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AGREEMENT AND PLAN
OF REORGANIZATION
DATED AS OF
FEBRUARY 10, 1997
BY AND AMONG
TRANSMEDIA EUROPE, INC.,
TRANSMEDIA ASIA ACQUISITION CORPORATION,
TRANSMEDIA ASIA PACIFIC, INC.
AND
TRANSMEDIA EUROPE ACQUISITION CORPORATION
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TABLE OF CONTENTS
PAGE
ARTICLE I
THE MERGER AND THE TRANSMEDIA EUROPE ASSET CONVEYANCE
SECTION 1.1 - The Merger............................................................... 2
SECTION 1.2 - The Transmedia Europe Asset Conveyance................................... 2
SECTION 1.3 - Effective Time........................................................... 3
SECTION 1.4 - Effect of the Merger..................................................... 3
SECTION 1.5 - Subsequent Actions....................................................... 3
SECTION 1.6 - Certificate of Incorporation; Bylaws; Directors
and Officers of Surviving Corporation.......................... 4
ARTICLE II
EFFECT ON STOCK OF THE SURVIVING
CORPORATION AND THE MERGED CORPORATION
SECTION 2.1 - Conversion of Securities................................................. 5
SECTION 2.2 - Conversion of Shares..................................................... 5
SECTION 2.3 - Conversion of Common Stock of the Merged
Corporation into Common Stock of the Surviving
Corporation.............................................................. 5
SECTION 2.4 - Exchange of Transmedia Asia Certificates................................. 6
SECTION 2.5 - Transfer Books........................................................... 8
SECTION 2.6 - No Fractional Share Certificates......................................... 8
SECTION 2.7 - Options/Warrants to Purchase Transmedia Asia
Common Stock............................................................. 10
SECTION 2.8 - Certain Adjustments...................................................... 11
SECTION 2.9 - Dissenting Shares........................................................ 11
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TRANSMEDIA ASIA
SECTION 3.1 - Organization and Qualification; Subsidiaries............................. 12
SECTION 3.2 - Capitalization........................................................... 12
SECTION 3.3 - Authority Relative to this Agreement..................................... 13
SECTION 3.4 - No Conflict; Required Filings and Consents............................... 14
SECTION 3.5 - SEC Filings; Financial Statements........................................ 14
SECTION 3.6 - Litigation............................................................... 15
SECTION 3.7 - No Violation of Law...................................................... 15
SECTION 3.8 - Joint Proxy Statement.................................................... 16
SECTION 3.9 - Board Action; Vote Required; Applicability of
Section 203.............................................................. 17
SECTION 3.10 - Opinion of Financial Advisor............................................ 17
SECTION 3.11 - Brokers ................................................................ 17
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PAGE
SECTION 3.12 - Tax Matters............................................................. 17
SECTION 3.13 - Material Contracts...................................................... 18
SECTION 3.14 - Ownership of Securities................................................. 19
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TRANSMEDIA EUROPE
SECTION 4.1 - Organization and Qualification; Subsidiaries............................. 19
SECTION 4.2 - Capitalization........................................................... 20
SECTION 4.3 - Authority Relative to this Agreement..................................... 21
SECTION 4.4 - No Conflict; Required Filings and Consents............................... 21
SECTION 4.5 - SEC Filings; Financial Statements........................................ 22
SECTION 4.6 - Litigation............................................................... 23
SECTION 4.7 - No Violation of Law...................................................... 23
SECTION 4.8 - Joint Proxy Statement.................................................... 23
SECTION 4.9 - Board Action; Vote Required; Applicability of
Section 203.............................................................. 24
SECTION 4.10 - Opinion of Financial Advisor............................................ 24
SECTION 4.11 - Brokers ................................................................ 25
SECTION 4.12 - Tax Matters............................................................. 25
SECTION 4.13 - Material Contracts...................................................... 26
SECTION 4.14 - Ownership of Securities................................................. 26
ARTICLE V
CONDUCT OF BUSINESS PENDING THE REORGANIZATION
SECTION 5.1 - Conduct of Business in the Ordinary Course............................... 26
SECTION 5.2 - Subsequent Financial Statements.......................................... 27
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 - Joint Proxy Statement and the Registration
Statement................................................................ 28
SECTION 6.2 - Transmedia Asia and Transmedia Europe
Stockholders' Meetings; Consummation of the
Transmedia Europe Asset Conveyance; and
Consummation of the Merger............................................... 29
SECTION 6.3 - Additional Agreements.................................................... 30
SECTION 6.4 - Access to Information.................................................... 31
SECTION 6.5 - Public Announcements..................................................... 31
SECTION 6.6 - Cooperation.............................................................. 31
SECTION 6.7 - Indemnification, Directors' and Officers'
Insurance................................................................ 31
SECTION 6.8 - Nasdaq Listing........................................................... 32
SECTION 6.9 - Certificate of Incorporation and Bylaws of
Transmedia Europe; Corporate Identities of
Transmedia Europe and E-Sub.............................................. 32
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SECTION 6.10 - Post-Merger Transmedia Europe Board of
Directors and Officers.................................................. 32
SECTION 6.11 - Affiliates.............................................................. 33
SECTION 6.12 - Blue Sky................................................................ 34
SECTION 6.13 - Pooling of Interests.................................................... 34
SECTION 6.14 - Tax-Free Transactions................................................... 34
ARTICLE VII
CONDITIONS TO THE REORGANIZATION
SECTION 7.1 - Conditions to Obligations of Each Party to
Effect the Reorganization................................................ 34
SECTION 7.2 - Additional Conditions to Obligations of
Transmedia Asia.......................................................... 36
SECTION 7.3 - Additional Conditions to Obligations of
Transmedia Europe........................................................ 37
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1 - Termination.............................................................. 38
SECTION 8.2 - Effect of Termination.................................................... 39
SECTION 8.3 - Amendment................................................................ 39
SECTION 8.4 - Waiver ................................................................ 40
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 - Non-Survival of Representations, Warranties and
Agreements............................................................... 40
SECTION 9.2 - Notices ................................................................ 40
SECTION 9.3 - Expenses ................................................................ 41
SECTION 9.4 - Certain Definitions...................................................... 41
SECTION 9.5 - Headings ................................................................ 42
SECTION 9.6 - Severability............................................................. 42
SECTION 9.7 - Entire Agreement; No Third-Party Beneficiaries........................... 43
SECTION 9.8 - Assignment............................................................... 43
SECTION 9.9 - Governing Law............................................................ 43
SECTION 9.10 - Counterparts............................................................ 43
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APPENDICES AND SCHEDULES
Appendix I -- Form of Rule 145/Pooling Letter from Affiliates
Schedule 3.12 -- Transmedia Asia Tax Matters
Schedule 3.12(d) -- Transmedia Asia Tax Certifications
Schedule 4.12 -- Transmedia Europe Tax Matters
Schedule 4.12(d) -- Transmedia Europe Tax Certifications
Schedule 6.11 -- Rule 145/Pooling Affiliates
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INDEX OF DEFINED TERMS
DEFINED TERM SECTION
1933 Act ...................................................... 9.4(a)
A-Sub ......................................................... First Paragraph
Affiliate ..................................................... 9.4(b)
Agreement ..................................................... First Paragraph
Assumed Transmedia Europe Liabilities ......................... 1.2
Closing ....................................................... 6.2(b)
Closing Date .................................................. 6.2(b)
Code .......................................................... Recitals
Common Shares Trust ........................................... 2.6(c)
control ....................................................... 9.4(c)
Delaware Law .................................................. 1.1
Dissenting Shares ............................................. 2.9
E-Sub ......................................................... First Paragraph
Effective Time ................................................ 1.3
Excess Shares ................................................. 2.6(b)
Exchange Act .................................................. 9.4(d)
Exchange Agent ................................................ 2.4(a)
Exchange Fund ................................................. 2.4(a)
Excluded Transmedia Europe Assets ............................. 1.2
First Albany .................................................. 3.10
GAAP .......................................................... Recitals
Gleacher ...................................................... 4.10
Joint Proxy Statement ......................................... 3.8
knowledge ..................................................... 9.4(e)
KPMG .......................................................... 6.1(a)(ii)
Legal Requirements ............................................ 3.7
Material Adverse Effect ....................................... 9.4(f)
Merged Corporation ............................................ 1.1
Merger ........................................................ 1.1
Nasdaq ........................................................ 2.6(b)
New Transmedia Asia Common Stock .............................. 2.3
Party; Parties ................................................ 1.1
Permits ....................................................... 3.7
Person ........................................................ 9.4(g)
Pre-Surrender Dividends ....................................... 2.4(a)
Registration Statement ........................................ 3.8
Reorganization ................................................ 1.2
SEC ........................................................... 3.5(a)
Subsidiary .................................................... 9.4(h)
Surviving Corporation ......................................... 1.1
Termination Date .............................................. 8.1(b)
Transferred Transmedia Europe Assets .......................... 1.2
Transmedia Asia ............................................... First Paragraph
Transmedia Asia Certificate; Transmedia Asia
Certificates ................................................ 2.2(b)
Transmedia Asia Common Stock .................................. 2.2(a)
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DEFINED TERM SECTION
Transmedia Asia Exchange Ratio ................................ 2.2(a)
Transmedia Asia Equity Rights ................................. 3.2(a)
Transmedia Asia Material Contracts ............................ 3.13(a)
Transmedia Asia Option Plan ................................... 3.2(a)
Transmedia Asia SEC Reports ................................... 3.5(a)
Transmedia Asia Stockholders' Approval ........................ 3.9(b)
Transmedia Asia Subsidiary .................................... 9.4(h)
Transmedia Europe ............................................. First Paragraph
Transferred Europe Asset Conveyance ........................... 1.2
Transmedia Europe Common Stock ................................ 2.2(a)
Transmedia Europe Equity Rights ............................... 4.2(a)
Transmedia Europe Material Contracts .......................... 4.13(a)
Transmedia Europe Option Plan ................................. 4.2(a)
Transmedia Europe SEC Reports ................................. 4.5(a)
Transmedia Europe Stockholders' Approvals ..................... 4.9(b)
Transmedia Europe Subsidiary .................................. 9.4(h)
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AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION, dated as of February 10,
1997 (this "Agreement"), by and among Transmedia Europe, Inc., a Delaware
corporation ("Transmedia Europe"), Transmedia Asia Acquisition Corporation, a
Delaware corporation and a direct wholly-owned subsidiary of Transmedia Europe
("A-Sub"), Transmedia Asia Pacific, Inc., a Delaware corporation ("Transmedia
Asia"), and Transmedia Europe Acquisition Corporation, a Delaware corporation
and a direct wholly-owned subsidiary of Transmedia Europe ("E-Sub").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of Transmedia Asia, A-Sub and
Transmedia Europe have each determined that it is in the best interests of their
respective stockholders to effect the Merger (as defined in Section 1.1 hereof)
and the other transactions contemplated hereby relating to the Merger, and such
parties desire to make certain representations, warranties and agreements in
connection with the Merger;
WHEREAS, the Boards of Directors of Transmedia Asia, A-Sub and
Transmedia Europe have each determined that the Merger and the other
transactions contemplated hereby relating to the Merger are consistent with, and
in furtherance of, their respective business strategies and goals and have each
approved the Merger upon the terms and subject to the conditions set forth
herein;
WHEREAS, the Boards of Directors of Transmedia Europe and
E-Sub have each determined that it is in the best interests of their respective
stockholders to effect the Transmedia Europe Asset Conveyance (as defined in
Section 1.2 hereof) and have each determined that the Transmedia Europe Asset
Conveyance is consistent with, and in furtherance of, their respective business
strategies and goals and has approved the Transmedia Europe Asset Conveyance
upon the terms and subject to conditions set forth herein;
WHEREAS, the Parties (other than E-Sub) intend that the Merger
constitute a reorganization within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "Code"); and
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WHEREAS, for accounting purposes, it is intended that the
transactions contemplated by this Agreement be accounted for as a pooling of
interests under United States generally accepted accounting principles ("GAAP").
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
THE MERGER AND THE TRANSMEDIA EUROPE ASSET CONVEYANCE
SECTION 1.1 - The Merger. At the Effective Time (as defined in
Section 1.3 hereof) and subject to and upon the terms and subject to the
conditions of this Agreement and the Delaware General Corporation Law ("Delaware
Law"), A-Sub shall be merged with and into Transmedia Asia, the separate
corporate existence of A-Sub shall cease, and Transmedia Asia shall continue as
the surviving corporation which shall be a wholly-owned subsidiary of Transmedia
Europe (the "Merger"). Transmedia Asia as the surviving corporation of the
Merger is herein sometimes referred to as the "Surviving Corporation", and A-Sub
as the non-surviving corporation of the Merger is herein sometimes referred to
as the "Merged Corporation". Transmedia Asia, Transmedia Europe, A-Sub and E-Sub
are herein referred to collectively as the "Parties" and each individually as a
"Party."
SECTION 1.2 - The Transmedia Europe Asset Conveyance. Prior to
the Effective Time, (a) Transmedia Europe shall, in the form of a contribution
to the capital of E-Sub, assign, transfer, convey and deliver to E-Sub, and
E-Sub shall acquire and accept from Transmedia Europe, all of Transmedia
Europe's right, title and interest in and to Transmedia Europe's assets,
properties, rights, contracts and claims, wherever located, whether tangible or
intangible, as the same shall exist immediately prior to such assignment, except
for the Excluded Transmedia Europe Assets (as defined below) (such rights, title
and interests in and to such assets, properties, rights, contracts and claims,
other than the Excluded Transmedia Europe Assets, being collectively referred to
herein as the "Transferred Transmedia Europe Assets"); and (b) E-Sub shall
assume, perform and discharge all debts, claims, liabilities, obligations,
damages and expenses of Transmedia Europe with respect to the Transferred
Transmedia Europe Assets of every kind and nature, whether known, unknown,
contingent, absolute, determined, indeterminable or otherwise as of the
Effective Time and whether incurred or accruing prior to, on or
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after the Effective Time (collectively, the "Assumed Transmedia Europe
Liabilities"). The transaction described in the immediately preceding sentence
is herein referred to as the "Transmedia Europe Asset Conveyance". For the
purposes hereof, (i) the "Excluded Transmedia Europe Assets" shall mean the
capital stock or other equity interests of Transmedia La Carte Restaurant S.A.
owned by Transmedia Europe and for such other assets, properties, rights,
contracts or claims, if any, as the Board of Directors of Transmedia Europe
determines shall not be assigned to E-Sub, and (ii) the Merger and the
Transmedia Europe Asset Conveyance are herein sometimes collectively referred to
as the "Reorganization".
SECTION 1.3 - Effective Time. As promptly as practicable after
the satisfaction or waiver of the conditions set forth in Article VII hereof and
the consummation of the Closing referred to in Section 6.2(b) hereof, Transmedia
Europe and E-Sub shall cause the Transmedia Europe Asset Conveyance to be
consummated and immediately thereafter the Parties (other than E-Sub) shall
cause the Merger to be consummated by filing a Certificate of Merger with the
Secretary of State of the State of Delaware with respect to the Merger, in such
form as required by, and executed in accordance with, the relevant provisions of
Delaware Law. The Merger shall become effective on the date and at the time as
is agreed upon by the Parties (other than E-Sub) and specified in the
Certificate of Merger, or, if no time is so specified, on the date and at the
time the Certificate of Merger has been duly filed with the Secretary of State
of the State of Delaware (such time of effectiveness is hereinafter referred to
as the "Effective Time").
SECTION 1.4 - Effect of the Merger. At the Effective Time, the
effect of the Merger shall be as provided in the applicable provisions of
Delaware Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time all of the property, rights, privileges, powers
and franchises of Transmedia Asia and A-Sub shall continue with, or vest in, as
the case may be, Transmedia Asia as the Surviving Corporation, and all debts,
liabilities and duties of Transmedia Asia and A-Sub shall continue to be, or
become, as the case may be, the debts, liabilities and duties of Transmedia Asia
as the Surviving Corporation. As of the Effective Time, the Surviving
Corporation shall be a direct wholly-owned subsidiary of Transmedia Europe.
SECTION 1.5 - Subsequent Actions. If, at any time after the
Effective Time, either the Surviving Corporation or E-Sub shall consider or be
advised that any deeds, bills of sale,
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assignments, assurances or any other actions or things are necessary or
desirable to continue in, vest, perfect or confirm of record or otherwise in the
Surviving Corporation or E-Sub its right, title or interest in, to or under any
of the rights, properties, privileges, franchises or assets of Transmedia Asia
or Transmedia Europe, as the case may be, acquired or to be acquired by the
Surviving Corporation or E-Sub as a result of, or in connection with, the
Reorganization or otherwise to carry out this Agreement, the officers and
directors of the Surviving Corporation or E-Sub shall be directed and authorized
to execute and deliver, in the name and on behalf of Transmedia Asia or
Transmedia Europe, as the case may be, all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on behalf of each
of such corporations or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm any and all right, title and
interest in, to and under such rights, properties, privileges, franchises or
assets in the Surviving Corporation or E-Sub or otherwise to carry out this
Agreement.
SECTION 1.6 - Certificate of Incorporation; Bylaws; Directors
and Officers of Surviving Corporation. Unless otherwise agreed by Transmedia
Asia and Transmedia Europe before the Effective Time, at the Effective Time:
(a) the Certificate of Incorporation of Transmedia Asia as the
Surviving Corporation shall be the Certificate of Incorporation of A-Sub as in
effect immediately prior to the Effective Time, until thereafter amended as
provided by Delaware Law and such Certificate of Incorporation;
(b) the Bylaws of Transmedia Asia as the Surviving Corporation
shall be the Bylaws of A-Sub immediately prior to the Effective Time, until
thereafter amended as provided by Delaware Law and the Certificate of
Incorporation and such Bylaws of the Surviving Corporation; and
(c) the directors and officers of Transmedia Asia shall
continue to serve in their respective offices in the Surviving Corporation from
and after the Effective Time, until their successors are elected or appointed
and qualified or until their resignation or removal. If, at the Effective Time,
a vacancy shall exist on the Board of Directors or in any office of the
Surviving Corporation, such vacancy may thereafter be filled in the manner
provided by Delaware Law and the Bylaws of the Surviving Corporation.
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ARTICLE II
EFFECT ON STOCK OF THE SURVIVING
CORPORATION AND THE MERGED CORPORATION
SECTION 2.1 - Conversion of Securities. The manner and basis
of converting the shares of capital stock of the Surviving Corporation and of
the Merged Corporation at the Effective Time, by virtue of the Merger and
without any action on the part of any of the Parties or the holder of any of
such securities, shall be as hereinafter set forth in this Article II.
SECTION 2.2 - Conversion of Shares. (a) Each share of common
stock, par value $.00001 per share, of Transmedia Asia ("Transmedia Asia Common
Stock") issued and outstanding immediately before the Effective Time (excluding
any shares held in the treasury of Transmedia Asia) and all rights in respect
thereof, shall at the Effective Time, without any action on the part of any
holder thereof, forthwith be converted into and become exchangeable for, 0.9109
shares of common stock, par value $.00001 per share, of Transmedia Europe
("Transmedia Europe Common Stock") (such ratio of Transmedia Asia Common Stock
to Transmedia Europe Common Stock being herein referred to as the "Transmedia
Asia Exchange Ratio").
(b) Commencing immediately after the Effective Time, each
certificate which, immediately prior to the Effective Time, represented issued
and outstanding shares of Transmedia Asia Common Stock (each a "Transmedia Asia
Certificate", and collectively the "Transmedia Asia Certificates"), shall
evidence ownership of Transmedia Europe Common Stock on the basis hereinbefore
set forth, but subject to the limitations set forth in Sections 2.4, 2.6, 2.7
and 2.8 hereof.
(c) Notwithstanding anything to the contrary contained in this
Section 2.2 to the contrary, the provisions of this Section 2.2 shall be subject
to Section 2.9 hereof.
SECTION 2.3 - Conversion of Common Stock of the Merged
Corporation into Common Stock of the Surviving Corporation. At the Effective
Time, each share of common stock, par value $.01 per share, of A-Sub issued and
outstanding immediately prior to the Effective Time, and all rights in respect
thereof, shall, without any action on the part of Transmedia Europe, forthwith
be converted into 100 validly issued, fully paid and nonassessable shares of
common stock of Transmedia Asia, par value $.01 per share, as the Surviving
Corporation (the "New Transmedia Asia Common Stock"). Immediately after the
Effective Time and upon surrender by Transmedia Europe of the certificate
representing
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the shares of the common stock of A-Sub, Transmedia Asia as the Surviving
Corporation shall deliver to Transmedia Europe an appropriate certificate or
certificates representing the New Transmedia Asia Common Stock created by
conversion of the common stock of A-Sub owned by Transmedia Europe.
SECTION 2.4 - Exchange of Transmedia Asia Certificates. (a)
Subject to the terms and conditions hereof, at or prior to the Effective Time,
Transmedia Europe shall appoint an exchange agent to effect the exchange of
Transmedia Asia Certificates for Transmedia Europe Common Stock in accordance
with the provisions of this Article II (the "Exchange Agent"). From time to time
after the Effective Time, Transmedia Europe shall deposit, or cause to be
deposited, certificates representing Transmedia Europe Common Stock for
conversion of Transmedia Asia Certificates in accordance with the provisions of
Section 2.2 hereof (such certificates, together with any dividends or
distributions with respect thereto, being herein referred to as the "Exchange
Fund"). As soon as reasonably practicable after the Effective Time, Transmedia
Europe shall instruct the Exchange Agent to mail to each holder of record of a
Transmedia Asia Certificate, (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the Transmedia
Asia Certificates shall pass, only upon proper delivery of the Transmedia Asia
Certificates to the Exchange Agent and shall be in such form and have such other
provisions as Transmedia Europe reasonably may specify) and (ii) instructions
for use in effecting the surrender of the Transmedia Asia Certificates in
exchange for certificates evidencing shares of Transmedia Europe Common Stock
and payment of cash in lieu of fractional shares. Commencing immediately after
the Effective Time and until the appointment of the Exchange Agent shall be
terminated, each holder of a Transmedia Asia Certificate may surrender the same
to the Exchange Agent, and, after the appointment of the Exchange Agent shall be
terminated, any such holder may surrender any such Transmedia Asia Certificate
to Transmedia Europe. Such holder shall be entitled upon such surrender,
together with a letter of transmittal, duly executed, and such other customary
documents as may be required by the Exchange Agent, to receive in exchange
therefor a certificate or certificates representing the number of full shares of
Transmedia Europe Common Stock into which the shares of Transmedia Asia Common
Stock theretofore represented by the Transmedia Asia Certificate so surrendered
shall have been converted in accordance with the provisions of Section 2.2
hereof, together with a cash payment in lieu of fractional shares in accordance
with Section 2.6 hereof, and all such shares of Transmedia Europe Common Stock
shall be deemed to have been issued at the Effective
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Time. Until so surrendered and exchanged, each outstanding Transmedia Asia
Certificate shall be deemed for all corporate purposes of Transmedia Europe,
other than the payment of dividends and other distributions, if any, to evidence
ownership of the number of full shares of Transmedia Europe Common Stock into
which the shares of Transmedia Asia Common Stock theretofore represented by the
Transmedia Asia Certificate shall have been converted at the Effective Time.
Unless and until any such Transmedia Asia Certificate is so surrendered, no
dividend or other distribution, if any, payable to the holders of record of
Transmedia Europe Common Stock as of any date subsequent to the Effective Time
shall be paid to the holder of such Transmedia Asia Certificate in respect
thereof. Upon the surrender of any Transmedia Asia Certificate, however, the
record holder of the certificate or certificates representing shares of
Transmedia Europe Common Stock issued in exchange therefor shall receive from
the Exchange Agent or from Transmedia Europe, as the case may be, payment of the
amount of dividends and other distributions, if any, which as of any date
subsequent to the Effective Time and until such surrender shall have become
payable with respect to such number of shares of Transmedia Europe Common Stock
("Pre-Surrender Dividends"). No interest shall be payable with respect to the
payment of Pre-Surrender Dividends upon the surrender of Transmedia Asia
Certificates. After the appointment of the Exchange Agent shall have been
terminated, such holders of Transmedia Europe Common Stock which have not
received payment of Pre-Surrender Dividends shall look only to Transmedia Europe
for payment thereof. Notwithstanding the foregoing provisions of this Section
2.4(a), none of the Exchange Agent, Transmedia Europe, Transmedia Asia or A-Sub
shall be liable to a holder of Transmedia Asia Certificates for any Transmedia
Europe Common Stock or dividends or distributions thereon delivered to a public
official pursuant to any applicable abandoned property, escheat or similar law
or to a transferee pursuant to Section 2.5 hereof.
(b) In the event any Transmedia Asia Certificate shall have
been lost, stolen or destroyed, upon the making of an affidavit of that effect
by the Person claiming such Transmedia Asia Certificate to be lost, stolen or
destroyed and, if required by Transmedia Europe or the Exchange Agent, the
posting by such Person of a bond in such amount as Transmedia Europe or the
Exchange Agent may direct as indemnity against any claim that may be made
against it with respect to such Transmedia Asia Certificate, the Exchange Agent
will issue, in exchange for such lost, stolen or destroyed Certificate,
Transmedia Europe Common Stock, cash in lieu of fractional shares and unpaid
dividends and distributions on Transmedia Europe Common Stock deliverable in
respect thereof pursuant to this Article II.
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SECTION 2.5 - Transfer Books. The stock transfer books of
Transmedia Asia with respect to the Transmedia Asia Certificates shall each be
closed at the Effective Time and no transfer of any Transmedia Asia Certificates
will thereafter be recorded on any of such stock transfer books. In the event of
a transfer of ownership of a Transmedia Asia Certificate that is not registered
in the stock transfer records of Transmedia Asia at the Effective Time, a
certificate or certificates representing the number of full shares of Transmedia
Europe Common Stock into which the Transmedia Asia Common Stock represented by
such Transmedia Asia Certificate shall have been converted shall be issued to
the transferee together with a cash payment in lieu of fractional shares in
accordance with Section 2.6 hereof, and a cash payment in the amount of
Pre-Surrender Dividends, if any, in accordance with Section 2.4(a) hereof, if
the Transmedia Asia Certificate surrendered as provided in Section 2.4 hereof,
accompanied by all documents required to evidence and effect such transfer and
by evidence of payment of any applicable stock transfer tax.
SECTION 2.6 - No Fractional Share Certificates. (a) No scrip
or fractional share certificate for Transmedia Europe Common Stock will be
issued upon the surrender for exchange of Transmedia Asia Certificates, and an
outstanding fractional share interest will not entitle the owner thereof to
vote, to receive dividends or to any rights of a stockholder of Transmedia
Europe or of the Surviving Corporation with respect to such fractional share
interest.
(b) As promptly as practicable following the Effective Time,
the Exchange Agent shall determine the excess of (i) the number of full shares
of Transmedia Europe Common Stock to be issued and delivered to the Exchange
Agent pursuant to Section 2.4 hereof over (ii) the aggregate number of full
shares of Transmedia Europe Common Stock to be distributed to holders of
Transmedia Asia Common Stock pursuant to Section 2.4 hereof (such excess being
herein called the "Excess Shares"). Following the Effective Time, the Exchange
Agent, as agent for the holders of Transmedia Asia Common Stock, shall sell the
Excess Shares at then prevailing prices quoted on the Nasdaq Small Cap Market
(the "Nasdaq"), all in the manner provided in subsection (c) of this Section
2.6.
(c) The sale of the Excess Shares by the Exchange Agent shall
be executed on Nasdaq through one or more member firms of the New York Stock
Exchange, Inc. and shall be executed in round lots to the extent practicable.
The Exchange Agent shall use all reasonable efforts to complete the sale of the
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Excess Shares as promptly following the Effective Time as, in the Exchange
Agent's reasonable judgment, is practicable consistent with obtaining the best
execution of such sales in light of prevailing market conditions. Until the net
proceeds of such sale or sales have been distributed to the holders of
Transmedia Asia Common Stock, the Exchange Agent will hold such proceeds in
trust for the holders of Transmedia Asia Common Stock (the "Common Shares
Trust"). Transmedia Europe shall pay all commissions, transfer taxes and other
out-of-pocket transaction costs, including the expenses and compensation of the
Exchange Agent, incurred in connection with such sale of the Excess Shares. The
Exchange Agent shall determine the portion of the Common Shares Trust to which
each holder of Transmedia Asia Common Stock shall be entitled, if any, by
multiplying the amount of the aggregate net proceeds comprising the Common
Shares Trust by a fraction the numerator of which is the amount of fractional
share interests to which such holder of Transmedia Asia Common Stock is entitled
(after taking into account all shares of Transmedia Asia Common Stock held at
the Effective Time by such holder) and the denominator of which is the aggregate
amount of fractional share interests to which all holders of Transmedia Asia
Common Stock are entitled.
(d) Notwithstanding the provisions of subsections (b) and (c)
of this Section 2.6, Transmedia Asia and Transmedia Europe may agree at their
option, exercised prior to the Effective Time, in lieu of the issuance and sale
of Excess Shares and the making of the payments contemplated in such
subsections, that Transmedia Europe shall pay to the Exchange Agent an amount
sufficient for the Exchange Agent to pay each holder of Transmedia Asia Common
Stock an amount in cash equal to the product obtained by multiplying (i) the
fractional share interest to which such holder would otherwise be entitled
(after taking into account all shares of Transmedia Asia Common Stock held at
the Effective Time by such holder) by (ii) the last reported sale price for a
share of Transmedia Europe Common Stock quoted on Nasdaq on the first business
day immediately following the Effective Time, and, in such case, all reference
herein to the cash proceeds of the sale of the Excess Shares and similar
references shall be deemed to mean and refer to the payments calculated as set
forth in this subsection (d). In such event, Excess Shares shall not be issued
or otherwise transferred to the Exchange Agent pursuant to Section 2.4(a)
hereof.
(e) As soon as practicable after the determination of the
amount of cash, if any, to be paid to holders of Transmedia Asia Common Stock
with respect to any fractional share interests, the Exchange Agent shall make
available such amounts, net of any
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required withholding, to such holders of Transmedia Asia Common Stock, subject
to and in accordance with the terms of Section 2.4 hereof.
(f) Any portion of the Exchange Fund and the Common Shares
Trust which remains undistributed for six months after the Effective Time shall
be delivered to Transmedia Europe, upon demand, and any holders of Transmedia
Asia Common Stock who have not theretofore complied with the provisions of this
Article II shall thereafter look only to Transmedia Europe for satisfaction of
their claims for Transmedia Europe Common Stock or any cash in lieu of
fractional shares of Transmedia Europe Common Stock and any Pre-Surrender
Dividends.
SECTION 2.7 - Options/Warrants to Purchase Transmedia Asia
Common Stock. At the Effective Time, each option or warrant granted by
Transmedia Asia to purchase shares of Transmedia Asia Common Stock that is
outstanding and unexercised immediately prior to the Effective Time, shall be
assumed by Transmedia Europe and converted into an option or warrant to purchase
shares of Transmedia Europe Common Stock in such amount and at such exercise
price as provided below and otherwise having the same terms and conditions as
are in effect immediately prior to the Effective Time (except to the extent that
such terms, conditions and restrictions may be altered in accordance with their
terms as a result of the transactions contemplated hereby):
(a) the number of shares of Transmedia Europe
Common Stock to be subject to the new option or warrant shall be equal to the
product of (i) the number of shares of Transmedia Asia Common Stock subject to
the original option or warrant and (ii) the Transmedia Asia Exchange Ratio;
(b) the exercise price per share of Transmedia
Europe Common Stock under the new option or warrant shall be equal to (i) the
exercise price per share of the Transmedia Asia Common Stock under the original
option or warrant divided by (ii) the Transmedia Asia Exchange Ratio; and
(c) upon each exercise of options or warrants by
a holder thereof, the aggregate number of shares of Transmedia Europe Common
Stock deliverable upon such exercise shall be rounded up, if necessary, to the
nearest whole share and the aggregate exercise price shall be rounded up, if
necessary, to the nearest cent.
The adjustments provided herein with respect to any options which are "incentive
stock options" (as defined in Section 422 of the
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Code) shall be effected in a manner consistent with Section 424(a) of the Code.
SECTION 2.8 - Certain Adjustments. If between the date of this
Agreement and the Effective Time, the outstanding shares of Transmedia Asia
Common Stock or of Transmedia Europe Common Stock shall be changed into a
different number of shares by reason of any reclassification, recapitalization,
split-up, combination or exchange of shares, or any dividend payable in stock or
other securities shall be declared thereon with a record date within such
period, the Transmedia Asia Exchange Ratio established pursuant to the
provisions of Section 2.2 hereof shall be adjusted accordingly to provide to the
holders of Transmedia Asia Common Stock and Transmedia Europe Common Stock the
same economic effect as contemplated by this Agreement prior to such
reclassification, recapitalization, split-up, combination, exchange or dividend.
SECTION 2.9 - Dissenting Shares. Notwithstanding any other
provisions of this Agreement to the contrary, to the extent the Closing has
occurred, any shares of Transmedia Asia Common Stock that are outstanding
immediately prior to the Effective Time and that are held by stockholders of
Transmedia Asia who shall have not voted in favor of the Merger and who shall
have demanded properly in writing appraisal for such shares in accordance with
Section 262 of Delaware Law (collectively, the "Dissenting Shares") shall not be
converted into or represent the right to receive Transmedia Europe Common Stock
pursuant to Section 2.2 hereof. Such stockholders instead shall be entitled to
receive payment of the appraised value of such shares of Transmedia Asia Common
Stock held by them in accordance with the provisions of such Section 262, except
that all Dissenting Shares held by stockholders who shall have failed to perfect
or who effectively shall have withdrawn or lost their rights to appraisal of
such shares of Transmedia Asia Common Stock under such Section 262 shall
thereupon be deemed to have been converted into and to have become exchangeable,
as of the Effective Time, for the right to receive, without any interest
thereon, Transmedia Europe Common Stock upon surrender in the manner provided in
this Article II, of the Transmedia Asia Certificates that formerly evidenced
such shares of Transmedia Asia Common Stock. Transmedia Asia shall give
Transmedia Europe prompt notice of any demands for appraisal of shares of
Transmedia Asia Common Stock received by it and the opportunity to direct all
negotiations and proceedings with respect to any such demands. Transmedia Asia
shall not, without the prior written consent of Transmedia Europe, make any
payment with respect to, or settle, offer to settle, or otherwise negotiate any
such demands.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TRANSMEDIA ASIA
Transmedia Asia hereby represents and warrants to Transmedia
Europe as follows:
SECTION 3.1 - Organization and Qualification; Subsidiaries.
Each of Transmedia Asia and each of its Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization. Each of the Transmedia Asia
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization, except for such
failure which, when taken together with all other such failures, would not
reasonably be expected to have a Material Adverse Effect on Transmedia Asia.
Each of Transmedia Asia and its Subsidiaries has the requisite corporate power
and authority and any necessary governmental authority, franchise, license or
permit to own, operate or lease the properties that it purports to own, operate
or lease and to carry on its business as it is now being conducted, and is duly
qualified as a foreign corporation to do business, and is in good standing, in
each jurisdiction where the character of its properties owned, operated or
leased or the nature of its activities makes such qualification necessary,
except for such failure which, when taken together with all other such failures,
would not reasonably be expected to have a Material Adverse Effect on Transmedia
Asia. The Transmedia Asia Subsidiaries are disclosed in the Transmedia Asia SEC
Reports.
SECTION 3.2 - Capitalization. (a) The authorized capital stock
of Transmedia Asia consists of (i) 5,000,000 shares of preferred stock, par
value $.01 per share, none of which are outstanding and none of which are
reserved for issuance, and (ii) 95,000,000 shares of Transmedia Asia Common
Stock, of which, as of February 5, 1997, 13,918,697 shares were issued and
outstanding, no shares were held in the treasury of Transmedia Asia, 80,000
shares were issuable upon the exercise of options outstanding under Transmedia
Asia's 1994 Stock Option and Rights Plan (the "Transmedia Asia Option Plan") or
Transmedia Asia's 1995 Outside Directors Stock Option Plan, 800,000 shares were
issuable upon the exercise of options issued by Transmedia Asia to an executive
officer of Transmedia Asia and 783,036 shares were issuable upon the exercise of
warrants issued by Transmedia Asia. Except as disclosed in the Transmedia Asia
SEC Reports, for warrants to be issued to First Albany Corporation upon the
consummation of the Merger or as described in the preceding sentence, (i) since
December 31, 1996, no shares of Transmedia
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Asia Common Stock have been issued, except upon the exercise of options
described in the immediately preceding sentence, and (ii) there are no
outstanding Transmedia Asia Equity Rights. For purposes of this Agreement,
"Transmedia Asia Equity Rights" shall mean subscriptions, options, warrants,
calls, commitments, agreements, conversion rights or other rights of any
character (contingent or otherwise) to purchase or otherwise acquire from
Transmedia Asia or any of Transmedia Asia's Subsidiaries at any time, or upon
the happening of any stated event, any shares of the capital stock of Transmedia
Asia.
(b) Except as disclosed in the Transmedia Asia SEC Reports,
there are no outstanding obligations of Transmedia Asia or any of Transmedia
Asia's Subsidiaries to repurchase, redeem or otherwise acquire any shares of
capital stock of Transmedia Asia.
(c) All of the issued and outstanding shares of Transmedia
Asia Common Stock are validly issued, fully paid and nonassessable.
(d) Except as disclosed in the Transmedia Asia SEC Reports,
there are no existing subscriptions, options, warrants, calls, commitments,
agreements, conversion rights or other rights of any character (contingent or
otherwise) to purchase or otherwise acquire from Transmedia Asia or any of
Transmedia Asia's Subsidiaries at any time, or upon the happening of any stated
event, any shares of the capital stock of any Transmedia Asia Subsidiary,
whether or not presently issued or outstanding, and there are no outstanding
obligations of Transmedia Asia or any of Transmedia Asia's Subsidiaries to
repurchase, redeem or otherwise acquire any shares of capital stock of any of
Transmedia Asia's Subsidiaries.
SECTION 3.3 - Authority Relative to this Agreement. Transmedia
Asia has the necessary corporate power and authority to enter into this
Agreement and, subject to obtaining any necessary stockholder approval of the
Merger, to carry out its obligations hereunder. The execution and delivery of
this Agreement by Transmedia Asia and the consummation by Transmedia Asia of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Transmedia Asia, subject to the approval of this
Agreement by Transmedia Asia's stockholders required by Delaware Law. This
Agreement has been duly executed and delivered by Transmedia Asia and, assuming
the due authorization, execution and delivery thereof by the other Parties,
constitutes a legal, valid and binding obligation of Transmedia Asia,
enforceable against it in accordance with its terms, subject, as to
enforceability, to
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bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
SECTION 3.4 - No Conflict; Required Filings and Consents. (a)
Except as described in subsection (b) below, the execution and delivery of this
Agreement by Transmedia Asia do not, and, subject to the obtaining of the
Transmedia Asia Stockholder Approval (as defined below), the performance of this
Agreement by Transmedia Asia will not, (i) violate or conflict with the
Certificate of Incorporation or Bylaws of Transmedia Asia, (ii) conflict with or
violate any law, regulation, court order, judgment or decree applicable to
Transmedia Asia or any of its Subsidiaries or by which any of their respective
property is bound or affected, (iii) violate or conflict with the Certificate of
Incorporation or Bylaws (or other similar corporate governance documents) of any
of Transmedia Asia's Subsidiaries, or (iv) result in any breach of or constitute
a default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination or cancellation of,
or result in the creation of a lien or encumbrance on any of the properties or
assets of Transmedia Asia or any of its Subsidiaries pursuant to, result in the
loss of any material benefit under, or require the consent of any other party
to, any contract, instrument, permit, license or franchise to which Transmedia
Asia or any of its Subsidiaries is a party or by which Transmedia Asia, any of
such Subsidiaries or any of their respective property is bound or affected,
except, in the case of clauses (ii), (iii) or (iv) above, for conflicts,
violations, breaches, defaults, results or consents which, individually or in
the aggregate, would not have a Material Adverse Effect on Transmedia Asia.
(b) Except for applicable requirements, if any, of state or
foreign regulatory laws and commissions, the 1933 Act, the Exchange Act, filing
and recordation of appropriate merger or other documents as required by Delaware
Law and any filings required pursuant to any state securities or "blue sky" laws
or the rules of Nasdaq, Transmedia Asia is not required to submit any notice,
report or other filing with, or obtain any consent or approval of, any
governmental authority, domestic or foreign, in connection with the execution,
delivery or performance of this Agreement, the failure to obtain, make or give
which would have, in the aggregate, a Material Adverse Effect on Transmedia
Asia.
SECTION 3.5 - SEC Filings; Financial Statements. (a)
Transmedia Asia has filed all forms, reports, proxy statements and other
documents required to be filed with the Securities and
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Exchange Commission ("SEC") since October 1, 1995, and has heretofore delivered
or made available to Transmedia Europe, in the form filed with the SEC, together
with any amendments thereto, its (i) Annual Reports on Form 10-K (including all
amendments thereto) for the fiscal years ended September 30, 1995 and 1996, (ii)
all proxy statements relating to Transmedia Asia's meetings of stockholders
(whether annual or special) held since October 1, 1995, (iii) Quarterly Reports
on Form 10-Q for the fiscal quarters ended December 31, 1995, March 31, 1996 and
June 30, 1996, and (iv) all other reports or registration statements (including
all amendments thereto) filed by Transmedia Asia with the SEC since October 1,
1995 (collectively, the "Transmedia Asia SEC Reports"). The Transmedia Asia SEC
Reports (i) were prepared substantially in accordance with the requirements of
the 1933 Act or the Exchange Act, as the case may be, and the rules and
regulations promulgated under each of such respective acts, and (ii) did not at
the time they were filed contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(b) The financial statements, including all related notes and
schedules, contained in the Transmedia Asia SEC Reports (or incorporated by
reference therein) fairly present the consolidated financial position of
Transmedia Asia and its Subsidiaries as at the respective dates thereof and the
consolidated results of operations and cash flows of Transmedia Asia and its
Subsidiaries for the periods indicated in accordance with GAAP applied on a
consistent basis throughout the periods involved (except for changes in
accounting principles disclosed in the notes thereto) and subject in the case of
interim financial statements to normal year-end adjustments.
SECTION 3.6 - Litigation. Except as disclosed in the
Transmedia Asia SEC Reports, there are no claims, actions, suits, proceedings or
investigations pending or, to Transmedia Asia's knowledge, threatened against
Transmedia Asia or any of its Subsidiaries, or any properties or rights of
Transmedia Asia or any of its Subsidiaries, before any court, administrative,
governmental, arbitral, mediation or regulatory authority or body, domestic or
foreign, adversely affecting this Agreement or any action taken or to be taken
or documents executed or to be executed pursuant to or in connection with the
provisions of this Agreement.
SECTION 3.7 - No Violation of Law. The business of Transmedia
Asia and its Subsidiaries is not being conducted in
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violation of any statute, law, ordinance, regulation, judgment, order or decree
of any domestic or foreign governmental or judicial entity (including any stock
exchange or other self-regulatory body) ("Legal Requirements"), or in violation
of any permits, franchises, licenses, authorizations or consents that are
granted by any domestic or foreign government or judicial entity (including any
stock exchange or other self-regulatory body) ("Permits"), except for possible
violations none of which, individually or in the aggregate, may reasonably be
expected to have a Material Adverse Effect on Transmedia Asia and for matters
disclosed in the Transmedia Asia SEC Reports. Except as disclosed in the
Transmedia Asia SEC Reports, no investigation or review by any domestic or
foreign governmental or regulatory entity (including any stock exchange or other
self-regulatory body) with respect to Transmedia Asia or its Subsidiaries in
relation to any alleged violation of law or regulation is pending or, to
Transmedia Asia's knowledge, threatened, nor has any governmental or regulatory
entity (including any stock exchange or other self-regulatory body) indicated an
intention to conduct the same, except for such investigations which, if they
resulted in adverse findings, would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Transmedia Asia.
SECTION 3.8 - Joint Proxy Statement. None of the information
supplied or to be supplied by or on behalf of Transmedia Asia for inclusion or
incorporation by reference in the registration statement on Form S-4 to be filed
under the 1933 Act with the SEC by Transmedia Europe in connection with the
issuance of shares of Transmedia Europe Common Stock in the Merger (the
"Registration Statement") will, at the time the Registration Statement becomes
effective under the 1933 Act, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. None of the information supplied or to be supplied by or
on behalf of Transmedia Asia for inclusion or incorporation by reference in the
joint proxy statement, in definitive form, relating to the meetings of
Transmedia Asia and Transmedia Europe stockholders to be held in connection with
the Reorganization, or in the related proxy and notice of meeting, or soliciting
material used in connection therewith (referred to herein collectively as the
"Joint Proxy Statement") will, at the dates mailed to stockholders and at the
times of the Transmedia Asia stockholders' meeting and the Transmedia Europe
stockholders' meeting, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the
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statements therein, in light of the circumstances under which they are made, not
misleading. The Registration Statement and the Joint Proxy Statement (except for
information relating solely to Transmedia Europe, A-Sub or E-Sub) will comply as
to form in all material respects with the provisions of the 1933 Act and the
Exchange Act and the rules and regulations promulgated thereunder.
SECTION 3.9 - Board Action; Vote Required; Applicability of
Section 203. (a) The Board of Directors of Transmedia Asia has unanimously
determined that the transactions contemplated by this Agreement are in the best
interests of Transmedia Asia and its stockholders and has resolved to recommend
to such stockholders that they vote in favor thereof.
(b) The approval of the Merger by a majority of the votes
entitled to be cast by all holders of Transmedia Asia Common Stock (the
"Transmedia Asia Stockholders' Approval") is the only vote of the holders of any
class or series of the capital stock of Transmedia Asia required to approve this
Agreement, the Merger and the other transactions contemplated hereby.
(c) The provisions of Section 203 of the Delaware Law will
not, assuming the accuracy of the representations contained in Section 4.14
hereof (without giving effect to the knowledge qualification therein), apply to
this Agreement or any of the transactions contemplated hereby.
SECTION 3.10 - Opinion of Financial Advisor. Transmedia Asia
has received the opinion of First Albany Corporation ("First Albany") to the
effect that the Transmedia Asia Exchange Ratio is fair from a financial point of
view to the holders of Transmedia Asia Common Stock.
SECTION 3.11 - Brokers. Except for First Albany, the
arrangements with which have been disclosed to Transmedia Europe prior to the
date hereof, who have been engaged by Transmedia Asia, no broker, finder or
investment banker is entitled to any brokerage, finder's, investment banking or
other fee or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of Transmedia Asia or any
of its Subsidiaries.
SECTION 3.12 - Tax Matters. Except as set forth on Schedule
3.12 hereto:
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(a) All material federal and foreign tax returns and tax
reports required to be filed by Transmedia Asia or its Subsidiaries on or prior
to the Effective Time or with respect to taxable periods ending on or prior to
the Effective Time have been or will be filed with the appropriate governmental
authorities on or prior to the Effective Time or by the due date thereof
including extensions;
(b) All material state and local tax returns and tax reports
required to be filed by Transmedia Asia or its Subsidiaries on or prior to the
Effective Time or with respect to taxable periods ending on or prior to the
Effective Time which relate to income, profits, franchise, property, sales, use
or other taxes, have been or will be filed with the appropriate governmental
authorities on or prior to the Effective Time or by the due date thereof
including extensions;
(c) The tax returns and tax reports referred to in subparts
(a) and (b) of this Section 3.12 correctly reflect (and as to returns not filed
as of the date hereof, will correctly reflect) all material tax liabilities of
Transmedia Asia and its Subsidiaries required to be shown thereon;
(d) The representations and warranties contained in the
Transmedia Asia Officer's Certificate attached hereto as Schedules 3.12(d) are
true and correct in all material respects; and
(e) Neither Transmedia Asia nor any of its Affiliates has
knowingly taken or agreed to take any action that would (i) prevent or impede
the Merger from qualifying as a tax-free transaction under the Code, or (ii)
make untrue any representation or warranty contained in any of the Officers'
Certificates referred to in Section 3.12(d) hereof.
SECTION 3.13 - Material Contracts. (a) Transmedia Asia's
Annual Reports on Form 10-K for the fiscal years ended September 30, 1995 and
September 30, 1996 lists each material contract (as such term is used in
Regulation S-K promulgated by the SEC) to which Transmedia Asia or any of its
Subsidiaries is a party (the "Transmedia Asia Material Contracts").
(b) To the knowledge of Transmedia Asia, each Transmedia Asia
Material Contract is in full force and effect and is enforceable in all material
respects against the parties thereto in accordance with its terms, subject, as
to enforceability, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting
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creditors' rights and to general principles of equity, and no condition or state
of facts exists that, with notice or the passage of time, or both, would
constitute a material default by Transmedia Asia or any of its Subsidiaries or
any third party under any Transmedia Asia Material Contract, except for such
failure to be in full force or effect or enforceable or such defaults which,
individually or in the aggregate, would not have a Material Adverse Effect on
Transmedia Asia.
SECTION 3.14 - Ownership of Securities. As of the date hereof,
except as disclosed in the Transmedia Asia SEC Reports or as disclosed in the
Transmedia Europe SEC Reports, to Transmedia Asia's knowledge, none of its
affiliates or associates (as such terms are defined under the Exchange Act),
(a)(i) beneficially owns, directly or indirectly, or (ii) is party to any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of, in each case, shares of capital stock of Transmedia
Europe, which in the aggregate represent 10% or more of the outstanding shares
of Transmedia Europe Common Stock, or (b) is an "interested stockholder" of
Transmedia Europe within the meaning of Section 203 of the Delaware Law.
Transmedia Asia owns no shares of Transmedia Europe Common Stock or of any other
capital stock of Transmedia Europe.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TRANSMEDIA EUROPE
Transmedia Europe hereby represents and warrants to Transmedia
Asia as follows:
SECTION 4.1 - Organization and Qualification; Subsidiaries.
Each of Transmedia Europe and each of its Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization. Each of the Transmedia Europe
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization, except for such
failure which, when taken together with all other such failures, would not
reasonably be expected to have a Material Adverse Effect on Transmedia Europe.
Each of Transmedia Europe and its Subsidiaries has the requisite corporate power
and authority and any necessary governmental authority, franchise, license or
permit to own, operate or lease the properties that it purports to own, operate
or lease and to carry on its business as it is now being conducted, and is duly
qualified as a foreign corporation to do business, and is in good standing, in
each jurisdiction where the character of its
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properties owned, operated or leased or the nature of its activities makes such
qualification necessary, except for such failure which, when taken together with
all other such failures, would not reasonably be expected to have a Material
Adverse Effect on Transmedia Europe. The Transmedia Europe Subsidiaries are
disclosed in the Transmedia Europe SEC Reports.
SECTION 4.2 - Capitalization. (a) The authorized capital stock
of Transmedia Europe consists of (i) 5,000,000 shares of Transmedia Europe's
6 1/2% Convertible Preferred Stock, 675,000 of which are outstanding and
convertible into 759,375 shares of Transmedia Europe Common Stock and none of
which are reserved for issuance, and (ii) 95,000,000 shares of Transmedia Europe
Common Stock, of which, as of February 5, 1997, 12,678,792 shares were issued
and outstanding, 196,995 shares were held in the treasury of Transmedia Europe,
270,000 shares were issuable upon the exercise of options outstanding under
Transmedia Europe's 1993 Stock Option and Rights Plan (the "Transmedia Europe
Option Plan") and Transmedia Europe's 1995 Outside Directors Stock Option Plan,
and 783,036 shares were issuable upon the exercise of warrants issued by
Transmedia Europe. Except disclosed in the Transmedia Europe SEC Reports, for
warrants to be issued to Gleacher NatWest Inc. upon the consummation of the
Merger or as described in the preceding sentence, (i) since December 31, 1996,
no shares of Transmedia Europe Common Stock have been issued, except upon the
exercise of options described in the immediately preceding sentence, and (ii)
there are no outstanding Transmedia Europe Equity Rights. For purposes of this
Agreement, "Transmedia Europe Equity Rights" shall mean subscriptions, options,
warrants, calls, commitments, agreements, conversion rights or other rights of
any character (contingent or otherwise) to purchase or otherwise acquire from
Transmedia Europe or any of Transmedia Europe's Subsidiaries at any time, or
upon the happening of any stated event, any shares of the capital stock of
Transmedia Europe.
(b) Except as disclosed in the Transmedia Europe SEC Reports,
there are no outstanding obligations of Transmedia Europe or any of Transmedia
Europe's Subsidiaries to repurchase, redeem or otherwise acquire any shares of
capital stock of Transmedia Europe.
(c) All of the issued and outstanding shares of Transmedia
Europe Common Stock and Transmedia Europe Convertible Preferred Stock are
validly issued, fully paid and nonassessable.
(d) Except as disclosed in the Transmedia Europe SEC Reports,
there are no existing subscriptions, options, warrants,
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calls, commitments, agreements, conversion rights or other rights of any
character (contingent or otherwise) to purchase or otherwise acquire from
Transmedia Europe or any of Transmedia Europe's Subsidiaries at any time, or
upon the happening of any stated event, any shares of the capital stock of any
Transmedia Europe Subsidiary, whether or not presently issued or outstanding,
and there are no outstanding obligations of Transmedia Europe or any of
Transmedia Europe's Subsidiaries to repurchase, redeem or otherwise acquire any
shares of capital stock of any of Transmedia Europe's Subsidiaries.
SECTION 4.3 - Authority Relative to this Agreement. Transmedia
Europe has the necessary corporate power and authority to enter into this
Agreement and, subject to obtaining any necessary stockholder approval of the
Reorganization, to carry out its obligations hereunder. The execution and
delivery of this Agreement by Transmedia Europe and the consummation by
Transmedia Europe of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Transmedia Europe,
subject to the approval of the Reorganization by Transmedia Europe's
stockholders required by Delaware Law. This Agreement has been duly executed and
delivered by Transmedia Europe and, assuming the due authorization, execution
and delivery thereof by the other Parties, constitutes a legal, valid and
binding obligation of Transmedia Europe, enforceable against it in accordance
with its terms, subject, as to enforceability, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
SECTION 4.4 - No Conflict; Required Filings and Consents. (a)
Except as described in subsection (b) below, the execution and delivery of this
Agreement by Transmedia Europe do not, and, subject to the obtaining of the
Transmedia Europe Stockholder Approvals (as defined below), the performance of
this Agreement by Transmedia Europe will not, (i) violate or conflict with the
Certificate of Incorporation or Bylaws of Transmedia Europe, (ii) conflict with
or violate any law, regulation, court order, judgment or decree applicable to
Transmedia Europe or any of its Subsidiaries or by which any of their respective
property is bound or affected, (iii) violate or conflict with the Certificate of
Incorporation or Bylaws (or other similar corporate governance documents) of any
of Transmedia Europe's Subsidiaries, or (iv) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination or
cancellation of, or result in the creation of a
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lien or encumbrance on any of the properties or assets of Transmedia Europe or
any of its Subsidiaries pursuant to, result in the loss of any material benefit
under, or require the consent of any other party to, any contract, instrument,
permit, license or franchise to which Transmedia Europe or any of its
Subsidiaries is a party or by which Transmedia Europe, any of such Subsidiaries
or any of their respective property is bound or affected, except, in the case of
clauses (ii), (iii) or (iv) above, for conflicts, violations, breaches,
defaults, results or consents which, individually or in the aggregate, would not
have a Material Adverse Effect on Transmedia Europe.
(b) Except as for applicable requirements, if any, of state or
foreign regulatory laws and commissions, the 1933 Act, the Exchange Act, filing
and recordation of appropriate merger or other documents as required by Delaware
Law and any filings required pursuant to any state securities or "blue sky" laws
or the rules of Nasdaq, Transmedia Europe is not required to submit any notice,
report or other filing with, or obtain any consent or approval of, any
governmental authority, domestic or foreign, in connection with the execution,
delivery or performance of this Agreement, the failure to obtain, make or give
which would have, in the aggregate, a Material Adverse Effect on Transmedia
Europe.
SECTION 4.5 - SEC Filings; Financial Statements. (a)
Transmedia Europe has filed all forms, reports, proxy statements and other
documents required to be filed with the SEC since October 1, 1995, and has
heretofore delivered or made available to Transmedia Asia, in the form filed
with the SEC, together with any amendments thereto, its (i) Annual Reports on
Form 10-K (including all amendments thereto) for the fiscal years ended
September 30, 1995 and 1996, (ii) all proxy statements relating to Transmedia
Europe's meetings of stockholders (whether annual or special) held since October
1, 1995, (iii) Quarterly Reports on Form 10-Q for the fiscal quarters ended
December 31, 1995, March 31, 1996 and June 30, 1996, and (iv) all other reports
or registration statements (including all amendments thereto) filed by
Transmedia Europe with the SEC since October 1, 1995 (collectively, the
"Transmedia Europe SEC Reports"). The Transmedia Europe SEC Reports (i) were
prepared substantially in accordance with the requirements of the 1933 Act or
the Exchange Act, as the case may be, and the rules and regulations promulgated
under each of such respective acts, and (ii) did not at the time they were filed
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
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(b) The financial statements, including all related notes and
schedules, contained in the Transmedia Europe SEC Reports (or incorporated by
reference therein) fairly present the consolidated financial position of
Transmedia Europe and its Subsidiaries as at the respective dates thereof and
the consolidated results of operations and cash flows of Transmedia Europe and
its Subsidiaries for the periods indicated in accordance with GAAP applied on a
consistent basis throughout the periods involved (except for changes in
accounting principles disclosed in the notes thereto) and subject in the case of
interim financial statements to normal year-end adjustments.
SECTION 4.6 - Litigation. Except as disclosed in the
Transmedia Europe SEC Reports, there are no claims, actions, suits, proceedings
or investigations pending or, to Transmedia Europe's knowledge, threatened
against Transmedia Europe or any of its Subsidiaries, or any properties or
rights of Transmedia Europe or any of its Subsidiaries, before any court,
administrative, governmental, arbitral, mediation or regulatory authority or
body, domestic or foreign, adversely affecting this Agreement or any action
taken or to be taken or documents executed or to be executed pursuant to or in
connection with the provisions of this Agreement.
SECTION 4.7 - No Violation of Law. The business of Transmedia
Europe and its Subsidiaries is not being conducted in violation of any Legal
Requirements or in violation of any Permits, except for possible violations none
of which, individually or in the aggregate, may reasonably be expected to have a
Material Adverse Effect on Transmedia Europe and for matters disclosed in the
Transmedia Europe SEC Reports. Except as disclosed in the Transmedia Europe SEC
Reports, no investigation or review by any domestic or foreign governmental or
regulatory entity (including any stock exchange or other self-regulatory body)
with respect to Transmedia Europe or its Subsidiaries in relation to any alleged
violation of law or regulation is pending or, to Transmedia Europe's knowledge,
threatened, nor has any governmental or regulatory entity (including any stock
exchange or other self-regulatory body) indicated an intention to conduct the
same, except for such investigations which, if they resulted in adverse
findings, would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Transmedia Europe.
SECTION 4.8 - Joint Proxy Statement. None of the information
supplied or to be supplied by or on behalf of Transmedia Europe for inclusion or
incorporation by reference in the Registration Statement will, at the time the
Registration
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Statement becomes effective under the 1933 Act, contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. None of the information supplied or to be
supplied by or on behalf of Transmedia Europe for inclusion or incorporation by
reference in the Joint Proxy Statement will, at the dates mailed to stockholders
and at the times of the Transmedia Asia stockholders' meeting and the Transmedia
Europe stockholders' meeting, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading. The Registration Statement and the Joint Proxy
Statement (except for information relating solely to Transmedia Asia) will
comply as to form in all material respects with the provisions of the 1933 Act
and the Exchange Act and the rules and regulations promulgated thereunder.
SECTION 4.9 - Board Action; Vote Required; Applicability of
Section 203. (a) The Board of Directors of Transmedia Europe has unanimously
determined that the transactions contemplated by this Agreement are in the best
interests of Transmedia Europe and its stockholders and has resolved to
recommend to such stockholders that they vote in favor thereof.
(b) The approval of (i) the Merger and the issuance of
Transmedia Europe Common Stock pursuant thereto, (ii) the Transmedia Europe
Asset Conveyance and (iii) the amendments to the Transmedia Europe Option Plan
and the Transmedia Europe 1995 Outside Directors Stock Option Plan to increase
the number of shares of Transmedia Europe Common Stock thereunder, in each case,
by a majority of the votes entitled to be cast by all holders of Transmedia
Europe Common Stock (the "Transmedia Europe Stockholders' Approvals") are the
only votes of the holders of any class or series of the capital stock of
Transmedia Europe required to approve this Agreement, the Reorganization and the
other transactions contemplated hereby.
(c) The provisions of Section 203 of the Delaware Law will
not, assuming the accuracy of the representations contained in Section 3.14
hereof (without giving effect to the knowledge qualification therein), apply to
this Agreement or any of the transactions contemplated hereby.
SECTION 4.10 - Opinion of Financial Advisor. Transmedia Europe
has received the opinion of Gleacher NatWest
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Inc. ("Gleacher") to the effect that the Transmedia Asia Exchange Ratio is fair
from a financial point of view to Transmedia Europe and, accordingly, to the
holders of Transmedia Europe Common Stock.
SECTION 4.11 - Brokers. Except for Gleacher, the arrangements
with which have been disclosed to Transmedia Asia prior to the date hereof, who
has been engaged by Transmedia Europe, no broker, finder or investment banker is
entitled to any brokerage, finder's, investment banking or other fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Transmedia Europe or any of its
Subsidiaries.
SECTION 4.12 - Tax Matters. Except as set forth on Schedule
4.12 hereto:
(a) All material federal and foreign tax returns and tax
reports required to be filed by Transmedia Europe or its Subsidiaries on or
prior to the Effective Time or with respect to taxable periods ending on or
prior to the Effective Time have been or will be filed with the appropriate
governmental authorities on or prior to the Effective Time or by the due date
thereof including extensions;
(b) All material state and local tax returns and tax reports
required to be filed by Transmedia Europe or its Subsidiaries on or prior to the
Effective Time or with respect to taxable periods ending on or prior to the
Effective Time which relate to income, profits, franchise, property, sales, use
or other taxes, have been or will be filed with the appropriate governmental
authorities on or prior to the Effective Time or by the due date thereof
including extensions;
(c) The tax returns and tax reports referred to in subparts
(a) and (b) of this Section 4.12 correctly reflect (and as to returns not filed
as of the date hereof, will correctly reflect) all material tax liabilities of
Transmedia Europe and its Subsidiaries required to be shown thereon;
(d) The representations and warranties contained in the
Transmedia Europe Officer's Certificate attached hereto as Schedules 4.12(d) are
true and correct in all material respects; and
(e) Neither Transmedia Europe nor any of its Affiliates has
knowingly taken or agreed to take any action that would (i) prevent or impede
the Merger from qualifying as a tax-
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free transaction under the Code, or (ii) make untrue any representation or
warranty contained in any of the Officer's Certificates referred to in Section
4.12(d) hereof.
SECTION 4.13 - Material Contracts. (a) Transmedia Europe's
Annual Reports on Form 10-K for the fiscal years ended September 30, 1995 and
September 30, 1996 lists each material contract (as such term is used in
Regulation S-K promulgated by the SEC) to which Transmedia Europe or any of its
Subsidiaries is a party (the "Transmedia Europe Material Contracts").
(b) To the knowledge of Transmedia Europe, each Transmedia
Europe Material Contract is in full force and effect and is enforceable in all
material respects against the parties thereto in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general principles of equity, and no condition or state of facts exists
that, with notice or the passage of time, or both, would constitute a material
default by Transmedia Europe or any of its Subsidiaries or any third party under
any Transmedia Europe Material Contract, except for such failure to be in full
force or effect or enforceable or such defaults which, individually or in the
aggregate, would not have a Material Adverse Effect on Transmedia Asia.
SECTION 4.14 - Ownership of Securities. As of the date hereof,
except as disclosed in the Transmedia Europe SEC Reports or as disclosed in the
Transmedia Asia SEC Reports, to Transmedia Europe's knowledge, none of its
affiliates or associates (as such terms are defined under the Exchange Act),
(a)(i) beneficially owns, directly or indirectly, or (ii) is party to any
agreement, arrangement or understanding for the purpose of acquiring, holding,
voting or disposing of, in each case, shares of capital stock of Transmedia
Asia, which in the aggregate represent 10% or more of the outstanding shares of
Transmedia Asia Common Stock, or (b) is an "interested stockholder" of
Transmedia Asia within the meaning of Section 203 of the Delaware Law.
Transmedia Europe owns no shares of Transmedia Asia Common Stock.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE REORGANIZATION
SECTION 5.1 - Conduct of Business in the Ordinary Course. Each
of Transmedia Asia and Transmedia Europe covenants and agrees that, subject to
the provisions of Section 6.13 hereof, between the date of this Agreement and
the Effective
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Time, unless the other shall otherwise consent in writing, and except for the
acquisition of the business of Countdown, plc, Holding Corp. (the "Countdown
Acquisition") or as otherwise expressly contemplated hereby, the business of
such Party and its Subsidiaries shall be conducted only in, and such entities
shall not take any action except in, the ordinary course of business and in a
manner consistent with past practice; and each of Transmedia Asia and Transmedia
Europe and their respective Subsidiaries will use their commercially reasonable
efforts to preserve substantially intact their business organizations, to keep
available the services of those of their present officers, employees and
consultants who are integral to the operation of their businesses as presently
conducted and to preserve their present relationships with significant customers
and suppliers and with other persons with whom they have significant business
relations. By way of amplification and not limitation, except in connection with
the Countdown Acquisition or as otherwise expressly contemplated by this
Agreement, each of Transmedia Asia and Transmedia Europe agrees on behalf of
itself and its Subsidiaries that they will not, between the date of this
Agreement and the Effective Time, directly or indirectly, issue, sell, pledge,
dispose of, encumber, authorize, or propose the issuance, sale, pledge,
disposition, encumbrance or authorization of any shares of capital stock of any
class, or any options, warrants, convertible securities or other rights of any
kind to acquire any shares of capital stock of, or any other ownership interest
in, such Party or any of its Subsidiaries, except for (A) grants of stock
options with respect to Transmedia Asia Common Stock or Transmedia Europe Common
Stock to employees or directors under the Transmedia Asia Option Plan, the
Transmedia Asia 1995 Outside Directors Stock Option Plan, the Transmedia Europe
Option Plan or the Transmedia Europe 1995 Outside Directors Stock Option Plan,
as the case may be, in the ordinary course of business and in amounts and in a
manner consistent with past practice; and (B) the issuance of shares of
Transmedia Asia Common Stock or Transmedia Europe Common Stock upon the due
exercise of stock options or warrants issued, as of the date hereof, by
Transmedia Asia or Transmedia Europe, as the case may be.
SECTION 5.2 - Subsequent Financial Statements. Prior to the
Effective Time, each of Transmedia Asia and Transmedia Europe will timely file
with the SEC, each Annual Report on Form 10-K, Quarterly Report on Form 10-Q and
Current Report on Form 8-K required to be filed by such Party under the Exchange
Act and the rules and regulations promulgated thereunder and will promptly
deliver to the other copies of each such report filed with the SEC. As of their
respective dates, none of such reports
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shall contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The respective audited financial statements and unaudited interim
financial statements of each of Transmedia Asia and Transmedia Europe, as the
case may be, included in such reports will fairly present the financial position
of such Party and its Subsidiaries as at the dates thereof and the results of
their operations and cash flows for the periods then ended in accordance with
GAAP applied on a consistent basis and, subject, in the case of unaudited
interim financial statements, to normal year-end adjustments and any other
adjustments described therein.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 - Joint Proxy Statement and the Registration
Statement. (a) As promptly as practicable after the execution and delivery of
this Agreement, the Parties shall prepare and file with the SEC, and shall use
all reasonable efforts to have cleared by the SEC, and promptly thereafter shall
mail to the holders of record of shares of Transmedia Europe Common Stock and
Transmedia Asia Common Stock, the Joint Proxy Statement; provided, however, that
Transmedia Asia and Transmedia Europe shall not mail or otherwise furnish the
Joint Proxy Statement to their respective stockholders unless and until:
(i) they have received notice from the SEC
that the Registration Statement is effective under the 1933 Act;
(ii) Transmedia Asia shall have received a
letter from KPMG London England ("KPMG"), dated the effective date of the
Registration Statement, to the effect set forth in Section 7.1(g) hereof, and a
letter from First Albany, dated within two business days of the date of the
first mailing of the Joint Proxy Statement, to the effect set forth in Section
3.10 hereof;
(iii) Transmedia Europe shall have received a
letter from KPMG, dated the effective date of the Registration Statement, to the
effect set forth in Section 7.1(g) hereof, and a letter from Gleacher dated
within two business days of the date of the first mailing of the Joint Proxy
Statement, to the effect set forth in Section 4.10 hereof;
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(iv) Transmedia Asia shall have received a
letter of KPMG, dated a date within three business days prior to the date of the
first mailing of the Joint Proxy Statement, and addressed to Transmedia Asia, in
form and substance reasonably satisfactory to Transmedia Asia and customary in
scope and substance for "cold comfort" letters delivered by independent public
accountants in connection with registration statements on Form S-4 with respect
to the financial statements of Transmedia Europe included in the Joint Proxy
Statement and the Registration Statement; and
(v) Transmedia Europe shall have received a
letter of KPMG, dated a date within three business days prior to the date of the
first mailing of the Joint Proxy Statement, and addressed to Transmedia Europe,
in form and substance reasonably satisfactory to Transmedia Europe and customary
in scope and substance for "cold comfort" letters delivered by independent
public accountants in connection with registration statements on Form S-4 with
respect to the financial statements of Transmedia Asia included in the Joint
Proxy Statement and the Registration Statement.
(b) The Parties will cooperate in the preparation of the Joint
Proxy Statement and the Registration Statement and in having the Registration
Statement declared effective as soon as practicable.
SECTION 6.2 - Transmedia Asia and Transmedia Europe
Stockholders' Meetings; Consummation of the Transmedia Europe Asset Conveyance;
and Consummation of the Merger. (a) At the earliest reasonably practicable time
following the execution and delivery of this Agreement, each of Transmedia Asia
and Transmedia Europe shall promptly take all action necessary in accordance
with Delaware Law and its Certificate of Incorporation and Bylaws to convene a
Stockholders' Meeting. The stockholder vote or consent required for approval of
the Reorganization will be no greater than that contemplated by Sections 3.9(b)
and 4.9(b) hereof; provided, however, that Transmedia Europe may submit to its
stockholders a single proposal encompassing the Transmedia Europe Stockholder
Approvals, which proposal shall be approved if it receives the affirmative vote
of a majority of the votes entitled to be cast by all holders of Transmedia
Europe Common Stock. Each of Transmedia Asia and Transmedia Europe shall use all
commercially reasonable efforts to solicit from its respective stockholders
proxies to be voted at its Stockholders Meeting in favor of this Agreement
pursuant to the Joint Proxy Statement and, subject to the fiduciary duties of
its Board of Directors, each of Transmedia Asia and Transmedia Europe shall
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include in the Joint Proxy Statement the recommendation of its Board of
Directors in favor of this Agreement and the Merger and, in the case of
Transmedia Europe, the Transmedia Europe Asset Conveyance and the amendments to
the Transmedia Europe Option Plan and the Transmedia Europe 1995 Outside
Directors Stock Option Plan. Each of the Parties shall take all other action
necessary or, in the opinion of the other Parties, advisable to promptly and
expeditiously secure any vote or consent of stockholders required by Delaware
Law and such Party's Certificate of Incorporation and Bylaws to effect the
Reorganization.
(b) Upon the terms and subject to the conditions hereof and as
soon as practicable after the conditions set forth in Article VII hereof have
been fulfilled or waived, (i) each of Transmedia Europe and E-Sub shall execute
all conveyance documents, including a Xxxx of Sale and Assignment and Assumption
Agreement, and shall take all such other actions as may be required to effect
the Transmedia Europe Asset Conveyance, and (ii) immediately following the
consummation of the Transmedia Europe Asset Conveyance, each of the Parties
(other than E-Sub) shall execute in the manner required by Delaware Law and
deliver to and file with the Secretary of State of the State of Delaware such
instruments and agreements as may be required by Delaware Law and the Parties
(other than E-Sub) shall take all such other and further actions as may be
required by law to make the Merger effective. Simultaneously with the taking of
the actions referred to in this Section 6.2(b), a closing (the "Closing") will
be held at the offices of Transmedia Europe (or such other place as the Parties
may agree) for the purpose of confirming all the foregoing. The Closing will
take place upon the fulfillment or waiver of all of the conditions to closing
set forth in Article VII of this Agreement, or as soon thereafter as practicable
(the date of the Closing being herein referred to as the "Closing Date").
SECTION 6.3 - Additional Agreements. Each of the Parties will
comply in all material respects with all applicable laws and with all applicable
rules and regulations of any governmental authority in connection with its
execution, delivery and performance of this Agreement and the transactions
contemplated hereby. Each of the Parties agrees to use all commercially
reasonable efforts to obtain in a timely manner all necessary waivers, consents
and approvals and to effect all necessary registrations and filings, and to use
all commercially reasonable efforts to take, or cause to be taken, all other
actions and to do, or cause to be done, all other things necessary, proper or
advisable to consummate and make effective
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as promptly as practicable the transactions contemplated by this Agreement.
SECTION 6.4 - Access to Information. From the date hereof to
the Effective Time, each of Transmedia Asia and Transmedia Europe shall, and
shall cause its respective Subsidiaries, and its and their officers, directors,
employees, auditors, counsel and agents to afford the officers, employees,
auditors, counsel and agents of the other Party complete access at all
reasonable times to such Party's and its Subsidiaries' officers, employees,
auditors, counsel agents, properties, offices and other facilities and to all of
their respective books and records, and shall furnish the other with all
financial, operating and other data and information as such other Party may
reasonably request.
SECTION 6.5 - Public Announcements. Transmedia Asia and
Transmedia Europe shall use all reasonable efforts to develop a joint
communications plan and each Party shall use all reasonable efforts to ensure
that all press releases and other public statements with respect to the
transactions contemplated hereby shall be consistent with such joint
communications plan or, to the extent inconsistent therewith, shall have
received the prior written approval of the other.
SECTION 6.6 - Cooperation. Upon the terms and subject to the
conditions hereof, each of the Parties agrees to use its commercially reasonable
efforts to take or cause to be taken all actions and to do or cause to be done
all things necessary, proper or advisable to consummate the transactions
contemplated by this Agreement and shall use its commercially reasonable efforts
to obtain all necessary waivers, consents and approvals, and to effect all
necessary filings under the 1933 Act, the Exchange Act and under any applicable
state securities or "blue sky" laws. The Parties shall cooperate in responding
to inquiries from, and making presentations to, regulatory authorities.
SECTION 6.7 - Indemnification, Directors' and Officers'
Insurance. For a period of six years after the Effective Time, Transmedia Europe
shall cause Transmedia Asia to (a) maintain in effect the current provisions
regarding indemnification of officers and directors contained in the charter and
bylaws of Transmedia Asia and its Subsidiaries and any directors, officers or
employees indemnification agreements of Transmedia Asia and its Subsidiaries,
(b) maintain in effect the current policies of directors' and officers'
liability insurance and fiduciary liability insurance maintained by Transmedia
Asia (provided that
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Transmedia Europe may substitute therefor policies of at least the same coverage
and amounts containing terms and conditions which are, in the aggregate, no less
advantageous to the insured in any material respect) with respect to claims
arising from facts or events which occurred on or before the Effective Time, and
(c) indemnify the directors and officers of Transmedia Asia to the fullest
extent to which Transmedia Asia is permitted to indemnify such officers and
directors under its certificate of incorporation and bylaws and applicable law.
Transmedia Europe hereby unconditionally and irrevocably guarantees for the
benefit of such directors, officers and employees the obligations of Transmedia
Asia under the foregoing indemnification arrangements.
SECTION 6.8 - Nasdaq Listing. Each of the Parties shall use
its best efforts to obtain, prior to the Effective Time, the approval for
listing on Nasdaq, effective upon official notice of issuance, of the shares of
Transmedia Europe Common Stock into which the shares of Transmedia Asia Common
Stock will be converted pursuant to Article II hereof and which will be issuable
upon exercise of options and warrants pursuant to Section 2.8 hereof.
SECTION 6.9 - Certificate of Incorporation and Bylaws of
Transmedia Europe; Corporate Identities of Transmedia Europe and E-Sub. (a)
Immediately prior to the Effective Time, Transmedia Europe shall cause its
Certificate of Incorporation and Bylaws to be amended and restated in a manner
reasonably acceptable to it and Transmedia Asia.
(b) Transmedia Europe and Transmedia Asia agree that at the
Effective Time, the corporate name of Transmedia Europe will be changed to
"Global Consumer Network Inc." or to such other name as Transmedia Asia and
Transmedia Europe may hereafter agree upon, and Transmedia Europe agrees to take
all action as may be necessary to effect such name change.
(c) Transmedia Europe and Transmedia Asia agree that at the
Effective Time, the corporate name of E-Sub will be changed to "Transmedia
Europe, Inc." or to such other name as Transmedia Asia and Transmedia Europe may
hereafter agree upon, and Transmedia Europe and E-Sub agree to take all action
as may be necessary action to effect such name change.
SECTION 6.10 - Post-Merger Transmedia Europe Board of
Directors and Officers. At the Effective Time, the total number of persons
serving on the Board of Directors of Transmedia Europe shall be agreed to in
writing by Transmedia Asia and Transmedia Europe prior to the Effective Time.
Unless otherwise agreed to
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by Transmedia Europe and Transmedia Asia, the directors of the Transmedia Europe
shall continue to serve as directors of Transmedia Europe from and after the
Effective Time. Such persons shall serve as directors of Transmedia Europe until
their successors are elected in accordance with Delaware Law and the Bylaws of
Transmedia Europe or until their earlier resignation or removal. In the event
that, prior to the Effective Time, any person so selected to serve on the Board
of Directors of Transmedia Europe is unable or unwilling to serve in such
position, the remaining members of the Board of Directors of Transmedia Europe
shall designate another person to serve in such person's stead. Unless otherwise
agreed to by Transmedia Europe and Transmedia Asia, the officers of Transmedia
Europe shall continue to serve in their respective offices in Transmedia Europe
from and after the Effective Time, until their successors are elected or
appointed and qualified or until their resignation or removal. Each of
Transmedia Asia and Transmedia Europe shall take such action as shall reasonably
be deemed by either thereof to be advisable to give effect to the provisions set
forth in this section.
SECTION 6.11 - Affiliates. (a) Each of Transmedia Asia and
Transmedia Europe (i) has disclosed to the other on Schedule 6.11 hereof all
Persons who are, or may be, at the time this Agreement is executed its
"affiliates" for purposes of Rule 145 under the 1933 Act or under Accounting
Series Releases 130 and 135 of the SEC, and (ii) shall use all reasonable
efforts to cause each Person who is identified as an "affiliate" of it on
Schedule 6.11 to deliver to the other as promptly as practicable but in no event
later than the Closing Date, a signed agreement substantially in the form of
Appendix I hereto. Transmedia Asia and Transmedia Europe shall notify each other
from time to time of any other Persons who then are, or may be, such an
"affiliate" and use all reasonable efforts to cause each additional Person who
is identified as an "affiliate" to execute a signed agreement as set forth in
this Section 6.11(a).
(b) If the transactions contemplated by this Agreement would
otherwise qualify for pooling of interests accounting treatment under GAAP,
shares of Transmedia Asia Common Stock and shares of Transmedia Europe Common
Stock held by such "affiliates" of Transmedia Asia or Transmedia Europe, as the
case may be, shall not be transferable during the 30 day period prior to the
Effective Time, and shares of Transmedia Europe Common Stock issued to such
"affiliates" of Transmedia Asia and Transmedia Europe shall not be transferable
until such time as financial results covering at least 30 days of combined
operations of Transmedia Asia and Transmedia Europe have been
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published within the meaning of Section 201.01 of the SEC's Codification of
Financial Reporting Policies, regardless of whether each such "affiliate" has
provided the signed agreement referred to in Section 6.11(a), except to the
extent permitted by, and in accordance with, SEC Accounting Series Release 135
and SEC Staff Accounting Bulletins 65 and 76, or such later time as notified by
Transmedia Europe so as to ensure that the transactions contemplated by this
Agreement qualify for pooling of interests accounting treatment under GAAP.
Transmedia Europe shall not register the transfer of any shares of Transmedia
Europe Common Stock unless such transfer is made in compliance with the
foregoing.
SECTION 6.12 - Blue Sky. Transmedia Asia and Transmedia Europe
will use their best efforts to obtain prior to the Effective Time all necessary
blue sky permits and approvals required to permit the distribution of the shares
of Transmedia Europe Common Stock to be issued in accordance with the provisions
of this Agreement.
SECTION 6.13 - Pooling of Interests. Each of the Parties will
use its best efforts to cause the transactions contemplated by this Agreement to
be accounted for as a pooling of interests in accordance with GAAP, and such
accounting treatment to be accepted by Transmedia Europe's independent certified
public accountants, by Nasdaq and by the SEC, respectively, and each of the
Parties agrees that it will take no action that would cause such accounting
treatment not to be obtained.
SECTION 6.14 - Tax-Free Transactions. Each of the Parties
(other than E-Sub) will use its best efforts to cause the Merger to qualify as a
tax-free transaction under the Code, except with respect to any cash received in
lieu of fractional shares by stockholders of Transmedia Asia in connection with
the Merger and cash received by stockholders of Transmedia Asia who properly
exercise their dissenters rights.
ARTICLE VII
CONDITIONS TO THE REORGANIZATION
SECTION 7.1 - Conditions to Obligations of Each Party to
Effect the Reorganization. The respective obligations of each Party to effect
the Reorganization shall be subject to the following conditions:
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(a) Stockholder Approval. The Merger and, in the case of
Transmedia Europe, the issuance of Transmedia Europe Common Stock pursuant to
the Merger and the Transmedia Europe Asset Conveyance shall have been approved
and adopted by the requisite vote of the stockholders of each of Transmedia Asia
and Transmedia Europe in accordance with Delaware Law and the rules of Nasdaq,
as applicable;
(b) Legality. No federal, state or foreign statute, rule,
regulation, executive order, decree or injunction shall have been enacted,
entered, promulgated or enforced by any court or governmental authority which is
in effect and has the effect of making the Transmedia Europe Asset Conveyance or
the Merger illegal or otherwise prohibiting the consummation of the Transmedia
Europe Asset Conveyance or the Merger;
(c) Dissenters' Rights. Transmedia Asia shall not have
received pursuant to Section 262 of Delaware Law written notices of intent to
demand appraisal in connection with the Merger with respect to shares of
Transmedia Asia Common Stock representing more than 1,400,000 shares, other than
notices which were withdrawn or are otherwise not in full force or effect at the
Effective Time;
(d) Registration Statement Effective. The Registration
Statement shall have become effective prior to the mailing by each of Transmedia
Asia and Transmedia Europe of the Joint Proxy Statement to its respective
stockholders, no stop order suspending the effectiveness of the Registration
Statement shall then be in effect, and no proceedings for that purpose shall
then be threatened by the SEC or shall have been initiated by the SEC and not
concluded or withdrawn;
(e) Blue Sky. All state securities or blue sky permits or
approvals required to carry out the transactions contemplated hereby shall have
been received;
(f) Nasdaq Listing. The shares of Transmedia Europe Common
Stock into which the shares of Transmedia Asia Common Stock will be converted
pursuant to Article II hereof and the shares of Transmedia Europe Common Stock
issuable upon the exercise of options or warrants pursuant to Section 2.7 hereof
shall have been duly approved for listing on Nasdaq, subject to official notice
of issuance;
(g) Pooling. Each of Transmedia Asia and Transmedia Europe
shall have received a letter from KPMG, dated as of the Closing Date, to the
effect that the transactions contemplated
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hereby will qualify for pooling of interests accounting treatment under GAAP;
(h) Consents Under Transmedia Asia Agreements. Transmedia Asia
shall have obtained the consent or approval of each Person whose consent or
approval shall be required under any agreement or instrument in order to permit
the consummation of the transactions contemplated hereby except those which the
failure to obtain would not, individually or in the aggregate, have a Material
Adverse Effect on Transmedia Europe, E-Sub or the Surviving Corporation; and
(i) Consents Under Transmedia Europe Agreements. Transmedia
Europe shall have obtained the consent or approval of each Person whose consent
or approval shall be required under any agreement or instrument in order to
permit the consummation of the transactions contemplated hereby except those
which the failure to obtain would not, individually or in the aggregate, have a
Material Adverse Effect on Transmedia Europe, E-Sub or the Surviving
Corporation.
SECTION 7.2 - Additional Conditions to Obligations of
Transmedia Asia. The obligations of Transmedia Asia to effect the Merger are
also subject to the fulfillment of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Transmedia Europe contained in this Agreement shall be true and
correct on the date hereof and (except to the extent such representations and
warranties speak as of an earlier date) shall also be true and correct on and as
of the Closing Date, with the same force and effect as if made on and as of the
Closing Date; provided, however, that for purposes of this Section 7.2(a) only,
such representations and warranties shall be deemed to be true and correct
unless the failure or failures of such representations and warranties to be so
true and correct (without regard to materiality qualifiers contained therein),
individually or in the aggregate, results or would reasonably be expected to
result in a Material Adverse Effect on Transmedia Europe (either with or without
giving effect to the ownership of Transmedia Asia and its Subsidiaries by
Transmedia Europe after the Merger);
(b) Agreements, Conditions and Covenants. Transmedia Europe
shall have performed or complied in all material respects with all agreements,
conditions and covenants required by this Agreement to be performed or complied
with by them on or before the Effective Time;
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(c) Certificates. Transmedia Asia shall have received a
certificate of an executive officer of Transmedia Europe to the effect set forth
in paragraphs (a) and (b) above;
(d) Tax Opinion. Transmedia Asia shall have received an
opinion of KPMG, dated as of the Closing Date, in form and substance reasonably
satisfactory to Transmedia Asia, substantially to the effect that, on the basis
of the facts, representations and assumptions set forth in such opinion: (A) no
gain or loss will be recognized for federal income tax purposes by Transmedia
Asia or A-Sub as a result of the formation of A-Sub and the Merger; and (B) no
gain or loss will be recognized for federal income tax purposes by the
stockholders of Transmedia Asia upon their exchange of Transmedia Asia Common
Stock solely for Transmedia Europe Common Stock pursuant to the Merger (except
with respect to cash received in lieu of fractional shares by stockholders of
Transmedia Asia in connection with the Merger and cash received by stockholders
who properly exercise their dissenters rights). In rendering such opinion, KPMG
may require and rely upon representations and covenants including those
contained in certificates of officers of Transmedia Europe, Transmedia Asia and
and E-Sub and others, including certain stockholders of Transmedia Asia; and
(e) Affiliate Agreements. Transmedia Asia shall have received
the agreements required by Section 6.11 hereof to be delivered by the Transmedia
Europe "affiliates," duly executed by each "affiliate" of Transmedia Europe.
SECTION 7.3 - Additional Conditions to Obligations of
Transmedia Europe. The obligations of Transmedia Europe to effect the Transmedia
Europe Asset Conveyance and the Merger are also subject to the fulfillment of
the following conditions:
(a) Representations and Warranties. The representations and
warranties of Transmedia Asia contained in this Agreement shall be true and
correct on the date hereof and (except to the extent such representations and
warranties speak as of an earlier date) shall also be true and correct on and as
of the Closing Date, with the same force and effect as if made on and as of the
Closing Date; provided, however, that for purposes of this Section 7.3(a) only,
such representations and warranties shall be deemed to be true and correct
unless the failure or failures of such representations and warranties to be so
true and correct (without regard to materiality qualifiers contained therein),
individually or in the aggregate, results or would reasonably be expected to
result in a Material Adverse Effect on Transmedia Asia or Transmedia Europe
(after giving effect to its
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ownership of Transmedia Asia and its Subsidiaries after the Merger);
(b) Agreements, Conditions and Covenants. Transmedia Asia
shall have performed or complied in all material respects with all agreements,
conditions and covenants required by this Agreement to be performed or complied
with by them on or before the Effective Time;
(c) Certificates. Transmedia Europe shall have received a
certificate of an executive officer of Transmedia Asia to the effect set forth
in paragraphs (a) and (b) above;
(d) Tax Opinion. Transmedia Asia shall have received the
opinion described in Section 7.2(d) hereof, in form and substance reasonably
satisfactory to Transmedia Europe; and
(e) Affiliate Agreements. Transmedia Europe shall have
received the agreements required by Section 6.11 hereof to be delivered by the
Transmedia Asia "affiliates," duly executed by each "affiliate" of Transmedia
Asia.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1 - Termination. This Agreement may be terminated at
any time before the Effective Time, in each case as authorized by the respective
Board of Directors of Transmedia Asia or Transmedia Europe:
(a) By mutual written consent of each of Transmedia Asia and
Transmedia Europe;
(b) By either Transmedia Asia or Transmedia Europe if the
Reorganization shall not have been consummated on or before July 31, 1997, (the
"Termination Date"); provided, however, that the right to terminate this
Agreement under this Section 8.1(b) shall not be available to any Party whose
failure to fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Effective Time to occur on or before the
Termination Date;
(c) By either Transmedia Asia or Transmedia Europe if a court
of competent jurisdiction or governmental, regulatory or administrative agency
or commission shall have issued an order, decree or ruling or taken any other
action (which order, decree or ruling the Parties shall use their commercially
reasonable
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efforts to lift), in each case permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement, and such order,
decree, ruling or other action shall have become final and nonappealable;
(d) By either Transmedia Asia or Transmedia Europe if the
Board of Directors of the other or any committee of the Board of Directors of
the other (i) shall withdraw or modify in any adverse manner its approval or
recommendation of this Agreement or the Merger, or, in the case of Transmedia
Europe, the Transmedia Europe Asset Conveyance, (ii) shall fail to reaffirm such
approval or recommendation upon such Party's request, (iii) shall approve or
recommend any acquisition of the other or a material portion of its assets or
any tender offer for shares of its capital stock, in each case, other than by a
Party or an Affiliate thereof, or (iv) shall resolve to take any of the actions
specified in clause (i) above; or
(e) By either Transmedia Asia or Transmedia Europe if any of
the required approvals of the stockholders of Transmedia Asia or of Transmedia
Europe shall fail to have been obtained at a duly held stockholders meeting of
either of such companies, including any adjournments thereof.
SECTION 8.2 - Effect of Termination. In the event of
termination of this Agreement as provided in Section 8.1 hereof, and subject to
the provisions of Section 9.1 hereof, this Agreement shall forthwith become void
and there shall be no liability on the part of any of the Parties, except (i) as
set forth in this Section 8.2 and in Sections 9.2 and 9.3 hereof, and (ii)
nothing herein shall relieve any Party from liability for any willful breach
hereof.
SECTION 8.3 - Amendment. This Agreement may be amended by the
Parties pursuant to a writing adopted by action taken by all of the Parties at
any time before the Effective Time; provided, however, that, after approval of
the Agreement by the stockholders of Transmedia Asia or Transmedia Europe,
whichever shall occur first, no amendment may be made which would (a) alter or
change the amount or kinds of consideration to be received by the holders of
Transmedia Asia Shares upon consummation of the Merger, (b) alter or change any
term of the Certificate of Incorporation of the Surviving Corporation or
Transmedia Europe (except for the implementation of any amendments contemplated
hereby), or (c) alter or change any of the terms and conditions of this
Agreement if such alteration or change would adversely affect the holders of any
class or series of securities of
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Transmedia Asia or Transmedia Europe. This Agreement may not be amended except
by an instrument in writing signed by the Parties.
SECTION 8.4 - Waiver. At any time before the Effective Time,
any Party may (a) extend the time for the performance of any of the obligations
or other acts of the other Parties, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the agreements or
conditions contained herein. Any agreement on the part of a Party to any such
extension or waiver shall be valid only as against such Party and only if set
forth in an instrument in writing signed by such Party.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 - Non-Survival of Representations, Warranties and
Agreements. The representations, warranties and agreements in this Agreement
shall terminate at the Effective Time or upon the termination of this Agreement
pursuant to Section 8.1 hereof, as the case may be, except that (a) the
agreements set forth in Article I and Sections 2.3, 2.4, 2.5, 2.6 and 6.8 hereof
shall survive the Effective Time indefinitely, (b) the agreements set forth in
Sections 9.2 and 9.3 hereof shall survive termination indefinitely and (c)
nothing contained herein shall limit any covenant or agreement of the Parties
which by its terms contemplates performance after the Effective Time.
SECTION 9.2 - Notices. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed to have
been duly given or made as of the date of receipt and shall be delivered
personally or mailed by registered or certified mail (postage prepaid, return
receipt requested), sent by overnight courier or sent by telecopy, to the
Parties at the following addresses or telecopy numbers (or at such other address
or telecopy number for a Party as shall be specified by like notice):
(a) if to Transmedia Asia:
Transmedia Asia Pacific, Inc.
00 Xx. Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: President
Telecopy No.: 00-000-000-0000
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with a copy to:
Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
(b) if to Transmedia Europe, A-Sub or E-Sub:
Transmedia Europe, Inc.
00 Xx. Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: President
Telecopy No.: 00-000-000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
SECTION 9.3 - Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the Party incurring such costs and expenses, except that those expenses
incurred in connection with the printing of the Joint Proxy Statement and the
Registration Statement, as well as the filing fees related thereto, shall be
shared equally by Transmedia Asia and Transmedia Europe.
SECTION 9.4 - Certain Definitions. For purposes of this
Agreement, the following terms shall have the following meanings:
(a) "1933 Act" means the Securities Act of 1933, as the same
may be amended from time to time.
(b) "Affiliate" of a Person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the first mentioned Person.
(c) "Exchange Act" means the Securities Exchange Act of 1934,
as the same may be amended from time to time.
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(d) "control" (including the terms "controlled by" and "under
common control with") means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of stock, as trustee or executor, by contract or
credit arrangement or otherwise.
(e) "knowledge" of any Party shall mean the actual knowledge
of the executive officers of such Party.
(f) "Material Adverse Effect" means any change in or effect on
the business of the referenced corporation or any of its Subsidiaries that is or
will be materially adverse to the business, operations (including the income
statement), properties (including intangible properties), condition (financial
or otherwise), assets or liabilities of such referenced corporation and its
Subsidiaries taken as a whole.
(g) "Person" means an individual, corporation, partnership,
association, trust, unincorporated organization, entity or group (as defined in
the Exchange Act).
(h) "Subsidiary", "Transmedia Asia Subsidiary", or "Transmedia
Europe Subsidiary" means any corporation or other legal entity of which
Transmedia Asia or Transmedia Europe, as the case may be (either alone or
through or together with any other Subsidiary or Subsidiaries), owns, directly
or indirectly, more than 50% of the stock or other equity interests the holders
of which are generally entitled to vote for the election of the board of
directors or other governing body of such corporation or other legal entity.
SECTION 9.5 - Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 9.6 - 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 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
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that the transactions contemplated hereby are fulfilled to the maximum extent
possible.
SECTION 9.7 - Entire Agreement; No Third-Party Beneficiaries.
This Agreement constitutes the entire agreement and, except as expressly set
forth herein, supersedes any and all other prior agreements and undertakings,
both written and oral, among the Parties, or any of them, with respect to the
subject matter hereof and, except for Section 7.8 (Indemnification, Directors'
and Officers' Insurance) and Section 7.12 (Post-Merger Transmedia Europe Board
of Directors), is not intended to confer upon any Person other than Transmedia
Asia, Transmedia Europe, A-Sub and E-Sub and, after the Effective Time, their
respective stockholders, any rights or remedies hereunder.
SECTION 9.8 - Assignment. This Agreement shall not be assigned
by operation of law or otherwise.
SECTION 9.9 - Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed entirely within that
State, without regard to the conflicts of laws provisions thereof.
SECTION 9.10 - Counterparts. This Agreement may be executed in
one or more counterparts, and by the different Parties in separate counterparts,
each of which when executed shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
TRANSMEDIA EUROPE, INC.
By:/s/ Xxxxxx X. Xxxxxx III
_______________________________________
Name: Xxxxxx X. Xxxxxx III
Title: President and Chief
Executive Officer
TRANSMEDIA ASIA ACQUISITION
CORPORATION
By:/s/ Xxxxxx X. Xxxxxx III
_______________________________________
Name: Xxxxxx X. Xxxxxx III
Title: President and Chief
Executive Officer
TRANSMEDIA ASIA PACIFIC, INC.
By:/s/ Xxxxxx X. Xxxxxx III
_______________________________________
Name: Xxxxxx X. Xxxxxx III
Title: President and Chief
Executive Officer
TRANSMEDIA EUROPE ACQUISITION
CORPORATION
By:/s/ Xxxxxx X. Xxxxxx III
_______________________________________
Name: Xxxxxx X. Xxxxxx III
Title: President and Chief
Executive Officer
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