Exhibit 10.51
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, is made as of the 20th day of March, 1998,
by and between NATIONAL MEDIA CORPORATION, a Delaware corporation (the "Company"
or "National Media"), and XXXX X.
XXXXX ("Executive").
WITNESSETH
WHEREAS, Executive, DirectAmerica Corporation, a wholly-owned
subsidiary of National Media, and National Media entered into an employment
agreement on October 24, 1995 in connection with the acquisition of
DirectAmerica Corporation by National Media (the "Prior Agreement");
WHEREAS, the parties wish to enter into this agreement in lieu of such
prior agreement for periods subsequent to the date hereof;
WHEREAS, Executive is willing to serve the Company on a full-time basis
during the term hereof, subject to the terms and conditions hereinafter set
forth; and
WHEREAS, the Company desires to employ Executive in accordance with the
terms hereof.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, it is agreed as follows:
1. Employment. The Company hereby employs Executive, and Executive
hereby accepts employment from the Company, upon the terms and conditions
hereinafter set forth.
2. Term of Employment. The term ("Term") of this Agreement shall be
deemed to have commenced as of the date hereof (the "Commencement Date") and
shall continue thereafter until September 30, 1998 (the "Termination Date"),
unless sooner terminated in accordance with the terms hereof. As used herein,
"Term" shall refer to the initial Tenn of this Agreement. "Termination Date"
shall refer to the last day of the Term of this Agreement.
3. Duties. Executive shall be engaged as, and hold the positions of,
President of the Company and as Chairman, President and Chief Executive Officer
of DirectAmerica Corporation d/b/a Quantum TV, and in such other capacities as
the Boards of Directors of
1
DirectAmerica Corporation or the Company shall decide. Executive shall have such
authority and responsibilities as are normally attendant thereto and agrees to
perform such duties and render such services consistent therewith, and as may
from time to time be reasonably required of him by the Company. Executive shall
devote his full business time, attention and best efforts to the affairs of the
Company during the Tenn of this Agreement. Executive will report directly to the
Company's Board of Directors (the "Board") and to the Chairman and/or Chief
Executive Officer of the Company, as instructed by the Board. Of even date
herewith, Executive shall be appointed as a director of the Company, effective
as soon as practicable. Provided, however, that during any period that National
Media is a publicly-held company, Executive's service as a director of National
Media shall be at the discretion of National Media's shareholders.
4. Compensation and Reimbursement for Expenses.
4.1 Base Salary. The Company shall pay to Executive a minimum
base salary of Three Hundred Twenty Five Thousand Dollars ($325,000.00) per
annum (as the same may be increased or decreased (but not below $325,000) from
time to time, the "Base Salary"). The Base Salary shall be payable in accordance
with the Company's regular payroll practices in effect from time to time and
shall be subject to annual review and adjustment as the Board deems appropriate.
The Base Salary may be increased or decreased from time to time in the
discretion of the Board; provided, however, that Executive's Base Salary shall
at no time be less than Three Hundred Twenty Five Thousand Dollars ($325,000.00)
per annum. In addition to the Base Salary, Executive shall be advanced an
aggregate of Seventy Five Thousand Dollars ($75,000.00) per annum, in
installments, against bonuses otherwise payable hereunder to Executive. Such
Base Salary and advance shall be deemed to have commenced as of October 1, 1997.
4.2 Bonus. Executive shall not participate in National Media's
Management Incentive Plan or any other bonus plan or program of the Company or
DirectAmerica or X-X Holdings Corp., as referred to in Paragraph 10 below, or
any of the Company's other subsidiaries, other than the Production Bonus program
described in Exhibit A attached hereto and made a part hereof. The Production
Bonus program shall be deemed to have taken effect
2
as of October 1, 1997 but only as to products/show revenues generated after
October 1, 1997. The applicability of any other bonus or incentive plans will be
deemed to have ceased as of October 1, 1997.
4.3 Reimbursement of Expenses. The Company will promptly
reimburse Executive, upon receipt of vouchers therefor, for all reasonable and
necessary expenses incurred by Executive for travel, entertainment and
miscellaneous and other business expenses which are incurred in connection with
the performance of his duties hereunder. such reimbursements shall be made in
accordance with the regular reimbursement procedures and practices in effect
from time to time for similarly situated officers of National Media and its
other subsidiaries.
5. Fringe Benefits.
5.1 General. Other than as specifically set forth herein,
during the Term, unless this Agreement is sooner terminated in accordance with
the terms hereof, Executive shall be entitled to participate in any and all
fringe and other employee benefit type programs generally available to the
officers of National Media and its subsidiaries, including without limitations
profit sharing plans, thrift and savings plans, insurance plans, supplemental
insurance health, medical, and savings investment plans and benefit plans.
However, nothing contained in this subparagraph 5.1 shall be construed as
requiring the Company or National Media generally to maintain any such benefit
program or to make any discretionary grant to Executive thereunder.
5.2 Life Insurance.
(a) Purchase. During the Term hereof, unless this
Agreement is sooner terminated in accordance with the terms hereof, if
Executive chooses to obtain a life insurance policy (term, whole life,
universal life, etc.) concerning Executive, the Company will reimburse
Executive for the amount of the premiums therefor (covering portions of the
Term, no more than six (6) months at one time) as set forth in invoices
presented to the Company; provided the Company shall not be required to
reimburse premiums in excess of the out-of-pocket costs it would otherwise
have incurred had Executive purchased a one year or shorter $1,000,000 term
policy for a person of Executive's age who was in good health at the time of
3
application. The Company shall have no claim to any accrued cash value of any
such policy upon Termination hereunder.
5.3 Automobile Allowance. During the Tenn, unless this
Agreement is sooner terminated in accordance with the terms hereof, the
Company shall pay Executive a monthly automobile allowance of Eight Hundred
Dollars ($800.00) which shall be deemed to compensate Executive for all
automobile related costs, including, but not limited to, insurance, fuel,
maintenance, wear and tear, etc.
5.4 Club Memberships. During the Term, unless this
Agreement is sooner terminated in accordance with the terms hereof, the
Company shall pay Executive's reasonable dues and membership fees (up to a
maximum-reimbursement of $2000 per annum) in one (1) health and/or eating
club of Executive's choice. Executive's club-related expenses other than dues
and membership fees may be reimbursed to Executive by the Company in
accordance with the provisions and requirements of subparagraph 4.3 hereunder.
5.5 Vacations; Holidays; Sick Leave. During the Term,
unless this Agreement is sooner terminated in accordance with the terms
hereof, Executive shall be entitled to such number of paid vacation days in
each calendar year as are generally awarded to senior executive officers of
National Media, but not less than three (3) weeks in any calendar year
(prorated in any calendar year during which Executive is employed hereunder
for less than the entire year in accordance with the number of days in such
calendar year during which he is so employed). Notwithstanding any other
National Media company policy generally applicable to non-executive
employees, other than as set forth herein, Executive shall not be permitted
to carry over any portion of Executive's accrued but unused vacation time
from one fiscal year to the next fiscal year; provided, however, that in the
event applicable law renders the preceding clause unenforceable, Executive
shall be permitted to carry over accrued but unused vacation time, but in no
event shall Executive be permitted to accrue at any time more than three (3)
weeks' vacation time. If Executive is unable to utilize planned vacation time
in a given year due to the demands of the business as set forth by the
Chairman or the Chief Executive Officer of National Media, and such vacation
time is not thereafter used in the applicable year, Executive shall be paid
for such accrued but unused vacation time at the expiration of such year.
4
Executive shall also be entitled to all paid holidays and sick leave as are
generally awarded to senior executives of National Media.
6. Non-Disclosure. Executive shall not at any time during the Term of
this Agreement or thereafter, except (i) as properly required in the conduct of
the business of the Company and as authorized by the Company, or (ii) as
otherwise required by law or court order, or (iii) to his attorneys,
accountants, financial advisors or other professional advisors as necessary in
the conduct of their services to Executive, disclose or authorize anyone else to
disclose any secret, proprietary or confidential information, material or matter
relating to the Company or any of its customers. For purposes of this agreement,
"secret, proprietary or confidential information" shall not include any
information which (i) is or becomes within the public domain or becomes
generally available to the public through no act of Executive, (ii) is lawfully
received by Executive from another source unrelated to his employment with the
Company, which information is not subject to any restriction on use or
disclosure in the hands of the provider, (iii) is deemed in writing by the
Company no longer to be secret, proprietary or confidential information, (iv)
was or is developed independently by Executive, outside of the normal course of
his employment hereunder and not in breach of this Agreement, without reference
to or use of any secret, proprietary, or confidential information, or (v) is
required to be disclosed by order of any court of competent jurisdiction or
other governmental authority. (Provided, however, that, in the event of (v)
above, Executive shall timely inform the Company of such required disclosure in
order to give the Company the opportunity to limit disclosure and maintain
confidentiality.)
7. Covenant Not to Complete. From the Commencement Date through the
Termination Date ( and thereafter for any additional period during which
Executive is being paid any severance amount hereunder), Executive shall not,
without the prior written consent of the Company, take part directly or
indirectly (other than as a non-"Substantial Owner", as hereinafter defined) in
any television infomercial venture or in any television infomercial production
or in any "home shopping" style marketing venture which is competitive with the
business of the Company or its affiliates and shall not be an officer, director,
employee, independent contractor or Substantial Owner of any such restricted
business. "Substantial
5
Owner" as used herein shall mean an owner of at least five percent (5%) of the
beneficial equity or voting interests in a subject restricted business. In
addition, for a period of ninety (90) days following the termination of this
Agreement, Executive shall not engage directly or indirectly, other than as
non-Substantial Owner, in any television infomercial marketing or any television
infomercial production or home shopping ventures which are involved in the
development or marketing of any product(s) which are the same or substantially
similar to any product(s) which the Company developed or began developing or as
to which the Company produced a show or began producing a show with the
Executive's involvement, either itself or through a third party producer, during
Executive's employment by the Company. Notwithstanding the foregoing, if
Executive terminates this Agreement pursuant to subparagraph 8.1(c) hereof or if
the Company terminates this Agreement other than pursuant to subparagraph
8.1(b), the restrictions described above shall terminate as of the date of such
termination. Thus, by way of example, Executive has been involved in the
development and sale of the cyclone elliptical exercise machine. Pursuant to the
foregoing, he will not be involved in a television infomercial or other
television activity, for the term set forth above, concerning another elliptical
exercise machine. The involvement of Executive with the cyclone elliptical
machine does not, in and of itself restrict Executive's activities with regard
to other exercise equipment.
Executive acknowledges that the obligations and restrictions contained
in this Paragraph 7, in view of the nature of the business in which the Company
is engaged, are reasonable and necessary in order to protect the legitimate
interests of the Company and that any violation thereof would result in
irreparable injury to the Company. Executive understands and agrees that the
remedies at law for any breach of the forgoing covenant may be inadequate and
that the Company may be entitled to, in addition to all other remedies which it
may have, enforcement of this Agreement by injunctive relief or by decree of
specific performance in a court of competent jurisdiction. If one or more of the
provisions contained in this Paragraph 8 shall for any reason be held to be
excessively broad in scope, subject or otherwise, to be unenforceable at law,
such provision or provisions shall be construed by the appropriate judicial body
by limiting or reducing it or them, as the case may be, so as to be enforceable
to the maximum extent compatible with applicable law then in existence.
6
8. Termination.
8.1 Executive's employment under this Agreement shall
terminate upon the occurrence of any of the following:
(a) Death or Disability. If Executive dies or becomes
"Permanently Disabled" (meaning that, in the opinion of an independent
physician selected by the Company and reasonably satisfactory to Executive or
his representative, he is unable to perform his duties hereunder due to
partial or total mental or physical disability for an aggregate of 90 days
(whether or not consecutive) in any consecutive six (6) month period).
(b) Cause. For purposes of this Agreement, the
Company shall have "Cause" to terminate the Executive's employment if the
Executive, in the reasonable judgment of the Company, (i) materially breaches
any of his agreements, duties or obligations under this Agreement and has not
cured, such breach within thirty (30) days after notice, or, if the breach
cannot be cured within thirty (30) days, Executive has not commenced to cure
such breach as soon as practicable following notice and has not thereafter
diligently pursued to cure such breach; (ii) embezzles or converts to his own
use any funds of the Company or any client or customer of the Company; (iii)
converts to his own use or unreasonably destroys any property of the Company
without the Company's consent; (iv) is convicted of a felony; (v) is
adjudicated as mentally incompetent; (vi) is habitually intoxicated or is
diagnosed by an independent medical doctor to be addicted to a controlled
substance or any drug whatsoever; or (v) breaches his obligations pursuant to
the Loan Agreement, defined in Paragraph 17 below. Notwithstanding the
foregoing, Executive shall not be deemed to have been terminated for Cause
unless and until the Executive has received thirty (30) days' prior written
notice (the "Dismissal Notice") of such termination. In the event Executive
does not dispute such determination within thirty (30) days after receipt of
the Dismissal Notice, Executive shall not have the remedies provided pursuant
to Paragraph 11 of this Agreement.
(c) Company Breach. In the event of the Company's
material breach of any provisions of this Agreement, Executive shall have the
right to terminate his employment hereunder; provided that Executive shall
give written notice to the Company of his intent to so terminate setting
forth the basis for such termination, and the Company shall then have thirty
7
(30) days after receipt of such notice to cure the subject breach.
8.2 Termination Obligations of Executive. In the event
Executive's employment under this Agreement is terminated, Executive, or his
legal representative in case of termination by death or Executive's physical or
mental incapacity to serve, shall:
(a) by the close of the next business day following
termination, resign from all corporate and board positions held in National
Media, and any of its subsidiaries and affiliated companies;
(b) promptly return to a representative designated by
the Company all property, including but not limited to, automobiles, keys,
identification cards and credit cards of the Company or any of its
subsidiaries or affiliated companies; and
(c) incur no further expenses or obligations on
behalf of the Company or any of its subsidiaries and affiliated companies.
9. Termination Compensation.
9.1 Compensation. Subject to the terms of subparagraph 9.2
hereof, in the event that Executive shall terminate his employment under this
Agreement pursuant to subparagraph 8.1(c) above, or if the Company shall
terminate Executive's employment under this Agreement prior to the
Termination Date for any reason other than those set forth in subparagraphs
8.1(a) or (b), the Company shall (a) pay Executive or, in the event of
Executive's death following termination, Executive's estate (i) his full Base
Salary through the date of termination at the rate in effect at the time
notice of such termination is given; and (ii) in lieu of any further salary
or other payments to Executive hereunder for periods subsequent to the date
of termination, the Company shall pay as liquidated damages to Executive in
accordance with the terms of subparagraph 9.2 hereof an amount equal to his
full Base Salary through the Termination Date calculable at the then current
Base Salary and (b) maintain in full force and effect for the continued
benefit of Executive through the earlier of the Termination Date or Executive
obtaining similar benefits through other employment, all employee benefit
plans and programs in which Executive was entitled to participate immediately
prior to Executive's discharge or resignation, provided that Executive's
continued participation is possible under the general terms and provisions of
such benefit plans and programs and otherwise in
8
accordance with applicable law other than as specifically set forth elsewhere
herein, no additional compensation shall be payable hereunder, nor shall the
Company have any obligation to continue any benefits if this Agreement is
terminated by Executive pursuant to any other provision of this Agreement.
9.2 In the event that Executive is entitled to receive
severance in accordance with subparagraph 9.1 hereof or Paragraph 16 hereof,
such severance shall be paid to Executive in accordance with the Company's
normal payroll practices in effect from time to time as if Executive was
employed by the Company through the Termination Date; provided, however, that
in the event that Executive violates the Covenant Not to Compete contained in
Paragraph 7 hereof, in addition to all other rights and remedies which the
Company may have, the foregoing severance shall only be payable through the
date of such violation and the Company shall be entitled to cease providing
Executive with the benefits to which he would otherwise be entitled.
9.3 No Mitigation. Executive shall not be required to
mitigate the amount of any payments provided for in subparagraph 9.1 above by
seeking other employment or otherwise, nor shall the amount of any payment
provided for herein be reduced by any compensation earned as a result of
employment by another employer.
10. Change in Control. Within thirty (30) days following a Change in
Control, as hereinafter defined, notwithstanding anything in this Agreement to
the contrary, Executive may resign and thereby terminate this Agreement by
giving the Company at least thirty (30) days' prior written notice of the
effective date of such termination and upon such termination, all of the terms
and provisions of this Agreement (including the provisions contained in
Paragraph 7 hereunder) shall terminate and be of no further force and effect.
Notwithstanding the foregoing, in such event, Executive shall have the
obligation hereunder to oversee the completion of shows in pre production,
production or post production at the time of resignation/termination, despite
such resignation/termination. As used in this Paragraph 10, a "Change in
Control" shall be deemed to have occurred only if, other than as a result of the
consummation of that certain Agreement and Plan of Reorganization and Merger,
dated January 5, 1998, by and between the Company, ValueVision International,
Inc. and X-X
9
Holdings Corp. (since renamed Quantum Direct Corporation), or any amendment or
extension thereof (The "ValueVision Merger"), (a) any person or group (as such
term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934)
acquires direct or indirect control over in excess of twenty-five (25%) percent
of the voting power of the voting stock of the Company prior to consummation of
the ValueVision Merger, or of Quantum Direct Corporation subsequent to the
ValueVision Merger, in a transaction's not approved by the Company's, or Quantum
Direct Corporation as the case may be, Board of Directors.
11. [Intentionally Omitted].
12. Counsel Fees and Indemnification.
(a) In the event that it shall be necessary or desirable
for the Executive to retain legal counsel and/or incur other costs and
expenses in connection with the enforcement of any and all of his rights
under this Agreement, including participation in any proceeding contesting
the validity or enforceability of this Agreement, the Executive shall be
entitled to recover from the Company his reasonable attorneys' fees and costs
and expenses in connection with the enforcement of his rights. No fees shall
be payable if the Company is successful on the merits.
(b) The Company shall indemnify and hold Executive
harmless to the maximum extent permitted by law against judgments, fines,
amounts paid in settlement and reasonable expenses, including attorneys' fees
incurred by Executive, in connection with the defense of, or as a result of,
any action or proceeding (or any appeal from any action or proceeding) in
which Executive is made or is threatened to be made a party by reason of
Executive's employment hereunder and/or any act or omission of Executive in
his capacity as an officer, director or employee of the Company, or the
Company or any officer, director, employee, agent or representative of the
Company, regardless of whether such action or proceeding is one brought by or
in the right of the Company, to procure a judgment in its favor. Expenses
(including attorneys' fees) incurred by Executive in defending any civil,
criminal, administrative, or investigative action, suit or proceeding shall
be paid by the Company in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of
Executive to repay such amount if it shall ultimately be
10
determined that he is not entitled to be indemnified by the Company as
authorized in this subparagraph 12(b).
(c) The provisions of this Paragraph 12 shall survive
termination of this Agreement and shall survive indefinitely with respect to
any cost or liability incurred by Executive on account of any actual or
alleged act, omission, or decision by Executive during the Term.
13. Notices. Unless either party notifies the other to the contrary,
any notice required hereunder shall be duly given if delivered in person or by
registered first class mail or recognized overnight mail carrier:
If to the Company, to:
National Media Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Chairman
If to Executive, to:
Xxxx X. Xxxxx
La Tour Wilshire
00000 Xxxxxxxx Xxxx., #000
Xxxxxxx Xxxxx, XX 00000
with a copy to:
Bloom, Hergott, Cook, Xxxxxx and Xxxxx, LLP
000 X. Xxxxx Xxxxx
0xx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
14. General Provisions.
14.1 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the Company and its successors and assigns and
Executive, his designees, and his estate. Neither Executive, his designees,
nor his estate shall commute, pledge, encumber, sell or otherwise dispose of
the rights to receive the Payments provided in this Agreement, which payments
and the rights thereto are expressly declared to be nontransferable and
nonassignable (except by death or otherwise by operation of law).
14.2 Set-Off. Executive hereby acknowledges and agrees that
the Company shall have the right to set-off against any amounts payable by
the Company to Executive under
11
this Agreement all amounts payable to the Company or DirectAmerica Corporation
by Executive under the Agreement and Plan of Merger and Reorganization (the
"Acquisition Agreement") by and among the Company and DirectAmerica
Corporation's predecessors, et. al., dated as of October 24, 1995 (including,
without limitation, Article 8 thereof (other than Section 8.2(b) thereof)).
14.3 Governing Law. This Agreement shall be governed by
the laws of the State of Delaware from time to time in effect.
14.4 Entire Agreement. This Agreement represents the entire
agreement between Executive and the Company with respect to the subject
matter hereof and supersedes any prior employment agreements between the
parties. The parties confirm that the Prior Agreement has lapsed, effective
as of the date of this Agreement. In that regard, without limitation, the
Company confirms that all restrictions on Executive's current share holdings
of Company stock set forth in paragraph 6 of the Prior Agreement have lapsed.
This Agreement may not be amended or modified except by a writing signed by
the parties hereto. Any written amendment, waiver or termination hereof
executed by the Company and Executive (or his estate) shall be binding upon
them and upon all persons, without the necessity of securing the consent of
any other person and no person shall be deemed to be a third party
beneficiary under this Agreement.
14.5 Third Party Beneficiaries. Except as provided in this
Agreement, each of Executive and the Company intends that this Agreement
shall not benefit or create any right or cause of action in or on behalf of
any person other than Executive and the Company.
14.6 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same Agreement.
14.7 No Waiver. Except as otherwise expressly set forth
herein, no failure on the part of either party hereto to exercise and no
delay in exercising any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power
or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
12
14.8 Headings. The headings of the paragraphs of this
Agreement have been inserted for convenience of reference only and shall in
no way restrict any of the terms or provisions hereof.
15. Release. For good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, effective upon the execution of this
Agreement, Executive does hereby remise, release and forever discharge the
Company and its predecessors, successors, subsidiaries and affiliates and its
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, 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 Executive 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 Agreement; (iii) the issuance of shares
of Common Stock in connection with the Acquisition Agreement; (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 the Company on or prior to the date hereof.
For good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, effective upon the execution of this Agreement,
the Company does hereby remise, release and forever discharge Executive of and
from any and all debts, demands, actions, causes of action, manner of actions,
suits, 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
13
the Company ever has, 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 Executive arising from, pursuant to, or
in connection with: (i) any representation, warranty, covenant, agreement or
obligation of Executive contained in the Acquisition Agreement or any other
contract, instrument or agreement executed in connection therewith; (ii) the
consummation of the Acquisition Agreement; (iii) any action or omission of any
Executive in connection with the consummation of the transaction contemplated by
the Acquisition Agreement and any other contract, instrument or agreement
executed in connection therewith; and (iv) any action or inaction by Executive
in connection with the performance of his duties as an employee of the Company
on or prior to the date hereof.
The foregoing releases do not affect the validity or
enforceability of this Agreement (including, but not limited to, Sections 12 or
14.2 hereof) or the Loan Agreement (as hereinafter defined).
16. Retention of CEO by Quantum Direct Corporation. It is presently
intended that, in connection with the ValueVision Merger, a Chief Executive
Officer will be retained by Quantum Direct Corporation to replace Xxxxxx
Xxxxxxxx. Executive shall have the right hereunder to resign his position as
President of the Company and thereby terminate this Agreement by giving the
Company written notice of such intention within six (6) months of the hiring of
such Chief Executive Officer. Such resignation and termination shall take effect
on the thirtieth (30th) day following the delivery of such written notice. In
the event of such a termination, Executive shall have the right to receive, as
severance three (3) months Base Salary, payable in installments. Notwithstanding
the foregoing, in such event, Executive shall have the obligation hereunder to
oversee the completion of shows in pre production, production or post production
at the time of resignation/termination despite such resignation/termination.
17. Loan Matters. The existing promissory note of Executive to the
Company in the aggregate principal amount of $175,000 shall be deemed satisfied
as of the date hereof. The Company hereby agrees to advance to Executive an
aggregate of up to $545,000, upon the terms and conditions set forth in the
documentation attached hereto as Exhibit B (collectively, the "Loan Agreement"),
as soon as practicable after the date hereof.
14
18. Option. In connection with the execution hereof, the Company hereby
issues to Executive (in addition to the already outstanding option to purchase
30,000 shares at an exercise price of $8.325) an option to purchase up to
300,000 shares of the Company's common stock in the form attached hereto as
Exhibit C. In the event that the ValueVision Merger is not consummated during
the Term hereof, the Company agrees to negotiate with Executive in good faith
regarding the possible issuance of additional options, subject to availability
under the Company's 1991 Stock Option Plan, in exchange for additional
consideration on the part of Executive. The foregoing shall not constitute an
obligation on the part of the Company to issue any options at any particular
exercise price.
IN WITNESS WHEREOF, the parties have executed 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 X. Xxxxx
------------------------------------------------
XXXX X. XXXXX
15
