EXHIBIT 10.21
[Transmedia Network Inc. Letterhead]
September 13, 2001
Xxxxx X. Xxxxxxxxx
0000 XX 000/xx/ Xx., #0000
Xxxxxxxx, XX 00000
Dear Xxx:
This letter outlines our agreement regarding the transition of your position at
Transmedia Network Inc.
.. Your role as President of idine Restaurant Group at Transmedia Network Inc.
will terminate on or before December 31, 2001. The exact termination date
will be at my discretion and is subject to approval by the Board of
Directors.
.. You will continue to be employed by Transmedia through November 30, 2004 in
the capacity of special assistant to the CEO. The responsibilities and
duties of that position will be of a consultative nature, may vary from
period to period, and are at the discretion of the CEO and/or the Board of
Directors. In no case will the responsibilities require more than an
average of the equivalent of 20 working days per calendar quarter, unless
prior arrangements are made by mutual agreement.
.. Compensation will be $10,000 per month. Compensation will cease immediately
upon your acceptance of employment with another organization or upon
self-employment. Compensation will also cease upon your assumption of a
consulting or independent contractor role with another organization without
the express prior written consent of Transmedia.
.. You will be entitled to any bonus earned as part of the Transmedia Variable
Compensation Plan for FY2001. That bonus will be paid in the first month of
calendar 2002 unless other arrangements are made.
.. You will continue to receive Transmedia's standard health care benefits
through the period of your employment.
.. Your monthly automobile allowance and your executive dining privileges will
cease on the termination date of your current position. You will be
entitled to the standard employee dining benefit throughout the remainder
of your employment period.
.. The ownership of the life insurance policy maintained by Transmedia in your
name will be transferred to you as per the terms of your employment
contract, dated October 1, 1998. The payment of all premiums for such
policy shall become your sole responsibility subsequent to the transfer
date.
.. Should your current position terminate prior to December 30, 2001,
Transmedia will provide a pro rata subsidy of the lease on your current
residence up to $2500 per month through December 30, 2001, assuming this
residence ceases to be your primary residence.
.. All stock options with a grant date greater than November 30, 1994, will
remain intact through the employment period and any unvested options will
vest in the normal course as dictated by the vesting provisions of the
option grant and the Transmedia 1996 Long Term Incentive Plan (LTIP). Upon
termination of your employment with Transmedia, you will have ninety days
in which to exercise your vested options. Without an express decision by
the Compensation Committee of the Board of Directors to the contrary,
unexercised stock options with a grant date prior to November 30, 1994,
will be cancelled on the expiration date of the respective grant as
dictated by the terms of the LTIP.
.. A condition of your continued employment with Transmedia will be the
execution of a re-issued Non-Compete, Non-Solicitation, and Confidentiality
Agreement and a general Release, both of which are attached. Be advised
that should you violate the terms of the Non-Compete, Non-Solicitation and
Confidentiality Agreement, all of Transmedia's obligations herein shall
immediately cease and whatever appropriate remedies that may be available
to Transmedia will be considered.
Please sign this letter indicating your acceptance of the terms of your
continued employment and execute the attached Agreement and Release and return
them to me.
Sincerely,
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
President and CEO
/s/ Xxxxx X. Xxxxxxxxx 09/14/01
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Xxxxx X. Xxxxxxxxx Date
Transmedia Non-Compete, Non-Solicitation & Confidentiality Agreement
A. The Employee acknowledges that the business of Transmedia is nationwide
in scope. Accordingly, during the Restricted Period (as defined below), the
Employee shall not; (i) directly or indirectly own, manage, operate, finance,
advise, assist, join, or control, or participate in the ownership, management,
operations or control of, or be connected as a director, officer, employee,
partner, member, stockholder, consultant, financier or otherwise with, any
business or organization located in or doing business in the Restricted Areas
(as defined below) which competes with the business of Transmedia and its
subsidiaries, licensees or franchisees as conducted at any time during the Term;
or (ii) interfere with, or divert or attempt to divert from them the benefits
of, any relationship with employees, agents, suppliers, restaurants and other
merchants, marketing partners, corporate sponsors, membership card holders or
other customers maintained by Transmedia and its subsidiaries at any time during
the Restricted Period. However, if the Employee's employment hereunder is
terminated without Cause (as defined below) and the Employee does not receive
after such termination the Accrued Obligations and Termination Payment, as
provided by Transmedia's severance policy, if applicable, then the provisions of
this document shall cease upon such termination. For the purposes of this
Agreement, (i) "Restricted Period" means the twelve-month period commencing upon
the termination of the Employee's employment with Transmedia 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 document shall be construed to prevent the Employee
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 Employee does not
participate in the management, control, or operations of any such corporation
and the Employee's holdings do not at any time exceed two percent (2%) of the
outstanding shares of any class of stock of such corporation.
B. All confidential and proprietary information or data which the Employee
may now have or may obtain during his employment relating in any way to the
business, plans, programs, financial or operating results, projections or
budgets of Transmedia and its subsidiaries shall not be disclosed by him 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 Employee is pursuing in
accordance with duties assigned to him. The Employee 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.
Confidential or proprietary information, as used in this document, comprises any
technical, economic, financial, customer, supplier, marketing or other
information of or relating to Transmedia or any of its subsidiaries which is not
in the public domain, including, without limitation, information with respect to
operational or marketing plans and programs, training methods, bidding
techniques, contracts, leases, franchises, partnering agreements, concessions,
partnering agreements and licenses, purchasing methods and procedures,
accounting systems, merchant, partner and cardmember names and requirements,
routes, sales or other costs, sales volume, prices, products, business systems
and
computer programs, any formula, pattern, compilation, program, device, method,
technique or information relating to any product, service, long-range planning
financial plans and results.
C. During the Restricted Period, the Employee shall not, on behalf of
himself or any business with which he may be associated, offer employment or a
consultancy position (or assist any other person in offering employment or a
consultancy position) to any person who is an employee or a consultant of
Transmedia or any of its subsidiaries.
D. The Employee acknowledges that damages are an inadequate remedy for any
breach of the terms or provisions of this document and that Transmedia shall,
whether or not it is pursuing any potential remedies at law, be entitled to
equitable relief in the form of preliminary and permanent injunctions, without
having to post any bond or other security, upon any breach or threatened breach
of any of such term or provision and to the remedy of the specific performance
to restrain the Employee from committing or continuing any such breach and to
enforce the Employee's obligations hereunder.
E. It is expressly understood and agreed that although Transmedia and the
Employee consider the restrictions contained in this document hereof to be
reasonable for the purpose of preserving the goodwill, proprietary rights and
going concern value of Transmedia and its subsidiaries, if a final judicial
determination is made by a court having jurisdiction that the time or territory
or any other restriction contained in this document is an unenforceable
restriction on the Employee's activities, the provisions of this Document is an
unenforceable restriction on the Employee's activities, the provisions of this
Document shall not be rendered void but shall be deemed amended to apply as to
such maximum time and territory and to such other extent as such court may
judicially determine or indicate to be reasonable. Alternatively, if the court
referred to above finds that any restriction contained in this document or any
remedy provided herein is unenforceable, and such restriction or remedy cannot
be amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained therein or the
availability of any other remedy.
F. If any court or tribunal of competent jurisdiction shall refuse to
enforce any or all of the provisions of this document 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, and shall be revised to the extent necessary to
permit the enforcement of such provisions.
G. The Employee acknowledges that during his employment, 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 Employee
acknowledges that all of the foregoing shall be owned by and belong exclusively
to Transmedia, and he shall have no personal interest therein. The Employee, 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.
H. For purposes of this Agreement:
"Cause" shall mean an event where the Employee: (i) commits any act of
fraud, willful misconduct or dishonesty in connection with his employment or
which injures Transmedia or its direct or indirect subsidiaries; (ii) breaches
any material representation or warranty or any covenant or condition in this
Agreement or any fiduciary duty to Transmedia or it's direct or indirect
subsidiaries; (iii) fails, refuses or neglects to timely perform any duty or
obligation under this Agreement and such failure, refusal or neglect is not
cured by the Employee within seven (7) days from the date Transmedia notifies
the Employee thereof; (iv) engages in willful misconduct or negligence in the
performance of his duties, which conduct injures Transmedia or its direct or
indirect subsidiaries; (v) commits a material violation of any law, rule or
regulation of any governmental authority (state, federal or foreign), any
securities exchange or association or other regulatory or self-regulatory body
or agency applicable to Transmedia or its subsidiaries or any general policy or
directive of Transmedia or its subsidiaries communicated in writing to the
Employee; (vi) is charged with a crime involving moral turpitude, dishonesty,
fraud or unethical business conduct, or a felony; (vii) is subject to the
occurrence of an event or condition which makes it unlawful for the Employee to
perform his duties hereunder, including the issuance of any order, decree,
decision or judgment; or (viii) gives or accepts undisclosed commissions or
other payments in cash or in kind in connection with the affairs of Transmedia
or any of its direct or indirect subsidiaries or their respective clients.
Agreed to by: Agreed to by:
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------- --------------------------------------
Xxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxxx
Transmedia Network Inc.
Date: 13 Sept. 01 Date: 09/14/01
--------------------------------- --------------------------------
RELEASE
For good and valuable consideration, the sufficiency and receipt of which is
hereby acknowledged, the undersigned, XXXXX X. XXXXXXXXX ("Xx. Xxxxxxxxx"),
hereby WAIVES, RELEASES AND COVENANTS NOT TO SUE Transmedia Network Inc., a
Delaware corporation (the "Company"), and the Releasees (as defined below) with
respect to, and IRREVOCABLY AND UNCONDITIONALLY RELEASES, REMISES AND FOREVER
DISCHARGES the Company and the Releasees from, any and all claims, agreements,
promises, liabilities, rights, demands and causes of action of any kind
whatsoever, in law or equity, whether known or unknown, suspected or
unsuspected, fixed or contingent, apparent or concealed which he or his heirs,
executors, administrators, successors or assigns ever had or now have against
the Company or the Releasees and its past, present and future parents,
subsidiaries, affiliates, predecessors, successors and assigns; and its and
their past, present and future stockholders, directors, officers, agents,
representatives and employees (collectively, the "Releasees"), for, upon, or by
reason of any matter, cause or thing whatsoever occurring on or prior to the
date of this Release, including, without limitation, any and all claims arising
out of or relating to his employment, compensation and benefits with the
Company, and/or the termination thereof, and claims for related costs, expenses
and attorneys' fees, INCLUDING WITHOUT LIMITATION, ANY AND ALL CLAIMS AND RIGHTS
UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT, AS AMENDED, TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE FAMILY AND MEDICAL LEAVE ACT, THE
AMERICANS WITH DISABILITIES ACT, AS AMENDED; THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT, AS AMENDED; THE NEW YORK STATE EXECUTIVE LAW, AS AMENDED; THE
FLORIDA STATE CIVIL RIGHTS ACT OF 1992;
AND THE DADE COUNTY, FLORIDA EQUAL OPPORTUNITY ORDINANCE, except for (1) claims
for indemnification, contribution or reimbursement to which the undersigned may
be entitled as a director, officer and employee of the Company and its
predecessors, (2) options and rights to purchase Common Stock of the Company
heretofore granted to the undersigned (the "Stock Options"), and (3) retirement
and similar benefits to which he is entitled as an employee of the Company as
described in a certain letter dated September 13, 2001 from Xxxx X. Xxxxxxxxx to
Xx. Xxxxxxxxx. The undersigned understands and agrees that other than (1) as set
forth in the Second Amended and Restated Employment Agreement, dated as of
October 1,1998 (the "Employment Agreement"), between the Company and the
undersigned and (2) claims for indemnification, contribution and reimbursement
to which he may be entitled as a director, officer and employee of the Company
and its predecessors, he will not receive any compensation, payments or benefits
of any kind from the Company or the Releasees and he expressly acknowledges and
agrees that he is not entitled and has no right to any such additional
compensation, payment or benefit.
As part of this Agreement and in part in exchange for the consideration stated
above, Xx. Xxxxxxxxx also waives any rights and claims under 29 U.S.C. (S)
621-634 (Age Discrimination in Employment Act) prior to the date of this
Release, as allowed by 29 U.S.C. (S) 626(f), and acknowledges that he
understands the meaning of this Release. Xx. Xxxxxxxxx further acknowledges that
this waiver of rights is voluntary and that he has up to 21 days to consider
whether or not to enter into this Release. Xx. Xxxxxxxxx understands that he has
seven (7) days from the date of execution by him to revoke and terminate this
Release.
This Release may be specifically enforced in Court and may be used as evidence
in any proceeding in which any of the parties allege a breach hereof. In the
event any proceeding is brought to interpret, enforce or obtain relief from a
breach of this Release, the prevailing party shall recover all such party's
costs, expenses and attorneys' fees incurred in each and every such proceeding,
including any and all appeals therefrom.
This Release shall be subject to, governed by and interpreted in accordance with
the laws of the State of Florida. The federal and state courts of Florida shall
have exclusive jurisdiction to resolve any dispute concerning this Release and
both parties hereby agree to submit to the jurisdiction of such courts for such
purpose. This Release, a certain letter dated September 13, 2001 from Xxxx X.
Xxxxxxxxx to Xx. Xxxxxxxxx, and the Stock Options contain the entire agreement
between the parties and supersede and terminate any and all previous agreements
between them, whether written or oral, with respect to the subject matter
thereof. All prior and contemporaneous discussions and negotiations have been
and are merged and integrated into, and are superseded by, this Release, a
certain letter dated September 13, 2001 from Xxxx X. Xxxxxxxxx to Xx. Xxxxxxxxx,
and the Stock Options. This Release may not be changed orally. In the event any
provision of this Release shall be held to be unenforceable, the remaining
portions shall remain in full force and effect. This Release shall be binding
upon the undersigned and his heirs, administrators, representatives executors,
and assigns.
If this Release is acceptable to the undersigned, he should indicate his
agreement by signing and dating this Release in the space provided below and
returning the signed Release to the Company. THE UNDERSIGNED WILL THEN BE
PERMITTED TO REVOKE THIS RELEASE AT ANY TIME DURING THE PERIOD OF SEVEN DAYS
IMMEDIATELY
AFTER HE SIGNS THIS RELEASE. THIS RELEASE WILL NOT BE EFFECTIVE OR ENFORCEABLE
UNTIL THE SEVEN-DAY REVOCATION PERIOD HAS EXPIRED WITHOUT HIS HAVING EXERCISED
HIS RIGHT OF REVOCATION. In the event he fails to execute and return this
Release on a timely basis, Or he execute and then elects to revoke this Release,
this Release will be of no further force and effect, and neither he nor the
Company will have any further rights or obligations under this Release.
BY SIGNING THIS RELEASE, XX. XXXXXXXXX ACKNOWLEDGES AND AFFIRMS THAT HE IS
COMPETENT, THAT HE WAS AFFORDED A SUFFICIENT TIME PERIOD TO REVIEW AND CONSIDER
THIS RELEASE UP TO 21 DAYS, THAT HE HAS HAD THE OPTION OF BEING ADVISED TO DO SO
BY AN ATTORNEY OF HIS CHOICE, THAT HE HAS READ AND UNDERSTANDS AND ACCEPTS THIS
RELEASE, AS FULLY AND FINALLY WAIVING AND RELEASING ANY AND ALL CLAIMS AND
RIGHTS WHICH HE MAY HAVE AGAINST THE COMPANY, THAT NO PROMISES OR INDUCEMENTS
HAVE BEEN MADE TO HIM EXCEPT AS SET FORTH IN THIS RELEASE AND THE EMPLOYMENT
AGREEMENT, AND THAT HE HAS SIGNED THIS RELEASE, FREELY, KNOWINGLY AND
VOLUNTARILY, INTENDING TO BE LEGALLY BOUND BY ITS TERMS.
IN WITNESS WHEREOF, I have signed and sealed this Agreement this 14/th/ day
of September, 2001.
/s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxx
/s/ Illegible
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Witness:
