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REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated as of April 3, 1997, between Transmedia Europe, Inc.
and Transmedia Asia Pacific, Inc., each Delaware corporations (collectively, the
Buyer" and references to "Buyer" shall mean either or both of them as the
context may allow), having an address at 00 Xx. Xxxxx'x Xxxxxx, Xxxxxx XX0X0XX
Xxxxxxx and Xxxxxxxxxxx X.X. Xxxxxxx, an individual (the "Seller"), having an
address at 00 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx XX00 0XX.
WHEREAS, the Buyer and the Seller have entered into an Agreement dated
as of March __, 1997 (the "Purchase Agreement;" all capitalized terms used
herein without definition shall have the meanings assigned to such terms in the
Purchase Agreement); and
WHEREAS, as a condition to the closing under the Purchase Agreement the
Buyer has agreed to register the Asia Shares and the Europe Shares (hereinafter
referred to as the "Sellers Shares" which term shall mean either or both of them
as the context may allow), pursuant to the terms of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the parties hereto
mutually agree as follows:
1. Registration of the Shares.
(a) If, at any time commencing after the date of this
Agreement and expiring three (3) years thereafter, the Buyer proposes to file a
registration statement or statements under the Securities Act of 1933 (the
"Act") for sale of Buyer shares for cash (other than in connection with a merger
or pursuant to Form X-0, Xxxx X-0 or their successor forms, it will give written
notice, at least forty five (45) days prior to the filing of each such
registration statement, to the Seller of its intention to do so. If the Seller
notifies the Buyer in writing within twenty (20) business days after receipt of
any such notice of his desire to include the Seller Shares or any of them in
such proposed registration statement, the Buyer shall afford the Seller the
opportunity to have the Seller Shares registered under such registration
statement; provided, however, that in the case of an underwritten offering, if
the Buyer notifies the Seller in writing that the managing underwriter has
notified the Buyer that the inclusion in the registration statement of any
portion of the Seller Shares would have an adverse effect on such underwritten
offering, then the managing underwriter may limit the number of Seller Shares to
be included in such registration statement only to the extent necessary to avoid
such adverse effect; and provided, further, however, that in the event
securities of the Buyer held by any person or entity other than the Buyer or the
Seller ("Third Party Securities") are to be included in such underwritten
offering, and the managing underwriter shall have determined to limit the number
of Seller Shares or Third Party Securities to be so included, then such
limitation shall be applied to the Seller Shares and the Third Party Securities,
pro rata based on the number of Seller Shares and Third Party Securities
requested to be included in such underwritten offering. Notwithstanding the
provisions of this Section 1(a), the Buyer shall have the right at any time
after it shall have given written notice pursuant to this Section 1(a)
(irrespective of whether a written request for inclusion of any such securities
shall have been made) to elect not to file
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any such proposed registration statements or to withdraw the same after the
filing but prior to the effective date thereof.
(b) In the event that Seller has not been afforded the
opportunity under Section 1(a) hereof during the two year period commencing on
the date hereof and ending two years thereafter to have all of the Sellers
Shares included in one or more Registration Statements, Seller shall have the
right upon written notice to Buyer to demand, one time only, the filing of a
Registration Statement under the Act covering that number of Seller Shares
specified in writing to the Buyer. Buyer agrees that it shall use its reasonable
commercial efforts to have said Registration Statement declared effective and
thereafter to be kept current for a minimum of 90 days thereafter. Buyer may
defer the filing of the Registration Statement for up to 90 days to permit Buyer
to use periodic reports otherwise prepared by Buyer in connection with such
filing. Such demand right shall not apply if, notwithstanding the opportunity
provided to Seller under Section 1(a), Seller has not elected to include the
maximum number of Seller Shares in the Registration Statements provided for
therein. Except as otherwise provided herein, the terms of this Agreement shall
be equally applicable to Seller Shares registered under Section 1(a) and 1(b).
(c) Following the effective date of any registration statement
including any Seller Shares, the Buyer shall, upon the request of the Seller,
forthwith supply such reasonable number of copies of the registration statement,
prospectus and other documents necessary or incidental to the registration as
shall be reasonably requested by the Seller to permit the Seller to make a
public distribution of the Seller Shares. The Buyer will use its best efforts to
qualify the Seller Shares for sale in such states as the Seller shall reasonably
request, provided that no such qualification will be required in any
jurisdiction where, solely as a result thereof, the Buyer would be subject to
general service of process or to taxation or qualification as a foreign
corporation doing business in such jurisdiction. The obligations of the Buyer
hereunder with respect to the Seller Shares are expressly conditioned on the
Seller furnishing to the Buyer such appropriate information concerning the
Seller and the Seller Shares as the Company may reasonably request.
(d) The relevant Buyer shall bear the entire cost and expense
of the registration of the Seller Shares; provided, however, that the Seller
shall be solely responsible for the fees of any counsel retained by the Seller
in connection with such registration and any transfer taxes or underwriting
discounts, commissions or fees applicable to the Seller Shares sold by the
Seller pursuant thereto.
(e) Neither the filing of such registration statement by the
Buyer pursuant to this Agreement nor the making of any request for prospectuses
by the Seller shall impose upon the Seller any obligation to sell the Seller
Shares.
(f) The Seller, upon receipt of notice from the Buyer that an
event has occurred which requires a post-effective amendment to any registration
statement including any Seller Shares or a supplement to the prospectus included
therein, shall promptly discontinue the sale of the Seller Shares until the
Seller receives a copy of a supplemented or amended
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prospectus from the Buyer, which the Buyer shall provide as soon as practicable
after such notice.
2. Indemnification.
(a) The Buyer shall indemnify and hold harmless the Seller
from and against any and all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, liabilities, obligations, taxes, liens, losses, expenses, and
fees, including court costs and reasonable attorneys' fees and expenses and
reasonable costs of investigation (collectively "Damages") arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement including the Seller Shares filed by the
Buyer under the Act, any post-effective amendment to such registration
statement, or any prospectus included therein required to be filed or furnished
by reason of this Agreement or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except, insofar as such Damages are
caused by any such untrue statement or omission based upon information furnished
in writing to the Buyer by the Seller expressly for use therein; provided,
however, that the indemnification in this paragraph 2(a) with respect to any
prospectus shall not inure to the benefit of the Seller on account of any such
Damage arising from the sale of the Shares by the Seller, if a copy of a
subsequent prospectus correcting the untrue statement or omission in such
earlier prospectus was delivered to the Seller by the Buyer prior to the subject
sale and the subsequent prospectus was not delivered or sent by the Seller to
the purchaser prior to such sale; and provided further, that the Buyer shall not
be obligated to so indemnify the Seller unless the Seller shall at the same time
indemnify the Buyer, its directors, each officer signing such registration
statement and each person, if any, who controls the Buyer within the meaning of
the Act, from and against any and all Damages caused by any untrue statement of
a material fact contained in such registration statement, any post-effective
amendment to such registration statement or any prospectus required to be filed
or furnished by reason of this Agreement or caused by any omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, insofar as such Damages are caused by any
untrue statement or omission based upon information furnished in writing to the
Buyer by the Seller expressly for use therein.
(b) If for any reason the indemnification provided for in the
preceding subparagraph is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any Damages referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by the
indemnified party as a result of such Damages in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations.
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3. Rule 144 Requirements
The Buyer represents and warrants to the Seller that the
Common Stock of the Buyer (including the Seller Shares) is registered under
Section 12 of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx").
Accordingly the Buyer agrees to:
(a) comply with the requirements of Rule 144(c) under the
Act with respect to current public information about
the Buyer;
(b) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of
the Buyer under the Act and the Exchange Act;
(c) furnish to any holder of Seller Shares upon request
(i) a written statement by the Buyer as to its
compliance with the requirements of the Act and the
Exchange Act, (ii) a copy of the most recent annual
or quarterly report of the Buyer, and (iii) such
other reports and documents of the Buyer as such
holder may reasonably request to avail itself of any
similar rule or regulation of the SEC allowing it to
sell any such securities without registration under
the Act.
4. Mergers etc.
The Buyer shall not, directly or indirectly, enter into any
merger, consolidation or reorganization in which the Buyer shall not be the
surviving corporation unless the proposed surviving corporation shall, prior to
the merger, consolidation or reorganization, agree in writing to assume the
obligations of the Buyer hereunder and for that purpose references hereunder to
"Seller Shares" shall be deemed to be references to the securities that the
Seller would be entitled to receive in exchange for the Seller Shares under any
such merger, consolidation or reorganization; provided, however that the
provision of this Section 4 shall not apply in the event of any merger,
consolidation or reorganization in which the Buyer is not the surviving
corporation if the Seller is entitled to receive in exchange for his Seller
Shares consideration consisting solely of (i) cash, (ii) securities of the
acquiring corporation that may be immediately sold to the public with
registration under the Act, or (iii) securities of the acquiring corporation
that the acquiring corporation has agreed to register for resale to the public
under the Act within 90 days of completion of the transaction and thereafter
such securities are so registered or (iv) any combination of (i) (ii) or (iii).
5. Transfers of Rights.
This Agreement, and the rights and obligations of the Seller
hereunder, may be assigned by the Seller to (i) his spouse or lineal descendants
or (ii) a trust, the beneficiaries of which are the Seller and/or the spouse or
lineal descendants of the Seller, provided that the transferee provides written
notice of such assignment to the Buyer. Except as provided in this
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Section 5, no party to this Agreement may transfer or assign any of its rights
hereunder without the prior written consent of the other parties hereto.
6. Governing Law.
(a) This Agreement shall be deemed to have been made and
delivered in the State of New York and shall be governed as to validity,
interpretation, construction, effect and in all other respects by the internal
laws of the State of New York.
7. Amendment. This Agreement may only be amended by a written
instrument executed by the Buyer and the Seller.
8. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements and understandings of the parties, oral and
written, with respect to the subject matter hereof.
9. Execution in Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same document.
10. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed duly given when
delivered by hand, facsimile or five days after such notice is mailed by
registered or certified mail, postage prepaid, return receipt requested on one
day after delivery to an overnight courier or express company to the address set
forth on the first page of this Agreement.
11. Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
12. Severability. Any provision of this Agreement which is held by
a court of competent jurisdiction to be prohibited or unenforceable in any
jurisdiction(s) shall be, as to such jurisdiction(s), ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction if the rights or obligations of any party
hereto under this Agreement will not be materially and adversely affected
thereby.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto as of the date first above written.
TRANSMEDIA EUROPE, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
TRANSMEDIA ASIA PACIFIC, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
/s/ X. Xxxxxxx
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Xxxxxxxxxxx X.X. Xxxxxxx
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