EXHIBIT 99(j)
DATED 199
(1) C. E. C. RADBONE
(2) TRANSMEDIA EUROPE, INC.
(3) TRANSMEDIA ASIA PACIFIC, INC.
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ACQUISITION AGREEMENT
relating to the issued share capital
of Countdown Holdings Limited
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LEWIS SILKIN
Windsor House
50 Victoria Street
LONDON SW1H ONW
Telephone 0171 227 8000
Reference TJW.TR240.009
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(vii) any moral rights as defined by Sections 77-83 of the Copyright Designs and
Patents Act 1988 or any subsequent amendment thereof in any drawings
design or other copyright work;
"Joint Venture Agreements"
means any agreement made between any Group Company and individual Joint Venture
Partners for the development and/or exploitation of a business or businesses the
same or similar to the Restricted Business and/or for the use and/or
exploitation of the Intellectual Property Rights owned or used by any Group
Company;
"Joint Venture Partner"
means any person with whom any Group Company has entered into a Joint Venture
Agreement and with whom the Vendor shall have had dealings in the course of his
employment with any Group Company;
"in writing"
shall include any communications made by letter or facsimile transmission;
"Licencees"
means any person with whom any Group Company has entered into a Licence
Agreement and with whom the Vendor shall have had dealings in the course of his
employment with any Group Company;
"Licence Agreements"
means any agreement made between any Group Company and individual Licencees for
the development and/or exploitation of a business or businesses the same or
similar to the Restricted Business and/or for the use and/or exploitation of the
Intellectual Property Rights owned or used by any Group Company;
"Materially Interested"
means employed or engaged by or concerned or interested in (whether directly or
indirectly) other than as a shareholder holding directly or indirectly by way of
investment of up to 3% in nominal value of the issued shares or other securities
of any class of any company listed or dealt in on any Recognised Investment
Exchange;
"Merger"
has the meaning ascribed to that term in clause 4.8;
"Merger Note"
means the note setting out details of the proposed merger of Asia and Europe in
the [ILLEGIBLE]
"Irish Premises"
means the premises described in Part II of Schedule 4;
"the Parent Company Guarantee"
means the guarantee in the agreed form of the Company's obligations as a tenant
of the premises at Hurlingham Business Park;
"Person"
means any person, firm, company, association, corporation or other organisation
or entity;
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"Post-Merger Inc"
has the meaning ascribed to that term in clause 4.8;
"Premises"
means together the English Premises and the Irish Premises described in Schedule
4;
"Purchaser"
means Europe and Asia;
"Purchaser's Group"
means Asia and Europe their subsidiaries and any holding company of Asia or
Europe from time to time;
"Purchaser's Solicitors"
means Lewis Silkin of Windsor House 50 Victoria Street London SW1H ONW;
"Recognised Investment Exchange"
means a body which is a recognised investment exchange for the purposes of the
Financial Services Act 1986;
"Registration Rights Agreement"
the registration rights agreement to be entered into by the Vendor and the
Purchaser in the agreed Firm;
"Restricted Business"
means such business trade or activity in which the Company or any Relevant
Company is engaged at the date of this Agreement;
"Restricted Goods and/or Services"
means goods and/or services of a type or which compete with those:-
(a) provided by the Company or any Relevant Company in the course of its
or their business during the period of 12 months immediately prior
to the Termination Date; and
(b) in the provision of which the Vendor was concerned or engaged during
his employment by the Company;
"the Restricted Period"
means the period beginning with the Completion Date and ending on the later of
three years thereafter and eighteen months after the Vendor ceases to be
employed by or render services to any of the companies in the enlarged Group;
"Security Period"
means any encumbrance, mortgage, charge, assignment for the purpose of security,
pledge, lien, right of set off, retention of title or other security interest of
whatever kind and any agreement, whether conditional or otherwise to crease any
such interest;
"Service Agreement"
means the contract of employment to be entered into substantially in the form
set out in Schedule 7 by the Vendor;
"Shares"
means the whole of the issued share capital if the Company owned by the Vendor
details of which are set opposite his name In Schedule 1;
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4.3.11 written confirmation from the Vendor that the Group is not
indebted to him in any way otherwise than in respect of
accrued salary, pension contributions and other benefits
relating to his employment for the current month, (whether
actually or contingently) and that after compliance with
sub-clause 4.2 he will not be indebted to the Company or any
other member of the Group or vice versa;
4.3.12 irrevocable power of attorney (in such form as the Purchaser
may reasonably require) executed by the Vendor in favour of
the Purchaser to enable the Purchaser (pending registration
of the transfer of the Shares hereunder) to exercise all
voting and other rights attaching to the Shares and to
appoint proxies for this purpose; and
4.3.13 an executed original of the Registration Rights Agreement.
4.4 On Completion the Vendor shall procure:
4.4.1 the passing at a duly convened meeting of the Board of
Directors of the Company of resolutions:-
4.4.1.1 approving (subject only wherenecessary to their being
duly stamped) the transfer of the Shares hereunder;
4.4.1.2 accepting the resignations of such persons as the
Purchaser shall stipulate as directors of the Group
Companies other than the Vendor and of the current
secretary of the Company;
4.4.1.3 appointing such persons as the Purchaser shall
stipulate as additional directors and as secretary
of the Company;
4.4.1.4 changing the accounting reference date of the Company
to [ ];
4.4.1.5 appointing [ ] as auditors;
4.4.1.6 changing the registered office to such address as
the Purchaser shall require;
4.4.1.7 approving and executing the Service Agreement;
4.4.1.8 modifying all existing bank andother mandates as the
Purchaser shall direct; and
4.4.2 the passing at duly convened meetings of the Board of
Directors of each other Group Company of resolutions:-
4.4.2.1 accepting the resignations of such persons as the
Purchaser shall stipulate as directors of the Group
Companies other than the Vendor and of the
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current secretary;
4.4.2.2 appointing such persons as the Purchaser shall
stipulate as additional directors and as secretary;
4.4.2.3 approving the transfer of any shares not registered
in the name of the Company to a nominee Identified
by the Purchaser (and subject only to the stamping
of the same);
4.4.2.4 changing the accounting reference date to [ ];
4.4.2.5 appointing [ ] as auditors;
4.4.2.6 changing the registered office to such address as
the Purchaser shall require;
4.4.2.7 modifying all existing bank and other mandates as
the Purchaser shall direct.
[4.5 The Vendor shall enter into Intellectual Property Assignment with the
Company in the agreed form].
4.6 Upon completion of all the matters referred to in sub-clauses 4.2 to
4.5 above Asia and Europe (as the case may be) shall:-
4.6.1 satisfy the Consideration by a banker's draft for
(pound)500,000 each of Asia and Europe delivered to the
Vendor's Solicitors (whose receipt thereof shall be an
absolute discharge of the Purchaser and the Purchaser's
Solicitors) and the issue of the Europe Shares and the Asia
Shares to the Vendor and the delivery to him of stock
certificates therefor;
4.6.2 deliver to the Vendor's Solicitors a counterpart of the Deed
of Covenant and the Parent Company Guarantee duly executed by
the Purchaser; and
4.6.3 grant options in the agreed form in favor of the Vendor over
250,000 shares of Common Stock par value US$.00001 per share
of each of Europe and Asia;
4.6.4 appoint the Vendor (who hereby consents to so act) as a
director of each of Europe and Asia; and
4.6.5 deliver to the Vendor's Solicitor an executed original of the
Registration Rights Agreement.
4.7 The Purchaser shall not be obliged to complete purchase of any of the
Shares unless the purchase of all such Shares is completed simultaneously.
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5. WARRANTIES
4.8 It is hereby agreed and declared that it is intended that Europe and
Asia will be merged, which merger ("the Merger") will be effected by Europe
acquiring the entire issued share capital of Asia in return for 0.9019 shares in
Europe for each share in Asia, as more particularly set out in the Merger Note.
In this respect it is hereby agreed as follows, the post-merger company being
hereinafter referred to as "Post-Merger Inc":
4.8.1 the Vendor shall remain a. a director of Post-Merger Inc
immediately following the Merger;
4.8.2 the Merger shall be structured as set out in the Merger Note
or in such other manner as does not give rise to any tax
liability on the Vendor as a result of the Merger and the
Purchaser hereby indemnifies and agrees to hold the Vendor
harmless against any charge to Taxation which arises as a
result of any failure to structure the Merger in the manner
set out in the Merger Note;
4.8.3 Prior to [ ] neither Asia, Europe nor Post-Merger
Inc shall issue any stock (other than pursuant to options
granted prior to the date hereof) at a price per stock unit
of less than US$[ ].
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amount (and not only the excess) may be claimed under legal
proceedings.
The limitations in this Clause 5.7 and in Clauses 5.8 to 5.10 and 5.12
shall not apply in the case of fraud by the Vendor.
5.8 The total amount of the liability in respect of any and all claims
under the Warranties and the Deed of Covenant shall be limited to the aggregate
of (pound)1,000,000 and the amount which the Vendor is able to realise on a sale
of the Asia Shares and the Europe Shares on an arm's length basis on the date of
liability to make a payment to the Purchaser subject to a maximum amount in
respect of such realisation of (pound)1,500,000.
5.9 If, subsequent to any payment by the Vendor to the Purchaser in
respect of any Warranty claim or any claim under the Deed of Covenant, the Group
or the Purchaser or either of them receives any payment from any third party in
respect of the loss suffered by the Company which resulted in the claim, the
Purchaser shall reimburse to the Vendor the amount so recovered less all
reasonable costs sod expenses (including any Tax liability) of the recovery but
including in addition any interest or repayment supplement paid by the Inland
Revenue or HM Customs & Excise and the Purchaser shall and shall procure that
the Group shall use all reasonable endeavours to enforce any rights to make any
such recovery from any third parties subject to the Purchaser and the Group
being indemnified and secured to their reasonable satisfaction by the Vendor
against all losses, liabilities, costs and expenses properly and reasonably
incurred in connection with the enforcement of such rights.
5.10.1 Upon the Purchaser or the Group becoming aware of any claim,
action or demand ("a Claim") against the company or any
matter ("a Relevant Matter") likely to give rise to any of
these in respect of the Warranties or the Deed of Covenant,
then provided that the Purchaser's claim against the Vendor
shall not be prejudiced the Purchaser shall:
5.10.1.1 as quickly as reasonably possible, notify the
Vendor by written notice as soon as it is
reasonably clear to the Purchaser that the Vendor
is or may become liable under the Warranties or
the Deed of Covenant and in the case of a matter
relating to Taxation provide reasonably sufficient
details of such claim, details of the due date for
any payment and the time limits for any appeal, as
soon as possible and in any event not more than 14
days after the Purchaser or the Group becomes
aware of such claim;
5.10.1.2 at the request of the Vendor, allow the Vendor to
take the sole conduct of such actions as the
Vendor may deem reasonably appropriate in
connection with any such Claim in the name of the
appropriate Group company and in that connection
the Group and the Purchaser shall give or
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the Accounts in respect of the matter to which
such liability relates;
5.12.4 to the extent that the breach giving rise to a possible
Claim arises as a result of any change in the basis of
accounting or tax computation of any member of the Group
after the date of this Agreement;
5.12.5 based upon a liability which is contingent only unless and
until such contingent liability becomes an actual liability
and is due and payable.
5.13 The Vendor shall not be liable in respect of any breach of any
Warranty and if and to the extent that the loss occasioned thereby has been
recovered under the Deed of Covenant and vice versa.
5.14 Notwithstanding anything expressed or implied in this Agreement to
the contrary, any payment by the Vendor pursuant to a Claim shall be treated for
all purposes by the parties as a reduction in the Consideration and Clause 3
shall be modified accordingly.
5.15 The Purchaser shall have no right (whether before or after
Completion) to rescind this Agreement under this Agreement or under the
provisions of the Misrepresentation Act 1967 or the Unfair Contract Terms Act
1977.
5.16 Claims under this Agreement or the Deed of Covenant by the Purchaser
shall only be capable of being made once in respect of the same subject matter,
so that, for the avoidance of doubt, Asia may not recover for losses recovered
by Europe and vice-versa.
6. CONTINUING OBLIGATIONS
6.1 The Vendor covenants with the Purchaser (for themselves and as trustee
for the enlarged Group) that he will not either directly or indirectly whether
on his own account or in conjunction with or on behalf of any other person,
whether as principal, partner, shareholder, employer, employee, agent or
otherwise howsoever in any individual, fiduciary or representative capacity:-
6.1.1 during the Restricted Period:-
6.1.1.1 canvass or solicit or entice away or attempt to
canvass or solicit or entice away from any Group
Company the custom of any Customer for the
purposes of carrying out any Restricted Business
in competition with any Group Company;
6.1.1.2 contract with or work for any Customer for the
purpose of carrying out any Restricted Business or
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or imitators of the Intellectual Property Rights anywhere in the world which
come to his attention or any attempts to challenge the enlarged Group's rights
to use any of the Intellectual Property Rights anywhere in the world, and to
resist any action or claim or proceedings brought against any Company in the
enlarged Group in connection with the Intellectual Property Rights. The Vendor
agrees to provide such co-operation in the prosecution of any action which the
Purchaser in its reasonable discretion consider appropriate including the
provision of evidence. The Purchaser shall have the conduct of any such action
and pay all legal expenses and costs which may arise from the joining of the
Vendor as a party.
8.6 The Purchaser agrees that on a future disposal (if any) of the Europe
Shares or the Asia Shares or any shares acquired pursuant to the merger, it
shall, and shall procure that its agents and associated companies shall, provide
all such assistance and information as the Vendor may reasonably require for the
purposeS of the Vendor making any claims from relief from Tax in respect of such
disposa[ILLEGIBLE]
9. GENERAL
9.1 No-Merger
All provisions of this Agreement shall (so far as they are capable of being
performed or observed) continue in full force and effect notwithstanding
Completion.
9.2 Announcements
No announcement or information concerning this Agreement shall be made or issued
by any of the third parties hereto except in agreed form provided that nothing
in this sub-clause shall prevent the Purchaser from making such announcement or
sending such circular as the rules of any Recognised Investment Exchange or any
other statutory or regulatory body may require.
9.3 Notices
9.3.1 Any notice demand proceedings or other communication to be
given made or served hereunder or by reference hereto shall be
in writing and:-
9.3.1.1 sent by first class prepaid or registered post; or
9.3.1.2 delivered personally; or
9.3.1.3 transmitted by facsimile
to the party or parties to be served at the addresses stated
herein or at such other address within the United Kingdom from
time to time notified in writing by or on behalf of any such
party to the other parties or in the case of the Vendor at the
offices of the
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3.2 The provisions of Clauses 5.7, 5.8, 5.9 and 5.10 of the Agreement
shall have effect as if expressly incorporated into this Deed.
3.3 The above exclusions shall also apply to a claim for a breach of any
of the Warranties relating to Taxation.
3.4 For the avoidance of doubt, to [ILLEGIBLE] that payment is made
pursuant to this Deed to Europe the Vendor shall have no liability to make
payment to Asia and to the extent payment is made to Asia the Vendor shall have
no liability to make payment to Europe.
4. PAYMENT
4.1 In the event that there is a change in law or Inland Revenue practice
after 23 August 1996 in relation to payments to be paid to the Purchaser by the
Covenantor hereunder giving rise to the Purchaser having a Taxation liability in
respect of such payment all sums payable by the Covenantor to the Purchaser
hereunder shall be paid (insofar as is lawful) free and clear of all deductions
and withholdings whatsoever and in the event that a deduction or withholding is
lawfully made the Covenantor shall other than in the case of interest under
clause 5 pay such greater sum which after any lawful deduction or withholding
therefrom results in a net payment equal to the amount due hereunder.
4.2 In the event that there is a change in law or Inland Revenue practice
after 23 August 1996 in relation to payments so be paid to the Purchaser by the
Covenantor hereunder giving rise to the Purchaser having a Taxation liability
other than in the case of interest under clause 5 then such further amount shall
be paid by the Covenantor so as to secure in so far as is possible that the net
amount resulting after such liability to Taxation and where appropriate any
deduction or withholding such as is referred to in sub-clause 4.1 or 7.1 hereof
is equal to the amount due hereunder.
5. DATES FOR AND QUANTUM OF PAYMENTS
5.1 This Clause shall apply solely for determining the date upon which any
payments shall be made by the Covenantor pursuant to this Deed and (where
expressly provided) the amounts thereof.
5.2 The Covenantor shall make payment to the Purchaser or at the direction
of the Purchaser to the Company to the extent that the Company discharges a
Claim for Taxation:-
5.2.1 in respect of a liability to make a payment of Taxation on the
latest date for payment of that Taxation and the Covenantor
shall