1
AMENDED AND RESTATED INVESTMENT AGREEMENT
Amended and Restated Investment Agreement dated as of March 3, 1998,
(as amended, supplemented or otherwise modified from time to time, this
"Agreement"), among Transmedia Network Inc., a Delaware corporation (the
"Company"), Samstock, L.L.C., a Delaware limited liability company
("Samstock"), EGI-Transmedia Investors, L.L.C., a Delaware limited liability
company (formerly known as Transmedia Investors, L.L.C., "TNI"), and Halmostock
Limited Partnership, a Wyoming limited partnership ("Halmostock"), (each of the
foregoing parties, other than the Company, individually an "Investor" and
collectively the "Investors").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Stock Purchase and Sale Agreement, dated
as of November 6, 1997, among the Company and, Samstock and TNI (the
"Purchase Agreement"), the Company has agreed to issue and sell to Samstock
and/or TNI, and Samstock and/or TNI have agreed to purchase from the Company,
an aggregate of (i) 2,500,000 newly issued shares (collectively, the "Shares")
of the Company's Common Stock, par value $.02 per share ("Common Stock"), and
(ii) a warrant (the "Warrant") to purchase an additional 1,200,000 shares
(collectively, the "Warrant Shares") of Common Stock, in each case in such
proportions as are set forth in a notice delivered to the Company pursuant to
the terms of the Purchase Agreement.
WHEREAS, pursuant to that certain Assignment Agreement ("Assignment
Agreement"), dated as of even date herewith, among the Company, Samstock, TNI,
and Halmostock, Samstock and TNI have assigned to Halmostock their right to
acquire from the Company pursuant to the Purchase Agreement (i) 352,941 of the
Shares and (ii) a portion of the Warrant exerciseable for 169,412 Warrant
Shares.
WHEREAS, the Company, Samstock, TNI, and Xxxxxx Xxxxxx and Xxxx Xxxxxx,
individuals residing in the State of Florida (together "Chasen"), have entered
into an Amended and Restated Agreement Among Stockholders, as of the date
hereof (the "Agreement Among Stockholders").
WHEREAS, the Company, Samstock, TNI and Halmostock, have entered into a
Stockholders' Agreement, as of the date hereof (the "Stockholders' Agreement").
WHEREAS, reference is made to that certain Investment Agreement, dated as
of November 6, 1997, among the Company, Samstock and TNI (the "Original
Investment Agreement").
WHEREAS, the Company and the Investors are entering into this Agreement to
establish certain arrangements with respect to the relationships between them,
and intend for this Agreement to amend, restate and supersede the Original
Investment Agreement in its entirety.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
2
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 The terms "beneficial ownership," "person" and "group" shall
have the respective meanings ascribed to such terms pursuant to Regulation
13D-G adopted by the Securities and Exchange Commission (the "SEC") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in effect
on the date hereof. The term "affiliate" shall have the meaning ascribed to
such term pursuant to Rule 12b-2 under the Exchange Act, as in effect on the
date hereof.
1.2 The "Combined Voting Power" at any measurement date shall
mean the total number of votes which could have been cast in an election of
directors of the Company had a meeting of the stockholders of the
Company been duly held based upon a record date as of the measurement date if
all Company Voting Securities then outstanding and entitled to vote at such
meeting were present and voted to the fullest extent possible at such meeting.
1.3 "Company Voting Securities" shall mean, collectively, Common
Stock, any preferred stock of the Company that is entitled to vote generally
for the election of directors, any other class or series of Company securities
that is entitled to vote generally for the election of directors and any other
securities, warrants, options or rights of any nature (whether or not issued by
the Company) that are convertible into, exchangeable for, or exercisable for
the purchase of, or otherwise give the holder thereof any rights in respect of,
Common Stock, Company preferred stock that is entitled to vote generally for
the election of directors, or any other class or series of Company securities
that is entitled to vote generally for the election of directors.
1.4 "Disinterested Director" means Independent Directors who are
"disinterested directors" as that term is used in Section 144 of the Delaware
General Corporate Law.
1.5 "Effective Date" means the Closing Date as defined in the
Purchase Agreement.
1.6 "Independent Director" means directors of the Company who (i)
are not current or former employees or officers of the Company, (ii) are not
serving as designees of Samstock pursuant to Section 4.2 hereof, (iii) are
not 5% or greater stockholders of the Company, and (iv) have no financial
interest in and are not otherwise associated with any of the Investors, the
Company, any subsidiary of the Company or any of their respective affiliates,
excluding, however, any equity interest of not more than 2% of any
publicly-held entity. The term "associated" means having a business, financial
or familial relationship that might reasonably be expected to affect the
individual's judgment with respect to matters in which a member of the Xxxx
Group might be interested.
1.7 The "Maximum Permitted Voting Power" at any measurement date
shall mean the Voting Power as of such measurement date of all Company Voting
Securities, regardless of the holder thereof, (i) represented by the Shares
or the Warrant Shares, (ii) outstanding as of the date hereof and subject to
the Agreement Among Stockholders or the Stockholders' Agreement or (iii) issued
by the Company after the date hereof and subject to the Agreement
-2-
3
Among Stockholders or the Stockholders' Agreement upon issuance; provided,
however, that, in the event that the Company issues any Company Voting
Securities after the date hereof, the Maximum Permitted Voting Power shall be
adjusted so that the percentage of the Combined Voting Power represented by the
Maximum Permitted Voting Power shall not be reduced.
1.8 "Xxxx Affiliate" means Samstock, TNI and any of their
respective affiliates under control of or common control with Samstock or TNI
(exclusive of Halmostock, Chasen and their respective affiliates).
1.9 "Xxxx Group" means (i) Samstock, (ii) TNI, (iii) any member
of Samstock or TNI, (iv) any affiliate of any member of Samstock or TNI under
control of, or common control with, such member, (v) Halmostock, (vi) any
partner of Halmostock, (vii) any affiliate of any partner of Halmostock
under control of, or common control with, Halmostock, and (viii) any
corporations, partnerships, limited liability companies or other legal entities
that are the affiliates of any of the foregoing, collectively; provided,
however, that publicly held entities that might fall within this definition (a
"Public Xxxx Affiliate") shall not be treated as affiliates of any member of
the Xxxx Group hereunder unless any member of the Xxxx Group or any of its
affiliates took any action, directly or indirectly, to suggest, encourage or
assist such entity in taking the relevant action to be attributed to the Xxxx
Group hereunder. For purposes of the preceding sentence and the similar clause
appearing in the second sentence of Section 3.1, the failure of any member of
the Xxxx Group or any of its affiliates, upon learning of a Public Xxxx
Affiliate's action, to request that such Public Xxxx Affiliate refrain from
taking such action because of the provisions of this Agreement will be deemed
to constitute "encouraging or assisting" in such action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Samstock and TNI jointly and severally represent and warrant
to the Company and Chasen as follows:
(a) Each of Samstock and TNI is a limited liability company duly
organized, validly existing and in good standing under the laws of
Delaware. Each of Samstock and TNI has the limited liability company power and
authority to enter into this Agreement and perform its obligations hereunder.
(b) This Agreement has been duly authorized, executed and delivered by
each of Samstock and TNI and constitutes the legal, valid and binding agreement
of each of Samstock and TNI, enforceable against each of them in accordance
with the terms hereof.
(c) Neither the execution and delivery of this Agreement nor the
performance by Samstock or TNI of its obligations hereunder will conflict with,
or result in a breach of, or constitute a default under, any law, rule,
regulation, judgment, order or decree of any court, arbitrator or governmental
agency or instrumentality, or any agreement or instrument to which Samstock,
TNI or their respective properties are bound or by which they are affected or
any organizational documents of Samstock or TNI.
(d) As of the date hereof, no shares of Common Stock (other than the
Shares and the Warrant Shares) are currently beneficially owned by Samstock or
TNI.
- 3 -
4
2.2 Halmostock represents and warrants to the Company, Samstock,
TNI and Chasen as follows:
(a) Halmostock is a limited partnership duly formed, validly existing
and in good standing under the laws of Wyoming. Halmostock has the limited
partnership power and authority to enter into this Agreement and perform its
obligations hereunder.
(b) This Agreement has been duly authorized, executed and delivered by
Halmostock and constitutes the legal, valid and binding agreement of
Halmostock, enforceable against it in accordance with the terms hereof.
(c) Neither the execution and delivery of this Agreement nor the
performance by Halmostock of its obligations hereunder will conflict with, or
result in a breach of, or constitute a default under, any law, rule,
regulation, judgment, order or decree of any court, arbitrator or governmental
agency or instrumentality, or any agreement or instrument to which Halmostock
or its properties are bound or by which they are affected or the certificate of
limited partnership or limited partnership agreement of Halmostock.
(d) As of the date hereof and as of the Closing Date, Halmostock
beneficially owns 92,000 (and no more) shares of Common Stock (other than
the Shares and the Warrant Shares), free and clear of any liens, claims,
equities or encumbrances of any kind.
2.3 The Company represents and warrants to Investors as follows:
(a) The Company is a validly existing corporation under the laws of the
jurisdiction of its organization and has the corporate power and
authority to enter into this Agreement and perform its obligations hereunder.
(b) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with the terms hereof.
(c) Neither the execution and delivery of this Agreement nor the
performance of its obligations hereunder will conflict with, or result in a
breach of, or constitute a default under, any law, rule, regulation,
judgment, order or decree of any court, arbitrator or governmental agency or
instrumentality, or any agreement or instrument to which the Company is bound
or by which it is affected or any charter documents of the Company.
ARTICLE III
STANDSTILL AGREEMENT
3.1 Acquisition of Company Voting Securities. Except as the same
may be approved by a majority of the Disinterested Directors in a specific
resolution to that effect adopted prior to the taking of such action, from and
after the Effective Date and prior to the fifth anniversary of the Effective
Date, no member of the Xxxx Group shall, directly or indirectly, acquire, offer
to acquire, agree to acquire, become the beneficial owner of or obtain any
rights in respect of any Company Voting Securities, by purchase or otherwise,
or take any action in furtherance thereof, if the effect of such acquisition,
agreement or other action would be (either
- 4 -
5
immediately or upon consummation of any such acquisition, agreement or other
action, or expiration of any period of time provided in any such acquisition,
agreement or other action) to increase the aggregate beneficial ownership of
Company Voting Securities by the Xxxx Group to such number of Company Voting
Securities that represents or possesses greater than the Maximum Permitted
Voting Power. Notwithstanding the foregoing maximum limitations, (A) no member
of the Xxxx Group shall be obligated to dispose of any Company Voting
Securities beneficially owned in violation of such maximum limitations if, and
solely to the extent that, its beneficial ownership is or will be increased
solely as a result of (1) a repurchase of any Company Voting Securities by the
Company or any of its subsidiaries if such repurchase was approved by a
majority of the Disinterested Directors or (2) the purchase by any Public Xxxx
Affiliate not otherwise constituting a part of the Xxxx Group in accordance
with Section 1.9 hereof unless any member of the Xxxx Group took any action,
directly or indirectly, to suggest, encourage or assist in such purchase and
(B) the foregoing shall not prohibit any purchase of Company Voting Securities
directly from the Company pursuant to the exercise of the Warrant and any
rights, oversubscription rights or standby purchase obligations in connection
with rights offerings by the Company or exercise of any stockoptions granted by
the Company. For purposes of calculating the maximum limitations, all Company
Voting Securities that are the subject of an agreement, arrangement or
understanding pursuant to which the Xxxx Group or any member thereof has the
right to obtain beneficial ownership of such securities in the future
(including the Warrant Shares to the extent the Warrant has not been exercised
or has not expired) shall also be deemed to be outstanding and beneficially
owned by the Xxxx Group or the applicable member thereof.
3.2 Proxy Solicitations, etc. Prior to the fifth anniversary of
the Effective Date, no member of the Xxxx Group shall solicit proxies, assist
any other person in any way, directly or indirectly, in the solicitation of
proxies, become a "participant" in a "solicitation" or assist any "participant"
in a "solicitation" (as such terms are defined in Rule 14a-1 of Regulation 14A
under the Exchange Act) in opposition to the recommendation of a majority of
the Disinterested Directors, submit any proposal for the vote of stockholders
of the Company, in each case (a) without the prior approval of the majority of
the Disinterested Directors or (b) other than with respect to Company Voting
Securities (i) held by any member of the Xxxx Group or (ii) subject to the
Agreement Among Stockholders or the Stockholders' Agreement.
3.3 No Voting Trusts, Pooling Agreements, or Formation of
"Groups". Except as the same may be approved by a majority of the
Disinterested Directors in a specific resolution to that effect adopted prior
to the taking of such action, prior to the fifth anniversary of the Effective
Date, no member of the Xxxx Group shall (a) form, join or in any other way
participate in a partnership, pooling agreement, syndicate, voting trust or
other "group" with respect to Company Voting Securities other than (i) the Xxxx
Group or (ii) with any Company stockholders who are parties to the Agreement
Among Stockholders or the Stockholders' Agreement as of the date hereof or
hereafter become parties to the Agreement Among Stockholders or the
Stockholders' Agreement in each case in accordance with the terms thereof as a
result of a sale, assignment or other transfer of Company Voting Securities
that are subject to the Agreement Among Stockholders or the Stockholders'
Agreement ("Other Covered Stockholders"); or (b) enter into any agreement or
arrangement or otherwise act in concert with any other person other than a
member of the Xxxx Group (provided such member of the Xxxx Group is itself
bound by the terms of this Agreement), or a holder of any interest in any
entity included within the Xxxx Group, for the purpose of acquiring, holding,
voting or disposing of Company Voting Securities, other than with any Other
Covered Stockholders.
- 5 -
6
3.4 No Solicitation of Bidders. Prior to the fifth anniversary of
the Effective Date, no member of the Xxxx Group shall directly or indirectly
assist, encourage or induce any person to bid for or acquire outstanding
Company Voting Securities (other than any Company Voting Securities held by the
Xxxx Group) in any transaction or series of related transactions, unless the
consummation of such transaction or series of related transactions requires
approval of a majority of the Board of Directors. Prior to disclosing any
confidential non-public information concerning the Company to such person, such
person shall have executed and delivered to the Xxxx Group a confidentiality
and standstill agreement on substantially the same terms as those set forth in
the letter agreement dated July 16, 1997, entered into between the Company and
an affiliate of Samstock and TNI in connection with the transactions
contemplated by the Purchase Agreement, with such duration as shall be
appropriate under the circumstances in the reasonable judgment of the Xxxx
Group. Promptly upon the Xxxx Group entering into any written agreement or
arrangement with such person concerning a transaction covered by this Section
3.4 (including such aforementioned confidentiality and standstill agreement),
the Xxxx Group shall notify the Company's Board of Directors and provide the
Company's Board of Directors with copies of the same; provided, however, that
the mere sale of Company Voting Securities by any member of the Xxxx Group
shall not constitute assisting, encouraging or inducing within the meaning of
this Section 3.4.
3.5 Non-Circumvention. Except as the same may be approved by a
majority of the Disinterested Directors in a specific resolution to that effect
adopted prior to the taking of such action, prior to the fifth anniversary of
the Effective Date, no member of the Xxxx Group shall take any action, alone or
in concert with any other person to circumvent the limitations of the
provisions of Article III of this Agreement. Without limiting the generality
of the foregoing, without such approval no member of the Xxxx Group shall (i)
present to the Company or to any third party any proposal that can reasonably
be expected to result in any increase beyond the Maximum Permitted Voting Power
of Company Voting Securities beneficially owned in the aggregate by the Xxxx
Group, (ii) publicly suggest or announce its willingness or desire to engage in
a transaction or group of transactions that would result in any increase beyond
the Maximum Permitted Voting Power of Company Voting Securities beneficially
owned in the aggregate by the Xxxx Group, or (iii) initiate, request, induce or
attempt to induce or give encouragement to any other person to initiate any
proposal that can reasonably be expected to result in any increase beyond the
Maximum Permitted Voting Power of Company Voting Securities beneficially owned
in the aggregate by the Xxxx Group.
ARTICLE IV
VOTING OF COMPANY SECURITIES AND RELATED MATTERS
4.1 Each member of the Xxxx Group that is a holder of record of
Company Voting Securities shall be present, and each member of the Xxxx Group
that is a beneficial owner of Company Voting Securities shall cause the holder
of record to be present, in person or by proxy, at all meetings of stockholders
of the Company so that all Company Voting Securities owned of record or
beneficially by the Xxxx Group may be counted for the purpose of determining
the presence of a quorum at such meetings.
4.2 So long as Samstock is entitled to designate one or two
directors in accordance with the provisions of Section 4.4 hereof, except to
the extent otherwise provided herein, the
- 6 -
7
Company shall take all necessary or appropriate action to assist in the
nomination and election as directors of (i) that number of individuals
specified in Section 4.4 below designated by Samstock to be elected as
directors of the Company, provided such designees are reasonably acceptable to
the Independent Directors at the time of their designation, and (ii) two
Independent Directors. All persons to be so designated as Independent
Directors shall be individuals selected by a majority of the Independent
Directors then in office and shall be mutually acceptable to Samstock on the
one hand and a majority of the Independent Directors on the other hand. The
Company hereby agrees and acknowledges that Xxx Xxxx, F. Xxxxxx Xxxxx, Xxx
Xxxxxxxx and Xxxxxx X. Xxxxxx are reasonably acceptable to the Independent
Directors as directors of the Company. The Company hereby agrees and
acknowledges that Xxxxxx Xxxxxxxxx is reasonably acceptable as an Independent
Director. The Company further agrees that one position on the Board of
Directors of the Company is intended to be filled by the chief executive
officer to be selected by the Board of Directors of the Company, and that in no
event shall the chief executive officer of the Company count as a designee of
Samstock. Samstock shall cause its designees on the Board of Directors of the
Company to take all necessary or appropriate action to assist in the nomination
and election as directors of all such nominees as may be selected to serve as
Independent Directors in the manner described above. The Xxxx Group and the
directors designated by Samstock shall not vote (as stockholders or directors)
in favor of, and shall not take any other action in furtherance of or seeking
to cause, a reduction of the number of directors of the Company below seven
directors or the removal of any Independent Directors.
4.3 For purposes of this Agreement, directors "designated by
Samstock" shall include directors designated by Samstock as anticipated by this
Article IV, and any other directors of the Company (other than the Company's
chief executive officer) affiliated or associated with any member of the Xxxx
Group.
4.4 Samstock shall be entitled to designate the following number
of directors pursuant to Section 4.2 hereof:
(a) so long as the members of the Xxxx Group that have
executed this Agreement as parties (the "Xxxx Contracting Parties")
beneficially own collectively at least 15% of the Combined Voting
Power of all Company Voting Securities (including, for these purposes,
the Warrant Shares issuable upon exercise of the Warrant until such
time as the Warrant expires), Samstock shall have the right to
designate two directors of the Company, provided such designees are
reasonably acceptable to the Independent Directors at the time of
their designation (it being hereby acknowledged and agreed by the
Company that each of Xxx Xxxx, F. Xxxxxx Xxxxx, Xxx Xxxxxxxx and
Xxxxxx X. Xxxxxx will be acceptable to the Company at the time of
designation); and
(b) so long as the Xxxx Contracting Parties beneficially
own less than 15%, but at least 5% of the Combined Voting Power of all
Company Voting Securities (as so calculated), Samstock shall have the
right to designate one director of the Company, provided such designee
is reasonably acceptable to the Independent Directors at the time of
his or her designation (it being hereby acknowledged and agreed by the
Company that each of Xxx Xxxx, F. Xxxxxx Xxxxx, Xxx Xxxxxxxx and
Xxxxxx X. Xxxxxx will be acceptable to the Company at the time of
designation);
- 7 -
8
provided, however, that at any time when the Xxxx Contracting Parties
shall no longer beneficially own at least 15% of the Combined Voting Power of
all Company Voting Securities (as so calculated), Samstock shall cause one of
its two designees to resign forthwith such that only one designee remains on
the Board of Directors of the Company; and provided, further, that at any time
when the Xxxx Contracting Parties shall no longer beneficially own at least 5%
of the Combined Voting Power of all Company Voting Securities (as so
calculated), Samstock shall not have the right to designate any directors of
the Company, Samstock's rights under this Article IV shall terminate, Samstock
shall cause its designees to resign forthwith such that no designee of Samstock
remains on the Board of Directors of the Company and all of the covenants under
Article IV of this Agreement shall lapse and no longer be of any force or
effect. In addition, all of the covenants under Article III of this Agreement
shall lapse and no longer be of any force or effect if for any reason any of
the director designees who are designated by Samstock pursuant to the rights
granted by Section 4.2, and are reasonably acceptable to the Independent
Directors at the time of their designation in accordance with Sections 4.2 and
4.4, shall not be nominated for election as a director of the Company with the
unanimous recommendation of all of the directors of the Company (other than
those directors designated by Samstock pursuant to Section 4.2) at the next
election of directors of the Company following Samstock's designation. At any
time when Samstock shall have the right to designate one or two directors, as
the case may be, pursuant to this Article IV, the Company shall not increase
the number of directors to more than seven directors without the prior written
consent of Samstock.
4.5 Except as expressly set forth above, the Investors shall vote
all Company Voting Securities owned of record by the Investors and shall cause
all Company Voting Securities owned beneficially by the Investors to be voted
with respect to the election or removal of directors of Company, (a) either (i)
in accordance with the recommendations of a majority of the Disinterested
Directors, or (ii) in the same proportions (including abstentions) as the
holders of record of Company Voting Securities other than those beneficially
owned by the Xxxx Group that are entitled to vote on the election of directors
(or such other matter) vote their Company Voting Securities, provided, however,
that notwithstanding the foregoing subparagraph (a), the Investors may at all
times vote their Company Voting Securities for the election or retention of the
one or two directors, as the case may be, designated by Samstock in accordance
with Section 4.2.
ARTICLE V
REGISTRATION RIGHTS
5.1 Definitions. For purposes of this Article V:
(a) The term "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the "Act").
(b) The term "Registrable Securities" means shares of Common Stock
held, from time to time, by any member of the Xxxx Group or any Other Covered
Stockholders.
(c) The term "Holder" means any (i) Xxxx Contracting Party or (ii)
Other Covered Stockholder who is a party hereto or who executes and delivers to
the Company a joinder
- 8 -
9
agreement, agreeing to be legally bound by this Article V, in each case who
owns of record Registrable Securities.
(d) The term "Rule 415 Offering" means an offering on a delayed or
continuous basis pursuant to Rule 415 (or any successor rule to similar effect)
promulgated under the Act.
(e) The term "Shelf Registration Statement" means a registration
statement intended to effect a shelf registration in connection with a Rule 415
Offering.
5.2 Shelf Registrations.
(a) Shares and Warrant Shares. As soon as practicable after the
Effective Date, but in any event no later than ninety (90) days after the
Effective Date, the Company shall prepare and file with the SEC a Shelf
Registration Statement (which shall include pledgees of any selling stockholder
under the caption "plan of distribution" contained in such Shelf Registration
Statement) with respect to all Shares and Warrant Shares and use its reasonable
efforts to cause such Shelf Registration Statement to become effective and keep
such registration statement effective until such time as all Shares and Warrant
Shares have been sold or disposed of thereunder or sold, transferred or
otherwise disposed of (other than pursuant to a pledge of such Registrable
Securities) to a person that is not a Holder or, with respect to any Warrant
Shares for which the Warrant has not been exercised prior to its expiration,
until such time as the Warrant has expired. Notwithstanding the foregoing, if
the Company shall furnish to Samstock a certificate signed by the Chief
Executive, Chief Operating, or Chief Financial Officer of the Company stating
that, in the good faith judgment of a majority of the Disinterested Directors,
it would be materially detrimental to the Company for such registration
statement to be filed, the Company shall have the right to defer such filing
for a period of not more than 120 days after receipt of the Samstock's request;
provided, however, that the Company may not utilize this right more than once
in any 12-month period.
(b) Additional Shares. If the Company shall at any time receive a
written request from Samstock (or its designee) on behalf of any Xxxx
Affiliates who are the Holders of Registrable Securities that the Company file
a Shelf Registration Statement with respect to any Registrable Securities,
then, within sixty (60) days after the receipt of such request, the Company
shall prepare and file with the SEC a Shelf Registration Statement (which shall
include pledgees of any selling stockholder in the "plan of distribution") with
respect to all Registrable Securities which the Holders request to be
registered and use its reasonable efforts to cause such Shelf Registration
Statement to become effective and keep such Shelf Registration Statement
effective until such time as all Registrable Securities covered thereby have
been sold or disposed of thereunder or sold, transferred or otherwise disposed
of (other than pursuant to a pledge of such Registrable Securities) to a person
that is not a Holder. The rights to cause the Company to file a Shelf
Registration Statement under this Section 5.2(b) shall be in addition to the
rights to cause the Company to file a Shelf Registration Statement under
Section 5.2(a). Notwithstanding the foregoing, if the Company shall furnish to
Samstock a certificate signed by the Chief Executive, Chief Operating, or Chief
Financial Officer of the Company stating that, in the good faith judgment of a
majority of the Disinterested Directors, it would be materially detrimental to
the Company for such registration statement to be filed, the Company shall have
the right to defer such filing for a period of not more than 120 days after
receipt of the Samstock's request; provided, however, that the Company may not
utilize this right more than twice in any 12-month period.
- 9 -
10
(c) Schedule 13D Statement. Samstock and TNI covenant and agree
that they will, and that they shall cause each Xxxx Affiliate which shall at
any time hold Shares and/or Warrant Shares subject to Section 5.2(a) hereof to,
include in any Schedule 13D filed by or on behalf of such Holder a statement to
the effect that such Shelf Registration Statement was put in effect for the
sole purpose of facilitating such Holder's ability to margin its stock and does
not represent any present intention on behalf of the Holder to dispose of any
Shares or Warrant Shares covered thereby. Halmostock covenants and agrees that
it will, and that it shall cause each of its affiliates (other than Xxxx
Affiliates) which shall at any time hold Shares and/or Warrant Shares subject
to Section 5.2(a) hereof to, include in any Schedule 13D filed by or on behalf
of such Holder a statement to the effect that such Shelf Registration Statement
does not represent any present intention on behalf of the Holder to dispose of
any Shares or Warrant Shares covered thereby.
5.3 Additional Obligations of the Company. Whenever the Company
has filed a Shelf Registration Statement under this Article V, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC such amendments and supplements
to such Shelf Registration Statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Act with
respect to the disposition of all securities covered thereby.
(b) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities covered by such Shelf
Registration Statement owned by them.
(c) Use its best efforts to register and qualify the securities
covered by such Shelf Registration Statement under such other securities or
Blue Sky laws of such states or other jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required to
qualify to do business or to file a general consent to service of process in
any such states or jurisdictions where it is not so subject.
(d) Notify each Holder of Registrable Securities covered by such
Shelf Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and
then use its best efforts to promptly correct such statement or omission.
Notwithstanding the foregoing and anything to the contrary set forth in this
Section 5.2, each Holder acknowledges that the Company shall have the right to
suspend the use of the prospectus forming a part of a Shelf Registration
Statement if such offering would interfere with a pending corporate transaction
or for other reasons until such time as an amendment to the Shelf Registration
Statement has been filed by the Company and declared effective by the SEC, or
until such time as the Company has filed an appropriate report with the SEC
pursuant to the Exchange Act. Each Holder hereby covenants that it will (a)
keep any such notice strictly confidential, and (b) not sell any shares of
Common Stock pursuant to such prospectus during the period commencing at the
time at which the Company gives the Holder notice of the suspension of the use
of such
- 10 -
11
prospectus and ending at the time the Company gives the Holder notice that it
may thereafter effect sales pursuant to such prospectus. The Company shall
only be able to suspend the use of such prospectus for periods aggregating no
more than 90 days in respect of any registration.
5.4 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Article V with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
securities as shall be required to effect the registration of such Holder's
Registrable Securities and as may be required from time to time to keep such
registration current.
5.5 Expenses of Shelf Registration. All expenses incurred by or
on behalf of the Company in connection with registrations, filings or
qualifications pursuant to Section 5.2, including, without limitation, all
registration, filing and qualification fees, printers' and accounting fees, and
fees and disbursements of counsel for the Company, shall be borne by the
Company. In no event shall the Company be obligated to bear any underwriting
discounts or commissions or brokerage fees or commissions relating to
Registrable Securities or the fees and expenses of counsel to the selling
Holders.
5.6 Indemnification. In the event any Registrable Securities are
included in a Shelf Registration Statement under this Article V:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder and the affiliates of such Holder, and their
respective directors, officers, general and limited partners, agents and
representatives (and the directors, officers, affiliates and controlling
persons thereof), and each other person, if any, who controls such Holder
within the meaning of the Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
including any preliminary prospectus (but only if such statement is not
corrected in the final prospectus) contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the
statements therein not misleading (but only if such omission is not corrected
in the final prospectus), or (iii) any violation or alleged violation by the
Company in connection with the registration of Registrable Securities under the
Act, the Exchange Act, any state securities law or any rule or regulation
promulgated under the Act, the Exchange Act or any state securities law; and
the Company will pay to each such Holder, affiliate or controlling person, as
incurred, any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
Section 5.6(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any such Holder or controlling person. Each indemnified party shall furnish
such information regarding itself or the claim in question as an
- 11 -
12
indemnifying party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this Section 5.6(b) in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section
5.6(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of such Holder, which consent shall not be unreasonably withheld; provided,
that, in no event shall any indemnity under this Section 5.6(b) exceed the
gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 5.6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 5.6,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties. The failure to deliver written notice to the
indemnifying party within a reasonable time after the commencement of any such
action, if materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 5.6 to the extent of such prejudice, but the omission so to
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 5.6. The indemnified party shall have the right, but not the
obligation, to participate in the defense of any action referred to above
through counsel of its own choosing and shall have the right, but not the
obligation, to assert any and all separate defenses, cross claims or
counterclaims which it may have, and the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the employment of
such counsel has been specifically authorized in advance by the indemnifying
party, (ii) there is a conflict of interest that prevents counsel for the
indemnifying party from adequately representing the interests of the
indemnified party or there are defenses available to the indemnified party that
are different from, or additional to, the defenses that are available to the
indemnifying party, (iii) the indemnifying party does not employ counsel that
is reasonably satisfatory to the indemnified party within a reasonable period
of time, or (iv) the indemnifying party fails to assume the defense or does not
reasonably contest such action in good faith, in which case, if the indemnified
party notifies the indemnifying party that it elects to employ separate
counsel, the indemnifying party shall not have the right to assume the defense
of such action on behalf of the indemnified party and the reasonable fees and
expenses of such separate counsel shall be borne by the indemnifying
- 12 -
13
party; provided, however, that, the indemnifying party shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate firm (in
addition to one firm acting as local counsel) for all indemnified parties.
(d) The obligations of the Company and the holders under this
Section 5.6 shall survive the completion of any offering of Registrable
Securities in a Shelf Registration Statement under this Article V.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement (if any) entered into in connection with any underwritten public
offering of the Registrable Securities are in conflict with the foregoing
provisions, the provisions in such underwriting agreement shall control.
5.7 Reports Under the Exchange Act. With a view to making
available to the holders the benefits of Rule 144 and any other rule or
regulation of the SEC that may at any time permit a Holder to sell securities
of the Company to the public without registration or pursuant to a registration
on Form S-3, the Company agrees to:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144;
(b) use its best efforts to file with the SEC in a timely manner
all reports and other documents required under the Act and the Exchange Act;
and
(c) furnish to any Holder forthwith upon request (i) a written
statement by the Company as to its compliance with the reporting requirements
of Rule 144, or as to whether it qualifies as a registrant whose securities may
be resold pursuant to Form S-3, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information (and the Company shall take
such action) as may be reasonably requested in availing any Holder of any rule
or regulation of the SEC which permits the selling of any such securities
without registration or pursuant to such form.
5.8 No Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Article V may only
be assigned by a Holder to a transferee or assignee of any Registrable
Securities if (i) such transferee or assignee is a Xxxx Contracting Party and
(ii) immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Act.
5.9 Waiver Procedures. The observance by the Company of any
provision of this Article V may be waived (either generally or in a particular
instance and either retroactively or prospectively) with the written consent of
the Holders of a majority of the Registrable Securities, and any waiver
effected in accordance with this paragraph shall be binding upon each Holder of
Registrable Securities.
5.10 "Market Stand-off" Agreement. Any Holder of Registrable
Securities, if requested by an underwriter of any registered public offering of
Company securities being sold in a firm commitment underwriting, agrees not to
sell or otherwise transfer or dispose of any
- 13 -
14
Common Stock (or other Company Voting Securities) held by such Holder other
than shares of Registrable Securities included in the registration during the
seven days prior to, and during a period of up to 180 days following, the
effective date of the registration statement. Such agreement shall be in
writing in a form reasonably satisfactory to the Company and such underwriter.
The Company may impose stop-transfer instructions with respect to the
securities subject to the foregoing restriction until the end of the required
stand-off period.
ARTICLE VI
CONFIDENTIALITY
6.1 Confidential Material.
(a) Definitions. For purposes of this Section 6.1:
(i) The term "Confidential Material" means all
information, whether oral, written or otherwise (including any
information furnished prior to the execution of this Agreement),
furnished by the Company to any member of the Xxxx Group or any of the
Representatives (as defined below), and all notes, reports, analyses,
compilations, studies and other materials prepared by the Xxxx Group
or any of the Representatives (in whatever form maintained, whether
documentary, computer storage or otherwise) containing or based upon,
in whole or in part, any such information, and the fact that such
information has been delivered to the Xxxx Group or any of its
Representatives. The term "Confidential Material" does not include
information which is or becomes generally available to the public
other than as a result of a disclosure by any member of the Xxxx Group
or any of the Representatives or becomes available to any member of
the Xxxx Group or any of the Representatives on a non-confidential
basis from any source that is not known by such member of the Xxxx
Group or such Representative to be bound by an obligation of
confidentiality to the Company.
(ii) The term "Representatives" shall mean any and
all employees, agents, financial advisors, partners, affiliates or
other representatives of any member of the Xxxx Group.
(b) Each member of the Xxxx Group and each of the Representatives
will preserve the confidentiality of the Confidential Material and will not
disclose any of the Confidential Material in any manner whatsoever; provided,
however, that (i) the Xxxx Group may make any disclosure of such information to
which the Company gives its prior consent, (ii) any of such information may be
disclosed to the Representatives who need to know such information, and who are
informed of the confidential nature of the Confidential Material and of the
terms of this Section 6.1 and who agree to keep such information confidential,
(iii) any member of the Xxxx Group may make any disclosure of such information
in connection with any activity which such member of the Xxxx Group reasonably
believes to be in the best interests of the Company and not prohibited by this
Agreement, provided the recipient of such information is informed of the
confidential nature of the Confidential Material and of the terms of this
Section 6.1 and agrees to keep such information confidential and (iv) any
member of the Xxxx Group may make any disclosure of such information to any
other member of the Xxxx Group. In any event, the Xxxx Group will be
responsible for any actions by the Representatives which are not in accordance
with the provisions hereof.
- 14 -
15
(c) If any member of the Xxxx Group or any of the Representatives
are requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand, any informal or
formal investigation by any government or governmental agency or authority or
otherwise) to disclose any Confidential Material or such person's opinion,
judgment, view or recommendation concerning the Company as developed from the
Confidential Material, the Xxxx Group agrees (i) to promptly notify the Company
of the existence, terms and circumstances surrounding such a request, (ii) to
the extent possible, to consult with the Company on the advisability of taking
legally available steps to resist or narrow such request and (iii) if
disclosure of such information is required, to furnish only that portion of the
Confidential Material which, in the opinion of counsel to the relevant member
of the Xxxx Group, the Xxxx Group is legally compelled to disclose, and to
cooperate with any action by the Company to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be accorded
the Confidential Material.
(d) Each Investor hereby acknowledges that the United States
securities laws prohibit, in certain circumstances, any person who has received
from an issuer material, non-public information, including certain information
that may be part of the Confidential Material, while such information is
non-public, from purchasing or selling securities of such issuer or from
communicating such information to any other person under circumstances in which
it is reasonably foreseeable that such person is likely to purchase or sell
such securities.
(e) This Section 6.1 shall survive until the earlier of the fifth
anniversary of this Agreement or two years following the date of termination of
this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1. CEO Search. The Company (represented by the Company's current
chief executive officer and the chairman of the Board's Compensation Committee)
and the Investors (represented by an individual designated by Samstock in its
sole discretion) shall jointly conduct a search to find a replacement for the
individual serving as the Company's chief executive officer as of the date of
this Agreement, which search shall commence promptly upon the execution of this
Agreement.
7.2. Term of Agreement; Certain Provisions Regarding Termination.
Unless this Agreement specifically provides for earlier or later termination
with respect to any particular right or obligation, this Agreement shall
terminate (a) contemporaneously with the termination of the Purchase Agreement
in accordance with Section 8.1 thereof, or (b) if the Xxxx Group shall, at any
time, sell or otherwise dispose of or otherwise cease to own Company Voting
Securities such that the Xxxx Group beneficially owns in the aggregate Company
Voting Securities representing less than 5% of the Combined Voting Power of all
Company Voting Securities (calculated in accordance with Section 3.1 and
including the Shares and, to the extent the Warrant has not been exercised or
has not expired, the Warrant Shares).
7.3 Legend and Stop Transfer Order. To assist in effectuating the
provisions of this Agreement, each of the Investors hereby consents to the
placement, in connection with the transactions contemplated by the Purchase
Agreement or otherwise within 10 business days after any Company Voting
Securities become subject to the provisions of this Agreement, of the
- 15 -
16
applicable legend specified in the Assignment Agreement on all certificates
representing ownership of Company Voting Securities owned of record or
beneficially by any member of the Xxxx Group, until such shares are sold,
transferred or disposed in a manner permitted hereby to a person who is not
then a member of the Xxxx Group. The Company agrees to remove promptly all
legends and stop transfer orders with respect to the transfer of Company Voting
Securities being made to a person who is not then a member of the Xxxx Group in
compliance with the provisions of this Agreement.
7.4 Remedies.
(a) Each of the Investors and the Company acknowledge and agree
that (i) the provisions of this Agreement are reasonable and necessary to
protect the proper and legitimate interests of the parties hereto, and (ii) the
parties would be irreparably damaged in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that each party shall be entitled
to preliminary and permanent injunctive relief to prevent breaches of the
provisions of this Agreement by the other party (or its affiliates) without the
necessity of proving actual damages or of posting any bond, and to enforce
specifically the terms and provisions hereof and thereof in any court of the
United States or any state thereof having jurisdiction, which rights shall be
cumulative and in addition to any other remedy to which the parties may be
entitled hereunder or at law or equity.
(b) In addition to any other remedy the Company may have under
this Agreement or in law or equity, if any member of the Xxxx Group shall
acquire or transfer any Company Voting Securities in violation of this
Agreement, such Company Voting Securities which are in excess of the number
permitted to be owned or controlled by the Xxxx Group or which have been
transferred by a member of the Xxxx Group in violation of the provisions of
this Agreement may not be voted by the owner thereof or any proxy therefor.
7.5 Additional Xxxx Group Parties; Several Obligations. All of the
liabilities and obligations under this Agreement: (a) of members of the Xxxx
Group who are Xxxx Affiliates shall be joint and several; (b) as between
members of the Xxxx Group who are Xxxx Affiliates, on the one hand, and any
other persons or groups who are not Xxxx Affiliates, on the other hand, shall
be several and not joint. Notwithstanding anything to the contrary in this
Agreement, in no event shall any member of the Xxxx Group who is a Xxxx
Affiliate be responsible in any manner for any liability or obligation of any
person or group who is not a Xxxx Affiliate. Notwithstanding anything to the
contrary in this Agreement, in no event shall any member of the Xxxx Group who
is not a Xxxx Affiliate be responsible in any manner for any liability or
obligation of any person or group who is a Xxxx Affiliate. Notwithstanding
anything to the contrary in this Agreement, no natural person or entity that is
not a signatory party to this Agreement shall have any liability or obligation
under this Agreement, except as otherwise provided in Section 7.12 of this
Agreement. Each member of the Xxxx Group that shall become or have the right
to become the beneficial owner, within the meaning and scope of Section 3.1
hereof, of Company Voting Securities shall, promptly upon becoming such owner
or holder, execute and deliver to the Company a joinder agreement, agreeing to
be legally bound by this Agreement to the same extent as if it had signed this
Agreement as an original signatory as a member of the Xxxx Group (each such
member of the Xxxx Group, a "Xxxx Contracting Party"); provided that failure to
execute such an agreement shall not excuse such member's non-compliance with
any provision of this Agreement. No member of the Xxxx Group shall transfer
securities to another member of
- 16 -
17
the Xxxx Group unless the transferee shall agree to be bound by this Agreement
in the manner specified above in this Section 7.5.
7.6 Notices. All notices, and other communications hereunder
shall be in writing and shall be deemed given if delivered personally, sent by
documented overnight delivery service or, to the extent receipt is confirmed,
facsimile, to the appropriate address or facsimile number set forth below (or
at such other address or facsimile number for a party as shall be specified by
like notice):
if to Samstock or TNI:
EGI-Transmedia Investors, L.L.C.
Two X. Xxxxxxxxx Xxxxx - Xxxxx 000
Xxxxxxx, XX 00000
Attention: F. Xxxxxx Xxxxx
Fax: (000) 000-0000
with an additional copy to:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Two X. Xxxxxxxxx Xxxxx - Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
if to Halmostock:
Halmostock Limited Partnership
00 X. Xxx Xxxx Xxxxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
with an additional copy to:
Xxxxx Xxxxxxxxxx Xxxxxxx
Xxxxxx Xxxxxxxxx & Xxxxxxx, P.A.
0000 Xxxxx Xxxxxx
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
if to the Company:
- 17 -
18
Transmedia Network Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
7.7 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 shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The parties hereto agree that they will use
their best efforts at all times to support and defend this Agreement.
7.8 Amendments. This Agreement may be amended only by an
agreement in writing signed by each of the parties hereto; provided, however,
that any amendment executed by the Company must prior thereto be approved by a
majority of the Disinterested Directors then in office.
7.9 Governing Law. This Agreement shall be governed and controlled
as to validity, enforcement, interpretation, construction, effect and in all
other respects by the internal laws of the State of Delaware applicable to
contracts made in that State.
7.10 Descriptive Headings. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement.
7.11 Counterparts; Facsimile Signatures. This Agreement shall
become binding when one or more counterparts hereof, individually or taken
together, bears the signatures of each of the parties hereto. This Agreement
may be executed in any number of counterparts, each of which shall be an
original as against the party whose signature appears thereon, or on whose
behalf such counterpart is executed, but all of which taken together shall be
one and the same agreement. A facsimile copy of a signature of a party to this
Agreement or any such counterpart shall be fully effective as if an original
signature.
7.12 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the successors and assigns of
the parties hereto.
7.13 Assignments. This Agreement may not be assigned without the
prior written consent of each party hereto, and any attempt to effect an
assignment hereof without such consent shall be void.
- 18 -
19
IN WITNESS WHEREOF, each of the Investors and the Company have
executed this Amended and Restated Investment Agreement as of the date first
above written.
INVESTORS:
EGI-TRANSMEDIA INVESTORS, L.L.C.
_____________________________________
By: Xxxxx X. Xxxxxxxxx
Vice President
SAMSTOCK, L.L.C.
_____________________________________
By: Xxxxx X. Xxxxxxxxx
Vice President
HALMOSTOCK LIMITED PARTNERSHIP by
Halmos Investments-Western,
Inc., its general partner
______________________________________
By: Xxxxxx X. Xxxxxx, President
COMPANY:
TRANSMEDIA NETWORK INC.
_______________________________________
By: Xxxxxx Xxxxxx, President and
Chief Executive Officer
- 19 -
