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STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT ("Agreement") is dated as of March 3, 1998,
by and among 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 together
with Samstock, "Investor"), Halmostock Limited Partnership, a Wyoming limited
partnership ("Stockholder"), and, solely for purposes of Sections 1(e), 2(a),
2(b) and 7 through 19 inclusive of this Agreement, Transmedia Network Inc., a
Delaware corporation (the "Company"). Capitalized terms used and not otherwise
defined in this Agreement have the meanings ascribed to them in Section 7
hereof.
R E C I T A L S
WHEREAS, reference is hereby made to: (i) that certain Stock Purchase and
Sale Agreement, dated as of November 6, 1997, (the "Purchase Agreement") among
the Company and Investor, pursuant to which Investor agreed to purchase from
the Company, and the Company has agreed to sell to Investor, (A) an aggregate
of 2,500,000 newly issued shares of common stock of the Company, par value $.02
per share ("Common Stock"), and (B) warrants to purchase an additional
1,200,000 shares of Common Stock in the aggregate; (ii) that certain Assignment
Agreement ("Assignment Agreement"), dated as of even date herewith, among the
Company, Investor and Stockholder, pursuant to which Investor has assigned to
Stockholder its right to acquire from the Company pursuant to the Purchase
Agreement (A) 352,941 shares of Common Stock and (B) warrants to acquire an
additional 169,412 shares of Common Stock, and (iii) that certain Amended and
Restated Investment Agreement, dated as of even date herewith, among the
Company, Investor and Stockholder (the "Investment Agreement"). Capitalized
terms used and not defined in this Agreement shall have the meanings ascribed
to them in the Investment Agreement;
WHEREAS, as of the date hereof, Stockholder owns of record and
beneficially 92,000 and no more shares of Common Stock, and neither Stockholder
nor any of its Affiliates owns of record and/or beneficially, directly or
indirectly, any other shares of Common Stock, or options to purchase shares of
Common Stock, other than pursuant to the Assignment Agreement;
WHEREAS, the parties desire that Stockholder grant Investor an irrevocable
proxy to vote all Shares whether now owned or hereafter acquired by
Stockholder, on the terms set forth in this Agreement; and
WHEREAS, the parties desire to establish certain rights and restrictions
related to the transfer of Shares.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
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Section 1. Voting of Shares / Related Matters.
(a) Stockholder, on behalf of itself and each of its Affiliates, does
hereby constitute and appoint Investor its true and lawful attorney and proxy
during the period that this Agreement remains in force, to appear for,
represent, and vote all Shares held by Stockholder and any of its Affiliates,
whether now owned or hereafter acquired, for Stockholder and such Affiliates,
at all meetings of the stockholders of the Company, with power to vote upon any
and all questions which may arise at any such meeting or meetings, as fully and
with the same effect as if Stockholder or such Affiliates had voted such
Shares, subject, however, to any applicable voting restrictions contained in
the Investment Agreement.
(b) Investor may vote on behalf of Stockholder and/or such Affiliates in
person or by proxy, and, promptly upon request from Investor, from time to
time, Stockholder shall, and shall cause its Affiliates to, execute and deliver
to Investor a separate written proxy conferring upon Investor, or such other
person as Investor may designate, the full, irrevocable authority to vote all
of such Stockholder's or such Affiliates' Shares, whether now owned or
hereafter acquired, at any specified meeting of the stockholders of the
Company, subject, however, to any applicable voting restrictions contained in
the Investment Agreement.
(c) Irrespective of the grant of the proxies referred to in
subparagraphs (a) and (b) above, in each event where Stockholder or its
Affiliates is entitled to vote any Shares, if and when requested by Investor,
Stockholder shall, and shall cause its Affiliates to, vote all of the Shares,
whether now owned or hereafter acquired, held by Stockholder or such Affiliates
which Stockholder or such Stockholder Affiliate, is entitled to vote as
directed by Investor, subject, however, to any applicable voting restrictions
contained in the Investment Agreement.
(d) Stockholder, on behalf of itself and its Affiliates, hereby agrees
that: (i) Investor may appoint any Affiliate of Investor to act on Investor's
behalf or as Investor's successor under this Section 1 with the same power and
authority conferred on Investor; and (ii) all power and authority conferred on
Investor by this Section 1 is coupled with an interest and is irrevocable and,
to the extent not prohibited by law, shall not be terminated by any act of
Investor or Stockholder or any of Stockholder's Affiliates or by operation of
law or by the occurrence of any event whatsoever, including without limitation,
the death, incapacity, dissolution, liquidation, termination, bankruptcy,
dissolution of marital relationship or insolvency of Investor or Stockholder or
its Affiliates or any similar event.
(e) Subject to any applicable voting restrictions contained in the
Investment Agreement, Stockholder and the Company acknowledge that the Company
shall be entitled to rely conclusively on any written direction or instruction
received from Investor regarding any vote of Shares held by Stockholder or its
Affiliates, and Investor agrees to furnish a copy of any such direction or
instructions to Stockholder no later than the time such directions or
instructions are provided to the Company. The Company agrees that it will not
recognize any purported vote of Shares held by Stockholder or its Affiliates,
except pursuant to written direction or instruction received from Investor.
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Section 2. Restrictions on Transfer and Related Matters / Permitted
Transferees.
(a) Stockholder shall not, and shall not permit any of its Affiliates,
to Transfer any Shares except for a Transfer to a Permitted Transferee pursuant
to Section 2(b) or a Transfer pursuant to Section 3, 4, 5 or 6, as applicable,
and Investor shall not Transfer any Shares except for a Transfer to a Permitted
Transferee pursuant to Section 2(b), or a Transfer pursuant to Sections 5 or
6, as applicable. If any Transfer is made or attempted contrary to the
provisions of this Agreement, such purported Transfer shall be void ab initio;
and the Company shall refuse to recognize any such purported transferee of
Shares as a holder of such Shares for any purpose.
(b) Notwithstanding anything to the contrary in Section 2(a) hereof, for
purposes of this Agreement, Stockholder and Investor may Transfer Shares to a
Permitted Transferee of such Stockholder or Investor, as the case may be,
without complying with the provisions of Sections 3, 4, 5 or 6. As a condition
to the effectiveness of any Transfer of Shares to a Permitted Transferee, the
Permitted Transferee shall execute a counterpart to this Agreement, whereupon
the Permitted Transferee shall hold Shares subject to all of the provisions of
this Agreement, as if the Permitted Transferee were the Person who transferred
the Shares actually held by the Permitted Transferee. Notwithstanding anything
to the contrary in this Agreement: (i) all rights and benefits originally
granted to Stockholder or Investor under this Agreement shall remain with it or
him (or Stockholder's duly appointed representative, in the event of
Stockholder's death or incapacity), and shall not be assigned or transferred to
their Permitted Transferees, notwithstanding any Transfer of Shares by them to
their Permitted Transferees, as if Stockholder or Investor, as the case may be,
who Transferred Shares to their Permitted Transferee were the holders of the
Shares actually held by their Permitted Transferee; and (ii) no Permitted
Transferee shall be entitled to exercise any right, satisfy any obligation or
otherwise take any action or do anything under this Agreement, except through
Stockholder or Investor, as the case may be, who Transferred Shares to its
Permitted Transferee (or Stockholder's duly appointed representative, in the
event of Stockholder's death or incapacity), as the representative for all of
such party's Permitted Transferees.
(c) Notwithstanding anything to the contrary in this Agreement, in order
to ensure compliance with Article III of the Investment Agreement, prior to the
fifth anniversary of the Closing Date (as defined in the Purchase Agreement),
Stockholder shall not, directly or indirectly, by purchase or otherwise,
acquire, offer to acquire, agree to acquire, become the beneficial owner of or
obtain any rights in respect of, or sell, transfer any beneficial interest in,
or otherwise dispose of or transfer, any Company Voting Securities, or take any
action in furtherance thereof, or permit any of its respective Affiliates to do
so, if any such action would result in the Xxxx Group's breach of any provision
of Article III of the Investment Agreement, and, in such event, the Company
shall refuse to recognize any such purported action, and such purported action
shall be void ab initio. In the event of a breach of this Section 2(c) by
Stockholder, Stockholder shall indemnify and hold harmless Investor against any
costs or expenses (including reasonable attorneys' fees), judgments, fines,
losses, claims, damages and liabilities in connection with any claim, action,
suit, proceeding or investigation arising from such breach by Stockholder.
Section 3. Right of First Offer on Private Transfer. In the event
that Stockholder or any of its Affiliates desires to sell for cash or other
consideration in a bona fide transaction with an
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independent third party, whether or not such third party has made an offer to
purchase any of Stockholder's Shares, all or any portion of the Shares now
owned or hereafter acquired by Stockholder or any of its Affiliates, other than
in a Public Sale, Stockholder shall first notify Investor in writing (the
"Notice of Intended Sale") of the number of Shares for sale by Stockholder
and/or its Affiliates (the "Offered Shares") and the proposed price and other
terms of sale. Investor thereupon shall have the right to purchase all (but
not less than all) of the Offered Shares at the proposed price in cash or other
consideration and on the other proposed terms of sale all as specified in the
Notice of Intended Sale. In order to exercise its purchase rights, within five
(5) business days (two (2) business days in the event of a proposed sale of no
more than 10,000 Shares in the aggregate) after receiving the Notice of
Intended Sale from Stockholder, Investor shall deliver to Stockholder a written
election (the "Election Notice") to purchase all of the Offered Shares. If
Investor does not exercise its purchase rights with respect to all (and not
less than all) of the Offered Shares within the time period as provided herein
with respect to all of the Offered Shares, or fails to deliver the Election
Notice within the time period provided: (i) Stockholder and its Affiliates
shall be free for a period of ninety (90) days thereafter to complete a sale of
the Offered Shares to any Person at or above the price specified in the Notice
of Intended Sale and/or on substantially the same terms as set forth in the
Notice of Intended Sale; and (ii) Investor and Stockholder shall, and Investor
and Stockholder shall cause their Affiliates to, as promptly as practicable and
as a condition to their respective obligations hereunder, enter into such
agreements and deliver such documents as shall be reasonably necessary for the
sale of Stockholder's Shares to such Person as contemplated hereby. If such a
sale is not consummated within such ninety (90) day period by Stockholder or
its Affiliates, the Offered Shares shall again be subject to a right of first
offer by Investor under the provisions of this Section 3. Except as provided
herein, Stockholder shall, and shall cause its Affiliates to, be bound by the
restrictions and limitations imposed by this Agreement after any notice of a
desire to sell is given and whether or not any such sale actually occurs. In
the event Investor exercises its rights of first offer hereunder, Investor and
Stockholder shall, and Stockholder shall cause its Affiliates to, as promptly
as practicable and as a condition to their respective obligations hereunder,
enter into such agreements and deliver such documents to one another as shall
be reasonably necessary for the sale of Stockholder's Shares to Investor as
contemplated hereby. Notwithstanding anything to the contrary in this Section
3, in the event that after Investor's receipt of the Notice of Intended Sale
and prior to the earlier of (A) Stockholder's receipt of the Election Notice or
(B) 5:00 p.m. Eastern Time on the fourth (4th) day following Investor's receipt
of the Notice of Intended Sale, the Market Price of the Shares increases or
decreases by twenty percent (20%) or more as compared to the Market Price on
the last trading day immediately prior to the date of Investor's receipt of the
Notice of Intended Sale, Stockholder shall have the right to withdraw its
Notice of Intended Sale by written notice to Purchaser, in which event the
Notice of Intended Sale actually delivered by Stockholder to Investor shall be
deemed for all purposes under this Section 3 as never having been delivered to
Investor.
Section 4. Right of First Offer on Public Sale. In the event that
Stockholder or any of its Affiliates desires to sell for cash in a Public Sale
all or any portion of the Shares now owned or hereafter acquired by Stockholder
or such Affiliates, whether or not any third party has made an offer to
purchase any of Stockholder's or such Affiliates' Shares, Stockholder shall
first notify Investor in writing (the "Notice of Intended Sale") of the number
of Shares for sale by Stockholder or such Affiliate (the "Offered Shares").
Investor thereupon shall have the right to purchase all or any part of the
Offered Shares for cash at their Market Price on the last trading
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day immediately prior to the date of Investor's receipt of the Notice of
Intended Sale. In order to exercise its purchase rights, within five (5)
business days (two (2) business days in the event of a proposed Public Sale of
no more than 10,000 Shares in the aggregate) after receiving the Notice of
Intended Sale from Stockholder, Investor shall deliver to Stockholder a written
election "Election Notice" to purchase so many of the Offered Shares as it may
desire to purchase. If Investor does not exercise its purchase rights with
respect to all of the Offered Shares within the time period as provided herein
or fails to deliver the Election Notice within the time period provided: (i)
Stockholder and its Affiliates shall be free for a period of ten (10) days
thereafter to complete a Public Sale of that number of Offered Shares with
respect to which Investor failed to exercise its purchase rights; and (ii)
Investor and Stockholder shall, and Investor and Stockholder shall cause their
Affiliates to, as promptly as practicable and as a condition to their
respective obligations hereunder, enter into such agreements and deliver such
documents as shall be reasonably necessary for the sale of Stockholder's Shares
in a Public Sale as contemplated hereby. If such Public Sale is not
consummated within such ten (10) day period by Stockholder or its Affiliates,
the Offered Shares shall again be subject to a right of first offer by Investor
under the provisions of this Section 4. Except as provided herein, Stockholder
shall, and shall cause its Affiliates to, be bound by the restrictions and
limitations imposed by this Agreement after the Notice of Intended Sale is
given and whether or not any such sale actually occurs. In the event Investor
exercises its rights of first offer hereunder, Investor and Stockholder shall,
and Stockholder shall cause its Affiliates to, as promptly as practicable and
as a condition to their respective obligations hereunder, enter into such
agreements and deliver such documents to one another as shall be reasonably
necessary for the sale of Stockholder's Shares to Investor as contemplated
hereby. Notwithstanding anything to the contrary in this Section 4, in the
event that after Investor's receipt of the Notice of Intended Sale and prior to
the earlier of (i) Stockholder's receipt of the Election Notice or (ii) 5:00
p.m. Eastern Time on the fourth (4th) day following Investor's receipt of the
Notice of Intended Sale, the Market Price of the Shares increases or decreases
by twenty percent (20%) or more as compared to the Market Price on the last
trading day immediately prior to the date of Investor's receipt of the Notice
of Intended Sale, Stockholder shall have the right to withdraw its Notice of
Intended Sale by written notice to Purchaser, in which event the Notice of
Intended Sale actually delivered by Stockholder to Investor shall be deemed for
all purposes under this Section 4 as never having been delivered to Investor.
Section 5. Co-Sale Rights. In the event that Investor enters into an
agreement to sell to any independent third party or group of independent third
parties, in a single transaction or related series of transactions, other than
a Public Sale, such number of Shares as equals or exceeds more than ten percent
(10%) of the Shares held by Investor, Investor shall first notify Stockholder
in writing, of the identity of the proposed purchaser(s), the number of Shares
proposed to be sold, the proposed purchase price and terms of sale and an
estimate of the Transaction Costs (as defined below) (which estimate shall not
be binding on Investor and shall have no effect on Investor's or Stockholder's
rights or obligations under this Section 5). Stockholder thereupon shall have
the right to participate in the proposed sale at the same net price per share
and other terms of sale as offered to Investor. In order to exercise its
co-sale rights, Stockholder, within ten (10) business days after receiving
notice from Investor, shall deliver to Investor a written election to
participate in the sale to the extent allowed by this Section 5. If
Stockholder has elected to participate in the proposed sale, Stockholder shall
be entitled to sell in the proposed sale a number of Shares equal to the
product of (i) the quotient (the "Co-Sale Fraction") determined by dividing the
number of Shares owned by Stockholder by
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the aggregate number of Shares owned by Stockholder, Investor and, if
applicable, the Other Tag-Along Stockholder, multiplied by (ii) the total
number of Shares to be sold by them in the proposed sale. Notwithstanding
anything to the contrary in this Section 5, the sale proceeds to which
Stockholder would otherwise be entitled by reason of its participation in a
sale pursuant to this Section 5 shall be reduced by an amount equal to the
product of Stockholder's Co-Sale Fraction multiplied by the sum of any costs,
fees and expenses, including, without limitation, attorneys', accountants' and
investment bankers' fees and expenses (collectively, "Transaction Costs"),
incurred by Investor in connection with the sale or the exercise of the
Stockholder's or the Other Tag-Along Stockholder's rights under this Section 5.
Stockholder shall, as promptly as practicable and as a condition to its
participation, enter into such agreements as shall be reasonably requested by
Investor for the sale of its Shares in the proposed sale.
Section 6. Drag-Along Rights. Subject to Section 3 and Section 4, if
Investor owns more Company Voting Securities than Stockholder and Investor
enters into an agreement (including an agreement in principle) to sell all of
its Shares to any purchaser or group of purchasers (other than any Permitted
Transferees or Stockholder), in a single arms-length transaction or related
series of arms-length transactions with an independent third party or group of
independent third parties, Investor may require that Stockholder sell, and
cause its Affiliates to sell, all of their Shares to such purchaser or group of
purchasers at a net price and on terms and conditions the same as those on
which Investor has agreed to sell its Shares; provided, however, that,
notwithstanding the foregoing, Investor shall not be entitled to require
Stockholder or any of its Affiliates to sell any of the 92,000 shares of Common
Stock owned of record and beneficially by Stockholder as of the date of this
Agreement at a net price below $7.11 per share. Investor shall give prompt
notice to Stockholder that Investor has entered into an agreement of the type
described in this Section 6, and Stockholder shall, and shall cause its
Affiliates to, as promptly as practicable, enter into such agreements as shall
reasonably be requested by Investor for the sale of all the Shares in the
proposed sale. Notwithstanding anything to the contrary in this Section 6, the
sale proceeds to which Stockholder or any of its Affiliates would otherwise be
entitled by reason of its participation in a sale pursuant to this Section 6
shall be reduced by an amount equal to the product of (i) the percentage of
Shares to be sold in the proposed sale owned by Stockholder or such Affiliates,
multiplied by (ii) the sum of any costs, fees and expenses, including, without
limitation, attorneys', accountants' and investment bankers' fees and expenses,
incurred by Investor in connection with the sale or the exercise of Investor's
rights under this Section 6.
Section 7. Certain Definitions.
"Affiliate" means, with respect to a specified Person, any Person that
directly or indirectly controls, is controlled by, or is under common control
with, the specified Person; "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, by
contract or otherwise.
"Halmos Controlled Entity" means any corporation, partnership, limited
liability company, trust or other legal entity wholly controlled by Xxxxxx X.
Xxxxxx ("Halmos") and wholly owned beneficially and of record by Halmos and/or
Halmos' wife, children, grandchildren, parents, siblings, in-laws, nieces,
and/or nephews, or a trust established for any of their benefit, provided
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such trust is wholly controlled by Halmos, and/or any employees, officers,
directors and other representatives of the Reunion Group, Inc.
"Market Price" means the closing price of the Common Stock on the New
York Stock Exchange (or, if not trading on the New York Stock Exchange, such
other securities exchange or over the counter market on which the Company's
Common Stock is then trading) as of the date of determination.
"Other Tag-Along Stockholder" means Xxxxxx Xxxxxx, Xxxx Xxxxxx and/or
their Permitted Transferees under that certain Amended and Restated Agreement
Among Stockholders, dated as of the date hereof, by and among Investor, Xxxxxx
Xxxxxx, Xxxx Xxxxxx and the Company.
"Permitted Transferee" means:
(i) with respect to the Transfer of Shares by Investor,
any Affiliate of Investor or any stockholder, partner or member of any
such Affiliate; and
(ii) with respect to any Transfer of Shares by
Stockholder, Xxxxxx X. Xxxxxx, any Halmos Controlled Entity or any
charitable organization as defined under Section 501(c)(3) of the
Internal revenue Code of 1986, as amended (the "Code").
"Person" means an individual, a corporation, a partnership, a limited
liability company, a joint venture, an association, a joint-stock company, a
trust, a business trust, a government or any agency or any political
subdivision, any unincorporated organization or any other entity.
"Public Sale" means a bona fide sale of Shares either in "broker's
transactions" within the meaning of Section 4(4) of the Securities Act of 1933,
as amended, or in transactions directly with a "market maker" as that term is
defined in Section 3(a)(38) of the Securities Exchange Act of 1934, as amended.
"Shares" means all shares of Company Voting Securities, whether now
owned or hereafter acquired.
"Transfer" means any voluntary or involuntary, direct or indirect,
transfer, sale, assignment, donation, pledge, hypothecation, issuance, grant of
a security interest in or other disposition or attempted disposition of Shares
or any right or interest whatsoever therein, including, without limitation, by
operation of law or otherwise, whether with or without consideration or value,
and whether for cash, other securities or other property and specifically
including any share for share or similar exchange; provided, however, that:
(i) any pledge or hypothecation of or grant of security
interest in Shares by Stockholder which is either approved by Investor
in writing prior to the pledge, hypothecation or grant of security
interest or is done by Investor or any Affiliate of Investor shall not
constitute a "Transfer" of Shares for any purpose under this
Agreement; and
(ii) any Transfer done as a result of a Stockholder's
death, pursuant to the laws of descent and distribution, by operation
of law or otherwise, to such Stockholder's
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spouse, children, grandchildren, parents, siblings, in-laws, nieces
and/or nephews or a trust established for any of their benefit, shall
not constitute a "Transfer" of Shares for any purpose under this
Agreement, provided each transferee of Shares executes a counterpart
to this Agreement, whereupon such transferee shall hold such Shares
subject to all of the provisions of this Agreement, as if the
transferor were the holder of Shares held by the transferee.
Section 8. 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 Investor:
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 the Company:
Transmedia Network Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with an additional copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
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If to Stockholder:
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
Section 9. Termination. This Agreement shall terminate and its
provisions shall be of no further force and effect if (i) the Xxxx Group shall,
at any time, cease to own in the aggregate Company Voting Securities
representing at least five percent (5%) of all Company Voting Securities
outstanding or (ii) contemporaneously with the termination of the Purchase
Agreement in accordance with Section 8.1 thereof.
Section 10. Remedies. Any party having rights under this Agreement
may enforce such rights specifically to recover damages caused by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law. The parties agree and acknowledge that money damages may not
be an adequate remedy for any breach of the provisions of this Agreement and,
accordingly, in addition to all other remedies available to any party, such
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief in
order to enforce, or prevent any violation of, the provisions of this
Agreement.
Section 11. Prevailing Party's Attorneys' Fees. Notwithstanding
anything to the contrary in this Agreement, in the event of a dispute among
Investor, Stockholder and/or their respective Affiliates concerning the
interpretation or enforcement of any provision of this Agreement, the
prevailing party shall be reimbursed by the non-prevailing party for all
reasonable attorneys' fees and expenses incurred by the prevailing party in
connection with such dispute. The Company shall not be bound by this Section
11.
Section 12. Entire Agreement. This Agreement, together with the
Purchase Agreement, the Assignment Agreement, the Investment Agreement and the
other Transaction Documents (as defined in the Purchase Agreement), as the same
may be amended by their terms from time to time, constitutes the entire
agreement between the parties with respect to the subject matter hereof and
shall be binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, successors and permitted assigns. Any
amendments, or alternative or supplementary provisions to this Agreement must
be made in writing and duly executed by an authorized representative or agent
of each of the parties
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hereto. Except as contemplated by this Agreement, no Person who is not an
original party to this Agreement may become a party hereto without the written
consent of each of the parties hereto.
Section 13. Non-Waiver. The failure in any one or more instances of
a party to insist upon performance of any of the terms, covenants or conditions
of this Agreement, to exercise any right or privilege in this Agreement
conferred, or the waiver by said party of any breach of any of the terms,
covenants or conditions of this Agreement, shall not be construed as a
subsequent waiver of any such terms, covenants, conditions, rights or
privileges, but the same shall continue and remain in full force and effect as
if no such forbearance or waiver had occurred. No waiver shall be effective
unless it is in writing and signed by an authorized representative of the
waiving party. A breach of any representation, warranty or covenant shall not
be affected by the fact that a more general or more specific representation,
warranty or covenant was not also breached.
Section 14. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall constitute but one instrument.
Section 15. Severability. The invalidity of any provision of this
Agreement or portion of a provision shall not affect the validity of any other
provision of this Agreement or the remaining portion of the applicable
provision.
Section 16. Applicable 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.
Section 17. Binding Effect; Benefit, Non-circumvention. This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
and their successors and permitted assigns. Nothing in this Agreement, express
or implied, is intended to confer on any person other than the parties hereto,
and their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement. No party
hereto shall take any action, alone or in concert with any other person, to
circumvent any of the provisions of this Agreement. Notwithstanding anything
herein to the contrary, Xxxxxx X. Xxxxxx shall not be personally liable for any
obligation or liability whatsoever under this Agreement.
Section 18. Assignability. This Agreement shall not be assignable by
any party without the prior written consent of each of the other parties.
Section 19. Headings. The headings contained in this Agreement are
for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Stockholders'
Agreement as of the day and year first above written.
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 Xxxxxx, President
TRANSMEDIA NETWORK INC.
By: ______________________________
Xxxxxx Xxxxxx, President and
Chief Executive Officer
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