EXHIBIT 3
INVESTMENT AGREEMENT
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INVESTMENT AGREEMENT dated as of April 28, 2000, (as amended, supplemented
or otherwise modified from time to time, this "Agreement"), among Transmedia
Network Inc., a Delaware corporation (the "Company"), Minotaur Partners II,
L.P., an Illinois limited partnership ("XX XX"), ValueVision International Inc.,
a Minnesota corporation ("ValueVision"), Xxxxxxx Xxxxxxx ("Xxxxxxx") and Xxxxxxx
Bank ("Bank")(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:
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WHEREAS, pursuant to that certain Stock Purchase and Sale Agreement, dated
as of April 28, 2000 (the "Purchase Agreement"), among the Company and the
Investors, the Company (a) upon the First Closing (as defined in the Purchase
Agreement), issued and sold to the Investors an aggregate of 904,303 newly
issued shares (collectively, the "First Tranche Shares") of the Company's Common
Stock, par value $.02 per share ("Common Stock"), and warrants (collectively,
the "First Tranche Warrants") to purchase an additional 1,808,606 shares
(collectively, the "First Tranche Warrant Shares") of Common Stock and (b) will,
upon the Second Closing (as defined in the Purchase Agreement), issue and sell
to the Investors an aggregate of 629,944 newly issued shares (collectively, the
"Second Tranche Shares" and, together with the "First Tranche Shares", the
"Shares") of Common Stock and warrants (collectively, the "Second Tranche
Warrants" and, together with the First Tranche Warrants, the "Warrants") to
purchase an additional 1,259,888 shares (collectively, the "Second Tranche
Warrant Shares" and, together with the First Tranche Warrant Shares, the
"Warrant Shares") of Common Stock;
WHEREAS, the Company, the Investors and Samstock have entered into a Co-
Sale and Voting Agreement, dated as of April 28, 2000 (the "Co-Sale and Voting
Agreement"); and
WHEREAS, the Company and each of the Investors are entering into this
Agreement, with the approval of at least a majority of Disinterested Directors
(as defined herein), to establish certain arrangements with respect to the
relationships between them.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
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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, including for such purpose all Warrant Shares
issuable upon the exercise of Warrants then held by any Investor, 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,
Series A Preferred Stock, any other 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, Series A Preferred Stock, any other
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 Second 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 XX XX pursuant to Article IV 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 the Investors might be interested.
1.7 The "Maximum Permitted Voting Power" at any measurement date shall
mean the Combined Voting Power as of such measurement date of all Company Voting
Securities, regardless of the holder thereof, represented by the outstanding
Shares then held or the Warrant Shares issuable upon the exercise of then
outstanding Warrants; provided, however, that, (i) as of and following the
Effective Date, the Maximum Permitted Voting Power shall include the Combined
Voting Power of all Company Voting Securities, regardless of the holder thereof,
represented by the Shares and Warrant Shares issuable upon the exercise of the
Warrants issued to the Investors on the Second Closing Date, as defined in the
Purchase Agreement, and (ii) in the event that the Company issues any Company
Voting Securities after the date hereof, the Maximum Permitted Voting Power
shall be (a) adjusted so that the percentage of the Combined Voting Power
represented by the Maximum Permitted Voting Power shall not be reduced and (b)
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increased in the case of the issuance to any Minotaur Investor by the Company of
any Company Voting Securities.
1.8 "Minotaur Investors" means (i) XX XX, (ii) ValueVision, (iii) Xxxxxxx,
(iv) Bank, (v) any partner or member of XX XX, (vi) any affiliate of XX XX,
ValueVision, Xxxxxxx or Bank, (vii) any affiliate of any partner or member of XX
XX under control of, or common control with, any such partner or member, (viii)
any family members of Xxxxxxx or Bank, (ix) any trusts established for the
benefit of any family members of Xxxxxxx or Bank and (x) 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
Minotaur Affiliate") shall not be treated as affiliates of any Minotaur Investor
hereunder unless any Minotaur Investor 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 Minotaur Investors hereunder. For
purposes of the preceding sentence and the similar clause appearing in the
second sentence of Section 3.1, the failure of any Minotaur Investor or any of
its affiliates, upon learning of a Public Minotaur Affiliate's action, to
request that such Public Minotaur Affiliate refrain from taking such action
because of the provisions of this Agreement will be deemed to constitute
"encouraging or assisting" in such action.
1.9 "Samstock" means Samstock, L.L.C., a Delaware limited liability
company.
1.10 "Series A Preferred Stock" means the Series A Senior Convertible
Redeemable Preferred Stock, par value $.10 per share, of the Company.
1.11 "Standstill Provisions" means collectively Article III hereof in its
entirety and Section 4.5 in its entirety.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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2.1 Each of XX XX, ValueVision, Xxxxxxx and Bank severally, but not
jointly, represent and warrant to the Company with respect to itself or himself
as follows:
(a) XX XX is a limited partnership duly organized, validly existing and in
good standing under the laws of Illinois. ValueVision is a corporation duly
organized, validly existing and in good standing under the laws of Minnesota.
Each of XX XX, ValueVision, Xxxxxxx and Bank, as applicable, has the requisite
power and authority to enter into this Agreement and perform its or his
obligations hereunder.
(b) This Agreement has been duly authorized, executed and delivered by
each of XX XX, ValueVision, Xxxxxxx and Bank and constitutes the legal, valid
and binding agreement of each of XX XX, ValueVision, Xxxxxxx and Bank,
enforceable against each of them in accordance with the terms hereof.
(c) Neither the execution and delivery of this Agreement nor the
performance by MP
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II, ValueVision, Xxxxxxx or Bank of its or his 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
XX XX, ValueVision, Xxxxxxx, Bank or their respective properties are bound or by
which they are affected, or any organizational documents of XX XX or
ValueVision.
(d) Except as set forth on Schedule 2.1(d) hereto, as of the date hereof,
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no shares of Common Stock (other than the Shares and the Warrant Shares) were
beneficially owned by XX XX, ValueVision, Xxxxxxx or Bank.
2.2 The Company represents and warrants to the 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.
(d) The execution, delivery and performance of this Agreement by the
Company have been duly and validly authorized by the Board of Directors of the
Company (the "Board") and have been approved by a majority of the Disinterested
Directors of the Company, and no other corporate proceedings on the part of the
Company are necessary to authorize the execution, delivery and performance of
this Agreement by the Company.
ARTICLE III
STANDSTILL AGREEMENT
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3.1 Acquisition of Company Voting Securities. Except as the same may be
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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
Minotaur Investor 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 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 Minotaur
Investors to such number of
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Company Voting Securities that represents or possesses greater than the Maximum
Permitted Voting Power. Notwithstanding the foregoing maximum limitations, no
Minotaur Investor 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 Minotaur Affiliate not
otherwise considered a Minotaur Investor in accordance with Section 1.8 hereof
unless any Minotaur Investor took any action, directly or indirectly, to
suggest, encourage or assist in such purchase. For purposes of calculating the
maximum limitations, all Company Voting Securities that are the subject of an
agreement, arrangement or understanding pursuant to which any Minotaur Investor
has the right to obtain beneficial ownership of such securities in the future
(including the Warrant Shares to the extent the Warrants have not been exercised
or has not expired) shall also be deemed to be outstanding and beneficially
owned by the Minotaur Investors or the applicable member thereof.
3.2 Proxy Solicitations, etc. Prior to the fifth anniversary of the
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Effective Date, no Minotaur Investor 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 Minotaur Investor or (ii) subject to the Co-Sale and
Voting Agreement.
3.3 No Voting Trusts, Pooling Agreements, or Formation of "Groups".
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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 Minotaur
Investor 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 Minotaur Investors or (ii) with any
Company stockholders who are parties to the Co-Sale and Voting Agreement as of
the date hereof or hereafter become parties to the Co-Sale and Voting 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 Co-Sale and Voting Agreement ("Other Covered Stockholders"); or (b) enter
into any agreement or arrangement or otherwise act in concert with any other
person other than a Minotaur Investor (provided such Minotaur Investor is itself
bound by the terms of this Agreement), or a holder of any interest in any entity
included within the Minotaur Investors, for the purpose of acquiring, holding,
voting or disposing of Company Voting Securities, other than with any Other
Covered Stockholders.
3.4 No Solicitation of Bidders. Prior to the fifth anniversary of the
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Effective Date, except as set forth in the Co-Sale and Voting Agreement, no
Minotaur Investor shall directly or indirectly assist, encourage or induce any
person to bid for or acquire outstanding Company
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Voting Securities (other than any Company Voting Securities held by the Minotaur
Investors) 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 Minotaur Investors a
confidentiality and standstill agreement in the form attached hereto as Exhibit
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A. Promptly upon the Minotaur Investors entering into any written agreement or
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arrangement with such person concerning a transaction covered by this Section
3.4 (including such aforementioned confidentiality and standstill agreement),
the Minotaur Investors shall notify the Company's Board of Directors and provide
the Company's Board of Directors with copies of the same; provided, however,
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that the mere sale of Company Voting Securities by any Minotaur Investor 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
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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 Minotaur Investor 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 Minotaur Investor 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 Minotaur Investors, (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 Minotaur Investors, 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 Minotaur Investors.
ARTICLE IV
VOTING OF COMPANY SECURITIES AND RELATED MATTERS
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4.1 Each Minotaur Investor that is a holder of record of Company Voting
Securities shall be present, and each Minotaur Investor 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
Minotaur Investors may be counted for the purpose of determining the presence of
a quorum at such meetings.
4.2 So long as XX XX is entitled to designate a director in accordance
with the provisions of this Article IV, except to the extent otherwise provided
herein, the Company shall take all necessary or appropriate action to assist in
the nomination and election as director of that individual specified in this
Article IV designated by XX XX to be elected as a director of the Company. The
Company hereby agrees and acknowledges that Xxxxxxx X. Xxxxxxx is reasonably
acceptable to the Independent Directors as a director of the Company.
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4.3 For purposes of this Agreement, the director "designated by XX XX"
shall include any director designated by XX XX as anticipated by this Article
IV, or any other director of the Company (other than the Company's chief
executive officer) affiliated or associated with any Minotaur Investor.
4.4 Pursuant to Section 4.2 hereof, so long as the Investors beneficially
own at least 5% of the Combined Voting Power of all Company Voting Securities
(as so calculated), XX XX 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 Xxxxxxx X. Xxxxxxx will be acceptable to the
Company at the time of designation); provided, however, that at any time when
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the Investors shall no longer beneficially own at least 5% of the Combined
Voting Power of all Company Voting Securities (as so calculated), XX XX shall
not have the right to designate any directors of the Company under this Section
4.4, MP II's rights under this Section 4.4 shall terminate, XX XX shall cause
its designee under this Section 4.4 to resign forthwith such that no designee of
XX XX under this Section 4.4 remains on the Board of Directors of the Company
and all of the covenants under Article IV of this Agreement pertaining to MP
II's designee under Section 4.4 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 the
director designee who is designated by XX XX pursuant to the rights granted by
this Article IV, and is reasonably acceptable to the Independent Directors at
the time of his or her designation in accordance with Sections 4.2 and/or 4.4,
(i) 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 any
director designated by XX XX pursuant to this Article IV) at the next election
of directors of the Company following MP II's designation or (ii) shall not be
elected to serve as a director of the Company by the Company's stockholders.
4.5 Except as expressly set forth above or in Section 3.5(a) of the Co-
Sale and Voting Agreement, 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 in accordance with the
recommendations of a majority of the Disinterested Directors; provided, however,
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that notwithstanding the foregoing, the Investors may at all times vote their
Company Voting Securities for the election or retention of any director
designated by XX XX in accordance with this Article IV.
ARTICLE V
REGISTRATION RIGHTS
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5.1 Definitions. For purposes of this Article V:
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(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").
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(b) The term "Registrable Securities" means shares of Common Stock,
including the Warrant Shares, from time to time, held by any Minotaur Investor.
(c) The term "Holder" means (i) the Investors and (ii) any Permitted
Assignee who is a party hereto or who executes and delivers to the Company a
joinder agreement, agreeing to be legally bound by this Article V.
(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 Registration.
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(a) Shares and Warrant Shares. As soon as practicable after the Effective
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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 the Investors a
certificate 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 the Effective
Date.
(b) Schedule 13D Statement. Each of XX XX, ValueVision, Xxxxxxx and Bank
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covenant and agree that they will, and that they shall cause each Minotaur
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.
5.3 Additional Obligations of the Company. Whenever the Company has filed
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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
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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 5.3, 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 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
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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
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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
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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
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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
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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 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
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(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
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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
satisfactory 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 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
11
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 Minotaur Contracting Party (as defined
in Section 7.4 herein) 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 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
12
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.
5.11 Listing of Shares. The Company shall use its commercially reasonable
-----------------
efforts to cause (i) the Shares and (ii) upon exercise of the Warrant, the
Warrant Shares, to be listed on the New York Stock Exchange as soon as
practicable.
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 Minotaur Investor
or any of the Representatives (as defined below), and all notes, reports,
analyses, compilations, studies and other materials prepared by the Minotaur
Investors 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 Minotaur Investors or any of their 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
Minotaur Investor or any of the Representatives or becomes available to any
Minotaur Investor or any of the Representatives on a non-confidential basis from
any source that is not known by such Minotaur Investor 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
Minotaur Investor.
(b) Each Minotaur Investor 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 Minotaur Investors 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
Minotaur Investor may make any disclosure of such information in connection with
any activity which such Minotaur Investor 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 Minotaur Investor may make any
disclosure of such information to any other Minotaur Investor. In any event, the
Minotaur Investors will be responsible for any actions by the Representatives
which are not in accordance with the
13
provisions hereof.
(c) If any Minotaur Investors 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 Minotaur Investors agree (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 Minotaur
Investor, the Minotaur Investors are 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. 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 if
the Minotaur Investors shall, at any time, sell or otherwise dispose of or
otherwise cease to own Company Voting Securities such that the Minotaur
Investors beneficially own 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).
7.2 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 applicable
legend specified below on all certificates representing ownership of Company
Voting Securities owned of record or beneficially by any Minotaur Investors,
until such shares are sold, transferred or disposed in a manner permitted hereby
to a person who is not then a Minotaur
14
Investor. 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 Minotaur Investor in compliance with the provisions of
this Agreement.
Certificates representing any Shares or Warrant Shares held by XX XX,
ValueVision, Xxxxxxx or Bank shall 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 Investment Agreement dated as of April 28, 2000, and the
Co-Sale and Voting Agreement dated as of April 28, 2000, 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."
7.3 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 Minotaur Investor 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 Minotaur Investors or which have been transferred by
a Minotaur Investor in violation of the provisions of this Agreement may not be
voted by the owner thereof or any proxy therefor.
7.4 Additional Minotaur Investor Parties. All of the liabilities and
------------------------------------
obligations under this Agreement of Minotaur Investors shall be several but not
joint. 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
15
provided in Section 7.11 of this Agreement. Each Minotaur Investor 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 Minotaur Investor
(each such Minotaur Investor, a "Minotaur 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 Minotaur Investor shall
transfer securities to another Minotaur Investor unless the transferee shall
agree to be bound by this Agreement in the manner specified above in this
Section 7.4.
7.5 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 any Investor, at their respective addresses
set forth on the signature pages hereto.
with an additional copy to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, 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 & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
7.6 Severability. If any term, provision, covenant or restriction of this
------------
Agreement is
16
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.
7.7 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.
7.8 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.
7.9 Descriptive Headings. Descriptive headings are for convenience only
--------------------
and shall not control or affect the meaning or construction of any provision of
this Agreement.
7.10 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.
7.11 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.
7.12 Assignments. Except to the extent provided in Section 5.8 herein, 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.
17
IN WITNESS WHEREOF, each of the Investors and the Company have executed
this Investment Agreement as of the date first above written.
INVESTORS:
MINOTAUR PARTNERS II, L.P.
By: Minotaur Partners II, L.L.C.
Its: General Partner
By: Minotaur Partners II, Inc.
Its: Manager
/s/ Xxxxxx X. Xxxxxxxx, Xx.
-----------------------------------------
By: Xxxxxx X. Xxxxxxxx, Xx.
Its: Principal
Address: 000 Xxxxx Xxxxxx Xxxxx
--------------------------------
Suite 470
-----------------------------------------
Xxxxxxx, Xxxxxxxx 00000
-----------------------------------------
VALUEVISION INTERNATIONAL INC.
/s/ Xxxxxxx Xxxxxx
-----------------------------------------
By: Xxxxxxx Xxxxxx
Its: Senior Vice President and
Chief Financial Officer
Address: 0000 Xxxxx Xxx Xxxx
--------------------------------
Xxxx Xxxxxxx, Xxxxxxxxx 00000
-----------------------------------------
/s/ Xxxxxxx Xxxxxxx
-----------------------------------------
XXXXXXX XXXXXXX
Address: 6N 000 Xxxxx Xxxxx
--------------------------------
Xxxxxxx, Xxxxxxxx 00000
-----------------------------------------
/s/ Xxxxxxx Bank
-----------------------------------------
XXXXXXX BANK
Address: X.X. Xxx 000
--------------------------------
Xxxxxx, Xxxxxxxx 00000
-----------------------------------------
COMPANY:
TRANSMEDIA NETWORK INC.
/s/ Xxxx X. Xxxxxxxxx
----------------------------------------
By: Xxxx X. Xxxxxxxxx, President and
Chief Executive Officer
Exhibit A
---------
CONFIDENTIAL
------------
[DATE]
[Addressee]
Dear _______________:
We are furnishing to you and certain business affiliates of yours certain
financial, operational and other information concerning Transmedia Network Inc.
(the "Company") and its business for the purpose of enabling you and your
affiliates to evaluate a potential transaction involving the Company. All such
information and any other information that we or the Company or our or its
representatives or agents furnishes to you and your affiliates whether furnished
before, on or after the date of this Agreement, together with all analyses,
compilations, studies or other documents or records prepared by you and your
affiliates or on your or their behalf which contain or reflect or are generated
from information supplied by us or the Company or our or its representatives or
agents is herein collectively referred to as "Evaluation Material." The term
"Evaluation Material" does not include, however, information which (i) is or
becomes generally available to the public other than as a result of a disclosure
by you or your representatives (as hereinafter defined) in violation of this
Agreement, (ii) was available to you on a nonconfidential basis from a source
other than us or the Company and our or its representatives or agents prior to
its receipt in accordance with this Agreement or (iii) becomes available to you
and your affiliates on a nonconfidential basis from a source other than us or
the Company and our or its representatives or agents; provided that the source,
referred to in clauses (ii) and (iii), is not known by you or your affiliates to
be prohibited from transmitting the information to you and your affiliates by a
contractual, legal or fiduciary obligation.
You agree to keep a record of the Evaluation Material furnished to you and
your affiliates and of the location of such information. If you elect not to
proceed to discussions or negotiations about a potential transaction or, in the
alternative, at the termination of any such discussions or negotiations, you and
they will immediately return to us and the Company any and all Evaluation
Material in your possession or in the possession of your affiliates (other than
any analyses, compilations, studies or other documents or records prepared by
you and your affiliates or on your and their behalf, which may be retained by
you and them subject to the terms hereof).
You agree that the Evaluation Material furnished to you and your affiliates
will be held by you in the strictest confidence, will not be disclosed to any
person who is not one of your representatives (as defined below) and will be
used solely for the purpose of evaluating a potential transaction involving the
Company and you and your affiliates. You further agree that the Evaluation
Material will not be used for any other purpose, including use in any way which
is to the competitive disadvantage or is otherwise detrimental to the Company,
as determined in the
sole judgment of the Company's management. Notwithstanding the foregoing, you
and your affiliates may disclose Evaluation Material to those of your employees,
accountants, attorneys and bankers (collectively referred to as your
"representatives"), who are actively involved in and have a need to know the
same for the purpose of, assisting you and them in evaluating a potential
transaction involving the Company. You agree to be responsible for any violation
of the terms hereof by your affiliates and your and their representatives.
In the event that you or your affiliates are requested or required (by oral
questions, interrogatories, requests for information or documents, subpoena,
civil investigative demand or similar process) to disclose any Evaluation
Material or other confidential information about your and their discussions or
negotiations with us and the Company, you agree that you will promptly notify us
and the Company of such request so that we and the Company, if it deems it
appropriate, may seek a protective order and/or waive compliance by you with the
provisions of this Agreement. If, in the absence of a protective order or an
appropriate waiver, you or they are nonetheless, in the opinion of your or their
counsel, compelled to disclose any Evaluation Material to any tribunal or else
stand liable for contempt or suffer other significant censure or penalty, you
and they may disclose such Evaluation Material to such tribunal without
liability hereunder except to the extent of previous or subsequent disclosure by
you or your affiliates which is not permitted under this Agreement.
You understand that neither the Company nor any of its officers, directors,
employees, agents or representatives nor we make any representation or warranty
as to the accuracy or completeness of the Evaluation Material, and that neither
the Company nor any of them nor we shall have any liability to you or your
affiliates resulting from the use of the Evaluation Material by you or your
affiliates.
Furthermore, without the prior written consent of the Company, you and your
affiliates will not (i) for purposes of conducting any investigation of, or due
diligence with respect to, the Company, contact any person known to you and your
affiliates to be a franchisee, customer or employee of the Company or any of the
Company's participating merchants, (ii) for a period of two years from the date
hereof, solicit the services of or hire or attempt to hire, any person currently
employed by the Company or who may be employed by the Company during such two
year period or (iii) for a period of two years from the date hereof, for any
purpose competitive with the Company, solicit, negotiate with or enter into any
agreement or understanding with any franchisee or customer of the Company or any
of the Company's participating merchants whose name was provided to you by the
Company.
You and your affiliates also agree that for a period of three years from
the date of this Agreement, you and they will not, and you will ensure that your
affiliates and any person acting on behalf of or in concert with you or any of
your affiliates shall not, without the prior written consent of the Company or
its Board of Directors:
(i) acquire, offer to acquire or agree to acquire, directly or indirectly,
by purchase or otherwise, more than 1/2 of 1% of the voting
securities or direct or indirect rights to acquire more than 1/2 of
1% of the voting securities of the Company, or any assets
of the Company or any subsidiary or division thereof or of any such
successor controlling person;
(ii) make, or in any way participate, directly or indirectly, in, any
"solicitation" for "proxies" to vote (as such terms are used in the
rules of the Securities and Exchange Commission), or seek to advise
or influence any person or entity with respect to the voting of any
voting securities of the Company;
(iii) submit a proposal for, or offer (with or without conditions) of any
extraordinary transaction involving the Company or its securities or
assets; or
(iv) form, join or in any way participate in a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,
in connection with any of the foregoing.
You will promptly advise the Company of any inquiry or proposal made to you
or your affiliates with respect to any of the foregoing.
You understand that we have not made any public announcement of the fact
that we are soliciting any proposals with respect to a potential transaction
and, accordingly, you agree that you and your affiliates will not disclose and
will direct your and their representatives not to disclose to any person, the
fact that you and your affiliates are considering or evaluating a possible
transaction involving the Company or any fact concerning your discussions or
negotiations with us or the Company or any of our or its representatives or
agents, including the status thereof. Without your prior consent, we will not
make any public announcement which specifically identifies you or any of your
affiliates with respect to any transaction or potential transaction involving
you.
You agree to indemnify and hold us and the Company, and our and its
directors, officers, employees, agents and representatives harmless from or
against any actual losses, claims, damages or liabilities arising out of the
breach of this Agreement by you or your affiliates and will reimburse us and the
Company and our and its directors, officers, employees, agents and
representatives for all expenses (including reasonable counsel fees) incurred in
connection therewith. The obligations set forth in this paragraph shall survive
the termination of this Agreement.
You acknowledge and agree that we and the Company would not have an
adequate remedy at law and would be irreparably harmed in the event that any of
the provisions of this Agreement were not performed in accordance with the
specific terms or were otherwise breached. Accordingly, you agree that we and
the Company shall be entitled to injunctive relief to prevent breaches of this
Agreement and to specifically enforce the terms and provisions hereof, in
addition to any other remedy to which we or the Company may be entitled at law
or in equity. It is further understood and agreed that no failure to exercise
or delay in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, and no single or partial
exercise thereof shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.
You and your affiliates agree and consent to personal jurisdiction in any
action brought in any court, federal or state, within the State of Florida, in
connection with any matter arising under this Agreement. You, they, we and the
Company agree that service of process in any action brought in any such court
may be made by the mailing of service of process to the respective address of
the other party.
Please acknowledge your agreement to the foregoing by countersigning this
letter in the place provided below and returning it to us.
Very truly yours,
[MINOTAUR ENTITY]
By: _________________________
Accepted and Agreed to:
__________________________
Name:
