1
Agreement dated December 6, 1996, by and among Transmedia Network,
Inc., TMNI International Incorporated (Transmedia Network, Inc. and TMNI
International Incorporated are collectively referred to herein as "Network"),
Transmedia Europe, Inc. and Transmedia Asia Pacific, Inc. (Transmedia Europe
Inc. and Transmedia Asia Pacific, Inc. are individually referred to as "TMNE"
and "TMNA" respectively and are collectively referred to as the "Network
Licensees")
WHEREAS Network and TMNE are parties to a Master License Agreement
dated December 14, 1992 as amended (the "TMNE License");
WHEREAS Network and TMNA are parties to a Master License Agreement
dated March 21, 1994 (the "TMNA License").
WHEREAS the parties wish to enter into certain agreements set forth
herein which either directly or by operation of such agreements modify the terms
of the TMNE License and the TMNA License (collectively called the "Licenses").
NOW, THEREFORE the parties, intending to be legally bound, agree as
follows:
1. Definitions. Except as otherwise specifically defined herein,
capitalized terms used herein shall have the same meanings ascribed to them in
the Licenses.
2. Restructuring. The Network Licensees and certain affiliates of
the Network Licensees intend to enter into a corporate restructuring (the
"Restructuring") pursuant to which a holding company (herein called "New Corp.")
will be established. The Network Licensees (which may be merged into one
entity), together with any other entity to which any rights under the Licenses
are granted (collectively with the Network Licensees, the "Network Business
Entities"), and other entities that are not engaged in the "Business" will
comprise direct or indirect subsidiaries of New Corp. (New Corp. and all such
subsidiaries being referred to collectively as the "New Corp. Group"). It is
likely that New Corp. will be a publicly traded company. Subject to the terms
and conditions set forth in this Agreement, Network agrees that the
Restructuring and the establishment of the New Corp. Group will not constitute a
breach of the Licenses. Upon the completion of the Restructuring, New Corp.
shall pay to Network the sum of U.S. $250,000 which payment shall be made by
wire transfer to a bank account designated by Network.
3. Permitted Operations of the New Corp. Group. The members of the
New Corp. Group, other than the Network Business Entities, may engage in any
business or activity of any nature whatsoever other than activities which are in
competition with the "Business" under the terms of the Licenses provided that
all such non-competitive businesses and activities shall not be conducted under
the Marks; no member of the New Corp. Group shall have any liability or
obligation to Network as a result of engaging in such non-competitive
activities.
2
4. Operations of the Network Business Entities. The operations of
the Network Business Entities shall be conducted exclusively in one or more
separate corporations, none of which shall engage in any business or activity
except in connection with the Business. Nothing contained herein or in the
Licenses shall prohibit the Network Business Entities from being owned by one or
more other members of the New Corp. Group.
5. Countdown Businesses. Notwithstanding the provisions of paragraph
3 above, New Corp. or a subsidiary of New Corp shall have the right to acquire
and conduct on a worldwide basis the business of Countdown, plc, Holding Corp.
("Countdown") in exchange for the payment to Network on the closing of such
acquisition of the sum of U.S. $750,000 which payment shall be made by wire
transfer to a bank account designated by Network. New Corp. and the Network
Licensees shall not permit Countdown to use the Network Business Entities' list
of Cardholders or their list of Member Restaurants in connection with any
activities of Countdown or any other member of the New Corp. Group which would
be competitive with the Business. The foregoing shall not prohibit an interest
owner of a Network Business Entity from at the same time also owning an interest
in Countdown, plc, provided that the limitation on use of the Cardholder and the
Member Restaurants list is maintained. The business of Countdown shall not be
conducted under the Marks and shall not use the system of operations described
under the term Business in Section 1.2 of the Licenses.
6. Modification of Licenses. In addition to modifications or
amendment to the Licenses resulting from the provisions or paragraphs 1 through
5 hereof, the Licenses shall be modified and amended as follows:
(i) The definition of the term "Licensees" shall be modified
to include all members of the New Corp. Group who succeed to
the interest of such Licenses by Transfer or operation of law
as permitted by the Licenses or this Agreement
(ii) Solely to facilitate transfers among members of the New
Corp Group the Licenses shall be amended to eliminate any
requirement for prior Network approval of transfers of Control
of the Licensee from any member of the New Corp. Group to any
other member of the New Corp. Group as well as to eliminate
any other restriction on transferability among members of the
New Corp. Group. In addition, the Licenses shall be amended by
eliminating Section 22.5.
(iii) (A) The first sentence of Section 1.3 of each License
Agreement shall be amended by inserting
3
the words "direct or indirect (as such term is used in Section
22.3(g) hereof)" prior to the words "beneficial ownership" and
the words "other than a member of the New Corp. Group"
immediately after the words "beneficial ownership."
(B) Section 22.3 of each License Agreement shall be amended by
(i) deleting "or" at the end of each clause (e) thereof, (ii)
inserting "; or" in lieu of the period at end of each clause
(f) thereof, and (iii) inserting the following clause (g) in
each such Section 22.3:
"(g) any person or group other than a member of the New
Corp. Group shall acquire, directly or indirectly, beneficial
ownership of thirty percent or more of the equity of the
Licensee, without the prior written consent of the Licensor.
For purposes of Section 1.3 and this clause (g), a person or
group shall be deemed to acquire beneficial ownership,
indirectly, of a proportional percentage of the equity of the
Licensee by acquiring beneficial ownership, directly or
indirectly, of an equity interest in any other person which
itself beneficially owns, directly or indirectly, an equity
interest in the Licensee. The terms "acquires," "group"
"directly and indirectly" and "beneficially own" shall have
the respective meanings and usages ascribed to them under
Section 13(d) of the Securities Exchange Act of 1934, as
amended, and Regulation 13D-G thereunder."
(iv) Section 21.1 shall be amended by deleting the first
sentence thereof and substituting the following: "Licensee
covenants that during the Term of this Agreement, except as
otherwise approved in writing by Licensor, Licensee's
designated manager, who shall be approved in writing by
Licensor, shall devote sufficient time, energy and efforts
necessary for the management and operation of the Business.
(v) The New Corp. Group shall take all reasonable steps to
ensure that the Network
4
Licensees shall maintain sufficient working capital necessary
to conduct the Business in the ordinary course. In this
regard, the Licenses shall be amended by adding a new
subsection (l) to Section 22.2 as follows, "(l) failure to
maintain working capital adequate to conduct Licensee's
Business in the ordinary course".
7. Permitted Operations of Network. Network may engage in any
business or activity of any nature whatsoever other than activities which are in
competition with the "Business" under the terms of the Licenses in the
Territories under the Licenses. Network shall have no liability or obligation as
a result of engaging in such non-competitive activities. Such non-competitive
businesses shall not be conducted under the Marks. In addition, Network may
establish, acquire and operate in the Territories a competitive business similar
to that conducted by Countdown provided that such competitive business shall not
be conducted under the Marks and shall not use the system of operations
described under the term Business in Section 1.2 of the Licenses.
8. Conflicts: Reaffirmation of Licenses. In the event of any
explicit conflict between the terms and provisions of the Licenses and the terms
and provisions of this Agreement, the terms and provisions of this Agreement
shall govern. Except as modified and amended hereby, the Licenses shall remain
in full force and effect in accordance with their terms.
IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound hereby, have duly executed, sealed and delivered this Agreement the day
and year first above written.
TRANSMEDIA NETWORK INC.
ATTEST: By:__________________________________
_____________________________ Title:_______________________________
TMNI INTERNATIONAL INCORPORATED.
ATTEST: By:__________________________________
_____________________________ Title:_______________________________
5
TRANSMEDIA EUROPE, INC.
ATTEST: By:_________________________________
______________________________ Title:______________________________
TRANSMEDIA ASIA PACIFIC, INC.
ATTEST: By:_________________________________
______________________________ Title:______________________________
