Exhibit 10.19
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EMPLOYMENT
AGREEMENT (this “
Agreement ”) dated as of October 17, 2005,
between AFFINION GROUP, INC.
(f/k/a Affinity Acquisition, Inc.), a Delaware corporation,
(the “ Company ”) and NATHANIEL J. LIPMAN
(“ Executive ”).
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WHEREAS , pursuant to Purchase Agreement (the “
Purchase Agreement ”) made and entered into as of the
26th day of July, 2005, by and among the Company, Affinion Group
Holdings, Inc. (f/k/a Affinity Acquisition Holdings, Inc.) (“
Parent ”), and Cendant Corporation, the Company will
acquire (the “ Transaction ”) all of the equity
interests in Cendant Marketing Group, LLC (formerly Cendant
Membership Services Holdings LLC) and Cendant International
Holdings Limited (together, the “ Subsidiaries
”);
WHEREAS , concurrently with the execution of the
Purchase Agreement, as a condition and inducement to Parent’s
willingness to enter into the Purchase Agreement, the Company and
Executive are entering into this Agreement;
WHEREAS, in connection with the Transaction, the Company
desires to employ Executive and Executive desires to be employed by
the Company;
WHEREAS , Cendant Membership Services Holdings, LLC and
Executive are parties to that certain employment agreement dated as
of January 1, 2005, as such employment agreement has been
amended or supplemented through the Effective Date (as defined in
Section 1) (the “ Prior Agreement ”);
and
WHEREAS , Executive, as a condition of his employment,
will make a substantial investment in Parent concurrently with the
closing of the Transaction by purchasing 205,000 shares of common
stock of Parent, par value $0.01, at a price of $10 per
share;
NOW THEREFORE,
in consideration of the mutual
covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Employment Period
.
The initial term of
Executive’s employment hereunder shall be for a period of
five (5) years (the “ Initial Term ”)
commencing on the closing of the Transaction (the “
Effective Date ”) and ending on the fifth anniversary
of the Effective Date, unless terminated earlier pursuant to
Section 3 (the “ Employment Period ”);
provided, however, that the Employment Period shall automatically
be renewed for successive one (1) year terms upon the
Expiration of the Initial Term unless either party gives at least
ninety (90) days’ written notice of its intention not to
renew the Employment Period. Upon Executive’s termination of
employment with the Company for any reason, he shall immediately
resign all positions with the Company or any of its subsidiaries or
affiliates, including any position as a member of the
Parent’s Board of Directors and a member of the
Company’s Board of Directors (the “ Board
”).
Section 2. Terms of
Employment .
(a) Position . During the
term of Executive’s employment, Executive shall serve as
President and Chief Executive Officer of the Company and shall be
responsible for the management and affairs of the Company as
directed by the Board. In addition to serving as President and
Chief Executive Officer, prior to an initial public offering of the
Parent’s common stock, the Company shall use its reasonable
best efforts to cause Executive to be appointed a member of the
Parent’s Board of Directors and the Board. Following an
initial public offering of the Parent’s common stock, the
Company shall use its reasonable best efforts to cause the Parent
to nominate and recommend Executive to the Parent’s
shareholders for election as a member of the Parent’s Board
of Directors, and continue to use its reasonable best efforts to
cause Executive to be appointed or elected a member of the Board.
In performing his duties hereunder, Executive shall report directly
to the Board.
(b) Duties . During the term
of Executive’s employment, Executive agrees to devote all of
his business time to the business and affairs of the Company and to
use Executive’s reasonable best efforts to perform
faithfully, effectively and efficiently his responsibilities and
obligations hereunder. Notwithstanding the foregoing, nothing
herein shall prohibit Executive from (i) serving on civic or
charitable boards or committees and (ii) managing personal
investments, so long as such activities do not materially interfere
with the performance of Executive’s responsibilities
hereunder.
(c) Compensation .
(i) Base Salary . During the
term of Executive’s employment, Executive shall receive an
initial annual base salary in an amount equal to $450,000.00, less
all applicable withholdings, which shall be paid in accordance with
the customary payroll practices of the Company (as in effect from
time to time, the “ Annual Base Salary ”). The
Annual Base Salary shall be subject to annual review and increases,
and the Annual Base Salary shall not be reduced without
Executive’s consent, unless the reduction is related to a
broader compensation reduction that is not limited to Executive and
does not exceed 10% of his Annual Base Salary.
(ii) Bonuses . For fiscal
year 2005, Executive shall be eligible to receive a bonus pursuant
to the bonus plan as in existence prior to the Effective Date in an
amount to be determined by the Board in good faith. Thereafter,
during the Employment Period, the Company shall establish a bonus
plan for each fiscal year (the “ Plan ”)
pursuant to which Executive will be eligible to receive an annual
bonus (the “ Bonus ”). The Board or the
Compensation Committee of the Board will administer the Plan and
establish performance objectives for each year. In the event that
the Company achieves target based on actual performance, Executive
shall be entitled to receive a Bonus in an amount equal to 125% of
Executive’s Annual Base Salary (“ Target Bonus
”). Subject to Section 4, Executive will be entitled to
receive the Bonus only upon the Company’s achievement of the
specified performance objectives and if Executive is employed on
the last day of the applicable fiscal year. The Bonus shall become
payable on or before March 15 following the end of the
applicable fiscal year provided that the Board or Compensation
Committee finally determines (x) that the Company has achieved
the applicable performance objectives and (y) the amount of
the bonus that shall be paid to each executive entitled to receive
a bonus for the applicable fiscal year. If
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the Board or Compensation Committee
has not made such final determination by March 15, the Bonus
(if any) shall instead be paid as soon as practicable
thereafter.
(iii) Benefits . During the
term of Executive’s employment hereunder, he shall be
entitled to participate in all incentive, savings and retirement
plans, practices, policies and programs applicable generally to
other senior executives of the Company and shall be eligible for
participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the
Company to the extent applicable generally to other senior
executives of the Company. The benefits provided to Executive shall
be, in the aggregate, comparable to those benefits that Executive
was receiving at Cendant Membership Services Holdings, LLC
immediately prior to the Effective Date. Notwithstanding anything
in this Section 2(c)(iii) to the contrary, all benefit
obligations are subject to guidance issued by the U.S. Department
of Treasury under Section 409A of the Code. To the extent
required, the Company may modify the benefits provided under this
Section 2(c)(iii) to comply with such guidance.
(iv) Expenses . During the
term of Executive’s employment, Executive shall be entitled
to receive reimbursement for all reasonable business expenses
incurred by Executive in performance of his duties hereunder
provided that Executive provides all necessary documentation in
accordance with Company policy.
(v) Stock Options .
Concurrent with the closing of the Transaction, Parent shall grant
Executive a stock option (the “ Option Grant ”)
to purchase Parent’s common stock, par value $ 0.01, at an
exercise price of $10 per share. The Option Grant will be pursuant
to the terms and conditions set forth in the Parent’s 2005
Stock Incentive Plan (the “ Stock Incentive Plan
”) and will be subject to the terms of the Stock Incentive
Plan and Executive’s option agreement associated with the
Option Grant (the “ Option Agreement ”). The
Option Grant will be for options to purchase 578,000 shares of the
Parent’s common stock and will be exercisable for a maximum
of ten years subject to the vesting, termination and other terms
set forth in the Option Agreement.
(vi) Restricted Stock .
Concurrent with the closing of the Transaction, Parent shall grant
Executive a grant (the “ Restricted Stock Grant
”) of restricted shares of Parent’s common stock, par
value $ 0.01 (“ Restricted Shares ”). The
Restricted Stock Grant will be pursuant to the terms and conditions
set forth in the Parent’s 2005 Stock Incentive Plan (the
“ Stock Incentive Plan ”) and will be subject to
the terms of the Stock Incentive Plan and the restricted stock
agreement evidencing such grant (the “ Restricted Stock
Agreement ”). The Restricted Stock Grant will be
comprised of 50,000 Restricted Shares and shall be subject to the
vesting, termination and other terms set forth in the Restricted
Stock Agreement.
(vii) Investment . Concurrent
with the closing of the Transaction, Executive shall purchase
205,000 shares of the Parent’s common stock, par value $0.01,
at a price of $10 per share.
Section 3. Termination of
Employment .
(a) Death or Disability .
Executive’s employment shall terminate automatically upon
Executive’s death. If Executive becomes subject to a
Disability during the
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Term of Employment (pursuant to the
definition of Disability set forth below), the Company may give
Executive written notice in accordance with Sections 3(e) and 10(h)
of its intention to terminate Executive’s employment. For
purposes of this Agreement, “ Disability ” means
(i) Executive’s inability to engage in any substantial
gainful activity by reason of any medically determinable physical
or mental impairment that can be expected to result in death or can
be expected to last for a continuous period of not less than 12
months, or (ii) Executive is, by reason of any medically
determinable physical of mental impairment that can be expected to
result in death or can be expected to last for a continuous period
of not less than 12 months, receiving income replacement benefits
for a period of not less than three months under an accident or
health plan covering employees of the Company.
(b) Cause . Executive’s
employment may be terminated at any time by the Company for Cause.
For purposes of this Agreement, “ Cause ” shall
mean Executive’s (i) conviction of a felony or a crime
of moral turpitude; (ii) conduct that constitutes fraud or
embezzlement; (iii) willful misconduct or willful gross
neglect; (iv) continued willful failure to substantially
perform his duties as President and Chief Executive Officer; or
(v) a material breach by Executive of this Agreement; provided
that in the event of a termination pursuant to clause (iv) or
(v), to the extent such failure to perform duties or material
breach is subject to cure, the Company shall have notified
Executive in writing describing such failure to perform duties or
material breach and Executive shall have failed to cure such
failure to perform or breach within 30 days after his receipt of
such written notice.
(c) Termination Without Cause
. The Company may terminate Executive’s employment hereunder
without Cause at any time.
(d) Good Reason .
Executive’s employment may be terminated at any time by
Executive for Good Reason or without Good Reason upon 90
days’ prior written notice, provided, in the case of a
termination for Good Reason, that Executive provides such notice
within 60 days after the occurrence of the event giving rise to the
termination for Good Reason. For purposes of this Agreement,
“ Good Reason ” means voluntary resignation
after any of the following actions taken by the Company or any of
its subsidiaries without Executive’s consent: (i) prior
to an initial public offering of the Parent’s common stock,
removal from, or failure to be elected or re-elected to, the
Parent’s Board of Directors, or prior to an initial public
offering of the Company’s common stock, removal from, or
failure to be elected or re-elected to, the Board;
(ii) following an initial public offering of the
Parent’s common stock, failure of Executive to be nominated
and recommended by Parent for election to the Parent’s Board
of Directors, or following an initial public offering of the
Company’s common stock, failure of Executive to be nominated
and recommended by the Company for election to the Board;
(iii) any material failure of the Company to fulfill its
obligations under this Agreement, (iv) a material and adverse
change to, or a material reduction of, Executive’s duties and
responsibilities to the Company, (v) a reduction in
Executive’s Annual Base Salary and Target Bonus (not
including any diminution related to a broader compensation
reduction that is not limited to Executive specifically and that is
not more than 10% in the aggregate) or (vi) the relocation of
Executive’s primary office to a location more than 35 miles
from the prior location; provided that in the event of a
termination pursuant to clause (iii) or (iv), to the extent
such failure, change or reduction is subject to cure, the Company
shall have failed to cure such failure, change or reduction within
30 days after its receipt of Executive’s written
notice.
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(e) Notice of Termination .
Any termination by the Company for Cause or without Cause, or by
Executive for Good Reason or without Good Reason, shall be
communic