Exhibit 10.1
STOCK OPTION AGREEMENT (CDNOW)
STOCK OPTION AGREEMENT, dated as of October 22, 1998 (the
"Agreement"), between CDnow, Inc., a Pennsylvania corporation (the "Grantee"),
and N2K Inc., a Delaware corporation (the "Grantor").
WHEREAS, the Grantee, Exit 8 Holding Company, a Pennsylvania
corporation ("NewCo"), and the Grantor are entering into an Agreement and Plan
of Merger, dated as of the date hereof (the "Merger Agreement"), which provides,
among other things, for the merger (the "CDnow Merger") of a subsidiary of NewCo
with and into the Grantee and the merger (the "N2K Merger") of another
subsidiary of NewCo with and into the Grantor, such that the Grantee and the
Grantor will become wholly-owned subsidiaries of NewCo and the stockholders of
the Grantee and the Grantor will become stockholders of NewCo (the CDnow Merger
and the N2K Merger collectively, the "Mergers");
WHEREAS, pursuant to a Stock Option Agreement dated as of the date
hereof between the Grantee and the Grantor, the Grantee has granted the Grantor
an option to acquire shares of common stock of the Grantee on terms that are
substantially similar to the terms of this Agreement (the "N2K Option");
WHEREAS, as a condition and inducement to their willingness to enter
into the Merger Agreement and the N2K Option, the Grantee and NewCo have
requested that the Grantor grant to the Grantee an option to purchase 2,827,229
shares of Common Stock, par value $.001 per share, of the Grantor (the "Common
Stock"), upon the terms and subject to the conditions hereof; and
WHEREAS, in order to induce the Grantee to enter into the Merger
Agreement and grant the N2K Option, the Grantor is willing to grant the Grantee
the requested option.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. THE OPTION; EXERCISE; ADJUSTMENTS; PAYMENT OF SPREAD.
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(a) Contemporaneously herewith the Grantee, NewCo and the
Grantor are entering into the Merger Agreement. Subject to the other terms and
conditions set forth herein, the Grantor hereby grants to the Grantee an
irrevocable option (the "Option") to purchase up to 2,827,229 (as adjusted as
provided herein) shares of Common Stock (the "Shares") at a per share cash
purchase price equal to the lower of (i) $5.50 per Share or (ii) the average
closing sales price of the Common Stock on the Nasdaq National Market ("Nasdaq")
for the five consecutive trading days beginning on and including the day that
the Mergers are publicly announced (as adjusted as provided herein) (such lower
price being the "Purchase Price"). The Option may be exercised by the Grantee,
in whole or in part, at any
time, or from time to time, following the occurrence of one of the events set
forth in Section 2(c) hereof and prior to the termination of the Option in
accordance with the terms of this Agreement.
(b) In the event the Grantee wishes to exercise the Option,
the Grantee shall send a written notice to the Grantor (the "Stock Exercise
Notice") specifying a date (subject to the HSR Act (as defined below)) not later
than 10 business days and not earlier than the next business day following the
date such notice is given for the closing of such purchase. In the event of any
change in the number of issued and outstanding shares of Common Stock by reason
of any stock dividend, stock split, split-up, reclassification,
recapitalization, merger or other change in the corporate or capital structure
of the Grantor (including the occurrence under the Grantor Rights Plan of a
Distribution Date (as defined therein)), the number of Shares subject to this
Option and the purchase price per Share shall be appropriately adjusted to
restore the Grantee to its rights hereunder, including its right to purchase
Shares representing 19.9% of the capital stock of the Grantor entitled to vote
generally for the election of the directors of the Grantor which is issued and
outstanding immediately prior to the exercise of the Option at an aggregate
purchase price equal to the Purchase Price multiplied by 2,827,229. In the event
that any additional shares of Common Stock are issued after the date of this
Agreement (other than pursuant to an event described in the preceding sentence),
the number of Shares subject to this Option shall be increased by 19.9% of the
number of the additional shares of Common Stock so issued (and such additional
Shares shall have a purchase price per share equal to the Purchase Price).
(c) If at any time the Option is then exercisable pursuant
to the terms of Section 1(a) hereof, the Grantee may elect, in lieu of
exercising the Option to purchase Shares provided in Section l(a) hereof, to
send a written notice to the Grantor (the "Cash Exercise Notice") specifying a
date not later than 20 business days and not earlier than 10 business days
following the date such notice is given on which date the Grantor shall pay to
the Grantee an amount in cash equal to the Spread (as hereinafter defined)
multiplied by all or such portion of the Shares subject to the Option as Grantee
shall specify. As used herein "Spread" shall mean the excess, if any, over the
Purchase Price of the higher of (x) if applicable, the highest price per share
of Common Stock (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by any person in an Alternative Transaction (as
defined in clause (i), (ii) or (iii) of Section 7.3(e) of the Merger Agreement)
(the "Alternative Purchase Price") or (y) the closing sales price of the shares
of Common Stock on the Nasdaq on the last trading day immediately prior to the
date of the Cash Exercise Notice (the "Closing Price"). If the Alternative
Purchase Price includes any property other than cash, the Alternative Purchase
Price shall be the sum of (i) the fixed cash amount, if any, included in the
Alternative Purchase Price plus (ii) the fair market value of such other
property. If such other property consists of securities with an existing public
trading market, the average of the closing sales prices (or the average of the
closing bid and asked prices if closing sales prices are unavailable) for such
securities in their principal public trading market on the five trading days
ending five days prior to the date of the Cash Exercise Notice shall be deemed
to equal the fair market value of such property. If such other property consists
of something other than cash or securities with an existing public trading
market and, as of the payment date for the Spread, agreement on the value of
such other
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property has not been reached, the Alternative Purchase Price shall be deemed to
equal the Closing Price. Upon exercise of the Grantee's right to receive cash
pursuant to this Section 1(c) and the payment of such cash to the Grantee, the
obligations of the Grantor to deliver Shares pursuant to Section 3 shall be
terminated with respect to such number of Shares for which the Grantee shall
have elected to be paid the Spread.
2. CONDITIONS TO DELIVERY OF SHARES. The Grantor's obligation to
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deliver Shares upon exercise of the Option is subject only to the conditions
that:
(a) No preliminary or permanent injunction or other order
issued by any federal or state court of competent jurisdiction in the United
States prohibiting the delivery of the Shares shall be in effect; and
(b) Any applicable waiting periods under the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") shall have
expired or been terminated and all other consents, approvals, orders,
notifications or authorizations, the failure of which to obtain or make would
have the effect of making the issuance of the Shares illegal (collectively, the
"Regulatory Approvals") shall have been obtained or made; and
(c) (i) a proposal for an Alternative Transaction (as
defined in the Merger Agreement) involving the Grantor shall have been publicly
announced prior to the time the Merger Agreement is terminated pursuant to the
terms thereof (the "Merger Termination Date") and one or more of the following
events shall have occurred on or after the time of the making of such proposal:
(A) the requisite vote of the stockholders of the Grantor in favor of adoption
and approval of the Merger Agreement shall not have been obtained at the N2K
Stockholders' Meeting (as defined in the Merger Agreement) or any adjournment or
postponement thereof, (B) the Board of Directors of the Grantor shall have
withdrawn or modified its recommendation of the Merger Agreement or the N2K
Merger or failed to confirm its recommendation of the Merger Agreement or the
N2K Merger to the stockholders of the Grantor within ten business days after a
written request by the Grantee to do so; (C) the Board of Directors of the
Grantor shall have recommended to the stockholders of the Grantor an Alternative
Transaction (as defined in the Merger Agreement); (D) a tender offer or exchange
offer for 20% or more of the outstanding shares of Grantor Common Stock shall
have been commenced (other than by the Grantee or an affiliate of the Grantee)
and the Board of Directors of the Grantor shall have recommended that the
stockholders of the Grantor tender their shares in such tender or exchange
offer; or (E) for any reason Grantor shall have failed to call and hold the N2K
Stockholders' Meeting (as defined in the Merger Agreement) by the Outside Date
(as defined in the Merger Agreement); provided, however, that the Option may not
be exercised if the Grantee is in material breach of any of its material
representations, warranties, covenants or agreements contained in this Agreement
or in the Merger Agreement; or (ii) the Merger Agreement shall have been
terminated by the Grantor pursuant to Section 7.1(g) of the Merger Agreement.
3. THE CLOSING.
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(a) Any closing hereunder shall take place on the date
specified by the Grantee in its Stock Exercise Notice or Cash Exercise Notice,
as the case may be, at 8:00 A.M., local time, at the offices of Xxxxx Xxxxxxxxxx
LLP, 1301 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000 or, if the conditions
set forth in Section 2(a) or 2(b) have not then been satisfied, on the second
business day following the satisfaction of such conditions, or at such other
time and place as the parties hereto may agree (the "Closing Date"). On the
Closing Date, (i) in the event of a closing pursuant to Section 1(b) hereof, the
Grantor will deliver to the Grantee a certificate or certificates, duly endorsed
(or accompanied by duly executed stock powers), representing the Shares in the
denominations designated by the Grantee in its Stock Exercise Notice and the
Grantee will purchase such Shares from the Grantor at the price per Share equal
to the Purchase Price or (ii) in the event of a closing pursuant to Section 1(c)
hereof, the Grantor will deliver to the Grantee cash in an amount determined
pursuant to Section 1(c) hereof. Any payment made by the Grantee to the Grantor,
or by the Grantor to the Grantee, pursuant to this Agreement shall be made by
certified or official bank check or by wire transfer of federal funds to a bank
designated by the party receiving such funds.
(b) The certificates representing the Shares may bear an
appropriate legend relating to the fact that such Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act").
4. REPRESENTATIONS AND WARRANTIES OF THE GRANTOR.
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The Grantor represents and warrants to the Grantee that (a) the Grantor is a
corporation duly organized, validly existing and in good standing under the laws
of the Commonwealth of Pennsylvania and has the requisite corporate power and
authority to enter into and perform this Agreement; (b) the execution and
delivery of this Agreement by the Grantor and the consummation by it of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of the Grantor and this Agreement has been duly executed and delivered
by a duly authorized officer of the Grantor and constitutes a valid and binding
obligation of the Grantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; (c) the Grantor has taken all necessary
corporate action to authorize and reserve the Shares issuable upon exercise of
the Option and the Shares, when issued and delivered by the Grantor upon
exercise of the Option, will be duly authorized, validly issued, fully paid and
non-assessable and free of preemptive rights; (d) except as otherwise required
by the HSR Act and other than any filings required under the blue sky laws of
any states or by the Nasdaq, the execution and delivery of this Agreement by the
Grantor and the issuance of Shares upon exercise of the Option do not require
the consent, waiver, approval or authorization of or any filing with any person
or public authority and will not violate, result in a breach of or the
acceleration of any obligation under, or constitute a default under, any
provision of any charter or by-law, indenture, mortgage, lien, lease, agreement,
contract, instrument, order, law, rule, regulation, judgment, ordinance, or
decree, or restriction by which the Grantor or any of its subsidiaries or any of
their respective properties or assets is bound; and (e) no "fair price",
"moratorium", "control share acquisition" or other form of antitakeover statute
or regulation (including, without limitation, the restrictions on "business
combinations" set
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forth in Section 203 of the Delaware General Corporation Law) is or shall be
applicable to the acquisition of Shares pursuant to this Agreement (and the
Board of Directors of Grantor has taken all action to approve the acquisition of
the Shares to the extent necessary to avoid such application).
5. REPRESENTATIONS AND WARRANTIES OF THE GRANTEE.
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The Grantee represents and warrants to the Grantor that (a) the execution and
delivery of this Agreement by the Grantee and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Grantee and this Agreement has been duly
executed and delivered by a duly authorized officer of the Grantee and will
constitute a valid and binding obligation of Grantee; and (b) the Grantee is
acquiring the Option after the Grantee has been afforded the opportunity to
obtain, and has obtained, sufficient information regarding the Grantor to make
an informed investment decision with respect to the Grantee's purchase of the
Shares issuable upon the exercise thereof, and, if and when the Grantee
exercises the Option, it will be acquiring the Shares issuable upon the exercise
thereof for its own account and not with a view to distribution or resale in any
manner which would be in violation of the Securities Act.
6. LISTING OF SHARES; HSR ACT FILINGS; REGULATORY APPROVALS.
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Subject to applicable law and the rules and regulations of the Nasdaq, the
Grantor will promptly file an application to list the Shares on the Nasdaq and
will use its best efforts to obtain approval of such listing and to file all
necessary filings by the Grantor under the HSR Act; provided, however, that if
the Grantor is unable to effect such listing on the Nasdaq by the Closing Date,
the Grantor will nevertheless be obligated to deliver the Shares upon the
Closing Date. Each of the parties hereto will use its best efforts to obtain
consents of all third parties and all Regulatory Approvals, if any, necessary to
the consummation of the transactions contemplated.
7. REPURCHASE OF SHARES; SALE OF SHARES.
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If a Change in Control Event (as defined below) has not occurred prior to the
first anniversary date of the Merger Termination Date, then beginning on such
anniversary date, the Grantor shall have the right to purchase (the "Repurchase
Right") all, but not less than all, of the Shares then beneficially owned by the
Grantee or any of its affiliates at a price per share equal to the greater of
(i) the Purchase Price, or (ii) the average of the closing sales prices for
shares of Common Stock on the twenty trading days ending five days prior to the
date the Grantor gives written notice of its intention to exercise the
Repurchase Right. If the Grantor does not exercise the Repurchase Right within
thirty days following the first anniversary of the Merger Termination Date, the
Repurchase Right terminates. In the event the Grantor wishes to exercise the
Repurchase Right, the Grantor shall send a written notice to the Grantee
specifying a date (not later than 10 business days and not earlier than the next
business day following the date such notice is given) for the closing of such
purchase. For purposes of the Agreement, a "Change in Control Event" shall be
deemed to have occurred if (i) any person or group has a acquired beneficial
ownership of more than fifty percent (excluding the Shares) of the outstanding
shares of Common Stock or (ii) the Grantor shall have entered into an agreement,
including, without limitation, an agreement in principle, providing for (x) a
merger or other business combination involving the Grantor in which the
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Grantor's stockholders do not own a majority of the outstanding capital stock of
the entity surviving such merger or business combination immediately following
such transaction or (y) the acquisition of 20% or more of the assets of the
Grantor and its subsidiaries, taken as a whole.
8. REGISTRATION RIGHTS.
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(a) In the event that the Grantee shall desire to sell any
of the Shares within two years after the purchase of such Shares pursuant
hereto, and such sale requires, in the opinion of counsel to the Grantee, which
opinion shall be reasonably satisfactory to the Grantor and its counsel,
registration of such Shares under the Securities Act, the Grantor will cooperate
with the Grantee and any underwriters in registering such Shares for resale,
including, without limitation, promptly filing a registration statement which
complies with the requirements of applicable federal and state securities laws,
entering into an underwriting agreement with such underwriters upon such terms
and conditions as are customarily contained in underwriting agreements with
respect to secondary distributions; provided, that, the Grantor shall not be
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required to have declared effective more than two registration statements
hereunder and shall be entitled to delay the filing or effectiveness of any
registration statement for up to 120 days if the offering would, in the judgment
of the Board of Directors of the Grantor, require premature disclosure of any
material corporate development or otherwise interfere with or adversely affect
any pending or proposed offering of securities of the Grantor or any other
material transaction involving the Grantor.
(b) If the Common Stock is registered pursuant to the
provisions of this Section 8, the Grantor agrees (i) to furnish copies of the
registration statement and the prospectus relating to the Shares covered thereby
in such numbers as the Grantee may from time to time reasonably request and (ii)
if any event shall occur as a result of which it becomes necessary to amend or
supplement any registration statement or prospectus, to prepare and file under
the applicable securities laws such amendments and supplements as may be
necessary to keep effective for at least 90 days a prospectus covering the
Common Stock meeting the requirements of such securities laws, and to furnish
the Grantee such numbers of copies of the registration statement and prospectus
as amended or supplemented as may reasonably be requested. The Grantor shall
bear the cost of the registration, including, but not limited to, all
registration and filing fees, printing expenses, and fees and disbursements of
counsel and accountants for the Grantor, except that the Grantee shall pay the
fees and disbursements of its counsel, the underwriting fees and selling
commissions applicable to the shares of Common Stock sold by the Grantee. The
Grantor shall indemnify and hold harmless Grantee, its affiliates and its
officers, directors and controlling persons from and against any and all losses,
claims, damages, liabilities and expenses arising out of or based upon any
statements contained or incorporated by reference in, and omissions or alleged
omissions from, each registration statement filed pursuant to this paragraph;
provided, however, that this provision does not apply to any loss, liability,
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claim, damage or expense to the extent it arises out of any untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Grantor by the Grantee, its affiliates and its officers
expressly for use in any registration statement (or any amendment thereto) or
any preliminary prospectus filed pursuant to this paragraph. The Grantor shall
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also indemnify and hold harmless each underwriter and each person who controls
any underwriter within the meaning of either the Securities Act or the
Securities Exchange Act of 1934, as amended, against any and all losses, claims,
damages, liabilities and expenses arising out of or based upon any statements
contained or incorporated by reference in, and omissions or alleged omissions
from, each registration statement filed pursuant to this paragraph; PROVIDED,
--------
HOWEVER, that this provision does not apply to any loss, liability, claim,
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damage or expense to the extent it arises out of any untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the Grantor by the underwriters expressly for use in any
registration statement (or any amendment thereto) or any preliminary prospectus
filed pursuant to this paragraph.
9. PROFIT LIMITATION.
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(a) Notwithstanding any other provision of this Agreement,
in no event shall the Grantee's Total Profit (as hereinafter defined) exceed
$3.75 million and, if it does exceed such amount, the Grantee, at its sole
election, shall, within five business days, either (a) deliver to the Grantor
for cancellation Shares (valued, for the purposes of this Section 9(a), at the
average closing sales price of the Common Stock on the Nasdaq for the twenty
consecutive trading days preceding the day on which the Grantee's Total Profit
exceeds $3.75 million) previously purchased by the Grantee, (b) pay cash or
other consideration to the Grantor or (c) undertake any combination thereof, so
that the Grantee's Total Profit shall not exceed $3.75 million after taking into
account the foregoing actions.
(b) As used herein, the term "Total Profit" shall mean the
aggregate amount (before taxes) of the following: (i) the amount of cash
received by the Grantee pursuant to Section 7.3(b) of the Merger Agreement and
Section 1(c) hereof, (ii)(x) the net cash amount received by the Grantee
pursuant to the Grantor's repurchase of Shares pursuant to Section 7 hereof,
less (y) the Grantee's purchase price for such Shares, and (iii)(x) the amount
received by the Grantee pursuant to the sale of Shares (or any other securities
into which such Shares are converted or exchanged), less (y) the Grantee's
purchase price for such Shares.
10. EXPENSES.
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Each party hereto shall pay its own expenses incurred in connection with this
Agreement, except as otherwise specifically provided herein.
11. SPECIFIC PERFORMANCE.
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The Grantor acknowledges that if the Grantor fails to perform any of its
obligations under this Agreement immediate and irreparable harm or injury would
be caused to the Grantee for which money damages would not be an adequate
remedy. In such event, the Grantor agrees that the Grantee shall have the right,
in addition to any other rights it may have, to specific performance of this
Agreement. Accordingly, if the Grantee should institute an action or proceeding
seeking specific enforcement of the provisions hereof, the Grantor hereby waives
the claim or defense that the Grantee has an adequate remedy at law and hereby
agrees not to assert in any such action or proceeding the claim or defense that
such a remedy at law
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exists. The Grantor further agrees to waive any requirements for the securing or
posting of any bond in connection with obtaining any such equitable relief.
12. NOTICE.
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All notices, requests, demands and other communications hereunder shall be
deemed to have been duly given and made if in writing and if served by personal
delivery upon the party for whom it is intended or delivered by registered or
certified mail, return receipt requested, or if sent by facsimile transmission,
upon receipt of oral confirmation that such transmission has been received, to
the person at the address set forth below, or such other address as may be
designated in writing hereafter, in the same manner, by such person:
If to the Grantor:
N2K Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
Telecopy: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx, XX, Esq.
Telecopy: (000) 000-0000
If to the Grantee:
CDnow, Inc.
000 Xxx Xxxx Xxxx*
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx, General Counsel
Telecopy: (000) 000-0000
*000 Xxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX (effective 11/6/98)
With a copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxx Xxxxx Xxxxxx*
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxxx XxXxxxxx, Esq.
Telecopy: (215) 963-5299
*0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000 (effective 11/23/98)
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13. PARTIES IN INTEREST.
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This Agreement shall inure to the benefit of and be binding upon the parties
named herein and their respective permitted successors and assigns; provided,
however, that such successor in interest or assigns shall agree to be bound by
the provisions of this Agreement. Except as set forth in Section 8, nothing in
this Agreement, express or implied, is intended to confer upon any person other
than the Grantor or the Grantee, or their successors or assigns, any rights or
remedies under or by reason of this Agreement.
14. ENTIRE AGREEMENT; AMENDMENTS.
----------------------------
This Agreement, together with the Merger Agreement and the other documents
referred to therein, contains the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, oral or written, with respect to
such transactions. This Agreement may not be changed, amended or modified
orally, but may be changed only by an agreement in writing signed by the party
against whom any waiver, change, amendment, modification or discharge may be
sought.
15. ASSIGNMENT.
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No party to this Agreement may assign any of its rights or obligations under
this Agreement without the prior written consent of the other party hereto,
except that the Grantee may assign its rights and obligations hereunder to any
of its direct or indirect wholly-owned subsidiaries, but no such transfer shall
relieve the Grantee of its obligations hereunder if such transferee does not
perform such obligations. Any assignment made in violation of this Section 15
shall be void.
16. HEADINGS.
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The section headings herein are for convenience only and shall not affect the
construction of this Agreement.
17. COUNTERPARTS.
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This Agreement may be executed in any number of counterparts, each of which,
when executed, shall be deemed to be an original and all of which together shall
constitute one and the same document.
18. GOVERNING LAW.
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This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware (regardless of the laws that might otherwise govern under
applicable Delaware principles of conflicts of law).
19. TERMINATION.
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The right to exercise the Option granted pursuant to this Agreement shall
terminate at the earlier of (i) the Effective Time (as defined in the Merger
Agreement), (ii) the date on which the Grantee realizes a Total Profit of $3.75
million, (iii) the date on which the Merger Agreement is terminated; provided
the Option is not exercisable at such time and does not become exercisable
simultaneous with such termination and (iv) 90 days after the date the
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Option becomes exercisable (the date referred to in clause (iv) being
hereinafter referred to as the "Option Termination Date"); provided that, if the
Option cannot be exercised or the Shares cannot be delivered to the Grantee upon
such exercise because the conditions set forth in Section 2(a) or Section 2(b)
hereof have not yet been satisfied, the Option Termination Date shall be
extended until thirty days after such impediment to exercise has been removed.
All representations and warranties contained in this Agreement shall
survive delivery of and payment for the Shares.
20. SEVERABILITY.
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If any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
21. PUBLIC ANNOUNCEMENT.
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The Grantee will consult with the Grantor and the Grantor will consult with the
Grantee before issuing any press release with respect to the initial
announcement of this Agreement, the Option or the transactions contemplated
hereby and neither party shall issue any such press release prior to such
consultation except as may be required by law.
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IN WITNESS WHEREOF, the Grantee and the Grantor have caused this
Agreement to be signed by their respective duly authorized officers as of the
date first written above.
CDNOW, INC.
By: /s/ Xxxxx Xxxx
______________________________
Name:
Title:
N2K INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
_____________________________
Name:
Title:
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