EXHIBIT 10.61
VALUEVISION INTERNATIONAL, INC.
2001 OMNIBUS STOCK PLAN
INCENTIVE STOCK OPTION AGREEMENT
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Full Name of Optionee: ▇▇▇▇ ▇▇▇▇
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No. of Shares Covered: 250,000 | Date of Grant: 8/7/01
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Exercise Price Per Share: $16.410 | Expiration Date: see below
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Exercise Schedule:
No. of Shares As to
Initial Vesting Which Option Becomes Expiration
Date Exercisable as of Such Date Date
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8/7/02 83,333 8/7/07
8/7/03 83,333 8/7/08
8/7/04 83,334 8/7/09
Note: If contract is not extended at the end of six-month agreement, options
will be 1/6 vested at end of six- month agreement.
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This is an INCENTIVE STOCK OPTION AGREEMENT ("Agreement") between ValueVision
International, Inc., a Minnesota corporation (the "Company"), and the Optionee
identified above (the "Optionee") effective as of the date of grant specified
above.
RECITALS
A. The Company maintains the ValueVision International, Inc. 2001 Omnibus
Stock Plan (the "Plan").
B. The Company has appointed a committee (the "Committee") with the
authority to determine the awards to be granted under the Plan.
C. The Committee or its designee has determined that the Optionee is
eligible to receive an award under the Plan in the form of a Stock Option (the
"Option") and has set the terms and conditions thereof.
This Option is issued to the Optionee under the terms and conditions set by
the Committee as follows.
TERMS AND CONDITIONS*
1. GRANT. The Optionee is granted this Option to purchase the number of Shares
specified at the beginning of this Agreement on the terms and conditions
set forth herein.
2. EXERCISE PRICE. The price to the Optionee of each Share subject to this
Option shall be the Exercise Price specified on the first page of this
Agreement (which price shall not be less than the Fair Market Value as of
the date of grant).
3. INCENTIVE STOCK OPTION. This Option, to the extent permissible, is intended
to be an "incentive stock option" within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") or any successor
provision.
4. EXERCISE SCHEDULE. Except as provided in Section 8, this Option may be
exercised in accordance with the Exercise Schedule set forth on the first
page of this Agreement. The Exercise Schedule is cumulative - that is, if
this Option has not expired prior thereto, the Optionee may at any time
purchase all or any portion of the Shares then available under the Exercise
Schedule to the extent not previously purchased.
To the extent the total Fair Market Value (determined as of the date of
grant of an Option) of Shares with respect to which this Option and any
other incentive stock options granted by the Company or its Affiliates
shall become exercisable for the first time during any calendar year shall
exceed $100,000, such excess options shall be treated as Non-Statutory
Stock Options. This $100,000 limit shall be applied by taking such
incentive stock options into account in the order in which they are
granted.
This Option may be exercised in full (notwithstanding the Exercise
Schedule) under the circumstances described in Section 8 of this Agreement
if it has not expired prior thereto.
5. EXPIRATION. The right to exercise this Option with respect to the shares
covered hereunder shall expire at 4:00 p.m. Central Time on the earliest
of:
(a) The expiration date specified at the beginning of this Agreement for
the applicable portion of covered shares (which date shall not be
later than five (5) years after each respective vesting date for the
applicable portion of the covered shares);
(b) The last day of the period as of or following the termination of
Optionee as an employee of the Company or an Affiliate, during which
this Option can be exercised (as specified in Section 7 hereof); or
(c) The date (if any) fixed for cancellation pursuant to Section 8 of this
Agreement.
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* Unless the context indicates otherwise, capitalized terms that are not
defined in this Agreement shall have the meaning set forth in the Plan as
it currently exists or as it is amended in the future.
In no event may anyone exercise this Option, in whole or in part, after it
has expired, notwithstanding any other provision of this Agreement.
6. PROCEDURE TO EXERCISE OPTION.
Notice of Exercise. Subject to the terms and conditions of this Agreement,
this Option may be exercised by delivering advance written notice of
exercise to the Company at its headquarters in the form attached to this
Agreement or a similar form containing substantially the same information
and addressed or delivered to an authorized Company representative. The
notice shall state the number of Shares to be purchased, and shall be
signed by the person exercising this Option. If the person exercising this
Option is not the Optionee, he or she also must submit appropriate proof of
his or her right to exercise this Option.
Tender of Payment. Any notice of exercise hereunder shall be accompanied by
payment (by cash, check, bank draft or money order payable to the Company)
of the full purchase price of the Shares being purchased; to the extent
permitted by law, an Optionee may also simultaneously exercise an Option
and sell the Shares thereby acquired pursuant to a brokerage or similar
relationship so long as the cash proceeds from the sale are used promptly
as payment of the purchase price of those Shares and the Company has
received adequate assurances thereof.
Delivery of Certificates. As soon as practicable after the Company receives
a properly executed notice and the purchase price provided for above, it
shall deliver to the person exercising the Option, in the name of such
person, a certificate or certificates representing the Shares being
purchased. The Company shall pay any original issue or transfer taxes with
respect to the issue or transfer of the Shares and all fees and expenses
incurred by it in connection therewith. All Shares so issued shall be fully
paid and nonassessable. Notwithstanding anything to the contrary in this
Agreement, the Company shall not be required to issue or deliver any Shares
prior to the completion of such registration or other qualification of such
Shares under any law, rule or regulation as the Company shall determine to
be necessary or desirable.
7. VESTING REQUIREMENT. This Option may be exercised only while the Optionee
remains employed with the Company or an Affiliate or is serving as a
consultant of the Company or an Affiliate, and only if the Optionee has
been continuously in one or more such relationships with the Company or an
Affiliate, as the case may be; provided that:
(a) The Optionee may exercise this Option during the ninety (90) day
period following termination of his or her employment with the Company
or an Affiliate, but only to the extent that it was exercisable
immediately prior to such termination (i.e. the Optionee shall not
progress on the exercise schedule) and only if the Optionee's
employment was not terminated for Cause (as hereinafter defined).
(b) If the Optionee becomes totally and permanently disabled (within the
meaning of Code section 22(e)(3)) while employed by the Company or an
Affiliate, he or she may exercise this Option during the one-year
period following his or her termination of employment.
(c) If the Optionee dies while employed by the Company or an Affiliate,
the Optionee's Successor may exercise this Option during the one-year
period following the date the Optionee dies.
(d) If the Optionee ceases to be employed by the Company or an Affiliate
after a declaration made pursuant to Section 8 of this Agreement, he
or she may exercise the Option at any time permitted by such
declaration.
Notwithstanding the above, this Option may not be exercised after it
has expired.
8. ACCELERATION OF OPTION.
Disability. This Option may be exercised in full (notwithstanding the
Exercise Schedule) if the Optionee becomes totally and permanently disabled
(as defined in Code section 22(e)(3)) while employed with the Company or an
Affiliate.
Death. This Option may be exercised in full (notwithstanding the Exercise
Schedule) if the Optionee dies while employed with the Company or an
Affiliate.
Event. This Option may, at the discretion of the Optionee, be exercised in
full (notwithstanding the Exercise Schedule) if an Event shall have
occurred.
Fundamental Change. At least 30 days prior to a Fundamental Change, the
Committee may, but shall not be obligated to declare, and provide written
notice to the Optionee of the declaration, that this Option shall be
canceled at the time of, or immediately prior to the occurrence of, the
Fundamental Change (unless it is exercised prior to the Fundamental Change)
in exchange for payment to the Optionee, within ten days after the
Fundamental Change, of cash equal to the amount, for each Share covered by
the canceled Option, by which the event proceeds per share (as defined
below) exceeds the exercise price per Share covered by this Option. This
Option may be exercised in full (notwithstanding the Exercise Schedule) at
any time at the discretion of the Optionee following such declaration by
the Committee or, if no such declaration is made by the Committee, at any
time after formal notification of the proposed Fundamental Change has been
given to the Company's shareholders, and prior to the time of cancellation
of this Option. This Option, to the extent it has not been exercised prior
to the Fundamental Change, shall be canceled at the time of, or immediately
prior to, the Fundamental Change, as provided in the declaration, and this
Agreement shall terminate at the time of such cancellation, subject to the
payment obligations of the Company provided in this paragraph.
In the case of a Fundamental Change that consists of the merger or
consolidation of the Company with or into any other corporation or
statutory share exchange, the Committee, in lieu of the declaration above,
may make appropriate provision for the protection of this Option by the
substitution, in lieu of this Option, of an option to purchase appropriate
voting common stock or appropriate voting common stock of the corporation
surviving any such merger or consolidation or, if appropriate, the parent
corporation of the Company or such surviving corporation.
For purposes of the preceding paragraphs, the "event proceeds per share" is
the cash plus the value (as determined by the Committee) of the non-cash
consideration to be received per Share by the shareholders of the Company
upon the occurrence of the Fundamental Change.
9. LIMITATION ON TRANSFER. While the Optionee is alive, only the Optionee or
the Optionee's guardian or legal representative may exercise this Option.
This Option may not be assigned or transferred other than by will or the
laws of descent and distribution, and shall not be subject to pledge,
hypothecation, execution, attachment or similar process. Any attempt to
assign, transfer, pledge, hypothecate or otherwise dispose of this Option
contrary to the provisions hereof, and the levy of any attachment or
similar process upon this Option, shall be null and void.
10. NO SHAREHOLDER RIGHTS BEFORE EXERCISE. No person shall have any of the
rights of a shareholder of the Company with respect to any Share subject to
this Option until the Share actually is issued to the Optionee upon
exercise of this Option.
11. DISCRETIONARY ADJUSTMENT. The Committee shall make appropriate adjustments
in the number of Shares subject to this Option and in the purchase price
per Share to give effect to any adjustments made in the number and type of
outstanding Shares through a Fundamental Change, recapitalization,
reclassification, stock combination, stock dividend, stock split or other
relevant change; provided that, fractional Shares shall be rounded to the
nearest whole Share.
12. TAX WITHHOLDING.
General Rule. If the Company or an Affiliate is required to withhold
federal, state or local income taxes, or social security or other taxes,
upon the exercise of this Option, the person exercising this Option shall,
upon exercise and demand by the Company or Affiliate, promptly pay in cash
such amount as is necessary to satisfy such requirement prior to receipt of
such Shares; provided that, in lieu of all or any part of such cash
payment, the Committee may (but shall not be required to) allow the person
exercising this Option to cover all or any part of the required
withholdings, and to cover any additional withholdings up to the amount
needed to cover the full federal, state and local income tax obligation of
such person with respect to income arising from the exercise of this
Option, through a reduction of the number of Shares delivered or through a
subsequent return to the Company of Shares delivered, in each case valued
in the same manner as used in computing the withholding taxes under
applicable laws.
Committee Approval; Revocation. The Committee may approve an election under
this section to reduce the number of Shares delivered in advance, but the
approval is subject to revocation by the Committee at any time. Once the
person exercising this Option makes such an election, he or she may not
revoke it.
Exception. Notwithstanding the foregoing, the Optionee who tenders
previously owned Shares to the Company in payment of the purchase price of
Shares in connection with an option exercise may also tender previously
owned Shares to the Company in satisfaction of any tax withholding
obligations in connection with such option exercise without regard to the
specified time periods set forth above for insiders. If the Company or an
Affiliate is required to withhold federal, state or local income taxes, or
social security or other taxes, upon the exercise of this Option, the
person exercising this Option shall, upon exercise and demand by the
Company or Affiliate, promptly pay in cash such amount as is necessary to
satisfy such requirement.
13. FORFEITURES. The Company, by action of the Committee, will have the right
and option (the "Termination Right") to terminate this Option prior to
exercise, if the Committee determines that the Optionee (i) has engaged in
competition with the Company or its Affiliates during the term of the
Optionee's employment with the Company or its Affiliates or within six
months after the termination of such employment (the "Applicable Period")
that the Committee concludes is detrimental to the Company or its
Affiliates, (ii) has made an unauthorized disclosure of material non-public
or confidential information of the Company or any of its Affiliates during
the Applicable period, (iii) has committed a material violation of any
applicable written policies of the Company or any of its Affiliates during
the Applicable Period or any provision of a written employment agreement
between Optionee and the Company or any of it Affiliates, (iv) has engaged
in conduct reflecting dishonesty or disloyalty to the Company or any of its
Affiliates during the Applicable Period; or (v) the Optionee's employment
with the Company was terminated for Cause.
The decision to exercise the Company's Termination Right will be based
solely on the judgment of the Committee, in its sole and complete
discretion, given the facts and circumstances of each particular case. Such
Termination Right may be exercised by the Committee within 90 days after
the Committee's discovery of an occurrence that entitles it to exercise its
Termination Right (but in no event later than 6 months after the Optionee's
termination of employment with the Company or its Affiliates). Such
Termination Right will be deemed to be exercised effective immediately upon
the Company's mailing written notice of such exercise postage prepaid,
addressed to the Optionee at the Optionee's most recent home address as
shown on the personnel records of the Company. The Termination Right of the
Company may not be exercised on or after the occurrence of any Event.
14. CAUSE. Cause means (A) in the case where Optionee does not have a written
employment agreement with the Company or any of its Affiliates, a
termination of employment of the Optionee due to (i) the inability or
failure of the Optionee to adequately perform the material duties of his or
her position, (ii) conduct reflecting dishonesty or disloyalty to the
Company and its Affiliates, (iii) failure to comply with the material
business plans, policies or practices of the Company or its Affiliates or
(iv) an unauthorized disclosure of material non-public or confidential
information of the Company or its Affiliates and (B) in the case where
Optionee has a written employment agreement with the Company or any of its
Affiliates, the meaning ascribed to such term therein.
15. INTERPRETATION OF THIS AGREEMENT. All decisions and interpretations made by
the Committee with regard to any question arising hereunder or under the
Plan shall be binding and conclusive upon the Company and the Optionee. If
there is any inconsistency between the provisions of this Agreement and the
Plan, the provisions of the Plan shall govern.
16. DISCONTINUANCE OF EMPLOYMENT. This Agreement shall not give the Optionee a
right to continued employment with the Company or any Affiliate, and the
Company or Affiliate employing the Optionee may terminate his or her
employment and otherwise deal with the Optionee without regard to the
effect it may have upon him or her under this Agreement.
17. OBLIGATION TO RESERVE SUFFICIENT SHARES. The Company shall at all times
during the term of this Option reserve and keep available a sufficient
number of Shares to satisfy this Agreement.
18. BINDING EFFECT. This Agreement shall be binding in all respects on the
heirs, representatives, successors and assigns of the Optionee.
19. CHOICE OF LAW. This Agreement is entered into under the laws of the State
of Minnesota and shall be construed and interpreted thereunder (without
regard to its conflict of law principles).
IN WITNESS WHEREOF, the Optionee and the Company have executed this
Agreement effective as of the 7th day of August, 2001.
VALUEVISION INTERNATIONAL, INC. OPTIONEE
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇
Its: President and Chief
Executive Officer