EMPLOYMENT AGREEMENT
AGREEMENT made as of the 2nd day of March, 1998 by and between Transmedia
Asia Pacific, Inc., a Delaware corporation having offices at 00 Xx. Xxxxx'x
Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx (the "Company"), and Xxxxxx X. Xxxxxx, III, c/o
the Company (the "Executive").
WHEREAS, the Company and the Executive wish to set forth the terms and
conditions of the Executive's continued employment by the Company from and after
the date hereof ("Effective Date") thereby replacing the Executive prior
employment agreement with the Company in its entirety except with respect to
accrued benefits as of the Effective Date;
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment. The Company agrees to continue to employ the Executive
in the capacity hereinafter set forth, for the Term specified in
paragraph 2, and the Executive agrees to accept such continued
employment, upon the terms and conditions hereinafter set forth.
2. Term. This Agreement shall be for a term commencing on the Effective
Date and, unless this Agreement is sooner terminated under the
provisions hereof, expiring three years thereafter (the "Term")
3. Duties and Responsibilities.
(a) During the Term, the Executive shall serve as both as a Director
and Officer of the Company and shall have the title of Chairman of the
Board/Chief Executive Officer.
(b) The Executive shall devote substantial business efforts to the
Company. Other business activities of the Executive shall not conflict with the
terms of this Agreement. The Executive will (i) devote his best efforts, skill
and ability to promote the Company's interest; (ii) carry out his duties in a
competent and professional manner; (iii) work with other employees of the
Company in a competent and professional manner; and (iv) generally promote the
best interests of the Company.
(c) The Executive shall be permitted to continue to serve as
Chairman/Chief Executive Officer of Transmedia Europe, Inc. ("TMNE") devoting
substantial business efforts to TMNA. In addition the Executive shall be
permitted to continue to serve as Chairman/Chief Executive Officer of
International Advance, Inc. ("Advance") and to devote some reasonable portion of
his business time to Advance.
4. Compensation.
(a) As compensation for services hereunder and in consideration of
his agreement not to compete as set forth in paragraph 10 below, during the
Term, the Company shall pay the Executive in accordance with the Company's
normal payroll practices base salary compensation at an annual rate of
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(pound)100,000 U.K less required tax withholding amount.
(b) In recognition of certain guarantees and pledges made by the
Executive for the benefit of the Corporation as well as to provide an inducement
for the Executive to make further guarantees and pledges as required and to
otherwise further the best interests of the Corporation, Executive shall be
entitled to receive subject to shareholder approval, fully vested stock options
having a term of 5 years and covering 2,500,000 shares at an exercise price of
$1.00 per share. Said options shall be granted under the terms of an Option
Agreement dated the date hereof and annexed hereto as Exhibit A.
5. Expenses: Fringe Benefits.
(a) In addition to the compensation provided for under paragraph 4,
the Company agrees to pay or to reimburse the Executive during the Term for all
reasonable, ordinary and necessary vouchered business or entertainment expenses
incurred in the performance of his services hereunder in the manner established
by the Company's policy as from time to time in effect.
(b) During the Term the Executive shall be entitled to participate
in the health care, life insurance and 401K plans established by the Company for
the benefit of its employees generally and currently in effect or put into
effect subsequent to the date of this Agreement.
(c) The Executive shall be entitled to four (4) weeks (20 business
days) of paid vacation provided that no more than ten (10) consecutive days of
vacation shall be taken at any one time.
6. Discharge by Company. The Company shall be entitled to terminate the
Term and to discharge the Executive for "cause." The term "cause" shall be
limited to the following grounds:
(i) The Executive's failure or unreasonable refusal to perform his
duties and responsibilities under this Agreement;
(ii) Dishonesty affecting the Company;
(iii) Conviction of a felony or of any crime involving fraud or
misrepresentation;
(iv) The Executive's failure to adequately perform is
responsibilities;
(v) The commission of a willful or intentional act which could
injure the reputation, business or business relationships of the Company;
(vi) Any material breach of this Agreement, if such breach is not
cured within 30 days after receipt by the Executive of written notice thereof
from the Company; and
(vii) Disability pursuant to paragraph 7 hereof
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7. Disability. Death.
(a) If the Executive shall be unable to perform his duties hereunder
by virtue of illness or physical or mental incapacity or disability (from any
cause or causes whatsoever) in substantially the manner and to the extent
required hereunder prior to the commencement of such disability (all such causes
being herein referred to as "disability") and the Executive shall fail to have
performed substantially such duties for periods aggregating 90 days, whether or
not continuous, in any continuous period of 180 days, the Company shall have the
right to terminate the Executive's employment hereunder as at the end of any
calendar month upon written notice to him. Said notice of intention to terminate
the Executive must be given by the Company within ninety (90) days following the
90th day of the disability, in which case the Executive shall be entitled to his
base salary compensation to the end of such calendar month and for a continuing
period of three (3) months thereafter payable on the regular payroll schedule.
(b) In case of the death of the Executive, this Agreement shall
terminate and the Company shall be obligated to pay to the Executive's estate or
as otherwise directed by the Executive's duly appointed and authorized legal
representative, his then base salary compensation and all accrued benefits
through the date of death.
3. Voluntary Termination. If the Executive voluntarily terminates his
employment prior to the end of the Term hereunder, he shall only be entitled to
receive compensation accrued through the date of termination and shall not be
entitled to any prorated amounts for vacation pay.
9. Confidential Information. The Executive recognizes that he will occupy
a position of trust with respect to business and technical information of a
secret or confidential nature which is the property of the Company and
Transmedia Network, Inc. ("Network") and which has been and will be imparted to
him from time to time in the course of his employment with the Company. In light
of this understanding, the Executive agrees that:
(a) the Executive shall not at any time use or disclose, directly or
indirectly, any of the Company's or Network's confidential information or trade
secrets to any person, except that he may use and disclose to authorized Company
personnel, licensees or franchisees in the course of his employment; and
(b) within three (3) days from the date upon which his employment
with the Company is terminated, for any reason or for no reason, or otherwise
upon the request of the Company, he shall return to the Company any and all
documents and materials which constitute or contain the Company's and Network's
confidential information or trade secrets.
For purposes of this Agreement, the terms "confidential information" or "trade
secrets" shall include all information of any nature and in any form which is
owned by the Company or Network and which is not publicly available or generally
known to persons engaged in businesses similar to that of the Company or
Network.
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10. Non-Competition.
(a) The Executive agrees that his services hereunder are of a
special character, and his position with the Company places him in a position of
confidence and trust with the customers and employees of the Company. The
Executive and the Company agree that in the course of employment hereunder, the
Executive has and will continue to develop a personal acquaintanceship and
relationship with the Company's customers, and a knowledge of those customers'
affairs and requirements which may constitute the Company's primary or only
contact with such customers. The Executive consequently agrees that it is
reasonable and necessary for the protection of the goodwill and business of the
Company that the Executive make the covenants contained herein. Accordingly, the
Executive agrees that while he is in the Company's employ and for a period of 2
years thereafter the Executive will not, without the prior written consent of
the Company, either directly or indirectly, or in any capacity whether as a
promoter proprietor, partner, joint venturer, employee, agent, consultant,
director, officer, manager, shareholder (except as a shareholder holding less
than Five Percent (5%) of a publicly traded company's issued and outstanding
capital stock, or otherwise) work for, act as a consultant to or own any
interest in any direct competitor of the Company which operates in or provides
services essentially the same as the Company. For purposes hereof a Direct
Competitor is a business, or a division of a business, which is engaged in
providing discount dining or restaurant services, whether through use of barter,
trade credits, scrip or similar items or printing, selling, distributing or
soliciting of a charge card for discount services and activities or promoting a
charge card or providing services the same as or similar to that sold or offered
by the Company or Network. The Executive further agrees that he will not
solicit, entice, induce or persuade, either directly or indirectly, any employee
or customer of the Company to alter, terminate or refrain from extending or
renewing any contractual or other relationship with the Company, or commence a
similar or substantially similar relationship with the Executive or any direct
competitor of the Company.
(b) As used in this paragraph 10, the term "Company" and "Network"
shall include subsidiaries of the Company and Network, the term "customer" shall
mean.
(i) anyone who is then a customer of the Company or Network;
or
(ii) anyone who was a customer at any time during the one year
period immediately preceding the date of termination of the Executive's
employment.
(c) The parties hereto agree that the duration and area for which
the covenant not to compete set forth herein is to be effective are reasonable.
In the event that any court determines that the time period or the area, or both
of them, are unreasonable and that such covenant is to that extent
unenforceable, the parties hereto agree that the covenant shall remain in full
force and effect for the greatest time period and in the greatest area that
would not render it unenforceable.
(d) If the Executive commits a breach or is about to commit a
breach, of any of the above provisions, the Company shall have the right to
temporary and preliminary injunctive relief to prevent the continuance or
commission of such breach prior to any hearing on the merits and to have the
provisions of this Agreement specifically enforced by any court having equity
jurisdiction without being required to post bond or other security and without
having to prove the inadequacy of the available remedies at law, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company. In addition, the Company may take all such
other actions and remedies
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available to it under law or in equity and shall be entitled to such damages as
it can show it has sustained by reason of such breach.
(e) The existence of any claim or cause of action of the Executive
against the Company, whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Company of those covenants
and agreements.
(f) For purposes of this paragraph 10 but only with respect to the
period following the termination of the Agreement the term direct competitor
shall not include a separate noncompetitive corporate subsidiary of a company
which is a direct competitor, if and only if the Executive is employed solely to
perform services for the noncompetitive subsidiary and does not engage in or
assist said directly competitive company in any aspect of its business.
11. Resolution of Disputes. Any dispute by and among the parties hereto
arising out of or relating to this Agreement, the terms, conditions or a breach
thereof or the rights or obligations of the parties with respect thereto, shall
be arbitrated in the City of New York, New York before and pursuant to then
applicable commercial rules and regulations of the American Arbitration
Association, or any successor organization. The arbitration proceedings shall be
conducted by a panel of three arbitrators, one of whom shall be selected by the
Company, one by the Executive (or his legal representative) and the third
arbitrator by the first two so chosen. The parties shall use their best efforts
to assure that the selection of the arbitrators shall be completed within 30
days and the parties shall use their best efforts to complete the arbitration as
quickly as possible. In such proceeding, the arbitration panel shall determine
who is a substantially prevailing party and shall award to such party its
reasonable attorneys', accountants' and other professionals' fees and its costs
incurred in connection with the proceeding. The award of the arbitration panel
shall be final, binding upon the parties and nonappealable and may be entered in
and enforced by any court of competent jurisdiction. Such court may add to the
award of the arbitration panel additional reasonable attorneys' fees and costs
incurred by the substantially prevailing party in attempting to enforce such
award.
12. Enforceability. The failure of either party at any time to require
performance by the other party of any provision hereunder shall in no way affect
the right of that party thereafter to enforce the same, nor shall it affect any
other party's right to enforce the same, or to enforce any of the other
provisions of this Agreement; nor shall the waiver by either party of the breach
of any provision hereof be taken or held to be a waiver of any subsequent breach
of such provision or as a waiver of the provision itself
13. Assignment. This Agreement is a personal contract and the Executive's
rights and obligations hereunder may not be sold, transferred, assigned, pledged
or hypothecated by the Executive. The rights and obligations of the Company
hereunder shall be binding upon and run in favor of the successors and assigns
of the Company. If any assignment or transfer of rights hereunder is attempted
by the Executive contrary to the provisions hereof, the Company shall have no
further liability for payments hereunder.
14. Modification. This Agreement may not be cancelled, changed, modified
or amended orally, and no cancellation, change, modification or amendment shall
be effective or binding, unless it is in writing, signed by both parties to this
Agreement, and consented to in writing by the Purchaser.
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15. Severability: Survival. If any provision of this Agreement is held to
be void and unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement nevertheless shall be binding upon the parties with
the same effect as though the void or enforceable part has been severed and
deleted.
16. Notice. Notices given pursuant to the provisions of this Agreement
shall be sent by certified mail, postage prepaid, or by overnight courier, or by
telex, telecopier or telegraph, charges prepaid, to the following address:
To the Company:
Transmedia Asia Pacific, Inc.
00 Xx. Xxxxx'x Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
To the Executive:
Xxxxxx X. Xxxxxx, III
c/o the Company
17. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
18. No Conflict. The Executive represents and warrants that he is not
subject to any agreement, instrument, order, judgment or decree of any kind, or
any other restrictive agreement of any character, which would prevent him from
entering into this Agreement or which would be breached by the Executive upon
his performance of his duties pursuant to this Agreement.
19. Entire Agreement. This Agreement represents the entire agreement
between the Company and the Executive with respect to the subject matter hereof
and all prior agreements relating to the employment of the Executive, written or
oral, are nullified and superseded hereby.
IN WITNESS WHEREOF, the parties have set their hands and seals on and as
of the day and year first above written.
TRANSMEDIA ASIA PACIFIC, INC
By: /s/ Xxxx Xxxxxxxx
/s/ Xxxxxx X.Xxxxxx
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Xxxxxx X.Xxxxxx, III
