EXHIBIT 10.2
REVISED
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A G R E E M E N T
This agreement is made the 21st day of October 1996 between National
Media Corporation, a Delaware corporation ("NMC"), and Xxxxx Xxxxxx.
The purpose of this agreement is to set forth the terms of the
separation of Xxxxx Xxxxxx as an employee of NMC pursuant to an Employment
Agreement between NMC and Xxxxxx dated June 1, 1993, as amended (the
"Contract"). Pursuant to the Contract, Xxxxxx'x employment by NMC ended on
September 29, 1996.
The parties, intending to be legally bound, agree as follows:
1. Compensation After the Date of Termination. NMC will make the
payments to Xxxxxx contemplated by Section 8(d)(1)(i) of the Contract from the
date of termination on September 29, 1996 until May 31, 1997, the expiration of
the term of the Contract, subject to applicable withholding taxes and other
legally required deductions. Pursuant to Xxxxxx'x request, NMC will not withhold
any amount in respect of taxes on Xxxxxx'x compensation. If during such period
Xxxxxx accepts employment he might not otherwise accept under Section 10(a)(1)
of the Contract, he will promptly notify NMC of such employment and provide NMC
with information about payments of salary and other guaranteed amounts, so that
the appropriate offsets contemplated by Section 8(d)(1(i) can be made.
2. Benefits After the Date of Termination. Notwithstanding the
provisions of Section 8(d)(1)(ii) of the Contract, Xxxxxx shall not be entitled
to any payment pursuant to the 1995 Management Incentive Plan of NMC in respect
of the year ended March 31, 1997, nor be entitled to any outplacement services.
3. Automobile Allowance. NMC will include in Xxxxxx'x compensation
payments the $800.00 per month automobile allowance provided for in the
Contract. Such payments will terminate at the end of May 1997.
4. Pension Payments. The provision for a pension payment in the July
17, 1995 Amendment to the Contract is amended to provide that the amount of the
pension contribution shall be paid to Xxxxxx, or to a person designated by
Xxxxxx, rather than to the person designated in the Contract. Xxxxxx has
designated the law firm of Frankfurt, Xxxxxx, Xxxxx & Xxxx as the person to
which such payments are to be made, and NMC will make payments to the designated
person through May 1997. The amount of such monthly payment is $5,091.66
5. The Contract. Except to the extent modified in Sections 1 through 5
of this agreement, the Contract will remain in full force and effect after the
date hereof, and each of its provisions, including but not limited to Section 10
relating to competition, trade secrets, injunctive relief, among other things,
are confirmed.
6. Payments in Lieu. In settlement of disagreements between the parties
as to their rights and obligations under the Contract, including but not limited
to Xxxxxx'x right to
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outplacement services and Xxxxxx'x right to a payment under the 1995 Management
Incentive Plan for the year ended March 31, 1997, NMC will pay to Xxxxxx, within
ten days after the date hereof, the sum of $125,000.00. Pursuant to Xxxxxx'x
request, NMC will not withhold any amount in respect of taxes on such payment.
NMC intends to make withholding and deductions at the same rates as have been in
effect in the case of Xxxxxx'x compensation under the Contract.
7. Directorships and Officerships. Xxxxxx hereby confirms his
resignation as an officer and as a director of NMC, and of each subsidiary and
affiliate of NMC of which he is currently serving as a director or officer,
effective at the close of business on October 16, 1996.
8. Extension of Option Exercise Period. Notwithstanding anything to the
contrary contained in NMC's Amended and Restated Stock Option Plan, the date by
which all vested and unexercised stock options previously granted to Xxxxxx
under such Plan may be exercised shall be extended until the close of business
on March 3, 1997. All such stock options which have not been exercised as of
such date shall terminate.
9. Releases.
(a) In consideration of the payment and arrangements in this
Agreement, Xxxxxx, for himself and on behalf of each of his heirs, executors,
administrators, legal representatives and assigns does hereby remise, release
and forever discharge NMC, and each and every of the predecessors, successors,
parents, subsidiaries, affiliates, assigns, directors, officers, shareholders,
employees or agents of NMC, both current and former (hereinafter "the NMC
Released Parties"),
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of and from every claim, demand, right of action or cause of action whatsoever,
and from all debts, obligations, costs (including but not limited to attorney's
fees), expenses, damages, losses and liabilities whatsoever, whether known or
unknown, that Xxxxxx ever had, now has, or hereafter may have against the NMC
Released Parties arising out of or relating to any matter, thing, or event
occurring up to and including the date of this agreement, relating to the
Contract or to Xxxxxx'x employment by NMC and its subsidiaries, or to his
separation or to his status as a director and officer, including claims arising
under the Age Discrimination in Employment Act, Pennsylvania Human Relations
Act, and any other federal, state or local statute, ordinance, rule, regulation
or common-law principle. Notwithstanding the foregoing, nothing in this section
is intended to diminish any right that Xxxxxx may have as a former officer or
director under any provisions providing indemnification to Xxxxxx. If,
notwithstanding the foregoing, Xxxxxx makes any claim against NMC or any of its
subsidiaries with respect to the matters covered by this paragraph, NMC shall be
entitled to forfeit Xxxxxx'x right to any further payment hereunder or under the
Contract.
(b) In consideration of the payment and arrangements in this
Agreement, NMC, for itself and on behalf of its successors and assigns does
hereby remise, release and forever discharge Xxxxxx and his heirs, executors,
administrators, legal representatives and assigns (hereinafter "the Xxxxxx
Released Parties"), of and from every claim, demand, right of action or cause of
action whatsoever, and from all debts, obligations, costs (including but not
limited to attorney's fees), expenses, damages, losses and liabilities
whatsoever, whether known or unknown, that NMC ever had, now has, or hereafter
may have against the Xxxxxx Released Parties arising out of or relating to any
matter, thing, or event occurring up to and including the date of this
agreement, relating to the Contract or to Xxxxxx'x employment by NMC and its
subsidiaries, or to his separation
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or to his status as a director and officer, including claims arising under any
federal, state or local statute, ordinance, rule, regulation or common-law
principle.
10. Time Allowed to Review this Agreement. In compliance with the Older
Workers Benefit Protection Act ("OWBPA"), Xxxxxx has twenty-one (21) days to
consider this Agreement prior to signing the Agreement and is hereby advised to
consult an attorney prior to signing the Agreement. In addition, Xxxxxx will
have the right to revoke or cancel the Agreement within seven (7) days after
Xxxxxx signs the Agreement by submitting written notice of revocation to
Xxxxxxxx Xxxxxxxx, Esq., National Media Corporation, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000. If Xxxxxx signs the Agreement and does not revoke the
Agreement, the Agreement will become binding, irrevocable, and enforceable at
the expiration of such seven (7) day revocation period and any rights which
Xxxxxx may have under any applicable statute will be waived. Xxxxxx is not
obligated to sign this Agreement, and refusal to do so will not jeopardize
Xxxxxx'x right to any benefits to which he is already entitled.
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11. Confidentiality. Neither NMC nor Xxxxxx will issue any press
release or publish any public document or make any public statement relating to
or connected with or arising out of any matters relating to his employment by
NMC or its termination or any matters contained in this Agreement without the
prior written consent of the other as to its contents and the manner of its
presentation and publication except as may be required by law or regulation.
Except as set out in this paragraph the contents of this Agreement shall remain
entirely confidential, except that each party may disclose it to the Internal
Revenue Service and to their respective professional advisers.
12. Dispute resolution. The parties will endeavor to settle any dispute
without resort to litigation or arbitration. If, however, a dispute under this
Agreement becomes the subject of litigation or arbitration, the trier of fact
shall award the attorneys fees of each party as he or she may see fit to
recognize the relative merits of the positions of each party.
IN WITNESS WHEREOF, the parties hereto have executed this agreement
on the date first above written.
National Media Corporation
By: /s/
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/s/
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Xxxxx Xxxxxx
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