EXHIBIT 10.36
TERMINATION AGREEMENT
TERMINATION AGREEMENT (this "Agreement"), dated as of February 12,
2001, by and between TRANSMEDIA NETWORK INC., a Delaware corporation
("Transmedia") and SIGNATURECARD, INC., an Indiana corporation ("SCI") and GE
Financial Assurance ("GEFA"), a Delaware corporation.
W I T N E S S E T H:
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WHEREAS, Transmedia and SCI are parties to the following agreements:
(i) an Asset Purchase Agreement, dated as of March 17, 1999, as amended (the
"Purchase Agreement"), by and between Transmedia and SCI; (ii) a Services
Collaboration Agreement, dated as of June 30, 1999 (the "Services Collaboration
Agreement"), by and between Transmedia and SCI; (iii) a License Agreement, dated
as of June 30, 1999 (the "License Agreement"), by and between Transmedia and
SCI; (iv) a Software License Agreement, dated as of June 30, 1999 (the "Software
License Agreement"), by and between Transmedia and SCI; (v) a Services
Agreement, dated as of June 30, 1999 (the "Japan Services Agreement"), by and
between Transmedia and Signature Japan Co., Ltd.; (vi) an Option Agreement,
dated June 30, 1999 (the "Option Agreement"), by and between Transmedia and SCI;
(vii) a Transition Services Agreement, dated as of June 30, 1999 (the
"Transition Services Agreement"), by and between Transmedia and SCI; and (viii)
consent to delegation agreements (the "Consent to Delegation Agreements") listed
on Schedule A hereto;
WHEREAS, GEFA has controlling interest in SCI;
WHEREAS, Transmedia, SCI and GEFA entered into a certain Payment and
Termination of Exclusivity Agreement, dated as of December 29, 2000 (the
"Payment and Termination Agreement"), which, among other things, (i)
extinguished certain obligations under the Purchase Agreements, (ii) modified or
amended certain other obligations under the Purchase Agreements, (iii) pursuant
thereto, Transmedia paid to SCI $3,800,000 in full satisfaction of all sums due
and payable thereafter, and (iv) amended the Put Right (as defined in the
Purchase Agreement) to provide for the exercise of such right in two tranches
with $1,600,000 already having been paid to SCI and with the next notice of
exercise having been made by January 31, 2001;
WHEREAS, Transmedia and SCI desire to terminate certain of the
agreements entered into in connection with the Purchase Agreement as
contemplated in the Payment and Termination Agreement and as set forth herein;
and
WHEREAS, Transmedia is not obligated to make any current payment to SCI
other than in connection with the Put Right (as defined in the Purchase
Agreement and amended by the Payment and Termination Agreement).
NOW, THEREFORE, for good and valuable consideration including, without
limitation, the payment of $3,800,000 to SCI pursuant to the Payment and
Termination Agreement and $1,600,000 payment to SCI pursuant to the exercise of
one-half of the Put Right (as defined in the Purchase Agreement), the receipt
and sufficiency of the aforementioned payments which is hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Termination of Agreements.
(a) Transmedia and SCI hereby agree that the following
agreements shall be terminated as of the date hereof and shall no longer be in
effect:
(i) the Asset Purchase Agreement, except for
Article VII - Survival of
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Representations, Warrants and Covenants;
Indemnification and Sections 1.3(d) - Put
Right, 2.1(d) - Rights of Purchaser, 4.2(ii)
- Access to Information, 4.3 -
Confidentiality and Return of Documents, 4.4
- Non-Solicitation, 4.5 - Further
Assurances, 4.6 - Books and Records, 4.7 -
Tax Cooperation, 4.8 - Regulatory and Other
Permits, 4.9 - Taxes and Fees, 4.12 -
Covenant Not to Compete, 4.14 - Reservation
of Shares, 4.15 - No Impairment and 4.19 -
Listing of Shares, which shall remain in
full force and effect;
(ii) the Services Collaboration Agreement, except
for Article XIII - Indemnification and
Sections 10.1 - Ownership, 10.2 - Ownership
Exclusions, 10.3 - Confidentiality, 10.4 -
Covenant Not to Compete, 10.5 - Public
Announcements, 14.3 - Tax Characterization
and 14.10 - Standstill, which shall remain
in full force and effect; and
(iii) the License Agreement, except for Sections
3.01 - Protection of Records, 3.03 -
Ownership of Transmedia Intellectual
Property, 5 - Indemnification and 7 -
Confidentiality, which shall remain in full
force and effect.
(b) Notwithstanding anything herein to the contrary, the
following agreements shall continue to be in full force and effect to the extent
not modified or amended pursuant to this Agreement or by the Payment and
Termination Agreement:
(i) the Japan Services Agreement;
(ii) except as amended by the Payment and
Termination Agreement, the Option Agreement;
(iii) the Software License Agreement;
(iv) until assigned to Transmedia, the agreements
pursuant to which each consent was granted
in connection with the Consent to Delegation
Agreements; and
(v) the General Assignment, Assumption and Xxxx
of Sale, dated June 30, 1999, between
Transmedia and SCI.
2. Intent of the Parties; Amendments and Modifications. Each party
hereto hereby expressly acknowledges its intent that upon the termination of the
agreements set forth in Section 1(a) as set forth or provided for in this
Agreement and upon the discharge of responsibilities under the Payment and
Termination Agreement all rights and obligations between the parties with
respect to the DALC Program (as defined in the Services Collaboration
Agreement), its business and its operation shall terminate, except for those
provisions specifically set forth in Section 1(a)(ii) hereof; and each party
hereto hereby expressly agrees that any agreements between the parties, written
or oral, which are not expressly terminated or otherwise provided for in this
Agreement shall be deemed modified or amended in such manner as to fully
implement the foregoing intent of the parties hereto.
3. Representations and Warranties. Each party hereto hereby represents
and warrants to each other parties that this Agreement has been duly executed
and delivered by such party and that this Agreement constitutes valid and
binding obligation of such party enforceable in accordance with their respective
terms except as enforcement may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether the issue of enforceability
is
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considered in a proceeding in equity or at law).
4. Assignment of Agreements. SCI will cooperate with Transmedia in any
reasonable arrangement designed to obtain consent to assignments of the Consent
to Delegation Agreements listed on Schedule A attached hereto to Transmedia, and
to provide Transmedia the benefit under, and to allow Transmedia to assume the
obligations arising after the date hereof under, any such non-assignable
agreement, including the enforcement for the account of Transmedia after the
date of any and all rights of SCI against the other party thereto arising out of
the breach or cancellation thereof of such other party or otherwise.
5. Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated herein shall be paid by the party
incurring such costs and expenses.
6. Amendment. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by each party hereto and no obligation hereunder may be waived except
in a writing signed by the party granting such waiver. No party to this
Agreement may assign any of its rights or obligations under this Agreement
without the prior written consent of each other party.
7. Notices. All notices and other communications hereunder shall be in
writing, shall be given and shall be deemed to have been duly given if delivered
in person, by first class mail, postage prepaid, by overnight courier or by
facsimile transmission, to the parties hereto as follows:
If to Transmedia: Transmedia Network Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
If to SCI: SignatureCard, Inc.
000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
If to GEFA: GE Financial Assurance
000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
Facsimile: (000) 000-0000
or to such other address as any party may have furnished to each other party in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
8. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but each of which
together shall constitute one and the same document.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
10. Binding Effect. This Agreement shall be binding upon, inure to the
benefit of, and be
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enforceable by the successors and permitted assigns of the parties hereto.
Nothing expressed or referred to in this Agreement is intended or shall be
construed to give any person other than the parties to this Agreement, or their
respective successors or permitted assigns, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
11. Entire Agreement. Except as set forth in the Payment and
Termination Agreement and as otherwise referred to herein, this Agreement
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties hereto with respect to
the subject matter hereof.
12. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
13. Further Assurances. Each party hereto agrees to execute and deliver
all such documents and instruments and take all such action as may be reasonably
required, necessary or desirable to consummate the transactions contemplated by
this Agreement.
14. Specific Performance. Each party hereto acknowledges that damages
would be an inadequate remedy for any breach of the provisions of this Agreement
and agrees that the obligations of each party hereunder shall be specifically
enforceable and that the party seeking enforcement may apply for injunctive
relief to prevent any violation hereof. The party seeking to enforce such
obligations shall be entitled to recovery of all costs and expenses, including
reasonable attorneys' fees and expenses, incurred in enforcing such obligations.
15. Descriptive Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, Transmedia and SCI have caused their
respective names to be hereon subscribed by their respective duly authorized
officers, all as of the day and year first above written.
TRANSMEDIA NETWORK INC.
By: /S/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President & CEO
SIGNATURECARD, INC.
By: /S/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
GE FINANCIAL ASSURANCE, INC.
PARTNERSHIP MARKETING GROUP
By: /S/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
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Schedule A
1. AAdvantage Participation Agreement of December 1, 1997 between American
Airlines, Inc. and SignatureCard, Inc.
2. Executive Club Dining Program Services Agreement of March 21, 1999
between British Airways PLC and SignatureCard, Inc.
3. Onepass Dining Program Agreement of March 1, 1999 between Continental
Airlines, Inc. and SignatureCard, Inc.
4. Delta Skymiles Program Participation Agreement of January 1, 1999
between Delta Airlines, Inc. and SignatureCard, Inc.
5. WorldPerks Dining Program Services Agreement of January 1, 1999 between
Northwest Airlines, Inc. and SignatureCard, Inc.
6. United Mileage Plus Participation Agreement of November 1, 1998 between
Mileage Plus, Inc. and SignatureCard, Inc.
7. Dividend Miles Dining Program Services Agreement of February 1, 1999
between US Airways, Inc. and SignatureCard, Inc.
8. Flight Fund Dining Program Services Agreement of May 22, 2000 between
America West Airlines, Inc. and SignatureCard, Inc.
9. Frequent Flight Bonus Program of March 20, 1996 between TransWorld
Airlines, Inc. and SignatureCard, Inc.
