Exhibit 10.6
RESTATED AND AMENDED
EMPLOYMENT AGREEMENT
RESTATED AND AMENDED EMPLOYMENT AGREEMENT, dated as of the 9th
day of December 1996, by and between TRANSMEDIA NETWORK INC., a Delaware
corporation ("TRANSMEDIA"), and XXXXX X. XXXXXXXXX (the "EXECUTIVE").
WHEREAS, Transmedia and the Executive wish to amend and
restate the Employment Agreement dated as of April 1, 1992, and amended as of
October 1, 1994, which they previously executed;
NOW, THEREFORE, 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 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 April 1, 1992 and ending on September 30, 1999 (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 may from time to time reasonably
assign to the Executive. The Executive shall hold the position of Vice President
of Transmedia and President of Transmedia Restaurant Company Inc., and shall
report directly to Transmedia's President. During the term of this Agreement,
the Executive shall: (a) work for Transmedia and its subsidiaries on a full-
time, exclusive basis;
(b) 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
(c) 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 corporations 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.
(a) For services rendered by the Executive under this
Agreement, the Executive shall be paid a base salary (the "Salary") at the rate
of One Hundred Eighty Thousand Dollars ($180,000) per annum during the first
year of the Term, Two Hundred Fifty Thousand Dollars ($250,000) per annum during
the second year of the Term, and Three Hundred Thousand Dollars ($300,000) per
annum during the third year of the Term, Three Hundred Fifteen Thousand Dollars
($315,000) per annum during the fourth year of the Term, and Three Hundred
Thirty-Five Thousand Dollars ($335,000) during the fifty year of the Term. The
Salary shall be payable in equal weekly installments.
(b) As additional compensation, the Executive shall
be eligible to receive annually, a bonus of up to one-half (1/2) of his salary
during each year of the Term. The Bonus shall be payable on an annual basis
within 120 days after the end of each fiscal year, commencing with the fiscal
year ending September 30, 1996.
(c) Transmedia shall, during the term of this
Agreement, 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 employment Term.
(d) 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 30 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 lst 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.
(e) Transmedia agrees to provide the Executive with a
One Thousand ($1,000) Dollar monthly automobile allowance.
(f) 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 this employment
hereunder on a basis consistent with
the requirements of the business 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
(a) The Executive acknowledges that the business of
Transmedia is potentially nationwide in scope, and that it expects to be
marketing its products and services throughout a 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,
consultant or otherwise with, 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 discounts
to members of its programs or (B) directly or indirectly competes with any other
business of Transmedia or any of its subsidiaries 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
clients, membership card holders or other customers maintained by Transmedia and
its subsidiaries 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, 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.
(b) The Executive agrees that all confidential and
proprietary matters which he may now have or may obtain during the Term of his
employment hereunder relating in any way to the business of Transmedia and its
subsidiaries shall not be disclosed to any other person, either during or after
the termination of his employment, unless Transmedia has given its prior consent
to such disclosure or such disclosure is a necessary incident to transactions
which the Executive is pursuing in accordance with duties delegated to him by
Transmedia's Board of Directors. The Executive shall promptly return all
tangible evidence of such confidential and proprietary matters to Transmedia at
the termination of his employment or upon Transmedia's earlier request.
(c) The Executive acknowledges that the remedy at law
for his breach of the covenants contained in this Section 7 is 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.
(d) 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 reason 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.
(a) 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 misappropriates any of its funds; or (iv) the Executive
directly and repeatedly refuses to perform his duties pursuant to this
Agreement, or directly and repeatedly breaches any covenants contained herein.
The written notice of termination shall set forth with specificity the reason
for such termination. If the reason for such termination is the Executive's
direct and repeated refusal to perform his duties hereunder or his direct and
repeated breach of any covenants contained herein, the Executive shall have the
right,
within 30 days of his receipt of such notice, to notify the Board of Directors
of his intention to cure such breach. On or within 10 days before the effective
date of termination, the Board of Directors shall meet to determine whether such
breach has been effectively cured and, upon the majority vote of the Directors
(not including the Executive) that it has been cured, the notice of termination
shall be deemed ineffective. The Executive shall be entitled to be represented
at such meeting by counsel. 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.
(b) Except where the Executive has exercised his
right to attempt to cure pursuant to the preceding subsection, the Executive
may, within 15 days following delivery of a notice of termination for "cause",
by written notice to the Board of Directors of Transmedia, cause the matter of
termination for "cause" by Transmedia to be discussed at the next regularly
scheduled meeting of the Board of Directors or at a special meeting of the Board
of Directors requested by majority of its members. The Executive shall be
entitled to be represented at such meeting by counsel. Such meeting shall be
conducted according to procedures deemed equitable by a majority of the
Directors present. If at such meeting, it shall be determined that this
Agreement has been terminated without "cause", or that such "cause" shall be
waived, the provisions of this Agreement shall be reinstated with the same force
and effect as if the notice of termination had not been given; and the Executive
shall be entitled to receive the compensation and other benefits provided herein
for the period from the effective date of the notice of termination through the
date of such reinstatement, plus all reasonable costs of his counsel, as
approved by the Board of Directors of Transmedia. Except as provided in the
first sentence of this subsection (b), neither the Executive's election to
pursue or forego the procedures set forth in this subsection (b), nor a
determination by the Board of Directors, at any meeting pursuant to this
subsection, that the Executive's employment hereunder was terminated for
"cause", shall prejudice or preclude the exercise any other right or remedy
which the Executive may have at law or otherwise as a result of the termination
of his employment hereunder.
/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, of 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 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 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/ OPTIONS. 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 clause or 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 clause or provision hereof in any jurisdiction.
/bullet/ BINDING EFFECT; ASSIGNMENT. This Agreement 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 the 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 under 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 against 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
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Xxxxxx Xxxxxx, President
/S/XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
