EXHIBIT 10.1
A G R E E M E N T
This Agreement is made the 24th day of April, 1997, between National
Media Corporation, a Delaware corporation (the "Company"), and Xxxx X.
Xxxxxxxxx (the "Executive").
The purpose of this Agreement is to set forth the terms of the
separation of Xxxx X. Xxxxxxxxx as an employee of the Company pursuant to an
Employment Agreement between the Company and Executive dated August 26, 1994,
as amended (the "Contract"). This Agreement constitutes, inter alia, 60 days'
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prior written notice of termination pursuant to Section 2 of the Contract,
effective April 24, 1997, and, accordingly, Executive's employment by the
Company will terminate on June 23, 1997 (the "Termination Date").
The parties, intending to be legally bound, agree as follows:
1. Services. Executive shall promptly vacate his office and
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remove all personal belongings from the Company's premises, and return to the
Company all Company property in his possession or under his control.
Notwithstanding the continuation of his status as an employee until the
Termination Date, (a) Executive is not expected to perform any services for
the Company or any subsidiary, (b) Executive shall not enter any premises of
the Company or act in any way on behalf of the Company, all his authority
being revoked upon the execution and delivery of this Agreement, and (c)
Executive shall incur no charges for the account of or for which he will seek
reimbursement from the Company after April 24, 1997.
2. Compensation Before and After the Termination Date. The
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Company will continue to pay to Executive compensation at Executive's current
Base Rate of $550,000 per annum, until the Termination Date and shall continue
to do so, as contemplated by Paragraph 9(d)(1)(i) of the Contract, from the
Termination Date through June 22, 1999, which is two years after the
Termination Date, subject to applicable withholding taxes and other legally
required deductions and subject to the provisions of Paragraph 9(d)(1)(i) of
the Contract. If during such period Executive accepts employment he might not
otherwise accept under Paragraph 12(a)(1) of the Contract, he will promptly
notify the Company of such employment and provide the Company with information
about compensation to be received in connection with such activity, so that
the appropriate offsets contemplated by Paragraph 9(d)(1)(i) can be made.
3. Benefits After the Termination Date. Pursuant to the
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provisions of Paragraph 9(d)(1)(ii) of the Contract, the Company shall
maintain in full force and effect, for the period through August 30, 1998, all
employee benefit plans and programs for Executive's benefit, except option
plans and Company bonus plans. It is hereby agreed that Executive shall not
be entitled to any payment pursuant to the 1995 Management Incentive Plan of
the Company in respect of the years ended March 31, 1997 or 1998.
4. Expense Reimbursement. Executive has delivered to the Company
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each credit card supplied to him for his use in the conduct of the Company's
business, and will incur no charges on such credit cards after the date
hereof. The Company will process and pay in the ordinary course any business
expenses submitted by the Executive which were incurred on or before April 24,
1997.
5. Automobile Allowance, Insurance, and Club Dues. The Company
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will include in Executive's compensation payments solely through the
Termination Date the $800.00 per month automobile
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allowance provided for in the Contract, pay premiums on the life insurance
policy held by Executive's Life Insurance Trust for periods prior to the
Termination Date (and the Company shall seek no refunds for premiums paid
thereon to date), and pay club dues for periods prior to the Termination Date.
To the extent that Executive desires to continue any such insurance coverage
or club membership subsequent to the Termination Date, it shall be Executive's
responsibility to pay any such premiums or dues which are due to be paid prior
to or following the Termination Date to the extent that they relate to any
period after the Termination Date.
6. The Contract. Except to the extent modified in Sections 1
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through 5 of this Agreement, the Contract will remain in full force and effect
as it may apply to the Company and to Executive as an employee terminated
under Paragraph 9(c) of the Contract; and Executive's obligations under
Xxxxxxxxx 00, "Xxxxxxxxxxx Xxxxxxxx," are specifically confirmed.
7. Payments in Lieu. In settlement of disagreements between the
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parties as to their rights and obligations under the Contract, including but
not limited to Executive's right to outplacement services, the Company will
pay to Executive, promptly after the right to revoke an acceptance of this
Agreement terminates, as provided in Paragraph 10 hereof, the sum of $25,000.
The Company intends to make withholding and deductions in respect of this
payment at the same rates as have been in effect in the case of Executive's
compensation under the Contract.
8. Directorships and Officerships. Executive hereby confirms his
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resignation as an officer and as a director of the Company, and of each
subsidiary and affiliate of the Company of which he is currently serving as a
director or officer, effective at the close of business on April 24, 1997.
9. Releases.
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a. In consideration of the payment and arrangements in this
Agreement, Executive, for himself and on behalf of each of his heirs,
executors, administrators, legal representatives and assigns, does hereby
remise, release and forever discharge the Company, and each and every of the
predecessors, successors, parents, subsidiaries, affiliates, assigns,
directors, officers, shareholders, employees or agents of the Company, both
current and former (the "Company 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
Executive ever had, now has, or hereafter may have against the Company
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 Executive's employment by the Company 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 Executive may have as a
former officer or director under any provisions in the Company's Certificate
of Incorporation, Bylaws or in the Contract, providing indemnification to
Executive (including, to the extent there provided but not otherwise, the
payment of legal counsel fees and/or costs and expenses incurred in connection
therewith). If, notwithstanding the foregoing, Executive makes any claim
against the Company or any of its subsidiaries that are finally determined to
be with respect to the matters covered by this paragraph, the Company shall be
entitled to forfeit Executive's right to any further payment hereunder or
under the Contract.
b. In consideration of the arrangements in this Agreement,
the Company, for itself and on behalf of its successors and assigns does
hereby remise, release and forever discharge Executive and his heirs,
executors, administrators, and legal representatives (hereinafter "the
Executive Released
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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 the Company ever had, now has, or hereafter may
have against the Executive 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 Executive's employment by the
Company and its subsidiaries, or to his separation 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
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Older Workers Benefit Protection Act ("OWBPA"), Executive 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,
Executive will have the right to revoke or cancel the Agreement within seven
(7) days after Executive signs the Agreement by submitting written notice of
revocation to Xxxxx Xxxxx, Esq., National Media Corporation, Eleven Penn
Center, Suite 1100, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX, 00000. If Executive
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 Executive may have under any
applicable statute will be waived. Executive is not obligated to sign this
Agreement, and refusal to do so will not jeopardize Executive's right to any
benefits to which he is already entitled.
11. Confidentiality; Cooperation. a. Neither the Company nor
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Executive 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 the Company 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, after consultation with counsel, either party may conclude
disclosure is required by law or regulation. In response to any inquiry as to
the status of the Executive or his termination from the Company, neither the
Company nor the Executive shall respond other than as provided for in any
previously agreed to press release or other public statement, provided,
however, that the Company may confirm to third parties upon the request of
Executive the dates of Executive's employment at the Company, his titles
and/or compensation. Except as set out in this paragraph the existence and
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.
b. Subsequent to the Termination Date, the Executive will
consult and cooperate with the Company, to the extent reasonably requested by
the Company, without further compensation, in respect of (A) any litigation or
claims now pending or subsequently commenced or made against the Company which
relate to the period during which the Executive was employed by the Company
and with respect to which the Executive had knowledge or involvement, and (B)
the resolution of existing or former business relationships of the Company in
which the Executive had direct involvement, on behalf of the Company, during
the period he was employed by the Company; provided, however, that (a) the
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Company shall provide Executive with reasonable notice of any request for
consultation or assistance; (b) such consultation or assistance will be given
at such time or times as are reasonably convenient to both the Company and
Executive and so as to not unduly interfere with any business activity or
employment of Executive; (c) the Company shall advance or reimburse to
Executive any out-of-pocket costs incurred by him in rendering such
consultation or assistance; and (d) the Executive shall be entitled to such
exoneration and indemnification with respect to such matters as is referred to
in the penultimate sentence of Section 9a. hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first above written.
NATIONAL MEDIA CORPORATION
By:__________________________
Authorized Officer
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Xxxx X. Xxxxxxxxx
