Exhibit 10.1


 


CONFIDENTIAL
VENDOR exclusivity agreement








 


This CONFIDENTIAL VENDOR
EXCLUSIVITY AGREEMENT (this “Agreement”), effective as of the date fully executed below (the “Effective Date”),
is made by and between iMedia Brands, Inc., a Minnesota corporation (“IMBI”), and Invicta Watch Company of America, Inc.
(“Invicta”), a Florida corporation. Each of IMBI and Invicta may be referred to herein individually as a “Party,”
and IMBI and Invicta may be referred to collectively as the “Parties.”


 


WHEREAS, Invicta serves
as a vendor of the product brands Invicta watches and watch accessories (collectively, “Products”);


 


WHEREAS, IMBI is digital
and TV retailing company;


 


WHEREAS, the Parties desire
to form an exclusive relationship for TV Shopping (as defined below) whereby, the Products shall only be advertised, marketed, promoted
and sold through the IMBI direct response video retailing networks on an exclusive basis.


 


NOW, THEREFORE, BE IT RESOLVED
that in consideration of the foregoing and the mutual covenants and promises contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, IMBI and Invicta hereby agree as follows:


 


AGREEMENT


 


1.            Definitions.


 


a.            “TV
Shopping”: Marketing, promotion, or sales in connection with or through any live or taped direct response video retail
programming, websites, mobile device applications, brick-and-mortar stores, videos-on-demand, interactive television, podcasts, branded
new media, social media (e.g., Facebook) or other media affiliated with Qurate, Retail Group, (“Qurate”), HSN, Inc.
(“HSN”), QVC, Inc. (“QVC”), America’s Collectibles Network, Inc. (“JTV”), or Shop
LC (“Shop LC”), including their affiliates, successors and assigns, provided, that in the event one of the parties listed
above in this definition is acquired by or merges with an unaffiliated third party, this definition will not include such unaffiliated
third party’s websites or media (so long as there is no expansion of video programming included on such websites and media subsequent
to the date of the acquisition or merger), brick-and-mortar stores, nonvideo branded new media and non-video social media (e.g., Facebook).


 


b.            “IMBI
Retailing Channels”: A combination of the IMBI television networks and IMBI’s website and mobile applications, as
well as IMBI’s platforms on social media and mobile host sites.


 


c.            “Change
of Control”: shall have the meaning as defined in the form Restricted Stock Unit Award Agreement set forth in Exhibit A.


 


d.            “Trademark(s)”:
The trademark(s) used in commerce with the Products.


 


e.            “Products”:
Products for watches and watch accessories branded under Invicta brand names.


 


f.            “Non-Competition
Period”: The period beginning with the Effective Date and ending six months after the end of the Term or other termination
of the Agreement.


 


g.            “Territory”:
North America and South America.


 


2.            Goals
of the Agreement. The parties understand and agree that this Agreement is intended to preserve and maintain the nature of their
existing business relationship, including maintaining and securing IMBI’s status as the exclusive distributor of the Products through
IMBI’s direct response video retail programming.


 






     


     


    




 


3.           Trademark
License. Until such time after the expiration or termination of this Agreement when IMBI holds no further inventory of the Products
(including, without limitation, inventory that IMBI has committed to purchase in accordance with the terms of the applicable Product
POs) (collectively, the “Sell-Off Period”), Invicta hereby grants to IMBI the non-assignable, non-transferable right
and license to the Trademarks for all the purposes contemplated under this Agreement; provided, however, that in no event shall the Sell-Off
Period and associated trademark license for IMBI exceed 180 days following the date of expiration or termination of this Agreement, as
applicable, for IMBI to sell all Invicta inventory, including but not limited to, inventory that IMBI has committed to purchase as of
the date of expiration or termination of this Agreement. Prior to the expiration of the Non-Competition Period, this license shall be
exclusive in all television retailing channels.


 


4.            Invicta
Obligations.


 


a.            Assistance
with Marketing of the Products. Invicta shall (i) cooperate and consult with IMBI as reasonably requested by IMBI, regarding
the marketing, promotion and sale of the Products; (ii) cause a spokesperson to make appearances upon IMBI’s request and in
compliance with IMBI’s standard Guest Policy, and to otherwise assist IMBI in connection with the marketing, promotion and sale
of the Products; and (iii) promote a spokesperson’s appearances through email and social media marketing.


 


b.            Product
Stream. Invicta shall provide a steady stream of Product and\or services offerings to IMBI, including first-to-market and exclusive
products, and timely information regarding such products and\or services, for IMBI’s consideration and potential purchase under
a PO.


 


c.            Exclusivity.
During the term of this Agreement and the Non-Competition Period, Invicta hereby grants to IMBI the exclusive right to market,
promote and sell, through IMBI’s live or taped direct response video retail programming in the Territory, the Products and any
goods or services that are substantially similar to or directly competitive with the Products. Invicta shall not offer the Product in
any other TV Shopping or direct response video retail programming except with the written consent of IMBI. During the Non-Competition
Period, neither Invicta, Invicta’ affiliates, nor any spokesperson, as applicable, shall directly or indirectly market, promote,
offer for sale or sell the Products, or any goods or services that are substantially similar to or directly competitive with the Products,
or any goods and services bearing or otherwise marketed in connection with one or more Trademarks, through TV Shopping or direct response
video retail programming that are competitive with IMBI Retailing Channels. Invicta agrees that its breach of this exclusivity provision
will result in immediate and irreparable injury to Company entitling Company to injunctive relief in addition to whatever damages or
other relief to which it may be entitled.


 


d.            Line
of Credit. Invicta will make available to IMBI a revolving line of credit in the amount of $3,000,000 for IMBI quarters 1 through
3 of any applicable IMBI fiscal year during the term and $4,000,000 during the fourth quarter of any fiscal year of IMBI during the Term
and any renewal thereafter.


 


5.            Stock
Grant. IMBI shall grant to Invicta restricted stock units in an amount determined by dividing $4,500,000 by the closing bid price
of IMBI’s common stock on the Nasdaq Capital Market on the trading date immediately preceding the date of this Agreement (noting
that this Agreement will be signed prior to 4:00 Eastern Time on the date of this Agreement). The restricted stock units will be on the
form set forth as Exhibit A.


 


6.            Term.


 


a.            Term.
The term of this Agreement shall begin on the Effective Date and continue for five years (the “Term”). During the final 12
months of the Term, the parties shall negotiate in good faith the terms of a five-year extension of the Term (“First Renewal Term”).


 


b.            Termination
for Breach. IMBI shall have the right to terminate this Agreement upon 30 days’ prior written notice to Invicta in the
event of a material breach of this Agreement by Invicta, which default is not cured by Invicta within such 30-day period. Notwithstanding
the foregoing, IMBI shall have the right to terminate this Agreement immediately upon the breach by Invicta of Section 4(c).


 






     


     


    

 


c.            Termination
Upon a Change of Control. Either Party shall have the right to terminate this Agreement 60 days following a Change of
Control of IMBI. Notice of termination pursuant to this Section shall be in writing and shall be delivered via trackable courier
service and shall be addressed to the General Counsel of the other Party at its main headquarters address. A notice of termination pursuant
to the Section shall be effective one (1) year following the date of receipt of such notice.


 


d.            Effect
of Termination. The expiration or termination of this Agreement shall not relieve either Party of its liabilities or obligations
under this Agreement which have accrued on or prior to the date of such expiration or termination, or are to be performed following the
termination, including, without limitation, the liabilities and obligations set forth in Sections 3-11.


 


7.            Injunctive
Relief. Invicta agrees that if it engages in any act in breach of Section 4(c) of this Agreement, then IMBI will be
entitled to, in addition to all other remedies, damages and relief available under applicable law, seek an injunction prohibiting Invicta
from engaging in any such act and to specifically enforce this Agreement.


 


8.            Representations,
Warranties, and Indemnity.


 


a.            Invicta
represents, warrants and certifies that (i) Invicta has the full right and authority to enter into this Agreement and grant all
rights, including but not limited to all rights in the Trademark(s) and intellectual property, and to perform all obligations hereunder;
(ii) Invicta has obtained all authorizations, permissions and consents and paid all fees and other charges necessary for Invicta
to enter into and perform this Agreement; and (iii) neither this Agreement nor the grant of rights or performance by Invicta hereunder
will conflict with nor violate any commitment to, or agreement or understanding Invicta has, or will have with, any other person or entity.


 


b.            Invicta
(including its agents, representatives, and contractors) agrees to defend, hold harmless and indemnify IMBI, its directors, employees,
affiliates, successors, assigns, agents and customers from and against any and all actual or threatened third-party disputes, claims,
actions, suits, proceedings, (each, a “Claim”) costs, liability, damages and expenses (including, but not limited to, reasonable
attorney’s fees, costs and expenses)(each a “Loss”) whether or not well founded in law or fact, which arise out of
or are directly or indirectly related to Invicta’s (i) violation or alleged violation of any of the representations and warranties
herein or provisions of this Agreement; (ii) liability associated with the Products; and (iii) gross negligence or willful
misconduct. Regardless of when the Loss occurs or the Claim is asserted, IMBI shall have the right to select counsel to conduct,
and shall control, any defense subject to this provision.


 


9.            Confidential
Information. The parties shall hold this Agreement, including all of its terms, in strict confidence and will not disclose or
disseminate it to any third parties, except (i) to authorized representatives, advisors, or attorneys of a Party who agree to protect
and maintain the confidentiality of such Confidential Information in accordance with the terms herein, (ii) for the purpose of enforcing
the terms of this Agreement against the other Party, or (iii) in legally required filings with the Securities and Exchange Commission,
and related press releases and investor communications. Notwithstanding the foregoing, in order to effectuate the purposes of this Agreement,
the Parties agree that this Agreement shall be provided to Invicta on a confidential basis.


 


10.          Mutual
Non-Disparagement. The Parties represent and agree that they will not malign, defame, or disparage, in written or oral form,
the reputation, character, image, products or services of the other Party.


 


11.          Limitation
of Liability. Neither Party shall be liable for anticipated or lost profits or for incidental, special, or consequential damages,
or for penalties of any kind. Actions under this Agreement must be commenced within one year after the cause of action arose.


 


12.          Attorneys’
Fees. The prevailing party in any enforcement action will be entitled to recover reasonable attorneys’ fees and all costs.
The prevailing party shall be determined by an assessment of which party’s arguments or positions on major issues can fairly be
said to have prevailed over the other. This assessment shall include consideration of the net recovery as a percentage of the amount
sought by the claimant, the resolution of key legal or factual issues, and the last settlement positions of the parties.


 






     


     


    

 


13.          Miscellaneous.


 


a.            Recitals;
Entire Agreement; Amendment. The Parties acknowledge and agree that the recitals set forth at the beginning of this Agreement
are a part of this Agreement and are incorporated herein by reference. This Agreement, including any exhibit(s) and attachment(s) hereto
(all of which are incorporated herein by reference), supersedes all prior negotiations, understandings and agreements of the Parties
relating to the subject matter hereof, and both Parties acknowledge and agree that neither Party has relied on any representations or
promises in connection with this Agreement not contained herein; provided, however, that this Agreement is intended to supplement,
and not supersede, the terms of each PO and further provided, that this Agreement is not intended to supersede any prior agreement
between the Parties related to merchandising margins and margin concessions. To the extent there is a direct conflict between this Agreement
and the PO terms, this Agreement shall prevail as to the subject of the conflicting terms. This Agreement may not be amended or modified
except by a subsequent written instrument duly executed by both Parties.


 


b.            Counterparts.
This Agreement may be executed in one or more counterparts, including by facsimile or electronic delivery, each of which shall be
deemed to be an original, but all of which shall be one and the same instrument. Each Party may use such facsimile or electronic signatures
as evidence of the execution and delivery of this Agreement by each Party to the same extent that an original could be used.


 


c.            Assignment.
The Parties shall not assign any right or claims under this Agreement without the prior written consent of the other Party, provided
that such consent shall not be unreasonably withheld and that the assignee expressly assumes all duties hereunder. Any attempted assignment
without consent shall be void.


 


d.            Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors
and assigns, including but not limited to, any surviving entity of any merger, consolidation, dissolution, joint venture or partnership,
and any entity that assumes the sale of the Products during the Term or any extension thereof.


 


e.            Governing
Law, Forum Selection, Attorney’s Fees. This Agreement and all terms and conditions hereof shall be construed under and
controlled by the laws of the State of Minnesota regardless of any contrary conflict of laws doctrine (with the parties expressly waiving
the applicability of the United Nations Convention on Contracts for the International Sale of Goods), and the federal and state courts
in Hennepin County, MN shall have sole and exclusive jurisdiction and venue over any action or claim arising from or relating to this
Agreement, or otherwise from the relationship of the Parties, all whether arising from contract, tort, statute or otherwise.


 


IN WITNESS WHEREOF, this Agreement
has been duly executed by the Parties as of the date first set forth above.


 


	 	iMedia Brands Inc.
	 	 	 
	 	Signature:	/s/ Timothy A. Peterman
	 	Name:	Timothy A. Peterman
	 	Title:	Chief Executive Officer
	 	Date:	June 9, 2021
	 	 
	 	Invicta Watch Company of America, Inc.
	 	 	 
	 	Signature:	/s/ Eyal Lalo
	 	Name: 	Eyal Lalo
	 	Title:	CEO & Owner
	 	Date:	June 9, 2021