EXHIBIT 10.2
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 (the "Amendment") to the Employment
Agreement dated February 27, 1997 (the "Employment Agreement")
between NATIONAL MEDIA CORPORATION, a Delaware corporation (the
"Company") and XXXXXXXXX X. XXXXXX ("Hammer") is hereby entered
into as of January 5, 1998 by and between the Company, Hammer and
X-X Holdings Corp. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed thereto in the
Employment Agreement.
WHEREAS, in connection with the proposed merger between the
Company and ValueVision International, Inc., a Minnesota
corporation ("ValueVision"), pursuant to the Agreement and Plan
of Reorganization and Merger dated as of the date hereof by and
among the Company, ValueVision and X-X Holdings Corp. ("X-X
Holdings") (the "Merger Agreement"), the Company and the Hammer
wish to modify certain provision of the Employment Agreement
(which modifications will be null and void if the transactions
contemplated by the Merger Agreement are not consummated);
WHEREAS, the Company, Hammer and X-X Holdings agree that the
terms of this Amendment shall only become effective immediately
preceding consummation of the transactions contemplated by the
Merger Agreement; and
WHEREAS, X-X Holdings is a party for this Agreement only for
purposes paragraph 7 below.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein and for other good and valuable
consideration the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree to the following
amendments to the Employment Agreement, subject to Paragraph 8 of
this Amendment:
1. Term. The first sentence of Section 2 is hereby
deleted and replaced by the following sentence: "Hammer's
employment under this Agreement shall commence as of February 27,
1997 (the "Commencement Date") and terminate on the date (the
"Termination Date") that is six (6) months after the Effective
Time (as defined in the Merger Agreement), unless sooner
terminated in accordance with the provisions herein."
2. Change in Control. Section 7(a) is hereby amended to
insert the following at the end of the paragraph: "; provided,
however, that a "Change in Control" shall not include any of the
transactions contemplated by, or taken in connection with, the
Merger Agreement."
3. Change in Control. Section 7(a)(ii) is hereby amended
to read as follows: "All allowances and benefits, as contained
in Sections 3(b)-(c), 4 and 5(b) of this Agreement, shall be
continued for the full Term of this Agreement, as defined in
Section 2 of this Agreement; and"
4. Change in Control. Following the Effective Time (as
defined in the Merger Agreement), Section 7(c) is hereby amended
in its entirely to read:
"As used in this Section 7, a "Change in Control"
shall be deemed to have taken place if:
(i) subsequent to the date of this Agreement, any
"Person" (including any individual, firm,
corporation, partnership or other entity except
Xxxxxx, X-X Holdings, the Company or any employee
benefit plan of X-X Holdings or the Company or of
any Affiliate or Associate (each as defined in
Rule 12b-2 under the Securities Exchange Act of
1934, as amended), and any Person or entity
organized, appointed or established by X-X
Holdings or the Company for or pursuant to the
terms of any such employee benefit plan), together
with all Affiliates and Associates of such Person,
shall become the beneficial owner in the aggregate
of twenty percent (20%) or more of the Common
Stock of X-X Holdings then outstanding; or
(ii) during the Term of this Agreement,
individuals who, as of the date of the Effective
Time (as defined in the Merger Agreement),
constituted the Board of X-X Holdings cease for
any reason to constitute a majority thereof."
5. Retention Payment. Section 7 is hereby amended to
include the following new subparagraph (e): "Notwithstanding
anything to the contrary herein, if Hammer maintains continuous
employment with the Company on the terms and conditions hereunder
for the period commencing on the date hereof and ending on the
Termination Date, Hammer shall be entitled to receive a lump sum
payment in the amount of $200,000 on the Termination Date (the
"Retention Payment"), provided that if Hammer's employment is
terminated at any time during the period commencing on the
Effective Time and ending on the Termination Date by reason of
(and only by reason of) Hammer's death, by the Company without
"Cause" or by Hammer's resignation for "Good Reason", then Hammer
(or Hammer's estate, as the case may be) shall be entitled to
receive the Retention Payment within thirty (30) days from the
date of such termination of employment. If, as a result of any
of the foregoing events, Hammer is entitled to receive the
Retention Payment, the Company shall have no further liability or
obligations hereunder to Hammer (other than to make the Retention
Payment and to provide the allowances and benefits in accordance
with Section 3(b)-(c), Section 4 and Section 5(b) to Hammer)
(including with respect to any of the payments and benefits set
forth in Section 6). Notwithstanding anything to the contrary
herein, if a "Change in Control" occurs at any time prior to the
Termination Date, this Section 7(e) shall be null and void upon
the occurrence of such Change in Control and Hammer shall under
no circumstances be entitled to receive the Retention Payment (or
any portion thereof); provided, however, that Hammer shall be
entitled to receive all benefits to which Hammer is then entitled
to under Section 7(a) hereof.
6. Section 280G of the Tax Code. Section 7(d) is hereby
amended to insert the words "and Section 7(e)" after every
reference to "Section 7(a)."
7. Guaranty. The following Section 12 is hereby added to
the Agreement:
"12. Guaranty. Effective only in the event of the
consummation of the transactions contemplated by
the Merger Agreement, X-X Holdings shall guaranty
in full the payment of all amounts due to
Executive under the Employment Agreement."
8. Entire Agreement. The Employment Agreement, as amended
by this Amendment, constitutes the entire agreement between the
parties pertaining to the subject matter hereof and fully
supercedes any and all prior or contemporaneous agreements or
understandings between the parties hereto pertaining to the
subject matter hereof.
9. Full Force and Effect. Except as expressly amended in
this Amendment, the Employment Agreement shall remain in full
force and effect.
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10. Termination of Amendment. Notwithstanding anything to
the contrary herein, this Amendment shall immediately and
automatically terminate and have no further force and effect upon
the termination or expiration, if any, of the Merger Agreement,
in accordance with the provisions thereunder. In the event of
any such termination of this Amendment, the Employment Agreement
shall remain in full force and effect.
11. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first written above.
NATIONAL MEDIA CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
X-X HOLDINGS CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
/s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------
XXXXXXXXX X. XXXXXX
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