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ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of March 3, 1998, (the "Agreement"), 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, "Assignor"), Transmedia Network Inc., a Delaware corporation (the
"Company"), and Halmostock Limited Partnership, a Wyoming limited partnership
("Halmostock").
WHEREAS, Assignor and the Company have entered into that certain Stock
Purchase and Sale Agreement ("Stock Purchase Agreement") dated as of November
6, 1997, pursuant to which the Company has agreed to issue and sell to
Assignor, and Assignor has agreed to purchase from the Company, (i) 2,500,000
newly issued shares (such 2,500,000 newly issued shares, collectively the
"Shares") of Common Stock in the aggregate, representing approximately 16.84%
of the Fully Diluted Common Stock and 19.7% of the outstanding Common Stock,
and (ii) a warrant (the "Warrant") to purchase an additional 1,200,000 shares
of Common Stock in the aggregate (such additional 1,200,000 shares of Common
Stock in the aggregate issuable from time to time upon exercise of the Warrant,
collectively the "Warrant Shares"), representing approximately 8.08% of the
Fully Diluted Common Stock. All capitalized terms used and not otherwise
defined herein have the meanings ascribed to them in the Stock Purchase
Agreement;
WHEREAS, Assignor desires to assign to Halmostock and Halmostock desires
to acquire from Assignor (the "Assignment"), effective contemporaneously with
the consummation of the closing under the Stock Purchase Agreement, the right
to purchase from the Company (i) 352,941 of the Shares (the "Halmostock
Shares"), (ii) a warrant (the "Halmostock Warrant") in the form of Exhibit A
hereto to purchase up to 169,412 of the Warrant Shares (the "Halmostock Warrant
Shares") and (iii) a pro rata interest (i.e., a 14.12% interest) in Assignor's
rights and remedies under the Stock Purchase Agreement ("Halmostock's Pro Rata
Rights");
WHEREAS, the Company desires to sell to Halmostock, and Halmostock desires
to purchase from the Company, the Halmostock Shares, the Halmostock Warrant and
Halmostock's Pro Rata Rights.
NOW, THEREFORE, in consideration of the premises, representations and
warranties and the mutual covenants and agreements set forth herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES AND WARRANT; RELATED MATTERS
1.1 Assignment, Purchase and Sale. Subject to the terms and conditions
contained in this Agreement, effective contemporaneously with the consummation
of the closing under the Stock Purchase Agreement, Assignor does hereby assign,
transfer and deliver to Halmostock, and Halmostock does hereby accept the
assignment from Assignor of, (a) Assignor's right to purchase from the Company
the Halmostock Shares and the Halmostock Warrant and (b) Halmostock's Pro Rata
Rights. At the Closing, the Company shall sell to Halmostock, and
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Halmostock shall purchase from the Company, the Halmostock Shares, the
Halmostock Warrant and Halmostock's Pro Rata Rights.
1.2 Consideration. Upon the terms and subject to the satisfaction of the
conditions contained in this Agreement, at the Closing, Halmostock shall pay to
the Company $1,499,999.25 in the aggregate ("Halmostock's Purchase Price") for
the Halmostock Shares, the Halmostock Warrant and Halmostock's Pro Rata Rights.
1.3 No Relief of Assignor's Obligations. Notwithstanding anything to the
contrary herein, this Agreement and the transactions contemplated hereby shall
not relieve Assignor of any of its liabilities, obligations or duties under the
Stock Purchase Agreement.
1.4 Halmostock's Payment of Pro Rata Costs. In order to induce Assignor
to enter into this Agreement, Halmostock agrees to pay to Assignor and its
Affiliates, within five (5) business days after receipt of written request
accompanied by copies of invoices evidencing the costs, fees and expenses
identified below, an amount in cash equal to 14.12% of all costs, fees and
expenses, not to exceed $40,000.00 in the aggregate, incurred by the Xxxx
Affiliates in connection with (i) the business, legal and accounting due
diligence investigation of the Company, (ii) the negotiation, preparation and
execution of the Stock Purchase Agreement, the other Transaction Documents and
the Halmostock Transaction Documents, (iii) the preparation and filing of any
reports, statements and/or other documents with the Securities and Exchange
Commission, (iv) the satisfaction of conditions precedent to the Closing, (v)
the Closing, and (vi) post-Closing matters, including without limitation, the
fees, expenses and disbursements for services performed by Xxxxxxxxx &
Xxxxxxxxxxx, P.C., Seyfarth, Shaw, Xxxxxxxxxxx & Xxxxxxxxx, Jenner & Block,
Xxxxxx Xxxxxxxx & Co. and Xxxxx & Co., but excluding all services, if any,
performed solely for the benefit of the Xxxx Affiliates as determined in good
faith by the Xxxx Affiliates.
1.5 No Liability or Obligation on Xxxxxx X. Xxxxxx. Xxxxxx X. Xxxxxx
shall not be personally liable for any obligation or liability whatsoever under
this Agreement.
ARTICLE II
THE CLOSING
2.1 Time and Place. Upon the terms and subject to the satisfaction of the
conditions contained in this Agreement, the consummation of the Assignment and
the sale of the Halmostock Shares, the Halmostock Warrant and the Halmostock
Pro Rata Rights as contemplated by this Agreement shall take place
contemporaneously with, and contingent upon, the Closing.
2.2 Deliveries by the Company. At the Closing, the Company shall deliver
the following to Halmostock:
(a) stock certificates representing the Halmostock Shares, in the name of
Halmostock and dated as of the Closing Date;
(b) the Halmostock Warrant dated as of the Closing Date;
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(c) the opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Company,
addressed to Halmostock in the form received by Assignor; and
(d) a copy of all other closing documents in the form delivered by the
Company to Assignor.
2.3 Deliveries by Halmostock. At the Closing, Halmostock shall deliver
the following to the Company:
(a) the Halmostock's Purchase Price by interbank transfer of federal funds
to one or more accounts designated in a writing delivered by the Company to
Halmostock or by such other means as may be agreed upon in writing by the
Company and Halmostock;
(b) An opinion letter from Xxxxx Xxxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxx &
Xxxxxxx, P.A., counsel to Halmostock, containing the opinions in the form
attached hereto as Exhibit B, with such provisions concerning scope of firm's
inquiry, law covered by opinion, reliance by the firm, reliance by third
parties, assumptions, definition of firm's "knowledge", qualifications,
limitations and similar matters as shall be reasonably acceptable to the
Company; and
(c) all other closing documents reasonably requested by the Company.
2.4 Closing under Stock Purchase Agreement. The respective obligations of
each party to effect the transactions contemplated by this Agreement shall be
subject to and conditioned upon the contemporaneous consummation of the closing
under the Stock Purchase Agreement.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF HALMOSTOCK
Halmostock hereby represents, warrants and covenants to Assignor and to
the Company on the date of this Agreement and again on the Closing Date, which
representations and warranties shall survive the Closing as follows:
3.1 Organization. Halmostock is a limited partnership duly formed,
validly existing and in good standing under the laws of the Wyoming.
3.2 Authority Relative to This Agreement. Halmostock has the partnership
power and authority to execute and deliver this Agreement, that certain Amended
and Restated Investment Agreement dated as of March 3, 1998, by and among the
Company, Assignor and Halmostock, that certain Stockholders' Agreement dated as
of March 3, 1998, by and among the Assignor, Halmostock and the Company and all
other documents, instruments and other writings to be executed and/or delivered
by or on behalf of Halmostock to Assignor or the Company or any of their
representatives in connection with the transactions contemplated hereby or
thereby (collectively, the "Halmostock Transaction Documents"), to perform its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance of
each of the Halmostock Transaction Documents by Halmostock and the consummation
by Halmostock of the transactions contemplated hereby and thereby have been
duly authorized by the general partner of Halmostock, and no other partnership
proceedings on the part of Halmostock are
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necessary to authorize the execution, delivery and performance of the
Halmostock Transaction Documents or the transactions contemplated hereby or
thereby. Each of the Halmostock Transaction Documents has been duly executed
and delivered by Halmostock and, assuming due authorization, execution and
delivery by Assignor constitutes a legal, valid and binding obligation of
Halmostock, enforceable against Halmostock in accordance with its terms.
3.3 No Conflict; Required Filings and Consents. The execution, delivery
and performance of the Halmostock Transaction Documents by Halmostock does not
and will not: (i) conflict with or violate the organizational documents of
Halmostock (ii) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to Halmostock, or by which any of its properties
are bound or affected; (iii) require any consent, approval, authorization or
permit of, action by, filing with or notification to, any Governmental Entity
(other than any filing required under Section 13(a) or (d), 14, 15(d) or 16(a)
of the Exchange Act); or (iv) result in any breach or violation of or
constitute a default (or an event which with notice or lapse of time or both
could become a default) or result in the loss of a material benefit under, or
give rise to any right of termination, amendment, acceleration or cancellation
of, or result in the creation of a Lien on any of the property or assets of
Halmostock pursuant to, any Contract, Permit or other instrument or obligation
to which Halmostock is a party or by which Halmostock, or any of its properties
are bound or affected, except, in the case of clauses (ii), (iii) and (iv), for
any such conflicts, violations, breaches, defaults or other occurrences which
could not, individually or in the aggregate, have a material adverse effect on
Halmostock or reasonably be expected to impair or delay the ability of
Halmostock to perform its obligations under this Agreement.
3.4 Brokers. No broker, finder, investment banker or other person is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by the Halmostock Transaction Documents
based upon arrangements made by or on behalf of Halmostock.
3.5 Investment Intent. Halmostock is purchasing the Halmostock Shares and
the Halmostock Warrant and will purchase the Halmostock Warrant Shares for its
own account for investment, and not with a view to, or for resale in connection
with, any public distribution of the Halmostock Shares, the Halmostock Warrant
or any Halmostock Warrant Shares.
3.6 Availability of Funds. Halmostock has on hand sufficient funds to pay
Halmostock's Purchase Price in accordance with the terms of this Agreement and
to pay all fees and expenses incurred in connection with the transactions
contemplated hereby for which Halmostock is responsible.
3.7 Halmostock's Indemnification Obligations. Halmostock shall indemnify,
save and keep harmless Assignor and the Company and their respective officers,
directors, employees, agents, representatives, Affiliates, successors and
permitted assigns against and from all Damages sustained or incurred by any of
them resulting from or arising out of or by virtue of any inaccuracy in or
breach of any representation, warranty or covenant made by Halmostock to
Assignor and/or the Company in this Agreement or in any other Halmostock
Transaction Document. No specifically enumerated indemnification obligation
with respect to a particular subject matter shall limit or affect the
applicability of a more general indemnification obligation with respect to the
same subject matter. In the event either Assignor or the Company have an
actionable claim and have suffered Damages, Halmostock shall not be entitled to
require that
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any action be brought against any Person before action is brought against it
hereunder by a Person seeking indemnification by Halmostock.
3.8 Contribution of Shares. Xxxxxx X. Xxxxxx and/or his Affiliates have
contributed on or before the date hereof to Halmostock 92,000 shares of Common
Stock (the "Contributed Shares"). Halmostock is the sole beneficial and record
owner of the Contributed Shares. Halmostock has good and marketable title to
the Contributed Shares, free of all Liens, other than any Liens created by the
Halmostock Transaction Documents.
ARTICLE IV
MISCELLANEOUS
4.1 Restrictive Legend.
(a) Halmostock and the Company agree that the certificates
representing the Halmostock Shares or the Halmostock Warrant Shares may
contain a legend, in substantially the following form:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or applicable state securities laws and may not be
sold, transferred, assigned, offered, pledged or otherwise
disposed of unless (i) there is an effective registration
statement under such Act and such laws covering such
securities or (ii) such sale, transfer, assignment, offer,
pledge or other disposition is exempt from the registration
and prospectus delivery requirements of such Act and such
laws. The securities evidenced by this certificate are
subject to the restrictions on transfer contained in the
Amended and Restated Investment Agreement dated as of March 3,
1998, and the Stockholders' Agreement dated as of March 3,
1998, in each case, to which the Company is a party, as
amended, supplemented or otherwise modified from time to time,
and may not be transferred except in compliance therewith."
(b) Assignor and the Company agree that the certificates
representing the Shares or the Warrant Shares may contain a legend, in
substantially the following form:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or applicable state securities laws and may not be
sold, transferred, assigned, offered, pledged or otherwise
disposed of unless (i) there is an effective registration
statement under such Act and such laws covering such
securities or (ii) such sale, transfer, assignment, offer,
pledge or other disposition is exempt from the registration
and prospectus delivery requirements of such Act and such
laws. The securities evidenced by this certificate are
subject to the restrictions on transfer contained in the
Amended and Restated Investment Agreement dated as of March 3,
1998, the Amended and Restated Agreement Among Stockholders
dated as of March 3, 1998, and the Stockholder's Agreement
dated as of March
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3, 1998, in each case, to which the Company is a party, as
amended, supplemented or otherwise modified from time to time,
and may not be transferred except in compliance therewith."
4.2 Continuing Obligations. The Company and Assignor agree that
nothing contained in this Agreement shall in any way relieve Assignor of any
of, or in any way diminish, its obligations, liabilities or duties under the
Stock Purchase Agreement.
4.3 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 Assignor, Samstock or TNI:
x/x Xxxxxxxx, X.X.X.
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 Xxxx.
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
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with a 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:
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
4.4 Effectiveness. Notwithstanding anything to the contrary in
this Agreement, this Agreement shall become effective only simultaneously with
the consummation of the closing under the Stock Purchase Agreement, and no
party hereto or any other person shall have any rights or obligations hereunder
prior to such time.
4.5 Expenses. Each party shall bear its own fees and expenses
incurred in connection with, relating to or arising out of the execution,
delivery and performance of this Agreement, the other Halmostock Transaction
Documents and the consummation of the transaction contemplated hereby and
thereby, including attorneys', accountants' and other professional fees and
expenses.
4.6 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
4.7 Entire Agreement; Amendment; Waiver; Assignment; Nature of
Obligations. This Agreement, together with the other Halmostock Transaction
Documents and the Stock Purchase Agreement, constitutes the entire agreement
among the parties with respect to the subject matter hereof and thereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the
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subject matter hereof and thereof. No amendment, supplement, modification or
waiver of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
of this Agreement, whether or not similar, nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided. This Agreement shall
not be assigned by operation of law or otherwise without the prior written
consent of each of the parties hereto.
4.8 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
4.9 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.
4.10 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect
in any way the meaning or interpretation of this Agreement.
4.11 Interpretation. Unless the context requires otherwise, all
words used in this Agreement in the singular number shall extend to and include
the plural, all words in the plural number shall extend to and include the
singular, and all words in any gender (including neutral gender) shall extend
to and include all genders.
4.12 Counterparts. This Agreement may be executed in two or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
4.13 Prevailing Party's Attorneys' Fees. Notwithstanding anything
to the contrary in this Agreement, in the event of a dispute among TNI and/or
Samstock, on the one hand, and Halmostock, on the other hand, 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
4.13.
4.14 Jurisdiction and Service of Process. THE COMPANY,
ASSIGNOR AND HALMOSTOCK HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE STATE OF DELAWARE AND IRREVOCABLY AGREE THAT,
SUBJECT TO THE OTHER PROVISIONS OF THIS AGREEMENT, ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT WHICH MAY BE LITIGATED SHALL BE
LITIGATED IN SUCH COURTS. EACH OF THE COMPANY, ASSIGNOR AND HALMOSTOCK ACCEPTS
FOR SUCH PARTY AND IN CONNECTION WITH SUCH PARTY'S PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND
BY
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ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. EACH OF THE
COMPANY, ASSIGNOR AND HALMOSTOCK AGREES TO ACCEPT SERVICE OF ALL PROCESS BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IN ANY SUCH PROCEEDINGS
IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY EACH SUCH PARTY TO
BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. IF ANY AGENT APPOINTED BY
THE COMPANY, ASSIGNOR OR HALMOSTOCK REFUSES TO ACCEPT SERVICE, SUCH PARTY
HEREBY AGREES THAT SERVICE UPON SUCH PARTY BY MAIL SHALL CONSTITUTE SUFFICIENT
NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE COMPANY, ASSIGNOR OR
HALMOSTOCK TO BRING PROCEEDINGS AGAINST THE COMPANY, ASSIGNOR OR HALMOSTOCK IN
THE COURTS OF ANY OTHER JURISDICTION.
4.15 Trial. EACH OF THE COMPANY, ASSIGNOR AND HALMOSTOCK HEREBY
WAIVES SUCH PARTY'S RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THE PARTIES
HERETO RELATING TO THE SUBJECT MATTER HEREOF. EACH OF THE COMPANY, ASSIGNOR
AND HALMOSTOCK ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH
MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF ANY PARTY TO THIS AGREEMENT WITH
RESPECT TO ANY ACTION COMMENCED BY ONE OF THEM AGAINST THE OTHER OF THEM. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
TRANSACTION, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF
ASSIGNOR AND HALMOSTOCK ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT
TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE
WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON
THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH OF ASSIGNOR AND HALMOSTOCK
FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH
SUCH PARTY'S LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY
WAIVES SUCH PARTY'S JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
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IN WITNESS WHEREOF, the Company, Halmostock and Assignor have executed
this Assignment Agreement as of the date first above written.
ASSIGNOR:
EGI-TRANSMEDIA INVESTORS, L.L.C.
_______________________________
By: Xxxxx X. Xxxxxxxxx
Vice President
SAMSTOCK, L.L.C.
_____________________________________
By: Xxxxx X. Xxxxxxxxx
Vice President
HALMOSTOCK:
HALMOSTOCK LIMITED PARTNERSHIP
by Halmos Investments-Western, Inc.,
its general partner
____________________________________
By: Xxxxxx Xxxxxx, President
COMPANY:
TRANSMEDIA NETWORK INC.
_______________________________________
By: Xxxxxx Xxxxxx, President and
Chief Executive Officer
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EXHIBIT A
TRANSMEDIA NETWORK INC.
WARRANT TO PURCHASE 169,412 SHARES OF COMMON STOCK
VOID AFTER MARCH 2, 2003
THIS CERTIFIES THAT, for value received, Halmostock Limited
Partnership, a Wyoming limited partnership (the "HOLDER"), is entitled to
subscribe for and purchase from Transmedia Network Inc., a Delaware corporation
(the "COMPANY"), an aggregate of 169,412 shares (as adjusted pursuant to
Section 3 hereof) of fully paid and nonassessable Common Stock (the "SHARES")
of the Company, at the price per share set forth below (the "EXERCISE PRICE")
(as adjusted pursuant to Section 3 hereof), and subject to the provisions and
upon the terms and conditions hereinafter set forth.
Shares Exercise Price Per Share
56,470 $6.00
56,471 $7.00
56,471 $8.00
1. Exercise; Payment.
(a) Time of Exercise; Expiration. This Warrant is
immediately exercisable. This Warrant shall expire at, and shall no longer be
exercisable after, 5:00 p.m., Chicago local time, on March 2, 2003.
(b) Method of Exercise.
(i) Cash Exercise. The purchase rights
represented by this Warrant may be exercised by the Holder, at any time, in
whole, or from time to time, in part, by the surrender of this Warrant (with
the notice of exercise form attached hereto as Exhibit 1 duly executed) at the
principal office of the Company, and by the payment to the Company, by
certified, cashier's or other check acceptable to the Company, of an amount
equal to the aggregate Exercise Price of the Shares being purchased.
(ii) Net Issue Exercise. In lieu of exercising
this Warrant, the Holder may elect to receive Shares equal to the value of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant at
the principal office of the Company together with notice of such election, in
which event the Company shall issue to the Holder a number of shares of the
Company's Common Stock computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of Shares to be issued to the Holder.
Y = the number of Shares purchasable under this Warrant.
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A = the fair market value of one share of the Company's
Common Stock.
B = the Exercise Price (as adjusted to the date of such
calculation).
(iii) Fair Market Value. For purposes of this
Section 1, the fair market value of the Company's Common Stock shall mean:
A. The average closing price of the
Company's Common Stock on the New York Stock Exchange or in
the event the Company's Common Stock is not then traded on the
New York Stock Exchange the average closing price quoted on
any exchange on which the Common Stock is listed, as published
in the Mid-Western Edition of the Wall Street Journal for the
ten consecutive trading days prior to the date of
determination of fair market value.
B. If the Company's Common Stock is not
then traded on the New York Stock Exchange or on another
exchange, the per share fair market value of the Common Stock
shall be the fair market value price per share as determined
in good faith by the Company's Board of Directors.
(c) Stock Certificates. In the event of any exercise of
the rights represented by this Warrant, certificates for the shares of Common
Stock so purchased shall be delivered to the Holder within a reasonable time
and, unless this Warrant has been fully exercised or has expired, a new Warrant
of identical terms and provisions as those hereof, representing the shares with
respect to which this Warrant shall not have been exercised shall also be
issued to the Holder within such time.
2. Stock Fully Paid; Reservation of Shares. All of the Shares
issuable upon the exercise of the rights represented by this Warrant will, upon
issuance and receipt of the Exercise Price therefor, be fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the
issue thereof. During the period within which the rights represented by this
Warrant may be exercised, the Company shall at all times have authorized and
reserved for issuance sufficient shares of its Common Stock to provide for the
exercise of the rights represented by this Warrant.
3. Adjustment of Exercise Price and Number of Shares. The number
and kind of Shares purchasable upon the exercise of this Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) Reclassification. In case of any reclassification or
change of outstanding securities of the class issuable upon exercise of this
Warrant (other than a change in par value, or from par value to no par value,
or from no par value to par value, or as a result of a subdivision or
combination), the Company shall, as condition precedent to such transaction,
execute a new Warrant providing that the Holder shall have the right to
exercise such new Warrant and upon such exercise to receive, in lieu of each
share of stock theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money and property receivable upon
such reclassification or change by a holder of one share of stock. Such new
Warrant shall provide for adjustments which shall be as nearly equivalent as
may be
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practicable to the adjustments provided for in this Section 3. The provisions
of this Section 3(a) shall similarly apply to successive reclassifications or
changes.
(b) Subdivision or Combination of Warrant Shares. If the
Company at any time while this Warrant remains outstanding and unexpired shall
subdivide or combine its stock, the Warrant Price shall be proportionately
decreased in the case of a subdivision or increased in the case of a
combination.
(c) Stock Dividends. If the Company at any time while
this Warrant is outstanding and unexpired shall pay a dividend with respect to
stock payable in, or make any other distribution with respect to stock (except
any distribution specifically provided for in the foregoing Section 3(a) and
3(b)) of stock, then the Exercise Price shall be adjusted, from and after the
date of determination of stockholders entitled to receive such dividend or
distribution, to that price determined by multiplying the Exercise Price in
effect immediately prior to such date of determination by a fraction (i) the
numerator of which shall be the total number of shares of stock outstanding
immediately prior to such dividend or distribution, and (ii) the denominator of
which shall be the total number of shares of stock outstanding immediately
after such dividend or distribution.
(d) Adjustment of Number of Warrant Shares. Upon each
adjustment in the Exercise Price, the number of shares of stock purchasable
hereunder shall be adjusted, to the nearest whole share, to the product
obtained by multiplying the number of Shares purchasable immediately prior to
such adjustment in the Exercise Price by a fraction, the numerator of which
shall be the Exercise Price immediately prior to such adjustment and the
denominator of which shall be the Exercise Price immediately thereafter.
4. Notice of Adjustments. Whenever the number of Shares
purchasable hereunder or the Exercise Price thereof shall be adjusted pursuant
to Section 3 hereof, the Company shall provide notice by first class mail to
the holder of this Warrant setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the method by which
such adjustment was calculated, and the number of Shares which may be purchased
and the Exercise Price therefor after giving effect to such adjustment.
5. Fractional Shares. No fractional shares of Common Stock will
be issued in connection with any exercise hereunder. In lieu of such
fractional shares the Company shall make a cash payment therefor based upon the
Exercise Price then in effect.
6. Warrant Exchangeable for Different Denominations. This
Warrant is exchangeable, upon the surrender hereof by the Holder at the
principal office of the Company, for new Warrants of like tenor representing in
the aggregate the purchase rights hereunder, and each of such new Warrants will
represent such portion of such rights as is designated by the Holder at the
time of such surrender. All Warrants representing portions of the rights
hereunder are referred to herein as the "Warrant."
7. Replacement. Upon receipt of evidence reasonably satisfactory
to the Company (an affidavit of the Holder is deemed to be reasonably
satisfactory) of the ownership and the loss, theft, destruction or mutilation
of this Warrant, and in the case of any such loss, theft or destruction, upon
the receipt of indemnity reasonably satisfactory to the Company, or, in the
case of any such mutilation upon surrender of such Warrant, the Company will
(at its expense,
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14
except for the cost of any lost security indemnity bond required which shall be
paid for by the Holder) execute and deliver in lieu of such Warrant a new
Warrant of like kind representing the same rights represented by such lost,
stolen, destroyed or mutilated Warrant and dated the date of such lost, stolen,
destroyed or mutilated Warrant.
8. Restrictive Legend. The Shares issuable upon exercise of this
Warrant (unless registered under the Act) shall be stamped or imprinted with a
legend in substantially the following form:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or applicable state securities laws and may not be
sold, transferred, assigned, offered, pledged or otherwise
disposed of unless (i) there is an effective registration
statement under such Act and such laws covering such
securities or (ii) such sale, transfer, assignment, offer,
pledge or other disposition is exempt from the registration
and prospectus delivery requirements of such Act and such
laws. The securities evidenced by this certificate are
subject to the restrictions on transfer contained in the
Amended and Restated Investment Agreement dated as of March 3,
1998, and the Stockholders' Agreement dated as of March 3,
1998, in each case, to which the Company is a party, as
amended, supplemented or otherwise modified from time to time,
and may not be transferred except in compliance therewith."
9. Restrictions on Transfer. Neither this Warrant, nor any
interest herein, may be transferred to any party without the Company's prior
written consent; provided, however, that this Warrant may be transferred to any
member of the Xxxx Group (as defined in that certain Amended and Restated
Investment Agreement, dated as of March 3, 1998, among the Company,
EGI-Transmedia Investors, L.L.C., Samstock, L.L.C. and Holder) at any time, in
whole, or from time to time, in part, without the Company's consent, upon
delivery to the Company of the Notice of Transfer in the form of Exhibit 2
hereto.
10. Rights of Shareholders. No holder of this Warrant shall be
entitled, as a Warrant holder, to vote or receive dividends or be deemed the
holder of Common Stock or any other securities of the Company which may at any
time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the holder of this Warrant, as
such, any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to shareholders at
any meeting thereof, or to give or withhold consent to any corporate action
(whether upon any recapitalization, issuance of stock, reclassification of
stock, change of par value, consolidation, merger, conveyance, or otherwise) or
to receive notice of meetings, or to receive dividends or subscription rights
or otherwise until the Warrant shall have been exercised and the Shares
purchasable upon the exercise hereof shall have become deliverable, as provided
herein.
11. Notices, Etc. All notices and other communications between
the Company and the Holder shall be mailed by first class registered or
certified mail, postage prepaid, (i) if to the Company, at the Company's
executive offices, and (ii) if to the Holder, at such address as may have been
furnished to the Company in writing by the Holder.
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15
12. Governing Law, Headings. This Warrant is being delivered in
the State of Delaware and shall be construed and enforced in accordance with
and governed by the laws of such State. The headings in this Warrant are for
purposes of reference only, and shall not limit or otherwise affect any of the
terms hereof.
Issued this 3rd day of March, 1998.
TRANSMEDIA NETWORK INC.
By: ____________________________________
Its: ___________________________________
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16
EXHIBIT 1
NOTICE OF EXERCISE
TO: TRANSMEDIA NETWORK INC.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
1. The undersigned hereby elects to purchase __________ shares of
Common Stock of TRANSMEDIA NETWORK INC. pursuant to the terms of the attached
Warrant.
2. Method of Exercise (Please xxxx the applicable blank):
___ The undersigned elects to exercise the attached
Warrant by means of a cash payment, and tenders
herewith payment in full for the purchase price of
the shares being purchased.
___ The undersigned elects to exercise the attached
Warrant by means of the net exercise provisions of
Section 1(b)(ii) of the Warrant.
3. Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name as
is specified below:
_______________________
(Name)
_______________________
_______________________
(Address)
_______________________________
(Signature)
Title:_________________________
_______________________
(Date)
17
EXHIBIT 2
NOTICE OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the right represented by the
attached Warrant to purchase _______* shares of Common Stock of TRANSMEDIA
NETWORK INC., to which the attached Warrant relates, and appoints
________________ Attorney-in-Fact to transfer such right on the books of
TRANSMEDIA NETWORK INC., with full power of substitution in the premises.
Dated: __________________________
______________________________
By:___________________________
______________________________
(Address)
___________________
* Insert here the number of shares without making any adjustment for
additional shares of Common Stock or any other stock or other securities or
property or cash which, pursuant to the adjustment provisions of the Warrant,
may be deliverable upon exercise.
18
EXHIBIT B
OPINION OF COUNSEL FOR HALMOSTOCK
(1) Halmostock is a limited partnership duly formed, validly
existing and in good standing under the laws of the Wyoming.
(2) Halmostock has the limited partnership power and authority to
execute and deliver the Assignment Agreement, the Amended and Restated
Investment Agreement, the Stockholders' Agreement and all other documents,
instruments and other writings to be executed and/or delivered by or on behalf
of Halmostock to the Company or any of its representatives in connection with
the transactions contemplated thereby (collectively, "Halmostock Transaction
Documents"), to perform its obligations thereunder and to consummate the
transactions contemplated thereby. The execution, delivery and performance of
each of the Halmostock Transaction Documents by Halmostock and the consummation
by Halmostock of the transactions contemplated thereby have been duly
authorized by the general partner of Halmostock, and no other limited
partnership proceedings on the part of Halmostock are necessary to authorize
the execution, delivery and performance of the Halmostock Transaction Documents
or the transactions contemplated thereby. Each of the Halmostock Transaction
Documents has been duly executed and delivered by Halmostock, and, assuming due
authorization, execution and delivery by the Company and Purchaser, constitutes
a legal, valid and binding obligation of Halmostock, enforceable against
Halmostock in accordance with its terms, except as such enforcement may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditors' rights generally and (ii) general
principles of equity (whether applied in a proceeding at law or in equity).
(3) The execution, delivery and performance of the Halmostock
Transaction Documents by Halmostock does not and will not: (i) conflict with or
violate the organizational documents of Halmostock; (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to
Halmostock or by which any of its properties are bound or affected; (iii)
require any consent, approval, authorization or permit of, action by, filing
with or notification to, any Governmental Entity (other than any filing
required under Section 13(a) or (d), 14, 15(d) or 16(a) of the Exchange Act);
or (iv) to our knowledge after due inquiry, result in any breach or violation
of or constitute a default (or an event which with notice or lapse of time or
both could become a default) or result in the loss of a material benefit under,
or give rise to any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any of the property or
assets of Halmostock pursuant to, any Contract, Permit or other instrument or
obligation to which Halmostock is a party or by which Halmostock or any of its
properties are bound or affected, except, in the case of clauses (ii), (iii)
and (iv), for any such conflicts, violations, breaches, defaults or other
occurrences which could not individually or in the aggregate, have a material
adverse effect on Halmostock or reasonably be expected to materially impair the
ability of Halmostock to perform its obligations under the Halmostock
Transaction Documents.
(4) After due inquiry, each of Halmostock, its general partner
Halmos Investments-Western, Inc., Xxxxxx X. Xxxxxx and their affiliates has
taken all necessary actions and proceedings to duly and validly effect the
contribution, transfer, assignment and delivery of the Contributed Shares by
Xxxxxx X. Xxxxxx to Halmostock so that, as of the Closing, Halmostock (i) is
the sole beneficial and record owner of the Contributed Shares and (ii) has
good and marketable title to the Contributed Shares, free of all Liens, other
than any Liens created by the Halmostock Transaction Documents.
