Exhibit 10.8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of the 1st day of October,
1995, by and between TRANSMEDIA NETWORK INC., a Delaware corporation
("Transmedia"), and XXXXX X. XXXXXX (the "Executive").
In consideration of the mutual promises and covenants herein
contained, and intending to be legally bound hereby, the parties hereto do
mutually agree as follows:
/bullet/ EMPLOYMENT. Transmedia agrees to and does hereby
employ the Executive and the Executive accepts such employment, upon the terms
and conditions hereinafter set forth. The Executive represents and warrants that
he is free to enter into this Agreement and that his entering into this
Agreement is not in violation of any obligations that he has to any other
person, firm or corporation.
/bullet/ TERM. The term of this Agreement shall be for the
period commencing October 1, 1995, and ending on September 30, 1997 (the
"TERM"), unless earlier terminated as provided herein.
/bullet/ OFFICE AND DUTIES. The Executive shall perform such
executive services in the operation of the business of Transmedia and its
subsidiaries as Transmedia's Board of Directors or its President may from time
to time reasonably assign to the Executive. Initially, the Executive shall hold
the position of Vice President of Transmedia and President of Transmedia Service
Company Inc., and shall report directly to Transmedia's President. During the
term of this Agreement, the Executive shall:
() work for Transmedia and its subsidiaries on a full-time,
exclusive basis;
() use his best efforts to apply on a full-time basis all of
his skill and experience to the performance of his duties in such employment;
and
() not engage in any other business activities, other than
personal investments in corporations and other entities which do not compete
directly or indirectly with Transmedia and its subsidiaries. Notwithstanding the
provisions of the preceding sentence, the Executive shall be entitled, on an
occasional basis, to serve as a consultant to, or on the Board of Directors of,
other public or private corporations (with the approval of Transmedia's
President) during the term of this Agreement and to receive and retain all
compensation paid to him in such capacities, so long as such other corporations
do not compete directly or indirectly with Transmedia and its subsidiaries. The
provisions of this Section 3 are subject to modification as set forth in Section
10.
/bullet/ COMPENSATION AND BENEFITS.
() For services rendered by the Executive under this
Agreement, the Executive shall be paid an annual base salary (the "Salary") at
the rate of Two Hundred Twenty-Five Thousand ($225,000) Dollars from October 1,
1995 through September 30, 1996, and Two Hundred Fifty Thousand ($250,000)
Dollars from October 1, 1996 through September 30, 1997. The Salary shall be
payable in equal weekly installments.
() As additional compensation, the Executive shall be
eligible to receive annually a bonus of up to one-third (1/3) of his Salary
during each fiscal year of Transmedia. The Bonus shall be payable on an annual
basis within 120 days after the end of each fiscal year of Transmedia,
commencing with the fiscal year ending September 30, 1996.
() Transmedia shall, during the Term, procure,
maintain in force, and pay all premiums on an insurance policy to be issued on
the life of the Executive, with his estate as beneficiary, in the face amount of
Five Hundred Thousand ($500,000) Dollars. Upon the expiration of the term of
this Agreement, Transmedia shall transfer the ownership of such policy to the
Executive without any payment by the Executive whether or not he becomes
disabled during the Term.
() At all times during the term of this Agreement,
the Executive shall be included in any life, medical, health and hospitalization
insurance, pension, stock option, stock ownership, incentive compensation and
other benefit programs maintained by or for Transmedia at the date hereof. If
Transmedia hereafter establishes any other programs, the Executive shall be
included therein at least at the same level as the other senior executives of
Transmedia. In addition, in the event of the Executive's Disability (as defined
below), Transmedia will pay to the Executive the following: (i) during the first
six months of Disability, 100% of the Salary that would be payable to the
Executive but for such Disability; (ii) thereafter, and until the end of the
Term, 75% of such Salary, and (iii) the Bonus for the period(s) provided in the
next sentence. The Executive shall receive a Bonus for the entire fiscal year
ending on any applicable September 30, if said September occurs during the first
six months of Disability; in all other instances, the Executive shall receive a
portion of the Bonus for an entire year determined by multiplying the Bonus for
the entire fiscal year by a fraction, the numerator of which is the total number
of months starting with October 1st and ending upon the conclusion of said six
months of Disability and the denominator of which is 12. For purposes of this
sub-paragraph (d), all calculations shall be made on the basis of full and not
partial months. For the purposes hereof "Disability" shall mean a physical or
mental impairment of such duration and degree that the Executive is determined
by the Board of Directors of Transmedia to be substantially unable because of
the impairment to perform the services described in Section 3. The Salary and
Bonus payable under this paragraph (d) shall be in lieu of any amounts of salary
and Bonus otherwise payable under this Employment Agreement.
() Transmedia agrees to provide the Executive with a
One Thousand ($1,000) Dollar monthly automobile allowance.
() Transmedia may provide to the Executive such
additional compensation, bonuses, and benefits as its Board of
Directors deems appropriate, but nothing herein shall obligate Transmedia to do
so.
/bullet/ VACATION. The Executive shall be entitled to take
four (4) weeks paid vacation during each twelve-month period of this employment
hereunder on a basis consistent with the requirements of the business of
Transmedia and its subsidiaries and in accordance with Transmedia's customary
practice for senior executives.
/bullet/ REIMBURSEMENT OF EXPENSES. During the term of this
Agreement, the Executive shall be reimbursed for reasonable travel,
entertainment and other expenses incident to the rendering of services
hereunder, upon presentation of expense statements or vouchers or such other
supporting information as Transmedia may customarily require of its senior
executives.
/bullet/ RESTRICTIONS
() The Executive acknowledges that the business of
Transmedia is nationwide and international in scope, and that it expects to be
marketing its products and services throughout an ever wider geographical area
than that in which it presently operates. Accordingly, during the Restricted
Period (as defined below), the Executive shall not, unless acting with
Transmedia's prior written consent: (i) directly or indirectly own, manage,
operate, join, or control, or participate in the ownership, management,
operations or control of, or be connected as a director, officer, employee,
partner, stockholder, debtholder, consultant or otherwise with, or advise,
finance or assist, any business or organization located in or doing business in
the Restricted Area (as defined below) which (A) is engaged in financing
restaurant advertising or equipment or providing restaurant, lodging, or resort
discounts to members of its programs or (B) directly or indirectly competes with
any other business of Transmedia or any of its subsidiaries, licensees or
franchisees conducted at any time during the term hereof; or (ii) interfere
with, or divert or attempt to divert the benefits of, any relationship with
employees, agents, suppliers, restaurant, lodging or resort clients, membership
card holders or other customers maintained by Transmedia, its subsidiaries,
licensees or franchisees at any time during the Restricted Period. However, if
the Executive's employment hereunder is terminated without "cause" (as defined
in Section 9 hereof), then the provisions of this Section 7(a) shall cease upon
such termination. For the purposes of this Agreement, (i) "RESTRICTED PERIOD"
means the twenty-four-month period commencing upon the earlier of (x) the
termination of the Executive's employment with Transmedia prior to the
expiration hereof, either voluntarily by the Executive or by Transmedia for
"cause"; or (y) the expiration of this Agreement after its stated term; and (ii)
"RESTRICTED AREA" means any geographical market in or with respect to which
Transmedia or any subsidiary, franchisee or licensee of Transmedia, within
twelve months prior to the commencement of the Restricted Period, is then
operating or has taken significant affirmative steps to commence operations.
Nothing in this Section 7(a) shall be construed to prevent the Executive from
owning or dealing in any stock actively traded over-the-counter or on any
recognized exchange and issued by a corporation which may compete directly or
indirectly with Transmedia and its subsidiaries so long as the Executive does
not participate in the management, control, or operations of any such
corporation and the Executive's holdings do not at any time exceed Five Percent
(5%) of the outstanding shares of any class of stock of such corporation.
() The Executive agrees that all confidential or
proprietary information and data which he may now have or may obtain during the
Term of his employment by, and relating in any way to the business of,
Transmedia, its subsidiaries, licensees or franchisees he shall, both during and
after his employment, hold in confidence and not disclose to any other person,
or use for any purpose other than in connection with his employment hereunder,
unless Transmedia has given its prior consent to such disclosure or use. The
Executive shall promptly return all tangible evidence of such confidential or
proprietary information and data to Transmedia at the termination of his
employment or upon Transmedia's earlier request.
() The Executive acknowledges that the remedy at law
for his breach of the covenants contained in this Section 7 may be inadequate,
and that therefore Transmedia and its subsidiaries shall be entitled, in
addition to any other right or remedy available to them, to injunctive relief
and the remedy of specific performance to restrain the Executive from committing
or continuing any such breach and to enforce the Executive's obligations
hereunder.
() If any court of tribunal of competent jurisdiction
shall refuse to enforce any or all of the provisions of this Section 7, because
individually or taken together, they are deemed unreasonable, then the parties
hereto understand and agree that any such provision or provisions shall not be
void but for the purpose of such proceedings, shall be revised to the extent
necessary to permit the enforcement of such provisions.
/bullet/ OWNERSHIP OF WORK PRODUCT. The Executive
acknowledges that during the term of his employment hereunder, he may conceive
of, discover, invent, or create inventions, improvements, new contributions,
literary property, material, ideas and discoveries, whether or not patentable or
copyrightable, which relate to the business of Transmedia and its subsidiaries
(all of the foregoing being collectively referred to herein as "Work Product"),
and that various business opportunities appropriate for Transmedia and its
subsidiaries may be presented to him by reasons of his employment. The Executive
acknowledges that, unless Transmedia otherwise agrees in writing, all of the
foregoing shall be owned by and belong exclusively to Transmedia, and he shall
have no personal interest therein. The Executive, at Transmedia's expense, shall
further: (a) promptly disclose any such Work Product and business opportunities
to Transmedia; (b) assign to Transmedia, upon request and without
additional compensation, the entire rights to such Work Product and business
opportunities; (c) sign all papers necessary to carry out the foregoing; and (d)
give testimony in support of his discovery, invention, or creation in any
appropriate case.
/bullet/ TERMINATION. Notwithstanding anything contained
herein to the contrary, the Executive's employment hereunder: (i) shall
automatically terminate upon the Executive's death; and (ii) may be terminated
by Transmedia's Board of Directors for "cause" (as hereinafter defined) upon 60
days prior written notice of termination, subject to the Executive's right to
cure certain breaches constituting "cause", as provided below. For the purposes
of this Agreement, termination shall be deemed to be "for cause" if: (i) the
Executive is convicted of a felony; (ii) the Executive declares personal
bankruptcy pursuant to any applicable law; (iii) the Executive commits an act of
fraud with respect to Transmedia or any subsidiary, franchisee or licensee of
Transmedia or any subsidiary, franchisee or licensee of Transmedia or
misappropriates any of its or their funds; or (iv) the Executive refuses to
perform his duties pursuant to this Agreement, or directly and repeatedly
breaches any covenants contained herein. On the effective date of termination,
except for the reimbursement of expenses incurred to such date, the Executive
shall cease to have any further rights hereunder but shall be subject to all
restrictions set forth elsewhere herein.
/bullet/ SALE OF TRANSMEDIA. The sale of all or substantially
all of the assets of Transmedia, or the sale of a "control block" (as hereafter
defined) of its shares to any person during the Term shall be made subject to
the Executive's right to either 1) continue his employment under the terms of
this Agreement or 2) within 90 days after such sale, elect to resign from his
positions with Transmedia. In the event the Executive chooses to resign from his
positions with Transmedia, he shall receive, without the necessity of performing
consulting or other services for Transmedia, a payment in lump sum of Five
Hundred Thousand ($500,000) Dollars. Such lump sum payment shall be made by
Transmedia to the Executive within seven (7) days of Transmedia's receipt of the
Executive's notice of resignation. In addition, the Executive shall receive the
benefits with respect to the life insurance policy, payment of death benefits as
set forth in Section 4(c). For the purposes hereof "control block" means any
block of shares the possession of which, when added to any shares already owned,
directly or indirectly gives the power in an form to direct or cause the
direction of the management and policies of Transmedia.
/bullet/ NOTICES. Any Notices to be given hereunder shall be
deemed to have been given if delivered personally against receipt, if sent by
nationally recognized overnight delivery service, or if mailed by registered or
certified mail, return receipt requested, to the following address: if to
Transmedia, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, with a copy to
Xxxxxx, Xxxxx & Bockius LLP at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to the
attention of Xxxxxxx X. Xxxxxxx, Esq.; and if to the Executive, at 00000
Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxx 00000. Either party may change his or
its address set
forth above by giving written notice to the other party in accordance with this
Section.
/bullet/ GOVERNING LAW. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of New York.
/bullet/ CAPTIONS. The captions of the sections of this
Agreement are for the purpose of convenience only, are not intended to be part
of this Agreement and shall not be deemed to modify, explain, enlarge or
restrict any of its provisions.
/bullet/ SEVERABILITY. If any cause of provision of this
Agreement shall be held invalid or unenforceable, in whole or in part, in any
jurisdiction, such invalidity or unenforceability shall attach only to such
clause or provision, or part thereof, in such jurisdiction, and shall not in any
manner affect any other cause or provision hereof in any jurisdiction.
/bullet/ BINDING EFFECT; ASSIGNMENT. This Assignment shall
bind and inure to the benefit of the respective heirs, representatives,
successors and permitted assignees of Transmedia and the Executive. Transmedia
may assign this Agreement or any of its rights and obligations hereunder to (i)
any transferee of or successor to all or substantially all of its assets of
business of Transmedia and its subsidiaries or (ii) any subsidiary or affiliate
of Transmedia; PROVIDED, HOWEVER, that no such assignment shall release
Transmedia from its obligations hereunder. The Executive may not assign this
Agreement or any of his rights and obligations hereunder any circumstances.
/bullet/ MISCELLANEOUS. This Agreement embodies the entire
understanding between Transmedia and the Executive with respect to its subject
matter, and there is no extrinsic agreement of any kind affecting it. This
Agreement also supersedes and replaces any prior agreement with respect to the
subject matter of this Agreement. This Agreement may not be changed or
terminated orally, and no change, termination or waiver of this Agreement or of
any of the provisions herein contained shall be binding unless made in writing
and signed by the party whom the same is sought to be enforced.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
TRANSMEDIA NETWORK INC.
By: /S/XXXXXX XXXXXX
--------------------------
Xxxxxx Xxxxxx, President
/S/XXXXX X. XXXXXX
--------------------------
Xxxxx X. Xxxxxx
