EXHIBIT 10.6
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of this 16th day of
July, 1997, by and among National Media Corporation, a Delaware corporation
("Parent"), Xxxx Xxxxx, an adult individual ("PM"), Xxxxxxx Xxxxxxxx, an adult
individual formerly known as Xxxxx Xxxxxx ("SK"), Xxxx Xxxxx, an adult
individual ("AM"), and Tancot Pty Limited, an Australian corporation ("TPL").
PM, SK, AM and TPL are sometimes hereinafter collectively referred to as the
"Shareholders."
W I T N E S S E T H
WHEREAS, Parent, PM, SK, AM and TPL are parties to that certain
Acquisition Agreement, dated as of May 30, 1996 (the "Acquisition Agreement"),
pursuant to which, among other things, Parent acquired Xxxxxxx Xxxx (Australia)
Pty Limited ("Subsidiary") and Telemall Shopping Pty Limited ("Telemall") from
the Shareholders (the "Acquisition");
WHEREAS, in connection with the consummation of the transactions
contemplated by the Acquisition Agreement, Subsidiary and AM entered into that
certain Employment Agreement (the "Employment Agreement") pursuant to which,
among other things, Subsidiary agreed to employ AM as an officer of Subsidiary
and certain other corporations affiliated with Parent; and
WHEREAS, the parties hereto desire to amend, revise and modify certain
provisions contained in the Acquisition Agreement and in the Employment
Agreement subject to the terms and conditions contained herein.
NOW, THEREFORE, with the foregoing deemed incorporated herein, in
consideration of the mutual covenants, conditions and agreements contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. Covenants of Parent. In consideration of the covenants and
agreements of the Shareholders set forth in Section 2 below, effective upon the
execution of this Agreement by the parties hereto, Parent agrees as follows:
(a) Issuance of Parent Shares. Parent hereby waives
satisfaction of the conditions contained in Sections 1.3(c)(i) and (ii) of the
Acquisition Agreement and agrees that such conditions shall be deemed to have
been met and satisfied as of the date hereof. Accordingly, Parent covenants and
agrees to issue to the Shareholders as soon as practicable after the date
hereof, in the aggregate, a number of shares (the "Parent Shares") of Parent
common stock, par value $.01 per share (the "Common Stock"), equal to the
quotient arrived at by dividing (i) U.S. $1,729,000 by (ii) the closing price of
the Common Stock as reported on the New York Stock Exchange on the date hereof.
-1-
Such issuance of Parent Shares shall be deemed to be in full satisfaction of any
obligation of Parent pursuant to Section 1.3(c) of the Acquisition Agreement.
(b) Waiver of "Lock-up". Parent hereby irrevocably waives and
releases, and causes Subsidiary to waive and release, the restrictions contained
in Section 6 of the Employment Agreement on AM's ability to transfer the shares
of Common Stock received by AM from Parent in connection with the Acquisition.
2. Covenants of Shareholders.
(a) Release. In consideration of the covenants and agreements
of Parent set forth in Section 1 above, effective upon the execution of this
Agreement by the parties hereto, each of PM, SK, AM and TPL does hereby remise,
release and forever discharge Parent, Subsidiary and Telemall and their
respective predecessors, successors, subsidiaries and affiliates and their
present and former agents, employees, assigns, directors and officers
(collectively, the "National Media Parties") of and from any and all debts,
demands, actions, causes of action, manner of actions, suits, accounts, dues,
covenants, contracts, agreements, judgments, controversies, damages and any and
all claims, cross claims, third-party claims, impleader or interpleader claims,
demands and liabilities whatsoever, of any nature whatsoever, both in law and in
equity, whether known or unknown (collectively "Claims"), which any of such
Shareholders ever had, now has as of the date hereof and may ever have had as of
the date hereof, prior to the date hereof or hereafter, including, but not
limited to, any and all Claims against any and all of the National Media Parties
arising from, pursuant to, or in connection with: (i) any representation,
warranty, covenant, agreement or obligation of any National Media Party
contained in the Acquisition Agreement or any other contract, instrument or
agreement executed in connection therewith; (ii) the consummation of the
Acquisition in accordance with the terms of the Acquisition Agreement; (iii) the
issuance of shares of Common Stock in connection with the Acquisition; (iv) any
action or omission of any National Media Party in connection with the
consummation of the transactions contemplated by the Acquisition Agreement and
any other contract, instrument or agreement executed in connection therewith;
and (v) any action or inaction by the National Media Parties in connection with
the management, operations or financial condition of Parent, Subsidiary and/or
Telemall on or prior to the date hereof.
(b) Limitations on Release. The release contained in Section
2(a) above shall not be deemed to apply to: (i) any covenant or obligation of
Subsidiary pursuant to the Employment Agreement; (ii) any covenant or obligation
of Prestige Marketing Limited, a New Zealand corporation ("Prestige"), pursuant
to that certain Employment Agreement by and between Prestige and PM; or (iii)
any covenant or obligation of Prestige pursuant to that certain Employment
Agreement by and between Prestige and SK.
3. Reaffirmation of Representations. Parent hereby acknowledges and
reaffirms its representations and warranties contained in Section 3.20 of the
Acquisition Agreement with respect to the issuance of Parent Shares pursuant to
Section 1(a) above. Each of the Shareholders hereby
-2-
acknowledges and reaffirms each of its representations and warranties contained
in Sections 2.24, 2.25, 2.26, 2.27, 2.29 and 2.30 of the Acquisition Agreement
with respect to the issuance of Parent Shares pursuant to Section 1(a) above and
further acknowledges and agrees that the Parent Shares to be issued pursuant to
Section 1(a) above may not be offered, sold or otherwise transferred in the
United States or to a U.S. person (as defined in Rule 902(o) of Regulation S
under the Securities Act of 1933, as amended (the "Securities Act")) unless (i)
such Parent Shares are registered under the Securities Act, (ii) such offers,
sales or transfers are made pursuant to an available exemption from the
registration requirements of the Securities Act or (iii) such Parent Shares are
sold pursuant to and in accordance with Rule 144 promulgated under the
Securities Act (or any successor rule thereto).
4. Miscellaneous Provisions.
(a) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. Except as otherwise expressly provided herein, this
Agreement may not be amended, modified or terminated at any time or times
without the unanimous agreement in writing of the parties hereto.
(b) Controlling Law. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement shall be governed
by and construed in accordance with the laws of New South Wales, Australia in
effect from time to time, notwithstanding any conflict of laws doctrines of such
jurisdiction to the contrary, and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
(c) Binding Nature of Agreement; No Assignment. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns, except that
no party may assign or transfer its rights or obligations under this Agreement
except as otherwise expressly provided herein.
(d) Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one (1) or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
(e) Paragraph Headings. The paragraph headings in this
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
-3-
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
National Media Corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
` /s/ Xxxx Xxxxx
-----------------------------------------------
Xxxx Xxxxx
` /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------------
Xxxxxxx Xxxxxxxx (formerly known
as Xxxxx Xxxxxx)
` /s/ Xxxx Xxxxx
-----------------------------------------------
Xxxx Xxxxx
Tancot Pty Limited
By: /s/ Xxxx Xxxxx
-----------------------------------------------
Name: Xxxx Xxxxx
Title: President
-4-
