Exhibit 10.5
AMENDMENT AND RESTATEMENT OF THE CONSULTING AGREEMENT
AMENDMENT AND RESTATEMENT OF THE CONSULTING AGREEMENT (the
"Agreement"), dated as of November 15, 1996, by and between TRANSMEDIA NETWORK
INC., a Delaware corporation with its principal office at 00000 Xxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxx, 00000 (the "Company"), and XXXXXX XXXXXX
residing at 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx 0000, Xxxxxxxx Xxxxxx, Xxxxxxx,
00000 (the "Consultant").
W I T N E S S E T H:
WHEREAS, the Company desires to retain the Consultant to
provide certain advisory services in respect of marketing, advertising,
development and general financial matters, and the Consultant desires to be so
retained by the Company, upon the terms and conditions hereinafter set forth;
and
WHEREAS, the Company and the Consultant extend into a
Consulting Agent dated as of November 24, 1993, which they wish to extend and
restate;
NOW, THEREFORE, the parties hereto hereby covenant and agree
as follows:
1. CONSULTING SERVICES. (a) The Company hereby retains the Consultant
to provide, and the Consultant hereby agrees to provide, certain advisory
services (the "Consulting Services") to the Company in respect of marketing,
advertising, development and general financial matters. Nothing contained herein
shall imply or confer upon the consultant the status of an employee of the
Company. The Consultant shall be required to devote five business days each
month to the performance of the Consulting Services, but may devote additional
amounts of time as the Consultant may desire at no additional expense to the
Company. The Consulting Services shall be performed at such times as shall be
mutually agreed upon by the Company and the Consultant.
(b) The Consultant represents and warrants to the Company that the
execution, delivery and performance by the Consultant of this Agreement shall
not constitute a violation of the terms of any agreement to which the Consultant
is a party or by which he is bound.
2. Term. The term (the "Term") of this Agreement shall commence on the
date of termination (the "Effective Date") of the employment agreement, dated as
of January 1, 1987, between the Company and the Consultant, as amended or
renewed (the "Employment Agreement"), and shall terminate on the tenth
anniversary of the Effective Date, but in no event later than January 1, 2005,
unless sooner terminated as provided herein.
3. FEES AND EXPENSES. In consideration of the performance of the
Consulting Services, the Company shall pay to the Consultant, and the Consultant
shall accept from the Company for his services rendered hereunder, for any year
during the Term, an annual amount
equal to fifty (50) percent of the sum of the highest base salary and bonus
received by the Consultant in any year under the Employment Agreement not to
exceed in any one year during the Term ten (10) percent of the Company's prior
year's Pre-Tax Income (as defined below), but in any event an amount not less
than $100,000 ("Consulting Fee"). The Consulting Fee shall be payable monthly in
advance. The Company shall not withhold any wage or employment taxes in respect
of such Consulting Fees and shall issue to the Consultant such information
reports relating thereto as are required by applicable laws and regulations.
"Pre-Tax Income" shall mean the pre-tax income of the Company for the applicable
period, as determined by the Company's independent certified public accountants
on the basis of generally accepted accounting principles consistently applied.
(b) The Company hereby agrees, from time to time upon request, to
reimburse the Consultant for all out-of-pocket expenses incurred by the
Consultant in the performance of the Consulting Services, including but not
limited to, reasonable travel, entertainment and other expenses incident to the
rendering of services hereunder, upon receipt of proper documentation therefor.
In addition, the Company hereby agrees to provide the Consultant with office
services, including, but not limited to, secretarial and other office support
staff and office space, furnishings and supplies.
4. FRINGE BENEFITS At all times during the Term, the Consultant 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 the Company as of the date hereof, or in the
future. In the event that the Company does not maintain or does not provide any
life, medical, health, hospitalization or insurance benefits, the Company hereby
agrees to provide the Consultant with funds in an amount sufficient for the
Consultant to obtain such benefits independently.
5. SALE OF THE COMPANY. The sale of all or substantially all of the
assets of the Company, or the sale of a "control block" (as hereinafter defined)
of its shares to any person during the Term shall be made subject to the
Consultant's right to receive ten (10) days prior notice of such sale and to
either (1) continue this Agreement or (2) within 90 days after such sale,
terminate this Agreement. In the event that the Consultant chooses to terminate
this Agreement, he shall receive, without the necessity of performing any other
services for the Company, a payment of a lump sum of all Consulting Fees due and
owing to Consultant for the entire Term under this Agreement. 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
any form to direct or cause the direction of the management and policies of the
Company.
6. DISABILITY. In the event of the Consultant's Disability (as defined
below), the Company shall pay the Consultant the Consulting Fee that would be
payable to the Consultant but for the Disability, as follows: (i) one hundred
(100) percent of the Consulting Fee during the first six (6) months of
Disability and (ii) seventy-five (75) percent of the Consulting Fee during the
subsequent 18 months of Disability. For purposes hereof, "Disability" shall mean
a physical or mental impairment of such duration and degree that the Consultant
is determined by the Board of Directors to be substantially unable because of
the impairment to perform the services described in Section 1 hereof. The
Company hereby agrees to provide ten (10) days prior notice of a
determination by the Board of Directors that the Consultant is Disabled in the
event that the Board of Directors makes such a determination.
7. CHAIRMANSHIP. The Consultant hereby agrees that he will serve as
Chairman of the Board of Directors upon the request of the Board of Directors.
In the event that the Consultant serves as Chairman of the Board of Directors,
the Consultant is entitled to receive all benefits and protections to which all
of the other members of the Board of Directors are entitled, including, but not
limited to, fees for service as a Director, indemnification and stock options.
8. RESTRICTIONS. (a) The Consultant agrees, to the extent permitted by
law, that he shall not during the Term and for a period of two (2) years
following the termination of this Agreement for any reason ("Restricted
Period"), without the Company's consent, (i) directly or indirectly, own,
manage, operate, join or control, or participate in the ownership, management,
operation or control of, or be a director, officer, partner, stockholder or
employee of, or a consultant to, any business, firm, organization or corporation
located or doing business in the Restricted Area (as defined below) which (A) is
engaging 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 the Company 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 the Company and its subsidiaries at any time during the Restricted
Period. For purposes hereof, "Restricted Area" means any geographical market in
or with respect to which the Company, 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 8
shall prevent the Consultant 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 the Company and its subsidiaries so long
as the Consultant does not participate in the management, control, operations of
any such corporation and the Consultant'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 Consultant agrees that all confidential and proprietary matters
which he may now have or may obtain during the Term relating in any way to the
business of the Company and its subsidiaries shall not be disclosed to any other
person, either during or after the termination of this Agreement, unless the
Company has given its prior consent to such disclosure or such disclosure is a
necessary incident to transactions which the Consultant is pursuing in
accordance with duties delegated to him by the Board of Directors.
(c) If any court shall determine that any of the provisions of this
Section 8 is unenforceable, because individually or taken together, they are
deemed unreasonable, it is the intention and understanding of the parties hereto
that the restrictive covenant set forth herein shall not be rendered entirely
unenforceable but shall be amended to the extent required to render the same
valid and enforceable.
(d) The Consultant acknowledges that the remedy at law for his breach
of the covenants contained in this Section 8 is inadequate, and that therefore
the Company 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 Consultant from committing or continuing any such breach and to
enforce the Consultant's obligations hereunder.
9. INDEMNIFICATION. The Company agrees to indemnify and hold harmless
the Consultant from and against, and to reimburse the Consultant on demand, with
respect to any and all losses, damages, liabilities, claims, costs and expenses,
including reasonable attorneys' fees (collectively, "Losses") incurred by the
Consultant, by reason of or arising out of or in connection with the performance
of the Consulting Services hereunder by the Consultant other than for Losses
incurred as a result of acts constituting willful misconduct or gros negligence.
10. TERMINATION. Notwithstanding anything contained herein to the
contrary, this Agreement shall terminate immediately upon the death of the
Consultant.
11. MISCELLANEOUS.
11.1 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof and
no waiver or modification of the terms hereof shall be valid unless in writing
signed by the party to be charged and only to the extent therein set forth.
11.2 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York applicable to contracts
made and to be performed wholly within such State.
11.3 SUCCESSORS AND ASSIGNS; ASSIGNABILITY. This Agreement shall be
binding upon and inure to the benefit of the Consultant, his successors,
assigns, heirs and legal representatives and the Company and its successors and
assigns. However, neither party may assign its rights hereunder without the
prior written consent of the other party, and any such attempted assignment
without such consent shall be null and void and without effect.
11.4 NOTICES. All notices hereunder shall be in writing and shall be
given when personally delivered or sent by registered or certified mail, postage
prepaid, or by telegram, telex, cable or facsimile. Such notices, if intended
for the Company, shall be addressed to it at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx
Xxxxx, Xxxxxxx, 00000 Attention: President; and, if intended for the Consultant,
shall be sent to him at 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxx 0000, Xxxxxxxx Xxxxxx,
Xxxxxxx, 00000, or any other address which such party may have subsequently
communicated to the other party in writing.
11.5 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as the date first above written.
TRANSMEDIA NETWORK INC.
By: /S/XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
Executive Vice President
/S/XXXXXX XXXXXX
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Xxxxxx Xxxxxx
