Company true and correct copies (with any amendments) of her federal income tax return as filed with the Internal Revenue Service (the “IRS”) and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment.  If prior to the filing of Executive’s federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-Up Payment should be reduced, Executive will, within fifteen (15) business days pay to the Company the amount of such reduction.

 

(e)                                  The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Section 9A(b) and Section 9A(d) of this Agreement will be borne by the Company and paid as incurred; provided, however, (i) the Company shall pay the fees and expenses of the Accounting Firm not later than the end of the calendar year following the calendar year in which the related work is performed or the expenses are incurred by the Accounting Firm, (ii) the amount of the Accounting Fees that the Company is obligated to pay in any given calendar year shall not affect the Accounting Fees that the Company is obligated to pay in any other calendar year, and (iii) Executive’s right to have the Company pay such fees and expenses may not be liquidated or exchanged for any other benefit.  If such fees and expenses are initially advanced by Executive, the Company will reimburse Executive the full amount of such fees and expenses within fifteen (15) business days after receipt from Executive of a statement therefor and reasonable evidence of her payment thereof.

 

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(f)                                    Executive will notify the Company in writing of any claim by the IRS that, if successful, would require the payment by the Company of a Gross-Up Payment.  Such notification will be given as promptly as practicable but no later than ten (10) business days after Executive actually receives notice of such claim and Executive will further apprise the Company of the nature of such claim and the date on which such claim is requested to be paid (in each case, to the extent known by Executive).  Executive will not pay such claim prior to the earlier of (x) the expiration of the thirty (30) calendar-day period following the date on which she gives such notice to the Company and (y) the date that any payment of amount with respect to such claim is due.  If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will:

 

(i)                                     provide the Company with any written records or documents in her possession relating to such claim reasonably requested by the Company;

 

(ii)                                  take such action in connection with contesting such claim as the Company will reasonably request in writing from time to time, including without limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected by the Company;

 

(iii)                               cooperate with the Company in good faith in order effectively to contest such claim; and

 

(iv)                              permit the Company to participate in any proceedings relating to such claim;

 

provided, however, that the Company will bear and pay directly all costs and expenses (including interest and penalties) incurred in connection with such contest and will indemnify and hold harmless Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses; provided, further, however, (i) the Company shall pay the costs and expenses not later than the end of the calendar year following the calendar year in which the costs and expenses are incurred, (ii) the amount of such costs and expenses that the Company is obligated to pay in any given calendar year shall not affect the costs and expenses that the Company is obligated to pay in any other calendar year, and (iii) the Executive’s right to have the Company pay such costs and expenses may not be liquidated or exchanged for any other benefit.  Without limiting the foregoing provisions of this Section 9A(f), the Company will control all proceedings taken in connection with the contest of any claim contemplated by this Section 9A(f) and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in