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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Transmedia Network Inc.
------------------------
(Name of Issuer)
Common Stock, par value $0.02 per share
---------------------------------------
(Title of Class of Securities)
893767103
---------
(CUSIP Number)
Susan Obuchowski
Equity Group Investments, Inc.
Two North Riverside Plaza, Suite 600
Chicago, Illinois 60606
(312) 454-0100
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
November 6, 1997
-----------------------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this Schedule because of Rule 13d-1(b)(3) or (4), check the following box [__].
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SCHEDULE 13D
<TABLE>
<S> <C>
CUSIP No. 893767103
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- -------------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Transmedia Investors, L.L.C.
FEIN #: 36-4192415
- -------------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- -------------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
- -------------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [__]
- -------------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------------
SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 1,301,759
EACH ----------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,301,759
- -------------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [__]
CERTAIN SHARES
- -------------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.5%
- -------------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
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</TABLE>
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SCHEDULE 13D
<TABLE>
<S> <C>
CUSIP No. 893767103
---------
- ------------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Samstock, L.L.C.
FEIN #: 36-4156890
- -------------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [ ]
- -------------------------------------------------------------------------------------
3. SEC USE ONLY
- -------------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC
- -------------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [__]
- -------------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -------------------------------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF ---------------------------------------------------------------
SHARES 8. SHARED VOTING POWER
BENEFICIALLY
OWNED BY 1,301,759
EACH ----------------------------------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON
----------------------------------------------------------------
10. SHARED DISPOSITIVE POWER
----------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,301,759
- -------------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [__]
CERTAIN SHARES
- -------------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.5%
- -------------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
OO
- -------------------------------------------------------------------------------------
</TABLE>
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ITEM 1. SECURITY AND ISSUER
This Statement relates to the common stock, par value $0.02 per share
("Common Stock") of Transmedia Network Inc. (the "Issuer"). The Issuer has its
principal executive offices at 11900 Biscayne Boulevard, Miami, Florida, 33181.
ITEM 2. IDENTITY AND BACKGROUND
(a-c) This Statement is being filed by the following beneficial owners
of Common Stock: Transmedia Investors, L.L.C., a Delaware limited liability
company ("TMI"), and Samstock, L.L.C., a Delaware limited liability company.
(TMI and Samstock are referred to herein, individually, as a "Purchaser" and,
collectively, as the "Purchasers.") The sole member of TMI is Samstock. The
sole member of Samstock is SZ Investments, L.L.C., a Delaware limited liability
company ("SZI"). The managing member of SZI is Zell General Partnership, Inc.,
an Illinois corporation ("ZGP"). Additional information concerning SZI and
ZGP is set forth in Appendix A hereto.
The principal business of TMI is investment in the securities of the
Issuer. The principal business of Samstock, SZI and ZGP is general
investments. The business address of TMI, Samstock, SZI and ZGP is Two North
Riverside Plaza, Chicago, Illinois 60606.
(d) and (e) Neither the Purchasers nor, to the best knowledge of the
Purchasers, either of SZI or ZGP, or any of the persons listed in Appendix A
hereto, have during the last five years (i) been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) been
a party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was, or is, subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to federal or state securities laws or finding
any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Pursuant to an Agreement Among Stockholders dated as of November 6, 1997
(the "Agreement Among Stockholders") by and among each Purchaser, the Issuer,
Melvin Chasen and Iris Chasen (Melvin Chasen and Iris Chasen being referred to
together herein as the "Chasens"), the Purchasers acquired the sole power to
vote or to direct the vote of all of the shares of Common Stock held by the
Chasens (the "Chasen Shares"), whether now owned or hereafter acquired, subject
to certain limitations in the Investment Agreement described below. There are
currently 1,050,509 Chasen Shares issued and outstanding, representing 10.3%
of the issued and outstanding Common Stock. In addition, the Chasens hold
options that are currently exercisable in respect of an additional 251,250
shares of
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Common Stock (the "Option Shares") which, together with the 1,050,509 issued
and outstanding Chasen Shares, represent 12.5% of the Common Stock, including
the Option Shares.
The Agreement Among Stockholders also provides that, subject to certain
limitations, the Purchasers have a right of first refusal on all sales of the
Chasen Shares, and the Chasen Shares are subject to "co-sale" and "drag along"
provisions if the Purchasers sell any shares they may own. In addition, the
Agreement Among Stockholders provides that, as long as the Purchasers are
entitled to designate one or two directors in accordance with the Investment
Agreement and the Chasens own, collectively, at least 950,000 shares of Common
Stock, the Purchasers agree to vote all of the Issuer's Common Stock (or other
securities of the Issuer entitled to vote generally for the election of
directors or securities convertible into or exchangeable for Common Stock or
such voting securities or other options or rights to acquire Common Stock or
such voting securities (collectively, the "Voting Securities") beneficially
owned by them in favor of the election of Melvin Chasen to the Board of
Directors of the Issuer (the "Board").
The Agreement Among Stockholders will terminate (i) if the Purchasers
and their affiliates (the "Purchaser Group") cease to own in the aggregate at
least 5% of the Issuer's Voting Securities or (ii) contemporaneously with the
termination of the Stock Purchase Agreement described below before the
transactions contemplated thereby have been consummated. The Agreement Among
Stockholders is attached hereto as Exhibit 1 and is incorporated herein by
reference.
The summary contained in this Statement of certain provisions of the
Agreement Among Stockholders is not intended to be complete and is qualified in
its entirety by reference to the Agreement Among Stockholders attached as an
Exhibit hereto and incorporated herein by reference.
ITEM 4. PURPOSE OF THE TRANSACTION
The Purchasers' acquisition of the sole power to vote or to direct
the vote of the Chasen Shares was, and the Purchasers' anticipated acquisition
of shares of Common Stock (discussed below) will be, effected for the purpose
of investing in the Issuer.
In connection with the Agreement Among Stockholders, the Issuer and the
Purchasers have also entered into a Stock Purchase and Sale Agreement, dated as
of November 6, 1997 (the "Stock Purchase Agreement"), pursuant to which TMI and
Samstock agreed to acquire in the aggregate (i) 2,500,000 newly issued shares
of the Common Stock (the "Shares") and (ii) a warrant (the "Warrant") to
purchase an additional 1,200,000 shares of Common Stock (the "Warrant Shares"),
subject to the satisfaction of certain conditions precedent. The Stock
Purchase Agreement is attached hereto as Exhibit 2 and is incorporated herein
by reference. Pursuant to the Stock Purchase Agreement, TMI and Samstock
agreed to pay to the Issuer for the Shares and the Warrant a total
consideration of $10,625,000.00, the source of which
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will be capital contributions to TMI and Samstock by the members of TMI and
Samstock, respectively. The Shares and the Warrant will be purchased by TMI
and Samstock in such proportions as shall be determined prior to the closing of
the issuance of the Shares and the Warrant contemplated by the Stock Purchase
Agreement (the "Closing").
The purchase price upon exercise of the Warrant is equal to a specified
price (the "Exercise Price") multiplied by the number of shares of Common Stock
that TMI or Samstock, as the case may be, is then purchasing upon exercise of
the Warrant. The Exercise Price is $6.00 per share for one third of the
Warrant Shares, $7.00 per share for another third of the Warrant Shares, and
$8.00 per share for the final third of the Warrant Shares. The Warrant may be
exercised at any time after the Closing and will expire on the fifth
anniversary of the date of the Closing.
The purchase by the Purchasers and sale by the Issuer of the
Shares and the Warrant under the Stock Purchase Agreement is to occur on the
third business day following the satisfaction or waiver of certain conditions
including, without limitation, the approval by holders of the Issuer's Common
Stock of the issuance and sale of the Shares and the Warrant. The purchase and
sale of the Shares and the Warrant may be abandoned (a) at the election of the
Purchasers, (1) if the Issuer enters into a definitive agreement concerning a
Competing Transaction, (2) if the Board fails to recommend, or revokes or
otherwise modifies its recommendation in respect of the issuance and sale of
the Shares and the Warrant, or (3) if the Issuer shall not have mailed a proxy
statement to the Issuer's stockholders by February 28, 1998 or if the Closing
does not occur on or before the sixtieth day following the mailing of the proxy
statement to the Issuer's stockholders, unless such failure to occur is due to
the failure of the Purchasers to perform their obligations under the Stock
Purchase Agreement; (b) at the election of the Issuer or the Purchasers, (1) if
the Issuer's stockholders fail to adopt the proposals to issue and sell the
Shares and the Warrant to the Purchasers, or (2) the Board shall withdraw or
modify its approval or recommendation in respect of the issuance and sale of
the Shares and the Warrant in a manner adverse to the Purchasers or the Board
shall have recommended to the Issuer's stockholders a Competing Transaction;
and (c) at the election of the Issuer, (1) if the Issuer enters into a
definitive agreement in respect of a Competing Transaction, provided that the
Issuer has not failed to perform certain of its covenants regarding exclusivity
under the Stock Purchase Agreement, or (2) if the Closing does not occur on or
before the sixtieth day following the mailing of the proxy statement to the
Issuer's stockholders, unless such failure to occur is due to the failure of
the Issuer to perform its obligations under the Stock Purchase Agreement. For
purposes of the foregoing, Competing Transaction means the sale or issuance by
the Issuer or any of its subsidiaries of any common stock, preferred stock or
other equity securities of the Issuer or any of its subsidiaries to any person
other than the Purchasers or any merger, consolidation, sale of all or
substantially all of the assets of the Issuer and its subsidiaries taken as a
whole, or other business combination involving the Issuer or any of its
subsidiaries and any other person other than the Purchasers.
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Under the Stock Purchase Agreement, if the Purchasers shall have
elected not to proceed with the purchase of the Shares and the Warrant as set
forth in clause (a) above, or if the Purchasers or the Issuer shall have
elected not to proceed with the purchase and sale of the Shares and the Warrant
as set forth in clause (b) above, or if the Issuer shall have elected not to
proceed with the purchase and sale of the Shares and the Warrant as set forth
in clause (c)(1) above, the Issuer will pay to the Purchasers a Termination Fee
and will reimburse the Purchasers for out-of-pocket expenses incurred in
connection with the transactions contemplated by the Stock Purchase Agreement
in an amount not to exceed $250,000 in the aggregate. For purposes of the
foregoing, Termination Fee means $1,000,000, if there is a Competing
Transaction which is not a Competing Equity Deal, or if there is a Competing
Transaction which is a Competing Equity Deal, the greater of (A) $1,000,000, or
(B) fifty percent (50%) of the product of the Competing Price Differential
multiplied by the number 2,500,000. Competing Equity Deal means a Competing
Transaction consisting of the sale and issuance by the Issuer of any capital
stock and/or other equity securities to any other persons other than the
Purchasers, or any merger, consolidation or other business combination
involving the Issuer or any subsidiary and any persons other than the
Purchasers. Competing Price Differential means the excess, if any, of (i) the
sum of the aggregate cash and the fair market value of securities and other
property that would be received by the Issuer and/or its stockholders in the
Competing Equity Deal per share of capital stock and/or other equity securities
that would be acquired by the acquiring Person in the Competing Equity Deal,
over (ii) $4.00.
In connection with the transactions which are the subject of this
Statement, the Purchasers and the Issuer have also entered into an Investment
Agreement dated as of November 6, 1997 (the "Investment Agreement"), which
contains agreements as to certain aspects of the relationship between the
Purchasers and the Issuer. The Investment Agreement is attached hereto as
Exhibit 3 and is incorporated herein by reference.
Pursuant to the Investment Agreement, the Purchasers agreed that the
Purchaser Group will not take any of the following actions prior to the fifth
anniversary of the date of the Closing, without the approval of a majority of
the Issuer's disinterested directors, subject to specified limited exceptions:
(a) increase their ownership of Voting Securities beyond the combined voting
power of all Voting Securities represented by the Shares and the Warrant Shares
or subject to the Agreement Among Stockholders; provided, however, that the
foregoing limitation shall not prohibit the purchase of Voting Securities
directly from the Issuer pursuant to exercise of the Warrant and any rights,
oversubscription rights or standby purchase obligations in connection with
rights offerings by the Issuer or exercise of any stock options granted by the
Issuer; (b) solicit proxies, assist any other person in the solicitation of
proxies, become a "participant" in a "solicitation" or assist any such
"participant" (as such terms are defined in Rule 14a-1 of Regulation 14A under
the Securities Exchange Act of 1934, as amended) in opposition to the
recommendation of a majority of disinterested directors, or submit any proposal
for the vote of Issuer's stockholders; (c) form, join or participate in any
other way in a partnership, pooling agreement, syndicate, voting trust or
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other "group", or enter into any agreement or arrangement or otherwise act in
concert with any other person, for the purpose of acquiring, holding, voting or
disposing of Voting Securities of the Issuer; provided, however, that the
members of the Purchaser Group may engage in any of such activities among
themselves and with any stockholder of the Issuer who is a party to the
Agreement Among Stockholders; (d) engage in certain specified takeover actions
or take any other actions, alone or in concert with any other person, to seek
control of the Issuer; or (e) take any action to seek to circumvent any of the
foregoing limitations.
Pursuant to the Investment Agreement, at all times prior to the fifth
anniversary of the date of the Closing, Samstock is entitled to designate two
representatives, reasonably acceptable to the independent directors of the
Issuer, to serve on the Board as long as the Purchasers together beneficially
own at least 15% of the combined voting power of the Issuer's Voting Securities
(including, for these purposes, the Warrant Shares issuable upon exercise of
the Warrant until such time as the Warrant expires) and, in the event that the
Purchasers together beneficially own less than 15%, but at least 5%, of the
combined voting power of the Issuer's Voting Securities, Samstock shall be
entitled to designate one representative, reasonably acceptable to the
independent directors of the Issuer, to serve on the Issuer's Board. The
Issuer agreed that it will not increase the size of the Board beyond seven
members as long as Samstock is entitled to designate one or two Board
representatives and further agreed that, notwithstanding the agreements
contained in the Agreement Among Stockholders, the chief executive officer of
the Issuer shall not count as a designee of Samstock.
Pursuant to the Investment Agreement, the Purchasers agreed that,
except to the extent otherwise provided in the Investment Agreement, the
Purchasers would vote their Voting Securities with respect to the election or
removal of directors of the Issuer either (a) in accordance with the
recommendations of a majority of the disinterested directors of the Issuer or
(b) in the same proportions (including abstentions) as the holders of record of
the Issuer's Voting Securities, other than those beneficially owned by the
Purchasers, vote their securities; provided that the Purchasers may vote in
favor of the election or retention of the one or two directors designated by
Samstock as described in the preceding paragraph.
Pursuant to the Investment Agreement and subject to certain
exceptions, the Issuer granted to the Purchasers and certain other parties
certain shelf registration rights in connection with certain permitted sales of
shares of Common Stock. In particular, the Issuer agreed to prepare and file
with the SEC a shelf registration statement (which shall include pledgees of
any selling stockholder) with respect to all Shares and Warrant Shares as soon
as practicable after the Closing, and to use its reasonable efforts to cause
such shelf registration statement to become effective and keep such
registration statement effective until such time as all Shares and Warrant
Shares have been sold or otherwise disposed of. The purpose of any such shelf
registration put in effect pursuant to the Investment Agreement is to
facilitate
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each Purchaser's ability to margin its stock and does not represent any present
intention on behalf of either Purchaser to dispose of any Shares or Warrant
Shares to be covered thereby.
Pursuant to the Stock Purchase Agreement,the Issuer agreed to take all
action within its power prior to the Closing to cause four members of the Board
to resign and to cause such members to be replaced by the two representatives
designated by Samstock and two independent directors acceptable to the
Purchasers. The Issuer also agreed to amend its certificate of incorporation
prior to the Closing to eliminate the "staggered" Board provisions, so that all
Board seats will have contemporaneous terms, and to conduct, jointly with the
Purchasers and in good faith, a search to find a replacement for the Issuer's
current chief executive officer.
The summaries contained in this Statement of certain provisions of each
of the Stock Purchase Agreement and the Investment Agreement are not intended
to be complete and are qualified in their entirety by reference to each
respective agreement attached as an Exhibit hereto and incorporated herein by
reference.
Each Purchaser intends to continue to review its investment in Common
Stock and, subject to the limitations of the Investment Agreement described
above, from time to time depending upon certain factors, including without
limitation the financial performance of the Issuer, the availability and price
of shares of Common Stock and other general market and investment conditions,
may determine to acquire through open market purchases or otherwise additional
shares of Common Stock, or may determine to sell through the open market or
otherwise.
Except as stated above, neither of the Purchasers has any plans or
proposals of the types referred to in clauses (a) through (j) of Item 4 of
Schedule 13D, as promulgated by the Securities and Exchange Commission.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) and (b) To the best knowledge of the Purchasers, there are 10,189,956
shares of Common Stock outstanding as of the date hereof, and after the
issuance of the Shares there will be 12,689,956 shares of Common Stock
outstanding. As of the date hereof, the 1,050,509 Chasen Shares beneficially
owned by the Purchasers represent approximately 10.3% of the Common Stock
issued and outstanding and, together with the 251,250 Option Shares, represent
12.5% of the Common Stock, including the Option Shares. Subject to the
limitations of the Investment Agreement, the Purchasers have the shared power
to vote or to direct the vote of the 1,301,759 Chasen Shares beneficially owned
by them.
Pursuant to a Stockholder Cooperation Agreement dated as of November 6,
1997 (the "Cooperation Agreement"), the Chasens agreed to vote, or cause to be
voted, the Chasen Shares, prior to the Closing, in favor of the approval and
adoption of the transactions set
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forth herein and against any extraordinary corporate transactions and certain
other enumerated corporate actions. The Cooperation Agreement is attached
hereto as Exhibit 4 and is incorporated herein by reference.
The summary contained in this statement of certain provisions of the
Cooperation Agreement is not intended to be complete and is qualified in its
entirety by reference to the Cooperation Agreement attached as an Exhibit
hereto and incorporated herein by reference.
At the date hereof, neither the Purchasers, nor to the best knowledge
of the Purchasers, any of SZI or ZGP or any of the persons listed in Appendix A
hereto owns any shares of Common Stock other than shares of Common Stock
beneficially owned by the Purchasers, as described herein, of which one or more
of such other persons may be deemed to have beneficial ownership pursuant to
Rule 13d-3 of the Exchange Act.
(c) During the last sixty days, the only transactions in the Common
Stock effected by the Purchasers, or to the best knowledge of the Purchasers,
by SZI or ZGP or any of the persons listed in Appendix A hereto, were the
transactions occurring on November 6, 1997, as described in Item 3 hereof.
(d) No person other than the Chasens have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the
sale of, the Chasen shares beneficially owned by the Purchasers.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
Except for the matters described herein, no Purchaser nor, to the best
knowledge of the Purchasers, any of SZI or ZGP or any of the persons listed in
Appendix A hereto has any contract, arrangement, understanding or relationship
with any person with respect to any securities of the Issuer.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1 - Agreement Among Stockholders
Exhibit 2 - Stock Purchase Agreement
Exhibit 3 - Investment Agreement
Exhibit 4 - Cooperation Agreement
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APPENDIX A
SCHEDULE 13D
CUSIP NUMBER 893767103
SZ INVESTMENTS, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY: SZI's managing
member is Zell General Partnership, Inc., and its non-managing members are
Alphabet Partners and ZFT Partnership.
ZELL GENERAL PARTNERSHIP, INC., AN ILLINOIS CORPORATION: ZGP's sole shareholder
is the Samuel Zell Revocable Trust and its sole director is Samuel Zell.
SAMUEL ZELL: Mr. Zell is Chairman of the Board of Directors of Equity Group
Investments, Inc. ("EGI"). EGI is a privately owned investment management
firm. Mr. Zell is a citizen of the United States of America.
ALPHABET PARTNERS, AN ILLINOIS GENERAL PARTNERSHIP: Alphabet Partners is
composed of three trusts created for the benefit of Mr. Zell and his family.
Arthur A. Greenberg is the sole trustee of the three trusts. Mr. Greenberg is
the sole proprietor of Arthur A. Greenberg, Certified Public Accountant. Mr.
Greenberg is a citizen of the United States of America.
ZFT PARTNERSHIP, AN ILLINOIS GENERAL PARTNERSHIP: ZFT Partnership is composed
of fifteen trusts created for the benefit of Mr. Zell and his family. Sheli Z.
Rosenberg is the sole trustee of the fifteen trusts. Mrs. Rosenberg is
President and Chief Executive Officer of EGI. Mrs. Rosenberg is a citizen of
the United States of America.
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SIGNATURE
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, the undersigned certify that the information set forth in this
statement is true, complete and correct.
DATED: November 17, 1997
TRANSMEDIA INVESTORS, L.L.C., by SAMSTOCK,
L.L.C., its sole member, by SZ INVESTMENTS, L.L.C.,
its sole member, by ZELL GENERAL PARTNERSHIP,
INC., its managing member
By: /s/ Sheli Z. Rosenberg
-----------------------
Name: Sheli Z. Rosenberg
------------------
Title: Vice President
-------------------
SAMSTOCK, L.L.C., by SZ INVESTMENTS, L.L.C.,
its sole member, by ZELL GENERAL PARTNERSHIP,
INC., its managing member
By: /s/ Sheli Z. Rosenberg
-----------------------
Name: Sheli Z. Rosenberg
------------------
Title: Vice President
-------------------
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Page Number
-------------- ----------- -----------
<S> <C> <C>
1 Agreement Among Stockholders, 14
dated as of November 6, 1997
(without Schedules)
2 Stock Purchase and Sale 24
Agreement, dated as of
November 6, 1997
3 Investment Agreement, dated 72
as of November 6, 1997
4 Cooperation Agreement, dated 90
as of November 6, 1997
</TABLE>
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EXHIBIT 1
AGREEMENT AMONG STOCKHOLDERS
This AGREEMENT AMONG STOCKHOLDERS ("Agreement") is dated as of November 6,
1997, by and among Samstock, L.L.C., a Delaware limited liability company
("Samstock"), Transmedia Investors, L.L.C., a Delaware limited liability
company ("TNI", and together with Samstock, "Investor"), Melvin Chasen and Iris
Chasen, each individually (collectively, "Stockholder"), and, solely for
purposes of Sections 1(e), 2(a), 2(b) and 8 through 19 inclusive of this
Agreement, Transmedia Network Inc., a Delaware corporation (the "Company").
Capitalized terms used and not otherwise defined in this Agreement have the
meanings ascribed to them in Section 8 hereof.
R E C I T A L S
WHEREAS, reference is hereby made to: (i) that certain Stock Purchase and
Sale Agreement, dated as of November 6, 1997, (the "Purchase Agreement") among
the Company, Investor and Stockholder pursuant to which Investor has agreed to
purchase from the Company, and the Company has agreed to sell to Investor,
(A)an aggregate of 2,500,000 newly issued shares of common stock of the
Company, par value $.02 per share ("Common Stock"), and (B) a warrant to
purchase an additional 1,200,000 shares of Common Stock in the aggregate; and
(ii) that certain Investment Agreement, dated as of even date herewith, among
the Company and Investor (the "Investment Agreement"). Capitalized terms used
and not defined in this Agreement shall have the meanings ascribed to them in
the Investment Agreement.
WHEREAS, as of the date hereof, Stockholder owns of record and/or
beneficially, directly or indirectly, that number of shares of Common Stock, or
options to purchase shares of Common Stock, set forth opposite Stockholder's
name on Exhibit A hereto;
WHEREAS, the parties desire that Stockholder grant Investor an irrevocable
proxy to vote all Shares whether now owned or hereafter acquired by
Stockholder, on the terms set forth in this Agreement.
WHEREAS, the parties desire to establish certain rights and restrictions
related to the transfer of Shares.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
Section 1. Voting of Shares / Related Matters.
(a) Stockholder does hereby constitute and appoint Investor its
true and lawful attorney and proxy during the period that this Agreement
remains in force, to appear for, represent, and vote all Shares held by
Stockholder, whether now owned or hereafter acquired, for Stockholder at all
meetings of the stockholders of the Company, with power to vote upon any and
all questions which may arise at any such meeting or meetings, as fully and
with the same effect as if Stockholder had voted such Shares, subject, however,
to any applicable voting restrictions contained in the Investment Agreement.
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(b) Investor may vote on behalf of Stockholder in person or by
proxy, and, promptly upon request from Investor, from time to time, Stockholder
shall execute and deliver to Investor a separate written proxy conferring upon
Investor, or such other person as Investor may designate, the full, irrevocable
authority to vote all of such Stockholder's Shares, whether now owned or
hereafter acquired, at any specified meeting of the stockholders of the
Company, subject, however, to any applicable voting restrictions contained in
the Investment Agreement.
(c) Irrespective of the grant of the proxies referred to in
subparagraphs (a) and (b) above, in each event where Stockholder is
entitled to vote any Shares, if and when requested by Investor, Stockholder
shall vote all of the Shares, whether now owned or hereafter acquired, held by
Stockholder which Stockholder is entitled to vote as directed by Investor,
subject, however, to any applicable voting restrictions contained in the
Investment Agreement.
(d) Stockholder hereby agrees that: (i) Investor may appoint any
Affiliate of Investor to act on Investor's behalf or as Investor's successor
under this Section 1 with the same power and authority conferred on
Investor; and (ii) all power and authority conferred on Investor by this
Section 1 is coupled with an interest and is irrevocable and, to the extent not
prohibited by law, shall not be terminated by any act of Investor or
Stockholder or by operation of law or by the occurrence of any event
whatsoever, including without limitation, the death, incapacity, dissolution,
liquidation, termination, bankruptcy, dissolution of marital relationship or
insolvency of Investor or Stockholder or any similar event.
(e) Subject to any applicable voting restrictions contained in the
Investment Agreement, Stockholder and the Company acknowledge that the Company
shall be entitled to rely conclusively on any written direction or instruction
received from Investor regarding any vote of Stockholder's Shares, and
Investor agrees to furnish a copy of any such direction or instructions to
Stockholder no later than the time such directions or instructions are provided
to the Company. The Company agrees that it will not recognize any purported
vote of Stockholder's Shares, except pursuant to written direction or
instruction received from Investor.
Section 2. Restrictions on Transfer and Related Matters / Permitted
Transferees.
(a) Stockholder shall not Transfer any Shares except for a Transfer
to a Permitted Transferee pursuant to Section 2(b) or a Transfer pursuant to
Section 3, 4, 5 or 6, as applicable, and Investor shall not Transfer any Shares
exceptfor a Transfer to a Permitted Transferee pursuant to Section 2(b), or a
Transfer pursuant to Sections 5 or 6, as applicable. If any Transfer is made
or attempted contrary to the provisions of this Agreement, such purported
Transfer shall be void ab initio; and the Company shall refuse to recognize any
such purported transferee of Shares as a holder of such Shares for any purpose.
(b) Notwithstanding anything to the contrary in Section 2(a)
hereof, for purposes of this Agreement, Stockholder and Investor may
Transfer Shares to a Permitted Transferee of such Stockholder or Investor, as
the case may be, without complying with the provisions of Sections 3, 4, 5 or
6. As a condition to the effectiveness of any Transfer of Shares to a
Permitted Transferee, the Permitted Transferee shall execute a counterpart to
this Agreement, whereupon the Permitted Transferee shall hold Shares subject to
all of the provisions of this Agreement, as if the Permitted Transferee were
the Person who transferred the Shares actually held by the Permitted
Transferee. Notwithstanding anything to the contrary in this Agreement: (i)
all rights and benefits originally granted to Stockholder or Investor under
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<PAGE> 3
this Agreement shall remain with it or him (or Stockholder's duly appointed
representative, in the event of Stockholder's death or incapacity), and shall
not be assigned or transferred to their Permitted Transferees, notwithstanding
any Transfer of Shares by them to their Permitted Transferees, as if
Stockholder or Investor, as the case may be, who Transferred Shares to
their Permitted Transferee were the holders of the Shares actually held by
their Permitted Transferee; and (ii) no Permitted Transferee shall be entitled
to exercise any right, satisfy any obligation or otherwise take any action or
do anything under this Agreement, except through Stockholder or Investor, as
the case may be, who Transferred Shares to its Permitted Transferee (or
Stockholder's duly appointed representative, in the event of Stockholder's
death or incapacity), as the representative for all of such party's Permitted
Transferees.
Section 3. Right of First Offer on Private Transfer. In the
event that Stockholder wishes to sell for cash in a bona fide transaction with
an independent third party, whether or not such third party has made an offer
to purchase any of Stockholder's Shares, all or any portion of the Shares now
owned or hereafter acquired by Stockholder, other than in a Public Sale,
Stockholder shall first notify Investor in writing (the "Notice of Intended
Sale") of the number of Shares for sale by Stockholder (the "Offered Shares")
and the proposed price and other terms of sale. Investor thereupon shall have
the right to purchase all (but not less than all) of the Offered Shares at the
proposed price in cash and on the other proposed terms of sale. In order to
exercise its purchase rights, within five (5) business days (two (2) business
days in the event of a proposed sale of no more than 10,000 Shares in the
aggregate) after receiving the Notice of Intended Sale from Stockholder,
Investor shall deliver to Stockholder a written election (the "Election
Notice") to purchase all of the Offered Shares. If Investor does not exercise
its purchase rights with respect to all (and not less than all) of the Offered
Shares within the time period as provided herein with respect to all of the
Offered Shares, or fails to deliver the Election Notice within the time period
provided, Stockholder shall be free for a period of ninety (90) days thereafter
to complete a sale of the Offered Shares to any Person at or above the price in
cash and on substantially the same terms as set forth in Stockholder's notice
of intended sale. If such a sale is not consummated within such ninety (90)
day period by Stockholder, the Offered Shares shall again be subject to a right
of first offer by Investor under the provisions of this Section 3. Except as
provided herein, Stockholder shall be bound by the restrictions and limitations
imposed by this Agreement after any notice of a desire to sell is given and
whether or not any such sale actually occurs. In the event Investor exercises
its rights of first offer hereunder, Investor and Stockholder shall, as
promptly as practicable and as a condition to their respective obligations
hereunder, enter into such agreements and deliver such documents to one another
as shall be necessary for the sale of Stockholder's Shares to Investor as
contemplated hereby. Notwithstanding anything to the contrary in this Section
3, in the event that after Investor's receipt of the Notice of Intended Sale
and prior to the earlier of (i) Stockholder's receipt of the Election Notice or
(ii) 5:00 p.m. Eastern Time on the fourth (4th) day following Investor's
receipt of the Notice of Intended Sale, the Market Price of the Shares
increases or decreases by twenty percent (20%) or more as compared to the
Market Price on the last trading day immediately prior to the date of
Investor's receipt of the Notice of Intended Sale, Stockholder shall have the
right to withdraw its Notice of Intended Sale by written notice to Purchaser,
in which event the Notice of Intended Sale actually delivered by Stockholder to
Investor shall be deemed for all purposes under this Section 3 as never having
been delivered to Investor.
Section 4. Right of First Offer on Public Sale. In the event that
Stockholder wishes to sell for cash in a Public Sale all or any portion of the
Shares now owned or hereafter acquired
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by Stockholder, whether or not any third party has made an offer to purchase
any of Stockholder's Shares, Stockholder shall first notify Investor in writing
(the "Notice of Intended Sale") of the number of Shares for sale by Stockholder
(the "Offered Shares"). Investor thereupon shall have the right to purchase
all or any part of the Offered Shares for cash at their Market Price on the
last trading day immediately prior to the date of Investor's receipt of the
Notice of Intended Sale. In order to exercise its purchase rights, within five
(5) business days (two (2) business days in the event of a proposed Public Sale
of no more than 10,000 Shares in the aggregate) after receiving the Notice of
Intended Sale from Stockholder, Investor shall deliver to Stockholder a written
election "Election Notice" to purchase so many of the Offered Shares as it may
desire to purchase. If Investor does not exercise its purchase rights with
respect to all of the Offered Shares within the time period as provided herein
or fails to deliver the Election Notice within the time period provided,
Stockholder shall be free for a period of ten (10) days thereafter to complete
a Public Sale of that number of Offered Shares with respect to which
Stockholder failed to exercise its purchase rights. If such Public Sale is not
consummated within such ten (10) day period by Stockholder, the Offered Shares
shall again be subject to a right of first offer by Investor under the
provisions of this Section 4. Except as provided herein, Stockholder shall be
bound by the restrictions and limitations imposed by this Agreement after the
Notice of Intended Sale is given and whether or not any such sale actually
occurs. In the event Investor exercises its rights of first offer hereunder,
Investor and Stockholder shall, as promptly as practicable and as a condition
to their respective obligations hereunder, enter into such agreements and
deliver such documents to one another as shall be necessary for the sale of
Stockholder's Shares to Investor as contemplated hereby. Notwithstanding
anything to the contrary in this Section 4, in the event that after Investor's
receipt of the Notice of Intended Sale and prior to the earlier of (i)
Stockholder's receipt of the Election Notice or (ii) 5:00 p.m. Eastern Time on
the fourth (4th) day following Investor's receipt of the Notice of Intended
Sale, the Market Price of the Shares increases or decreases by twenty percent
(20%) or more as compared to the Market Price on the last trading day
immediately prior to the date of Investor's receipt of the Notice of Intended
Sale, Stockholder shall have the right to withdraw its Notice of Intended Sale
by written notice to Purchaser, in which event the Notice of Intended Sale
actually delivered by Stockholder to Investor shall be deemed for all purposes
under this Section 4 as never having been delivered to Investor.
Section 5. Co-Sale Rights. In the event that Investor enters into an
agreement to sell to any independent third party or group of independent third
parties, in a single transaction or related series of transactions, other than
a Public Sale, such number of Shares as equals or exceeds more than ten percent
(10%) of the Shares held by Investor, Investor shall first notify Stockholder
in writing, of the identity of the proposed purchaser(s), the number of Shares
proposed to be sold, the proposed purchase price and terms of sale and an
estimate of the Transaction Costs (as defined below) (which estimate shall not
be binding on Investor and shall have no effect on Investor's or Stockholder's
rights or obligations under this Section 5). Stockholder thereupon shall have
the right to participate in the proposed sale at the same net price per share
and other terms of sale as offered to Investor. In order to exercise its
co-sale rights, Stockholder, within ten (10) business days after receiving
notice from Investor, shall deliver to Investor a written election to
participate in the sale to the extent allowed by this Section 5. If
Stockholder has elected to participate in the proposed sale, Stockholder shall
be entitled to sell in the proposed sale a number of Shares equal to the
product of (i) the quotient (the "Co-Sale Fraction") determined by dividing the
number of Shares owned by Stockholder by the aggregate number of Shares owned
by Stockholder and Investor multiplied by (ii) the total number of Shares to be
sold by them in the proposed sale. Notwithstanding anything to the
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<PAGE> 5
contrary in this Section 5, the sale proceeds to which Stockholder would
otherwise be entitled by reason of its participation in a sale pursuant to this
Section 5 shall be reduced by an amount equal to the product of Stockholder's
Co-Sale Fraction multiplied by the sum of any costs, fees and expenses,
including, without limitation, attorneys', accountants' and investment bankers'
fees and expenses (collectively, "Transaction Costs"), incurred by Investor in
connection with the sale or the exercise of the Tag-Along Stockholder's rights
under this Section 5. Stockholder shall, as promptly as practicable and as a
condition to its participation, enter into such agreements as shall be
reasonably requested by Investor for the sale of its Shares in the proposed
sale.
Section 6. Drag-Along Rights. Subject to Section 3 and Section 4, if
Investor owns more Company Voting Securities than Stockholder and Investor
enters into an agreement (including an agreement in principle) to sell all
of its Shares to any purchaser or group of purchasers (other than any
Permitted Transferees or Stockholder), in a single arms-length transaction
or related series of arms-length transactions with an independent third
party or group of independent third parties, Investor may require that
Stockholder sell all of its Shares to such purchaser or group of purchasers
at a net price and on terms and conditions the same as those on which
Investor has agreed to sell its Shares; provided, however, that,
notwithstanding the foregoing, prior to the second anniversary of this
Agreement, Investor shall not be entitled to require Stockholder to sell
its Shares at a net price of $6.00 per share or less. Investor shall give
prompt notice to Stockholder that Investor has entered into an agreement of
the type described in this Section 6, and Stockholder shall, as promptly as
practicable, enter into such agreements as shall reasonably be requested by
Investor for the sale of all the Shares in the proposed sale.
Notwithstanding anything to the contrary in this Section 6, the sale
proceeds to which Stockholder would otherwise be entitled by reason of its
participation in a sale pursuant to this Section 6 shall be reduced by an
amount equal to the product of (i) the percentage of Shares to be sold in
the proposed sale owned by Stockholder, multiplied by (ii) the sum of any
costs, fees and expenses, including, without limitation, attorneys',
accountants' and investment bankers' fees and expenses, incurred by
Investor in connection with the sale or the exercise of Investor's rights
under this Section 6.
Section 7. Stockholder Board Seat. So long as Investor is entitled to
designate one or two directors in accordance with the provisions of Section
4.4 of the Investment Agreement and Stockholder and Stockholder's Permitted
Transferees (other than any charitable organizations) own collectively of
record and beneficially at least 950,000 shares of Common Stock, Investor
shall vote all Company Voting Securities owned of record by Investor or with
respect to which Investor has voting control in favor of the election of Melvin
Chasen to the Company's Board of Directors.
Section 8. Certain Definitions.
"Affiliate" means, with respect to a specified Person, any Person that
directly or indirectly controls, is controlled by, or is under common control
with, the specified Person; "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, by
contract or otherwise.
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<PAGE> 6
"Chasen Family Entity" means any corporation, partnership, limited
liability company, trust, or other legal entity controlled by Chasen and wholly
owned beneficially and of record by Chasen and/or Chasen's spouse, children,
grandchildren, parents, siblings, in-laws, nieces and/or nephews or a trust
established for any of their benefit, provided such trust is wholly controlled
by Chasen.
"Market Price" means the closing price of the Common Stock on the New York
Stock Exchange (or, if not trading on the New York Stock Exchange, such other
securities exchange or over the counter market on which the Company's Common
Stock is then trading) as of the date of determination.
"Permitted Transferee" means:
(i) with respect to the Transfer of Shares by Investor, any
Affiliate of Investor or any stockholder, partner or member of any such
Affiliate; and
(ii) with respect to any Transfer of Shares by Stockholder, (A) any
Chasen Family Entity, (B) any charitable organization as defined under
Section 501(c)(3) of the Internal revenue Code of 1986, as amended, and
(C) any other charitable organization(s), provided Stockholder does not
Transfer to any such other charitable organization(s) in the aggregate
over the term of this Agreement more than ten percent (10%) of the Shares
in any single Transfer or series (related or unrelated) of Transfers.
"Person" means an individual, a corporation, a partnership, a limited
liability company, a joint venture, an association, a joint-stock company, a
trust, a business trust, a government or any agency or any political
subdivision, any unincorporated organization or any other entity.
"Public Sale" means a bona fide sale of Shares either in "broker's
transactions" within the meaning of Section 4(4) of the Securities Act of 1933,
as amended, or in transactions directly with a "market maker" as that term is
defined in Section 3(a)(38) of the Securities Exchange Act of 1934, as amended.
"Shares" means all shares of Company Voting Securities, whether now owned
or hereafter acquired.
"Transfer" means any voluntary or involuntary, direct or indirect,
transfer, sale, assignment, donation, pledge, hypothecation, issuance, grant of
a security interest in or other disposition or attempted disposition of Shares
or any right or interest whatsoever therein, including, without limitation, by
operation of law or otherwise, whether with or without consideration or value,
and whether for cash, other securities or other property and specifically
including any share for share or similar exchange; provided, however, that:
(i) any pledge or hypothecation of or grant of security interest in
Shares by any Stockholder which is either approved by Investor in writing
prior to the pledge, hypothecation or grant of security interest or is
effected by Investor or any Affiliate of Investor shall not constitute a
"Transfer" of Shares for any purpose under this Agreement; and
(ii) any Transfer effected as a result of a Stockholder's death,
pursuant to the laws of descent and distribution, by operation of law or
otherwise, to such
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<PAGE> 7
Stockholder's spouse, children, grandchildren, parents, siblings, in-laws,
nieces and/or nephews or a trust established for any of their benefit,
shall not constitute a "Transfer" of Shares for any purpose under this
Agreement, provided each transferee of Shares executes a counterpart to
this Agreement, whereupon such transferee shall hold such Shares subject
to all of the provisions of this Agreement, as if the transferor were the
holder of Shares held by the transferee.
Section 9. Notices. All notices, and other communications hereunder
shall be in writing and shall be deemed given if delivered personally, sent by
documented overnight delivery service or, to the extent receipt is confirmed,
facsimile, to the appropriate address or facsimile number set forth below (or
at such other address or facsimile number for a party as shall be specified by
like notice):
if to Investor:
Transmedia Investors, L.L.C.
Two N. Riverside Plaza - Suite 600
Chicago, IL 60606
Attention: F. Philip Handy
Fax: (312) 454-0610
with an additional copy to:
Rosenberg & Liebentritt, P.C.
Two N. Riverside Plaza - Suite 1600
Chicago, IL 60606
Attention: Joseph M. Paolucci, Esq.
Fax: (312) 454-0335
if to the Company:
Transmedia Network Inc.
11900 Biscayne Boulevard
Miami, Florida 33181
Attention: Chief Executive Officer
Fax: (305) 892-3342
with an additional copy to:
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
Attention: Stephen P. Farrell, Esq.
Fax: (212) 309-6273
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<PAGE> 8
If to Stockholder:
Mr. Melvin Chasen
c/o Transmedia Network Inc.
11900 Biscayne Boulevard
Miami, Florida 33181
Attention: Chief Executive Officer
Fax: (305) 892-3342
with an additional copy to:
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
Attention: Stephen P. Farrell, Esq.
Fax: (212) 309-6273
Section 10. Termination. This Agreement shall terminate and its
provisions shall be of no further force and effect if (i) the Zell Group shall,
at any time, cease to own in the aggregate Company Voting Securities
representing at least five percent (5%) of all Company Voting Securities
outstanding or (ii) contemporaneously with the termination of the Purchase
Agreement in accordance with Section 9.1 thereof.
Section 11. Remedies. Any party having rights under this Agreement may
enforce such rights specifically to recover damages caused by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law. The parties agree and acknowledge that money damages may not
be an adequate remedy for any breach of the provisions of this Agreement and,
accordingly, in addition to all other remedies available to any party, such
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief in
order to enforce, or prevent any violation of, the provisions of this
Agreement.
Section 12. Entire Agreement. This Agreement, together with the Purchase
Agreement and the Investment Agreement, constitutes the entire agreement
between the parties with respect to the subject matter hereof and shall be
binding upon and inure to the benefit of the parties hereto and their
respective legal representatives, successors and permitted assigns. Any
amendments, or alternative or supplementary provisions to this Agreement must
be made in writing and duly executed by an authorized representative or agent
of each of the parties hereto. Except as contemplated by this Agreement, no
Person who is not an original party to this Agreement may become a party hereto
without the written consent of each of the parties hereto.
Section 13. Non-Waiver. The failure in any one or more instances of a
party to insist upon performance of any of the terms, covenants or conditions
of this Agreement, to exercise any right or privilege in this Agreement
conferred, or the waiver by said party of any breach of any of the terms,
covenants or conditions of this Agreement, shall not be construed as a
subsequent waiver of any such terms, covenants, conditions, rights or
privileges, but the same shall continue and remain in full force and effect as
if no such forbearance or waiver had occurred. No waiver shall be effective
unless it is in writing and signed by an authorized
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<PAGE> 9
representative of the waiving party. A breach of any representation,
warranty or covenant shall not be affected by the fact that a more general or
more specific representation, warranty or covenant was not also breached.
Section 14. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall constitute but one instrument.
Section 15. Severability. The invalidity of any provision of this
Agreement or portion of a provision shall not affect the validity of any other
provision of this Agreement or the remaining portion of the applicable
provision.
Section 16. Applicable Law. This Agreement shall be governed and
controlled as to validity, enforcement, interpretation, construction, effect
and in all other respects by the internal laws of the State of Delaware
applicable to contracts made in that State.
Section 17. Binding Effect; Benefit, Non-circumvention. This Agreement
shall inure to the benefit of and be binding upon the parties hereto, and their
successors and permitted assigns. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto, and
their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement. No
Stockholder shall take any action, alone or in concert with any other person,
to circumvent any of the provisions of this Agreement.
Section 18. Assignability. This Agreement shall not be assignable by any
party without the prior written consent of each of the other parties.
Section 19. Headings. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement Among
Stockholders as of the day and year first above written.
TRANSMEDIA INVESTORS, L.L.C.
by Samstock, L.L.C., its managing member,
by SZ Investments, L.L.C., its managing
member,
by Zell General Partnership, Inc., its
managing member
/s/ Sheli Z. Rosenberg
-------------------------------------
By: Sheli Z. Rosenberg, Vice President
SAMSTOCK, L.L.C.
by SZ Investments, L.L.C., its managing
member,
by Zell General Partnership, Inc., its
managing member
/s/ Sheli Z. Rosenberg
-------------------------------------
By: Sheli Z. Rosenberg, Vice President
/s/ Melvin Chasen
-------------------------------------
Melvin Chasen, individually
/s/ Iris Chasen
-------------------------------------
Iris Chasen, individually
TRANSMEDIA NETWORK INC.
/s/ Melvin Chasen
-------------------------------------
By: Melvin Chasen, President and
Chief Executive Officer
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EXHIBIT 2
STOCK PURCHASE AND SALE AGREEMENT
STOCK PURCHASE AND SALE AGREEMENT, dated as of November 6, 1997 (as
amended, supplemented or otherwise modified from time to time, this
"Agreement"), among Samstock, L.L.C., a Delaware limited liability company
("Samstock"), Transmedia Investors, L.L.C., a Delaware limited liability
company ("ATNI," and together with Samstock, "Purchaser"), and Transmedia
Network Inc., a Delaware corporation (the "Company"). All capitalized terms
used and not otherwise defined herein have the meanings ascribed to them in
Article X hereof.
WHEREAS, the Company desires to issue and sell to Purchaser, and Purchaser
desires to purchase from the Company, (i) 2,500,000 newly issued shares (such
2,500,000 newly issued shares, collectively the "Shares") of Common Stock in
the aggregate, representing approximately 16.84% of the Fully Diluted Common
Stock and 19.7% of the outstanding Common Stock, and (ii) a warrant (the
"Warrant") in the form of Exhibit A hereto to purchase an additional 1,200,000
shares of Common Stock in the aggregate (such additional 1,200,000 shares of
Common Stock in the aggregate issuable from time to time upon exercise of the
Warrant, collectively the "Warrant Shares"), representing approximately 8.08%
of the Fully Diluted Common Stock, all upon the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, representations and
warranties and the mutual covenants and agreements set forth herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES AND WARRANT
1.1 Purchase and Sale. Upon the terms and subject to the satisfaction of
the conditions contained in this Agreement, at the Closing, the Company shall
issue and sell to Purchaser (in such proportions as between Samstock and TNI as
Purchaser shall determine and advise the Company in writing no less than three
(3) business days prior to the Closing), and Purchaser shall so purchase from
the Company the Shares and the Warrant, in each case free and clear of all
Liens.
1.2 Consideration. Upon the terms and subject to the satisfaction of the
conditions contained in this Agreement, at the Closing, Purchaser shall pay to
the Company $10,625,000.00 in the aggregate (the "Purchase Price") for the
Shares and the Warrant.
ARTICLE II
THE CLOSING
2.1 Time and Place. Upon the terms and subject to the satisfaction of the
conditions contained in this Agreement, the closing of the issuance and sale of
the Shares and the
<PAGE> 2
Warrant contemplated by this Agreement (the "Closing") shall take place
at the offices of Rosenberg & Liebentritt, P.C., Two North Riverside Plaza,
Chicago, Illinois at 10:00 a.m. (local time) on the third business day
following the date on which all of the conditions hereunder have been satisfied
or waived, or at such other place or time as Purchaser and the Company may
agree. The date and time at which the Closing actually occurs is hereinafter
referred to as the "Closing Date."
2.2 Deliveries by the Company. At the Closing, the Company shall deliver
the following to Purchaser:
(a) stock certificates representing the Shares, in the names of Samstock
and/or TNI, dated as of the Closing Date, in such proportions as between
Samstock and TNI and such denominations (totaling 2,500,000 shares) as
Purchaser shall request;
(b) the Warrant, dated as of the Closing Date; and
(c) all other documents, instruments and writings required to be delivered
by the Company at or prior to the Closing Date pursuant to this Agreement.
2.3 Deliveries by Purchaser. At the Closing, Purchaser shall deliver the
following to the Company:
(a) the Purchase Price by interbank transfer of federal funds to one or
more accounts designated in a writing delivered by the Company to Purchaser no
less than two (2) business days prior to the Closing Date or by such other
means as may be agreed upon in writing by the Company and Purchaser; and
(b) all other documents, instruments and writings required to be delivered
by Purchaser at or prior to the Closing Date pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents, warrants and covenants to Purchaser on the date of
this Agreement and again on the Closing Date, which representations, warranties
and covenants shall survive the Closing, as follows:
3.1 Organization and Qualification. Each of the Company and each
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has the
requisite corporate power and authority to carry on its business as it is now
being conducted. Each of the Company and each Subsidiary is duly qualified or
licensed as a foreign corporation to do business, and is in good standing, in
each jurisdiction (including any foreign country) where the character of its
properties owned, leased or operated by it or the nature of its activities
makes such qualification or licensing necessary, except for such failures to be
so qualified or licensed or in good standing which would not, individually or
in the aggregate, have a Material Adverse Effect.
3.2 Certificate of Incorporation and Bylaws. The Company has heretofore
furnished to Purchaser a complete and correct copy of the certificates of
incorporation of the Company
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<PAGE> 3
and each Subsidiary and the bylaws of the Company and each Subsidiary as
currently in effect (collectively, the "Organizational Documents"). Such
Organizational Documents are in full force and effect, and no other
organizational documents are applicable to or binding upon the Company or any
Subsidiary (including, without limitation, any joint venture, investment or
other agreement). Neither the Company nor any Subsidiary is in violation of any
of the provision of its Organizational Documents.
3.3 Capitalization; Subsidiaries.
(a) The authorized capital stock of the Company consists of 20,000,000
shares of Common Stock and 1,000,000 shares of Preferred Stock. As of the date
hereof, (i) 10,189,956 shares of Common Stock were issued and outstanding, all
of which shares were validly issued, fully paid and nonassessable, (ii) no
shares of Preferred Stock were issued or outstanding, and (iii) no shares of
Common Stock or Preferred Stock were held in the treasury of the Company.
(b) The Shares shall represent approximately 16.84% of the Fully Diluted
Common Stock and 19.7% of the outstanding shares of Common Stock as of the
Closing Date. The Warrant Shares shall represent approximately 8.08% of the
Fully Diluted Common Stock as of the Closing Date.
(c) Except as set forth above in Section 3.3(a) and as set forth in
Schedule 3.3(c) hereto, there are no outstanding Equity Securities of the
Company. Schedule 3.3(c) includes a true and correct table summarizing all
outstanding stock options, warrants and other rights to acquire Equity
Securities of the Company or any Subsidiary, including the identity and title
of the holder, the number of shares covered, the vesting schedule therefor, the
exercise price therefor, and the termination date therefor.
(d) Each of the outstanding shares of capital stock of each Subsidiary is
duly authorized, validly issued, fully paid and nonassessable, and all such
shares are owned by the Company free and clear of all Liens, and there are no
outstanding Equity Securities of any Subsidiary other than such shares. Except
as set forth on Schedule 3.3(d) hereto, the Company does not own, directly or
indirectly, any capital stock or other equity interest in any Person other than
the Subsidiaries.
3.4 The Shares and the Warrant.
(a) Upon payment of the Purchase Price at the Closing, Purchaser will
acquire good and marketable title to the Shares, free and clear of all Liens.
Upon payment of the Purchase Price, the Shares shall be validly issued, fully
paid and nonassessable.
(b) Upon payment of the Purchase Price at the Closing, Purchaser will
acquire good and marketable title to the Warrant, free and clear of all Liens.
Upon exercise of the Warrant, in whole or, from time to time, in part, and upon
payment of the exercise price therefor, in accordance with the terms of the
Warrant, Purchaser will acquire good and marketable title to the
Warrant Shares, free and clear of all Liens, and such Warrant Shares shall be
validly issued, fully paid and nonassessable.
3.5 Power and Authority. The Company has all necessary corporate power
and authority to execute and deliver this Agreement, the Investment Agreement,
the Agreement
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Among Stockholders, the Warrant and all other documents, instruments and other
writings to be executed and/or delivered by or on behalf of the Company to
Purchaser or any of its representatives in connection with the transactions
contemplated hereby or thereby (collectively, the "Company Transaction
Documents"), to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance of each of the Company Transaction Documents by the
Company, and the consummation by the Company of the transactions contemplated
hereby and thereby, have been duly and validly authorized by the Board of
Directors of the Company (the "Board"), and no other corporate proceedings on
the part of the Company are necessary to authorize the execution, delivery and
performance of the Company Transaction Documents or the consummation of the
transactions contemplated hereby and thereby, other than Stockholder Approval.
The Board has approved each of the Company Transaction Documents and the
transactions contemplated hereby and thereby so as to render inapplicable to
such transactions, including, without limitation, the issuance to Purchaser of
the Shares, the Warrant and Warrant Shares, the restrictions contained in
Article Seventh of the Certificate of Incorporation of the Company, and the
restrictions contained in Section 203 of the Delaware General Corporation Law.
Each of the Company Transaction Documents has been duly and validly executed and
delivered by the Company and, assuming the due authorization, execution and
delivery hereof and thereof by Purchaser, each constitutes a legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms.
3.6 No Conflict; Required Filings and Consents. The execution, delivery
and performance of the Company Transaction Documents by the Company do not and
will not: (a) conflict with or violate the Organizational Documents of the
Company or any Subsidiary; (b) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to the Company or any
Subsidiary or by which its or any of their respective properties are bound or
affected; (c) require any consent, approval, authorization or permit of, action
by, filing with or notification to, any Governmental Entity (other than any
filing required under Section 13(a) or (d), 14, 15(d) or 16(a) of the Exchange
Act); or (d) result in any breach or violation of or constitute a default (or
an event which with notice or lapse of time or both could become a default) or
result in the loss by the Company or any Subsidiary of a material benefit
under, or give rise to any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any of the properties
or assets of the Company or any Subsidiary pursuant to, any Contract (other
than any Employment, Consulting or Severance Agreement), Permit or other
instrument or obligation to which the Company or any Subsidiary is a party or
by which the Company or any Subsidiary or any of their respective
properties are bound or affected; other than (i) in the case of clauses (b) and
(d) for such conflicts, violations, breaches, defaults, rights, losses and
Liens as, and (ii) in the case of clause (c), such consents, approvals,
authorizations, permits, actions, filings and notifications, the absence of
which, would not have a Material Adverse Effect.
3.7 Employment, Consulting and Severance Agreements and Related Matters.
Except as set forth in Schedule 3.7 hereto:
(a) There are no Employment, Consulting or Severance Agreements to which
the Company or any Subsidiary is a party or by which the Company or any
Subsidiary or any of their respective assets may be bound, and no present or
former employee, officer, director, consultant, independent contractor or other
agent of the Company or any Subsidiary is a party to or the beneficiary of any
such Employment, Consulting or Severance Agreements.
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<PAGE> 5
(b) The execution and delivery of this Agreement or the other Company
Transactions Documents and the consummation of the transactions contemplated
hereby and thereby: (i) do not and will not result in any breach or violation
of or constitute a default (or an event which with notice or lapse of time or
both could become a default) or result in the loss by the Company or any
Subsidiary of a material benefit under, or give rise to any right of
termination, amendment, acceleration or cancellation of any Employment,
Consulting or Severance Agreement; or (ii) do not and will not give rise to any
obligation on the part of the Company or any Subsidiary to pay or provide any
Severance Payment; and
(c) Each of the Company's salespeople identified on Schedule 3.7(c) hereto
has executed and delivered to the Company a confidentiality and noncompetition
agreement in the form(s) previously provided to Purchaser by the Company.
3.8 Compliance; No Violation. Each of the Company and each Subsidiary is
in compliance with, and is not in default or violation of, (i) its respective
Organizational Documents, and (ii) all Contracts, Permits and other instruments
or obligations to which any of them are a party or by which any of them or any
of their respective properties may be bound or affected, except, in the case of
clause (ii), for any such failures of compliance, defaults and violations which
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Since January 1, 1993, neither the Company nor any
Subsidiary has received notice of any revocation or modification of any
federal, state, local or foreign Permit material to the Company and its
subsidiaries taken as a whole.
3.9 SEC Documents; Undisclosed Liabilities.
(a) Since January 1, 1993, the Company has filed all required reports,
schedules, forms, proxy, registration and other statements and other documents
with the SEC (collectively, the "SEC Documents"). As of the date of this
Agreement, the last SEC Document filed by the Company was the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997. As of their
respective filing dates, the SEC Documents complied in all material respects
with the requirements of the Securities Act or the Exchange Act, as the case
may be, and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents. As of their respective filing dates, none of
the SEC Documents contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, except to the extent such statements have been modified or
superseded by a later SEC Document filed and publicly available prior to the
Closing Date, the circumstances or bases for which modifications or
supersessions have not and will not individually or in the aggregate result in
any material liability or obligation on behalf of the Company under the
Securities Act, the Exchange Act, the rules promulgated under the Securities Act
or the Exchange Act, or any federal, state or local anti-fraud, blue-sky,
securities or similar laws. The consolidated financial statements of the
Company included in the SEC Documents (as amended or supplemented by any later
filed SEC Document filed and publicly available prior to October 1, 1997),
comply as to form in all material respects with applicable accounting
requirements and the rules and regulations of the SEC with respect thereto, have
been prepared in accordance with generally accepted accounting principles
(except, in the case of unaudited statements, as permitted by Form 10-Q of the
SEC) applied on a consistent basis during the periods involved (except as may be
indicated in notes thereto) and fairly present the consolidated financial
position of the Company and the Subsidiaries as of the dates thereof and
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<PAGE> 6
the consolidated results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments). Except as set forth in the SEC Documents, neither the Company nor
any Subsidiary has any obligation or liability of any nature whatsoever (direct
or indirect, matured or unmatured, absolute, accrued, contingent or otherwise)
either (i) required by generally accepted accounting principles to be set forth
on a consolidated balance sheet of the Company and the Subsidiaries or in the
notes thereto or (ii) which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect whether or not required by
generally accepted accounting principles to be provided or reserved against on a
balance sheet prepared in accordance with generally accepted accounting
principles; other than liabilities and obligations reflected or reserved against
in the consolidated financial statements of the Company and its consolidated
subsidiaries included in the Company's quarterly report on Form 10-Q for the
quarter ended June 30, 1997, or incurred since the date of the balance sheet
included in such financial statements in the ordinary course of business which
are not individually or collectively material to the Company and the
Subsidiaries taken as a whole.
(b) At the date the Proxy Statement is first mailed to the Company's
stockholders or at the time of the Stockholders' Meeting, the Proxy Statement
will not 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 Proxy Statement shall comply in all material respects with
the requirements of the Exchange Act and the rules and regulations promulgated
thereunder except that the Company makes no representation, warranty or
covenant with respect to any written information supplied by Purchaser
specifically for inclusion in the Proxy Statement.
(c) Each of the Interim Financial Statements delivered to Purchaser in
accordance with Section 6.10 hereto fairly present the consolidated financial
position of the Company and the Subsidiaries as of the date thereof and the
consolidated results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal year-end audit
adjustments), in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto).
3.10 Rights to Receive. None of the Rights to Receive which are reflected
on the latest balance sheet included in the SEC Documents or the Interim
Financial Statements or which arose subsequent to the date of the latest
balance sheet included in the SEC Documents or the Interim Financial Statements
is or was subject to any counterclaim or set off. All of such Rights to
Receive arose out of bona fide, arms length transactions. Adequate provision
has been timely made in the latest balance sheet included in the SEC Documents
and the Interim Financial Statements with respect to doubtful Rights to
Receive. Except as set forth in the Company's quarterly report on Form 10-Q
for the quarter ended June 30, 1997, since September 30, 1996: (a) there has
not been a material change in the aggregate amount of the Rights to Receive or
the writing down of Rights to Receive; and (b) there has been no Early
Amortization Event (as defined in the Security Agreement).
3.11 Absence of Certain Changes or Events. Except as disclosed in the SEC
Documents, since September 30, 1996, the Company and the Subsidiaries have
conducted their businesses only in the ordinary course and in a manner
consistent with past practice, and there has not occurred any event, condition,
circumstance, change or development (whether or not in the ordinary course of
business) that, individually or in the aggregate, has had or could
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<PAGE> 7
reasonably be expected to have a Material Adverse Effect. Without limiting the
generality of the foregoing, except as set forth on Schedule 3.11 hereto or as
disclosed in any SEC Documents filed with the SEC and publicly available prior
to November 1, 1997, since September 30, 1996, there has not been (i) any change
by the Company in its accounting methods, principles or practices, (ii) any
revaluation by the Company of any of its or any Subsidiary's material assets,
including but not limited to, writing down the value of any Rights to Receive
other than in the ordinary course of business consistent with past practice,
(iii) any entry outside the ordinary course of business by the Company or any
Subsidiary into any commitments or transactions material, individually or in the
aggregate, to the Company and the Subsidiaries taken as a whole, (iv) any
declaration, setting aside or payment of any dividends or distributions in
respect of the shares of Common Stock or, any redemption, purchase or other
acquisition of any of its securities, other than semi-annual cash dividends of
$.02 per share on outstanding Common Stock consistent with past practices, (v)
any grant or issuance of any Equity Securities of the Company or any Subsidiary;
or (vi) any increase in, establishment of or amendment of any Employment,
Consulting or Severance Agreement, bonus, insurance, deferred compensation,
pension, retirement, profit sharing, stock option (including without limitation
the granting of stock options, stock appreciation rights, performance awards, or
restricted stock awards), stock purchase or other employee benefit plan or
agreement or arrangement, or any other increase in the compensation payable or
to become payable to any present or former directors, officers or employees of
the Company or any Subsidiary, except for increases in compensation in the
ordinary course of business consistent with past practice.
3.12 Absence of Litigation; Compliance. Except as set forth on Schedule
3.12 hereto or as disclosed in any SEC Documents filed with the SEC and
publicly available prior to November 1, 1997, there are no suits, claims,
actions, proceedings or investigations pending or, to the Company's knowledge,
overtly threatened against the Company or any Subsidiary, or any properties or
rights of the Company or any Subsidiary, before any arbitrator or Governmental
Entity, that (i) if determined adversely to the Company or any Subsidiary
could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or (ii) seek to delay or prevent the consummation of
the transactions contemplated by this Agreement or any other Transaction
Document. Neither the Company nor any Subsidiary nor any of their respective
properties is or are subject to any order, writ, judgment, injunction, decree,
determination or award having, or which in the future could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
or could prevent or delay the consummation of the transactions contemplated by
this Agreement or any other Transaction Document. Neither the Company nor any
Subsidiary is in violation of, nor has the Company or any Subsidiary violated,
any applicable provisions of any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise, or other instrument or
obligations to which the Company or any Subsidiary is a party or by which the
Company, any Subsidiary or any of their respective properties are bound or
affected except for any such violations which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Except as
disclosed in the SEC Documents filed with the SEC and publicly available prior
to November 1, 1997, the Company and its Subsidiaries are in compliance with
all applicable statutes, laws, ordinances, rules, orders and regulations of any
Governmental Entity (including, without limitation, with respect to employment
and employment practices, immigration laws relevant to employment, and terms
and conditions of employment and wages and hours) except for any failures to
comply which could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Except as disclosed in the SEC
Documents filed with the SEC and publicly available prior to November 1, 1997,
no investigation
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by any Governmental Entity with respect to the Company or any Subsidiary is
pending or threatened.
3.13 Employee Benefit Plans.
(a) The Company has made available or delivered to Purchaser copies (or if
the same do not exist in written form, descriptions) of each material formal,
informal, oral or written bonus, deferred compensation, incentive compensation,
stock purchase, stock option, restricted stock purchase or other issuance,
severance or termination pay, hospitalization or other medical, life or other
insurance (or similar self-insurance), supplemental unemployment benefits,
profit-sharing, employee stock ownership, pension, or retirement plan, program,
agreement or arrangement, and each other employee benefit plan, program,
agreement or arrangement whether for the benefit of present or former officers,
employees, agents, directors or independent contractors of the Company or any
Subsidiary or any ERISA Affiliate, sponsored, maintained or contributed to or
required to be contributed to by the Company or by any trade or business,
whether or not incorporated (an "ERISA Affiliate"), that together with the
Company would be deemed a "single employer" within the meaning of Section
4001(b) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or Section 414 (b) or (c) of the Code (collectively, the "Plans").
Each of the Plans that is an "employee benefit plan," as that term is defined in
section 3(3) of ERISA and subject thereto is collectively referred to herein as
"ERISA Plans."
(b) No material liability under Title IV of ERISA has been incurred by the
Company or any ERISA Affiliate that has not been satisfied in full, and no
condition exists that presents a material risk to the Company or any ERISA
Affiliate of incurring a material liability under such Title, other than
liability for premiums due the Pension Benefit Guaranty Corporation ("PBGC")
(which premiums have been paid when due). To the extent this representation
applies to sections 4064, 4069 or 4204 of Title IV of ERISA, it is made not
only with respect to each ERISA Plan but also with respect to any employee
benefit plan, program, agreement or arrangement subject to Title IV of ERISA to
which the Company or any ERISA Affiliate made, or was required to make,
contributions during the five-year period ending on the Initial Closing Date.
Neither the Company nor any ERISA Affiliate is required to contribute to a
"multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) or has
withdrawn from any multiemployer plan where such withdrawal has resulted or
would result in any "withdrawal liability" (within the meaning of Title IV of
ERISA) that has not been fully paid.
(c) The PBGC has not instituted proceedings to terminate any ERISA Plan
and no condition exists that presents a material risk that such proceedings
will be instituted.
(d) Neither the Company nor any ERISA Affiliate, nor any ERISA Plan, nor
any trust created thereunder, nor any trustee or administrator thereof has
engaged in a transaction in connection with which the Company or any ERISA
Affiliate, any ERISA Plan, any such trust, or any trustee or administrator
thereof, or any party dealing with any ERISA Plan or any such trust could
reasonably be subject to either a material civil penalty assessed pursuant to
section 409 or 502(i) of ERISA or a material tax imposed pursuant to section
4975 or 4976 of the Code.
(e) No ERISA Plan or any trust established thereunder has incurred any
"accumulated funding deficiency" (as defined in section 302 of ERISA and
section 412 of the Code), whether or not waived, as of the last day of the most
recent fiscal year of each ERISA
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<PAGE> 9
Plan, which could reasonably be expected to result in a material liability to
the Company; and all contributions required to be made with respect thereto
(whether pursuant to the terms of any ERISA Plan or otherwise) have been timely
made.
(f) Each Plan has been operated and administered in accordance with its
terms and applicable law in all material respects, including, but not limited
to, ERISA and the Code. No Plan is subject to any material dispute or
proceeding other than relating to a routine claim for benefits.
(g) There are no material pending or (to the knowledge of the Company)
threatened claims by or on behalf of any Plan, by any employee or beneficiary
covered under any such Plan, or otherwise involving any such Plan (other than
routine claims for benefits).
(h) To the knowledge of the Company, no fact exists that could reasonably
be expected to result in the disqualification of any Plan that is intended to
be qualified under Section 401(a) of the Code.
3.14 Tax Matters. Each of the Company and the Subsidiaries has filed all
Tax Returns, or requests for extensions to file Tax Returns, which the Company
and the Subsidiaries were required to have filed on or before the date hereof.
All Tax Returns filed by the Company or the Subsidiaries are complete and
accurate, except where the failure so to be complete and accurate would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company and the Subsidiaries have paid (or the Company has
paid on behalf of the Subsidiaries) or has made adequate provision for the
payment of all Taxes shown as due on such Tax Returns and reflected in the most
recent financial statements contained in the SEC Documents or the Interim
Financial Statements for all taxable periods and portions thereof accrued
through the date of such financial statements. No deficiencies for any Taxes
have been proposed, asserted or assessed against the Company or any Subsidiary
that are not adequately reserved for, pursuant to such Tax Returns or pursuant
to any assessment received with respect thereto. Except as set forth in
Schedule 3.14, there is no pending audit or examination of any Tax Return of
the Company or any Subsidiary by any Governmental Entity, nor has the Company
or any Subsidiary received written notice of any such audit or examination and
there are no unexpired waivers or agreements for the extension of time for the
assessment of taxes on the Company or any Subsidiary or extension of any
statute of limitations with respect to any Taxes, and there are no pending, nor
has the Company or any Subsidiary received any written notice of any
threatened, actions, proceedings or investigations by any Governmental Entity
with respect to Taxes.
3.15 Environmental Matters. None of the Company or any Subsidiary
(including, without limitation, their respective assets) is in violation of any
Environmental Laws or Environmental Permits, which violation, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect. The Company and each Subsidiary possesses and is in compliance with
all Environmental Permits which are required for the operation of their
respective businesses, except where the failure to possess or comply with such
Environmental Permits could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. During the last three years,
none of the Company or any Subsidiary has received any notice, citation,
inquiry or complaint of any alleged violation of any Environmental Law or
Environmental Permit. For the purposes of this Agreement: (i) "Environmental
Laws" means all federal, state and local statutes, regulations, ordinances,
rules, regulations and
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<PAGE> 10
policies, all court orders and decrees and arbitration awards, and the common
law, which pertain to environmental matters or contamination of any type
whatsoever; and (ii) "Environmental Permits" means licenses, permits,
registrations, governmental approvals, agreements and consents which are
required under or are issued pursuant to Environmental Laws.
3.16 Labor Matters. Other than any such exceptions to any of the following
representations, individually or in the aggregate, as could not reasonably be
expected to have a Material Adverse Effect: (a) the Company and each Subsidiary
is not engaged in any unfair labor practice; (b) there is no unfair labor
practice charge or complaint against the Company or any Subsidiary pending
before the National Mediation Board, the National Labor Relations Board, or any
comparable state or local agency, (c) there is no (x) labor strike, material
dispute, slow down or stoppage actually pending or, to the knowledge of the
Company, threatened against or involving the Company or any Subsidiary, or (y)
material labor grievance or pending arbitration involving the Company or any
Subsidiary; (d) neither the Company nor any Subsidiary has experienced any work
stoppage or other material labor difficulty during the three-year period prior
to the date of this Agreement; (e) there are no collective bargaining
agreements, union contracts or similar types of agreements by which the Company
or any Subsidiary is bound or covered; (f) there are no union representation
petitions pending before the National Labor Relations Board, and no union
within the past three years has sought or demanded recognition by the Company
or any Subsidiary; and (g) there is no union organizing activity, to the
knowledge of the Company, currently in progress involving the Company or any
Subsidiary.
3.17 Real Property. None of the Company or any Subsidiary owns, or has
any option to purchase, any real property.
3.18 Material Contracts; Defaults. Schedule 3.18 hereto sets forth a
correct and complete list of all material Contracts (other than Employment,
Consulting or Severance Agreements) to which the Company or any Subsidiary is a
party or by which the Company or any Subsidiary or any of their respective
assets may be bound (the "Material Contracts"), including, without limitation,
any such Contracts (a) involving the expenditure (or the transfer of assets or
services) by any party thereto in an aggregate amount or with an aggregate
value in excess of $100,000 in any year, (b) which do not by their terms expire
and are not subject to termination (without penalty to the Company or any
Subsidiary) within six (6) months from the date of execution and delivery
thereof, and (c) to which any director or officer of the Company or any
Subsidiary or any holder of more than 5% of the outstanding Common Stock or any
of their respective Affiliates is a party. The Company has made available or
delivered to Purchaser correct and complete copies of all Material Contracts.
Neither the Company nor any Subsidiary is, or has received any notice or has
any knowledge that any other party is, in default in any respect under any
Material Contract, except for those defaults which would not, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, and there has not occurred any event that with the lapse of
time or the giving of notice or both would constitute such a default by the
Company or any Subsidiary or, to the Company's knowledge, by any other party. To
the Company's knowledge, no party to any Material Contract has threatened to
terminate such Material Contract (or modify such Material Contract in a manner
detrimental to the Company or any Subsidiary).
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3.19 Intellectual Property. The Company and each of its Subsidiaries
owns, or is licensed to use (in each case, free and clear of any Liens) all
patents, trademarks, trade names, copyrights, technology, know-how, trade
secrets, processes and computer software (including, without limitation, all
documentation and source and object codes with respect to such software) used
in or necessary for the conduct of its business as currently conducted which
are material to the business, operations, assets, prospects, financial
condition or results of operations of the Company and its Subsidiaries taken as
a whole. To the Company's knowledge, the use of such patents, trademarks,
trade names, copyrights, technology, know-how, trade secrets, processes and
computer software (including, without limitation, all documentation and source
and object codes with respect to such software) by the Company and its
Subsidiaries does not infringe or otherwise violate the rights of any person.
To the Company's knowledge, no person is infringing any right of the Company or
any Subsidiary with respect to any such patents, trademarks, trade names,
copyrights, technology, know-how, processes or computer software (including,
without limitation, all documentation and source and object codes with respect
to such software).
3.20 Insurance. The Company has heretofore furnished to Purchaser copies
of all policies or binders of fire, liability, product liability, worker's
compensation, vehicular and other insurance bonds that insure the operations of
the Company and the Subsidiaries. Such policies include all policies that are
required in connection with the operation of the businesses of the Company and
the Subsidiaries, as presently conducted, by applicable laws or regulations or
by the terms of any Contract to which the Company or any Subsidiary is a party
or by which any of their respective assets is bound. The policies concerning
such insurance are in full force and effect and no notice or cancellation or
termination has been received by the Company or any Subsidiary with respect to
any such policy. There are no outstanding unsettled claims under any such
policy or binder that individually, or in the aggregate, exceed the coverage of
any such policy or binder. There is no failure by the Company or any
Subsidiary to pay premiums when due, and there is no material inaccuracy in any
application for such policies or binders. Neither the Company nor any
Subsidiary has received any notice of cancellation or nonrenewal of any such
policy or binder. Neither the Company nor any Subsidiary has received any
notice from any carrier of such insurance that any insurance premiums will be
materially increased in the future or that any such insurance coverage will not
be available in the future on substantially the same terms as now in effect.
3.21 Permits. The Company and the Subsidiaries have all Permits required
by law or governmental regulations from all applicable Governmental Entities
that are necessary to operate such businesses as presently conducted and all
such Permits are in full force and effect, except where the failure to have any
such Permits in full force and effect could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Neither
the Company nor any Subsidiary is in default under, or in violation of or
noncompliance with, any of such Permits, except for any such default,
violation of or noncompliance which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Upon
consummation of the transactions contemplated by this Agreement, each such
Permit will remain in full force and effect and will not create a right of any
other person to terminate or revoke, modify or condition such Permit based on
such consummation.
3.22 Related Party Transactions. Except as disclosed in any SEC Documents
filed with the SEC and publicly available prior to November 1, 1997, no
director or officer of the Company or any Subsidiary or holder of more than 5%
of the outstanding Common Stock or
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<PAGE> 12
any of their respective Affiliates or any Affiliate of the Company or
any Subsidiary (i) has borrowed any monies from or has outstanding any
indebtedness or other similar obligations to the Company or any Subsidiary in
excess, individually or in the aggregate of $100,000; (ii) owns more than a 5%
equity interest in, or is a director, officer, employee, partner, Affiliate or
associate of, or consultant or lender to, or borrower from, or has the right to
participate in the management, operations or profits of, any person which is a
competitor, supplier, customer, distributor, lessor, tenant, creditor, merchant
or debtor of the Company or any Subsidiaries; or (iii) is otherwise a party to
any contract, arrangement or understanding with the Company or any Subsidiary
with an aggregate value or amount in excess of $100,000, in all cases other
than travel and other expenses and reimbursements, company car charges and
other similar transactions which are customary in amount and in the ordinary
course of business.
3.23 Vote Required. The affirmative vote of the holders of no more than a
majority of the outstanding shares of Common Stock is the only vote of the
holders of any class or series of capital stock or other Equity Securities of
the Company necessary to approve this Agreement and the other Transaction
Documents and the transactions contemplated hereby and thereby.
3.24 Takeover Status. No "fair price", "moratorium", "control share
acquisition" or other similar anti-takeover statute or regulation enacted under
state or federal laws or applicable stock exchange rules or regulations,
including, without limitation, Section 203 of the Delaware General Corporation
Law, applicable to the Company or any Subsidiary is applicable to the
transactions contemplated hereby or by any other Transaction Document, taken
individually or in the aggregate.
3.25 Compliance with Securities Laws. The Company has not taken, and will
not take, any action which would subject the issuance and sale of the Shares,
the Warrant and/or the Warrant Shares pursuant to this Agreement to the
provisions of Section 5 of the Securities Act, or violate the registration or
qualification provisions of any securities or blue sky laws of any applicable
jurisdiction, and, based in part on the representations of Purchaser in Section
4.5, the sale of the Shares and the Warrant pursuant to this Agreement and the
issuance of the Warrant Shares from time to time upon exercise of the Warrant
complies with all applicable requirements of applicable federal and state
securities and blue sky laws.
3.26 Brokers. Other than fees and expenses payable to Compass Partners
International, L.L.C. by the Company not to exceed $600,000 in the aggregate, no
broker, finder, or investment banker or other Person is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by the Company Transaction Documents based upon
arrangements made by or on behalf of the Company.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby jointly and severally represents, warrants and covenants
to the Company on the date of this Agreement and again on the Closing Date,
which representations and warranties shall survive the Closing, as follows:
4.1 Organization. Each of Samstock and TNI is a limited liability company
duly organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized.
4.2 Authority Relative to This Agreement. Each of Samstock and TNI has
the limited liability company power and authority to execute and deliver this
Agreement, the Investment Agreement, the Agreement Among Stockholders and all
other documents, instruments and other writings to be executed and/or delivered
by or on behalf of Samstock and/or TNI to the Company or any of its
representatives in connection with the transactions contemplated hereby or
thereby (collectively, "Purchaser Transaction Documents"), to perform its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and performance of
each of the Purchaser Transaction Documents by Samstock and/or TNI and the
consummation by Samstock and/or TNI of the transactions contemplated hereby and
thereby have been duly authorized by the respective managing members of
Samstock and TNI, and no other limited liability company proceedings on the
part of Samstock or TNI are necessary to authorize the execution, delivery and
performance of the Purchaser Transaction Documents or the transactions
contemplated hereby or thereby. Each of the Purchaser Transaction Documents
has been duly executed and delivered by Samstock and/or TNI, as the case may
be, and, assuming due authorization, execution and delivery by the Company,
constitutes a legal, valid and binding obligation of Samstock and/or TNI, as
the case may be, enforceable against Samstock and/or TNI, as the case may be,
in accordance with its terms.
4.3 No Conflict; Required Filings and Consents. The execution, delivery
and performance of the Purchaser Transaction Documents by Samstock or TNI, as
the case may be, does not and will not: (i) conflict with or violate the
organizational documents of Samstock or TNI, as the case may be; (ii) conflict
with or violate any law, rule, regulation, order, judgment or decree applicable
to Samstock or TNI, as the case may be, or by which any of its properties are
bound or affected; (iii) require any consent, approval, authorization or permit
of, action by, filing with or notification to, any Governmental Entity (other
than any filing required under Section 13(a) or (d), 14, 15(d) or 16(a) of the
Exchange Act); or (iv) result in any breach or violation of or constitute a
default (or an event which with notice or lapse of time or both could become a
default) or result in the loss of a material benefit under, or give rise to any
right of termination, amendment, acceleration or cancellation of, or result in
the creation of a Lien on any of the property or assets of Samstock or TNI, as
the case may be, pursuant to, any Contract, Permit or other instrument or
obligation to which Samstock or TNI, as the case may be, is a party or by which
Samstock or TNI, as the case may be, or any of its properties are bound or
affected, except, in the case of clauses (ii), (iii) and (iv), for any such
conflicts, violations, breaches, defaults or other occurrences which could not,
individually or in the aggregate, reasonably be expected to impair or delay the
ability of Samstock or TNI, as the case may be, to perform its obligations under
this Agreement.
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<PAGE> 14
4.4 Brokers. No broker, finder, investment banker or other person is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by the Purchaser Transaction Documents based
upon arrangements made by or on behalf of Samstock or TNI.
4.5 Investment Intent. Samstock and/or TNI is purchasing the Shares and
the Warrant and will purchase the Warrant Shares for their own account for
investment, and not with a view to, or for resale in connection with, any
public distribution of the Shares, the Warrant or any Warrant Shares.
4.6 Proxy Statement. The information supplied or to be supplied by
Samstock and TNI in writing specifically for inclusion in the Proxy Statement
will not, at the date the Proxy Statement is first mailed to the Company=s
stockholders or at the time of the Stockholders Meeting, 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 are made, not misleading.
4.7 Availability of Funds. Samstock and/or TNI has on hand and will have
on the Closing Date sufficient funds to pay the Purchase Price in accordance
with the terms of this Agreement and all fees and expenses incurred in
connection with the transactions contemplated hereby for which Samstock and/or
TNI is responsible.
4.8 Samstock and TNI not an "Interested Stockholder". Except to the
extent that they may be deemed such by virtue of this Agreement, and the
Agreement Among Stockholders, neither Samstock nor TNI nor any of their
affiliates is an "interested stockholder" of the Company within the meaning of
Section 203 of the Delaware General Corporation Law or Article 7 of the
Company's Certificate of Incorporation.
ARTICLE V
CONDUCT OF BUSINESS OF THE COMPANY PENDING CLOSING
5.1 Conduct of Business of the Company Pending Closing. During the period
from the date hereof to the earlier of the termination of this Agreement
pursuant to Section 8.1 hereof and the Closing, except as set forth on Schedule
5.1 hereto or unless Purchaser shall otherwise agree in writing in advance, the
businesses of the Company and the Subsidiaries shall be conducted only in, and
the Company and the Subsidiaries shall not take any action except in, the
ordinary course of business and in a manner consistent with past practice and
in compliance with applicable laws; and the Company and its Subsidiaries each
shall use commercially reasonable efforts to preserve substantially intact the
business organization of the Company and the Subsidiaries, to keep available
the services of the present officers, employees and consultants of the Company
and the Subsidiaries and to preserve the present relationships of the Company
and the Subsidiaries with customers, suppliers, merchants and other
Persons with which the Company or any Subsidiary has significant business
relations. By way of amplification and not limitation, except as set forth on
Schedule 5.1 hereto or unless Purchaser shall otherwise agree in writing in
advance, neither the Company nor any Subsidiary shall, between the date of this
Agreement and the Closing, directly or indirectly do, or propose or commit to
do, any of the following (other than any transfer, pledge, assignment,
hypothecation, mortgage or encumbrance of Rights to Receive pursuant to and in
accordance
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<PAGE> 15
with the terms of the Securitization Documents, which actions shall not require
Purchaser's consent):
(a) amend its Organizational Documents;
(b) issue, deliver, sell, pledge, dispose of or encumber, or
authorize or commit to the issuance, sale, pledge, disposition or
encumbrance of, (A) any Equity Securities of the Company or any
Subsidiary, or (B) any assets of the Company or any Subsidiary with an
individual value in excess of $100,000 or an aggregate value as to all
such assets of $500,000;
(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with respect
to any of its capital stock, other than semi-annual cash dividends of
$.02 per share on outstanding Common Stock consistent with past
practices;
(d) reclassify, combine, split, subdivide or redeem, purchase or
otherwise acquire, directly or indirectly, any of its capital stock;
(e) (i) acquire (by merger, consolidation or acquisition of stock
or assets) any corporation, partnership or other business organization or
division thereof or (except for the purchase of Rights to Receive in the
ordinary course of business) any assets, except for such transactions
which involve aggregate consideration of less than $100,000; (ii) sell,
transfer, lease, mortgage, pledge, encumber or otherwise dispose of or
subject to any Lien any of its assets (including capital stock of the
Subsidiaries), except for such transactions which involve aggregate
consideration of less than $100,000; (iii) incur any indebtedness for
borrowed money or issue any debt securities or assume, guarantee or
endorse, or otherwise as an accommodation become responsible for, the
obligations of any Person, or make any loans, advances or capital
contributions to, or investments in, any other Person except for such
transactions which involve aggregate consideration of less than $500,000;
(iv) enter into, amend or terminate any Contract other than in the
ordinary course of business consistent with past practice; (v) enter into
any commitments or transactions material, individually or in the
aggregate, to the Company and the Subsidiaries taken as a whole; (vi)
authorize any capital expenditure in excess of $100,000, individually, or
$500,000 in the aggregate; or (vii) enter into or amend any Contract
obligating it to take any of the actions set forth in this Section
5.1(e);
(f) (i) except to the extent required under existing Employment,
Consulting or Severance Agreements as in effect on the date of this
Agreement and described in Schedule 3.7 hereto: (A) increase the
compensation or fringe benefits of any of its present or former directors,
officers, employees, consultants or independent contractors except for
increases in salary or wages of employees of the Company or the
Subsidiaries who are not officers of the Company in all cases to the
extent in the ordinary course of business in accordance with past
practice, (B) grant any severance, termination or similar payments or
benefits, (C) enter into, or amend, any Employment, Consulting or
Severance Agreements, or (D) establish, adopt, enter into or amend or
terminate any bonus, profit sharing, thrift, compensation, stock option,
restricted stock, pension, retirement, deferred compensation, or other
plan, agreement, trust, fund, policy
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<PAGE> 16
or arrangement for the benefit of any present or former directors,
officers, employees, consultants, independent contractors or other agents
of the Company or any Subsidiary; and (ii) a participant or beneficiary
of, or otherwise covered by, the Company's Senior Executive Severance
Plan, any successor thereto or any similar plan.
(g) except as may be required as a result of a change in law or in
generally accepted accounting principles, change any of the accounting
practices or principles used by it;
(h) settle or compromise any pending or threatened suits, actions or
claims in a manner obligating the Company or any Subsidiary thereof to
pay, or waiving amounts claimed by the Company or any Subsidiary, in an
aggregate amount (with respect to all such obligations and waivers) in
excess of $100,000;
(i) authorize, recommend, propose, announce or adopt a plan of
complete or partial liquidation, dissolution, merger, consolidation,
restructuring, recapitalization (other than the transactions contemplated
by the Transaction Documents) or other reorganization;
(j) pay, discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise),
other than the payment, discharge or satisfaction in the ordinary course
of business and consistent with past practice of liabilities reflected or
reserved against in the financial statements of the Company or incurred
in the ordinary course of business and consistent with past practice;
(k) enter into any Contract providing for the acceleration of
payment or performance or other consequences as a result of any of the
transactions contemplated by any Transaction Document;
(l) enter into any new lines of business or otherwise make material
changes to the operation of its business;
(m) effectuate a "plant closing" or "mass layoff", as those terms
are defined in the Worker Adjustment and Retraining Notification Act of
1988, as amended, affecting in whole or in part any site of employment,
facility, operating unit or employee of the Company or any Subsidiary; or
(n) take, or offer or propose to take, or agree to any of the
actions described in this Article V.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Exclusivity.
(a) In consideration of the expenditure of time, effort and expense to be
undertaken by Purchaser in connection with the preparation of this Agreement
and the other Transaction
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<PAGE> 17
Documents, and the investigations and review of the business of the Company and
the Subsidiaries, the Company agrees that, prior to the Termination Date,
neither it, any of the Subsidiaries, any of their respective Affiliates, nor any
of the respective directors, officers, employees, agents or representatives of
any of the foregoing will, directly or indirectly: (i) continue, solicit,
initiate, facilitate or encourage any inquiries or the making of any proposal
with respect to (A) the sale or issuance by the Company or any Subsidiary of any
Common Stock, Preferred Stock or other Equity Securities of the Company or any
Subsidiary to any Person other than Purchaser or (B) any merger, consolidation,
sale of all or substantially all of the assets of the Company and the
Subsidiaries taken as a whole, or other business combination involving the
Company or any Subsidiary and any other Person other than Purchaser (any of the
transactions described in the foregoing subparagraphs (A) and (B) being
hereinafter referred to as a "Competing Transaction"); (ii) negotiate, explore
or otherwise engage in discussions with any Person other than Purchaser either
with respect to any Competing Transaction or with respect to any matter which
may reasonably be expected to lead to a proposal for a Competing Transaction;
(iii) enter into any agreement, arrangement or understanding either with respect
to a Competing Transaction or with respect to any matter which may reasonably be
expected to lead to a proposal for a Competing Transaction; or (iv) provide any
information to any Person which may reasonably be expected to solicit, initiate,
facilitate or encourage any of the matters referred to in the foregoing
subparagraphs (i) through (iii); provided, however, that, subject to Section
6.1(b), nothing in this Section 6.1(a) shall prohibit the Company and its
directors, officers, employees, agents and representatives from: (x) engaging in
any of the conduct or activities otherwise prohibited by this Section 6.1(a)
with respect to a Competing Transaction with a Disclosed Competing Party; or (y)
in response to an unsolicited proposal or inquiry regarding a Competing
Transaction made by a Person other than Purchaser, a Disclosed Competing Party
or an Undisclosed Competing Party (any such Person, a ANew Competing Party"),
(aa) furnishing such New Competing Party information pursuant to an appropriate
confidentiality agreement concerning the Company and the Subsidiaries, (bb)
engaging in discussions or negotiations with such New Competing Party concerning
a Competing Transaction and (cc) entering into any agreement, arrangement or
understanding with such New Competing Party with respect to a Competing
Transaction with such New Competing Party.
(b) The Company agrees that, as of the date hereof, it, the Subsidiaries,
their respective Affiliates, and the respective directors, officers, employees,
agents and representatives of the foregoing, shall immediately cease and cause
to be terminated any existing activities, discussions or negotiations with any
party (other than any Disclosed Competing Party) with respect to any Competing
Transaction. The Company agrees to promptly advise Purchaser in writing of the
existence of (i) any inquiries or proposals (or desire to make a proposal)
received by (or indicated to), any information requested from, or any
negotiations or discussions sought to be initiated or continued with, the
Company, the Subsidiaries, their respective Affiliates, or any of the respective
directors, officers, employees, agents or representatives of the foregoing, in
each case from any party (including, without limitation, any Disclosed Competing
Party, Undisclosed Competing Party or any New Competing Party) with respect to a
Competing Transaction, and (ii) the terms thereof, including the identity of
such party (and any other real party in interest, including the direct and
indirect owners of such party).
(c) The Company agrees, without limitation of its obligations, that any
violation of this Section 6.1 by any director, officer, employee, investment
banker, financial advisor,
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<PAGE> 18
attorney or other advisor, consultant, agent or representative of the Company,
the Subsidiaries and their respective Affiliates, whether or not such Person is
purporting to act on behalf of the Company, shall be deemed to be a breach of
this Section 6.1 by the Company.
(d) Nothing in this Agreement shall prevent the Company and the board of
directors of the Company from complying with Rule 14e-2 under the Exchange Act,
or issuing a communication meeting the requirements of Rule 14d-9(e) under the
Exchange Act, with respect to any tender offer or otherwise prohibit the
Company from making any public disclosures required by law or the requirements
of the New York Stock Exchange (provided, whenever practicable, the Company
first consults with Purchaser concerning the timing and content of such
disclosure), provided, however, that the Company may not, except as permitted
by Section 6.4(e), withdraw or modify its position with respect to the Proxy
Proposals or approve or recommend a Competing Transaction.
6.2 Access to Information. Purchaser is entitled to continue its due
diligence investigation of the Company and the Subsidiaries, including without
limitation, any business, legal, financial or environmental due diligence as
Purchaser deems appropriate. The Company will permit Purchaser and its
authorized representatives, accountants, attorneys, advisors and consultants
full access to the Company's and the Subsidiaries' property and all records and
other data with respect to the Company, the Subsidiaries, and their respective
properties, assets, operations, sales and marketing activities, and products
and services, as is reasonably requested, and will provide such assistance as
is reasonably requested. Purchaser is entitled to contact and communicate with
employees, participating merchants (i.e., restaurants, other vendors and credit
card companies), legal advisors and accountants of the Company and the
Subsidiaries.
6.3 Filings. As promptly as practicable after the date of this Agreement,
the Company and Purchaser shall make or cause to be made all filings and
submissions under laws and regulations applicable to the Company and Purchaser,
if any, as may be required for the consummation of the transactions contemplated
by this Agreement. Purchaser and the Company shall coordinate and cooperate in
exchanging such information and providing such reasonable assistance as may be
requested by any of them in connection with the filings and submissions
contemplated by this Section 6.3.
6.4 Stockholders' Meeting. The Company acting through the Board, shall,
in accordance with applicable law, as soon as practicable:
(a) duly call, give notice of, convene and hold an annual or special
meeting of its stockholders (the "Stockholders' Meeting") for the purpose of
considering and taking action upon each of the Proxy Proposals;
(b) include in the proxy statement (the "Proxy Statement") to be
distributed to the Company's stockholders in connection with the Proxy
Proposals, including any amendments or supplements thereto (which Proxy
Statement shall be in form and content reasonably satisfactory to Purchaser),
the recommendation of the Board that the stockholders of the Company vote in
favor of the approval of each of the Proxy Proposals;
(c) use its best efforts (i) to obtain and furnish the information
required to be included by it in the Proxy Statement and respond promptly to
any comments made by the SEC
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<PAGE> 19
with respect to the Proxy Statement and any preliminary version thereof and
cause the Proxy Statement to be mailed to its stockholders at the earliest
practicable time, and (ii) to obtain the necessary approvals by its stockholders
of the Proxy Proposals; and
(d) cause the Proxy Statement (i) not to 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, and (ii) to comply as
to form in all material respects with the applicable provisions of the Exchange
Act and the rules and regulations thereunder.
(e) Notwithstanding the foregoing, the board of directors of the Company
may approve or recommend (and, in connection therewith withdraw or modify its
approval or recommendation of the Proxy Proposals) a Competing Transaction
provided the Company has not breached any provision of Section 6.1.
6.5 Board of Directors. The Company hereby agrees to take all action
within its power to cause (i) four members of the Board acceptable to Purchaser
to resign effective no later than the Closing Date, (ii) two of the resigning
members of the Board to be replaced no later than the Closing Date by persons
designated by Purchaser who are reasonably acceptable to the Company (it being
agreed by the Company that Sam Zell, F. Philip Handy, Rod Dammeyer and Steven
J. Halmos are acceptable to the Company), and (iii) two of the resigning
members of the Board to be replaced no later than the Closing Date by persons
designated by the remaining Independent Directors and acceptable to Purchaser.
6.6 CEO Search. The Company (represented by the Company's current chief
executive officer and the chairman of the Board's Compensation Committee) and
Purchaser (represented by an individual designated by Purchaser in its sole
discretion) shall jointly, diligently and in good faith conduct a search to find
a replacement for the Company's current chief executive officer, which search
shall commence promptly following the execution of this Agreement.
6.7 Agreement to Cooperate; Further Assurances. Subject to the terms and
conditions of this Agreement, each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement and the other Transaction Documents, including
providing information and using reasonable efforts to obtain all necessary or
appropriate waivers, consents and approvals, and effecting all necessary
registrations and filings. In case at any time after the Closing Date any
further action is necessary or desirable to transfer any Shares, the Warrant or
the Warrant Shares to Purchaser or otherwise to carry out the purposes of this
Agreement and the other Transaction Documents, the Company and Purchaser shall
execute such further documents and shall take such further action as shall be
necessary or desirable to effect such transfer and to otherwise carry out the
purposes of this Agreement and the other Transaction Documents, in each case to
the extent not inconsistent with applicable law.
6.8 Public Announcements. Any public announcement made by or on behalf of
either Purchaser or the Company prior to the termination of this Agreement
pursuant to Article VIII hereof concerning this Agreement, the transactions
described herein or in any other
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<PAGE> 20
Transaction Document or any other aspect of the dealings heretofore had or
hereafter to be had between the Company and Purchaser and their respective
Affiliates must first be approved in writing by the other (any such approval not
to be unreasonably withheld), subject to the Company's obligations under
applicable law or New York Stock Exchange rules and listing requirements as a
public company (but the Company shall use its best efforts to consult with
Purchaser as to all such public announcements).
6.9 Notification of Certain Matters. The Company shall promptly provide
Purchaser (or its counsel) with copies of all filings made by the Company with
the SEC or any other Governmental Entity in connection with this Agreement, the
other Transaction Documents and the transactions contemplated hereby and
thereby.
6.10 Interim Financial Statements and Other Interim Deliveries.
(a) The Company shall deliver, or cause to be delivered, to Purchaser no
later than the tenth day of each calendar month following the date of this
Agreement and until the Closing Date or the termination of this Agreement
pursuant to Article VIII, an unaudited consolidated balance sheet, statement of
income and retained earnings and statement of cash flows of the Company and the
Subsidiaries as of the end of the immediately preceding calendar month and for
the one calendar month period then ended (such financial statements,
collectively the "Interim Financial Statements").
(b) The Company shall deliver, or cause to be delivered, to Purchaser no
later than the thirteenth day of each calendar month following the date of this
Agreement and until the Closing Date or the termination of this Agreement
pursuant to Article VIII, a true and correct Right-to-Receive-Backed-Notes
Settlement Statement prepared in compliance with Section 12(g) of the Security
Agreement.
(c) The Company shall deliver, or cause to be delivered, to Purchaser no
later than the tenth day of each calendar month following the date of this
Agreement, and until the Closing Date or the termination of this Agreement
pursuant to Article VIII, a true and correct statement containing the following
information:
(i) the number of "Transmedia Card" members as of the beginning of
the immediately preceding calendar month, the number of new members
acquired during the calendar month, the number of members whose
membership has terminated during the calendar month and the number of
members as of the end of the calendar month, broken down by Afee" and
Ano-fee" members;
(ii) the number of participating Merchants as of the beginning of
the immediately preceding calendar month, the number of new participating
Merchants acquired during the calendar month, the number of Merchants
whose participation has terminated during the calendar month and the
number of participating Merchants as of the end of the calendar month;
and
(iii) the number of Transmedia Card "tickets" (i.e., individual
transactions on the Transmedia Card) generated during the immediately
preceding month.
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6.11 Representations and Warranties. The Company shall give prompt notice
to Purchaser, and Purchaser shall give prompt notice to the Company, of (a) any
representation or warranty made by such party contained in this Agreement that
is qualified as to materiality becoming untrue or inaccurate in any respect or
any such representation or warranty that is not so qualified becoming untrue or
inaccurate in any material respect prior to the Closing or (b) the failure by
such party prior to Closing to comply with or satisfy in any material respect
any covenant, condition or agreement to be complied with or satisfied by such
party under this Agreement; provided, however, that no such notification shall
affect the representations, warranties, covenants or agreements of the parties
or the conditions to the obligations of the parties under this Agreement.
6.12 Indemnification and Insurance.
(a) The Certificate of Incorporation and By-Laws of the Company shall
contain the provisions with respect to indemnification set forth in the
Certificate of Incorporation and By-Laws of the Company on the date hereof,
which provisions shall not be amended, repealed or otherwise modified in any
manner that would adversely affect the rights to indemnification thereunder of
any current or future directors, officers, employees or agents of the Company,
unless such modification is required by law.
(b) The Company shall, to the fullest extent permitted under applicable
law or under the Company's Certificate of Incorporation or By-Laws as in effect
on the Closing Date and regardless of whether the Closing occurs, indemnify and
hold harmless each present and former director, officer or employee of the
Company or any of its Subsidiaries (collectively, the "Indemnified Parties")
against any out of pocket costs or expenses (including reasonable attorneys'
fees), judgments, fines, losses, claims, damages, liabilities and amounts paid
in settlement in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or investigative
incurred by such person by reason of the fact that such person is or was an
Indemnified Party, (x) arising out of or pertaining to the transactions
contemplated by this Agreement and the other Transaction Documents or (y)
otherwise with respect to any acts or omissions occurring on or prior to the
Closing Date, to the same extent as provided in the Company's Certificate of
Incorporation or By-Laws as in effect on the Closing Date or any applicable
contract or agreement as in effect on the date hereof and identified in
Schedule 3.18 hereto as containing an agreement concerning indemnification of
any Indemnified Parties. In the event of any such claim, action, suit,
proceeding or investigation (whether arising before or after the Closing Date),
(i) any counsel retained by the Indemnified Parties for any period after the
Closing Date shall be reasonably satisfactory to the Company, (ii) after the
Closing Date, the Company shall pay the reasonable fees and expenses of such
counsel, promptly after statements therefor are received, provided the
Indemnified Parties first deliver to the Company a written undertaking to repay
such amounts if it is ultimately determined that such person is not entitled to
be indemnified by the Company under this Section 6.12, and (iii) the Company
will cooperate in the defense of any such matter; provided, however, that the
Company shall not be liable for any settlement effected without its written
consent (which consent shall not be unreasonably withheld). The Indemnified
Parties as a group may retain (in addition to local counsel) only one law firm
to represent them with respect to any single action unless there is, under
applicable standards of professional conduct, a conflict on any significant
issue between the positions of any two or more Indemnified Parties.
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<PAGE> 22
(c) For a period of six years after the Closing Date, the Company shall
maintain in effect directors' and officers' liability insurance covering those
persons who are currently covered by the Company's directors' and officers'
liability insurance policy on terms comparable to those now applicable to
directors and officers of the Company.
(d) The obligations of the Company under this Section 6.12 shall survive
the Closing, are intended to benefit the Company and the Indemnified Parties,
shall be binding on all successors assigns of the Company and shall be
enforceable by the Indemnified Parties.
ARTICLE VII
CONDITIONS AND SCHEDULE UPDATES
7.1 Conditions to Obligation of Each Party. The respective obligations of
each party to effect the transactions contemplated by this Agreement shall be
subject to the satisfaction at or prior to the Closing Date of the following
conditions:
(a) No temporary restraining order, preliminary or permanent
injunction or other order or decree by any court of competent
jurisdiction which prevents the consummation of the transactions
contemplated by this Agreement or the other Transaction Documents or
imposes material conditions with respect thereto shall have been issued
and remain in effect (each party agreeing to use its reasonable efforts
to have any such injunction, order or decree lifted);
(b) No action shall have been taken, and no statute, rule or
regulation shall have been enacted, by any Governmental Entity which
would prevent the consummation of the transactions contemplated by this
Agreement or the other Transaction Documents or impose material
conditions with respect thereto; and
(c) All orders, consents and approvals of Governmental Entities
legally required for the consummation of the transactions contemplated by
this Agreement or the other Transaction Documents shall have been
obtained and be in effect at the Closing Date.
7.2 Condition to Obligations of the Company. The obligation of the
Company to effect the transactions contemplated by this Agreement shall be
subject to the fulfillment at or prior to the Closing Date of the following
additional condition:
(a) Purchaser shall have performed in all material respects all
obligations by it required to be performed at or prior to the Closing
Date, and the representations and warranties of Purchaser contained in
this Agreement shall be true and correct in all material respects (if not
qualified by materiality) and true and correct (if so qualified) on and
as of the date of this Agreement and at and as of the Closing Date as if
made at and as of the Closing Date, except to the extent that any such
representation or warranty expressly relates to another date (in which
case, as of such date) and the Company shall have received a certificate
signed on behalf of Purchaser by an executive officer thereof, to such
effect;
(b) The Company shall have received an opinion letter from Rosenberg
& Liebentritt, P.C., counsel to Purchaser, containing the opinions in the
form attached
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hereto as Exhibit B with such provisions concerning scope of firm's
inquiry, law covered by opinion, reliance by the firm, reliance by third
parties, assumptions, definition of firm's "knowledge", qualifications,
limitations and similar matters as shall be reasonably acceptable to the
Company;
(c) No action or proceeding shall be pending against the Company or
Purchaser before any court of competent jurisdiction to prohibit,
restrain, enjoin or restrict the consummation of the transactions
contemplated by this Agreement or the other Transaction Documents.
(d) All consents, approvals, authorizations and permits of, actions
by, filing with or notifications to, Governmental Entities and third
parties required in connection with the transactions contemplated by this
Agreement and the other Transaction Documents shall have been obtained,
taken or made; and
(e) Each of the Proxy Proposals shall have received Stockholder
Approval.
7.3 Conditions to Obligations of Purchaser. The obligations of Purchaser
to effect the transactions contemplated by this Agreement shall be subject to
the fulfillment at or prior to the Closing Date of the following additional
conditions:
(a) The Company shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or
prior to the Closing Date, and the representations and warranties of the
Company contained in this Agreement shall be true and correct in all
material respects (if not qualified by materiality) and true and correct
(if so qualified) on and as of the date of this Agreement and at and as
of the Closing Date (as modified by the matters or circumstances
reflected in the Updated Schedules, if any, provided by the Company to
Purchaser in accordance with Section 7.4 hereof) as if made at and as of
the Closing Date, except to the extent that any such representation or
warranty expressly relates to another date (in which case, as of such
date) and Purchaser shall have received a certificate from the Company
signed by an executive officer), to such effect;
(b) No action or proceeding shall be pending against the Company or
Purchaser before any court of competent jurisdiction which action or
proceeding has been brought by a Governmental Entity and which is
reasonably likely to have a Material Adverse Effect or to prohibit,
restrain, enjoin or restrict the consummation of the transactions
contemplated by this Agreement or the other Transaction Documents;
(c) All consents, approvals, authorizations and permits of, actions
by, filings with or notifications to, Governmental Entities and third
parties required in connection with the transactions contemplated by this
Agreement and the other Transaction Documents shall have been obtained,
taken or made;
(d) Purchaser shall have received an opinion of Morgan, Lewis &
Bockius LLP, counsel to the Company, containing the opinions in the form
attached hereto as Exhibit C with such provisions concerning scope of
firm's inquiry, law covered by opinion, reliance by the firm, assumptions,
definition of firm's "knowledge", qualifications, limitations and similar
matters as shall be reasonably acceptable to the Company.
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<PAGE> 24
(e) The Company and each current Company stockholder who is to be
made a party thereto shall have executed and delivered to Purchaser the
Investment Agreement, and such Investment Agreement shall be in full
force and effect;
(f) The Company and Melvin Chasen shall have executed and delivered
to Purchaser the Agreement Among Stockholders, and such Agreement Among
Stockholders shall be in full force and effect;
(g) The Company and Frank Felix Associates, Ltd. ("FFA") shall have
entered into the Consulting Agreement substantially in the form of the
draft most recently reviewed by the Company and Purchaser;
(h) Each of the Proxy Proposals shall have received Stockholder
Approval, and the Charter Amendment shall have been filed with the
Delaware Secretary of State and be shall be effective;
(i) The Board shall be constituted of the individuals designated in
accordance with Section 6.5;
(j) The Company shall have engaged an executive search firm of
national reputation and reasonably acceptable to Purchaser to assist in
the CEO Search;
(k) The matters or circumstances reflected in the Updated Schedules,
if any, provided by the Company to Purchaser in accordance with Section
7.4 hereof, in the reasonable judgment of Purchaser, could not reasonably
be expected to result in a Material Adverse Effect; and
(l) Each of the persons identified in Schedule 3.7(a) hereto shall
have executed and delivered to the Company and Purchaser a valid, binding
and enforceable agreement and acknowledgment, in form and content
reasonably satisfactory to Purchaser, of the matters referred to in
Section 3.7(b)(ii).
7.4 Schedule Updates. At any time prior to two (2) business days prior to
the Closing, the Company shall be entitled to update any schedule referred to
in Article III of this Agreement or add new schedules not referred to in or
contemplated by Article III by written notice to Purchaser if necessary in
order to make the corresponding representations and warranties true and correct
as of the Closing Date; provided that such updated or new Schedules may only
reflect changes in circumstances or matters arising subsequent to the date of
the execution of this Agreement that are not the result of any action
undertaken, or failure to act, by the Company or the Subsidiaries in breach of
any provision of this Agreement (any such updated or new schedules, "Updated
Schedules"); it being understood that the Company shall not be entitled to
reflect in any Updated Schedules any circumstances, matters or facts which were
in existence as of or prior to the date of this Agreement, whether or not the
Company knew or should have known of such circumstances, matters or facts as of
the date of this Agreement). If, in accordance with the immediately preceding
sentence, new schedules are added, the applicable section or subsection of
Article III corresponding to such new schedule shall be read to include the
words "except as set forth in Schedule [insert applicable section or subsection
number]" or words of similar meaning to appropriately connote the modifications
created by such new schedule. The delivery of any Updated Schedules pursuant to
this
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<PAGE> 25
Section 7.4 shall not cure any breach of any representation, warranty or
covenant made in this Agreement as of the date of this Agreement.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated and the transactions
contemplated by this Agreement may be abandoned at any time prior to the
Closing Date:
(a) By mutual written consent of Purchaser and the Company;
(b) By Purchaser, upon notice to the Company, if (i) the Company
shall not have mailed the Proxy Statement to the Company's stockholders
by February 28, 1998, or (ii) the Closing shall not have occurred on or
before the sixtieth (60th) day following the mailing of the Proxy
Statement, unless the absence of such occurrence shall be due to the
failure of Purchaser to perform in all material respects each of its
obligations under this Agreement required to be performed by it at or
prior to the Closing.
(c) By Purchaser (i) if there has been a material breach by the
Company of any representation, warranty, covenant or agreement set forth
in this Agreement (other than the covenant set forth in Section 6.1
hereof), which breach has not been cured within ten (10) business days
following receipt by the breaching party of notice of such breach; (ii)
if there has been a breach by the Company of any covenant set forth in
Section 6.1 hereof (including due to the act or omission of any director,
officer, employee, investment banker, financial advisor, attorney or
other advisor, consultant, agent or representative of the Company, the
Subsidiaries and their respective Affiliates); or (iii) if the Board
fails to recommend, or revokes or otherwise modifies its recommendation
of, the Proxy Proposals or resolves to do so;
(d) By the Company, upon notice to Purchaser, if the Closing shall
not have occurred on or before the sixtieth (60th) day following the
mailing of the Proxy Statement, unless the absence of such occurrence
shall be due to the failure of the Company to perform in all material
respects each of its obligations under this Agreement required to be
performed by it at or prior to the Closing.
(e) By Purchaser or the Company, upon notice to the other, if the
Company's stockholders fail to adopt each of the Proxy Proposals at the
Stockholders' Meeting.
(f) By the Company, upon notice to Purchaser given contemporaneously
with the Company entering into a definitive agreement concerning a
Competing Transaction, provided there has not been a breach by the
Company of any covenant set forth in Section 6.1 hereof (including due to
the act or omission of any director, officer, employee, investment
banker, financial advisor, attorney or other advisor, consultant, agent
or representative of the Company, the Subsidiaries and their respective
Affiliates).
(g) By Purchaser, if the Company enters into a definitive agreement
concerning a Competing Transaction;
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<PAGE> 26
(h) By Purchaser or the Company, if (i) the Board of Directors of
the Company shall withdraw, modify or change its approval or
recommendation of the Proxy Proposals in a manner adverse to Purchaser or
shall have resolved to do so; or (ii) the Board of Directors of the
Company shall have recommended to the stockholders of the Company a
Competing Transaction;
(i) By the Company, if there has been a material breach by Purchaser
of any representation, warranty, covenant or agreement set forth in this
Agreement which breach has not been cured within ten (10) business days
following receipt by the breaching party of notice of such breach; or
(j) By Purchaser, if the Company delivers to Purchaser any Updated
Schedules in accordance with Section 7.4 hereof and the matters or
circumstances reflected in such Updated Schedules, if any, in the
reasonable judgment of Purchaser, could reasonably be expected to result
in a Material Adverse Effect.
8.2 Termination Fee and Expenses Payable to Purchaser. Notwithstanding
any provision to the contrary contained in this Agreement, in the event that
Purchaser terminates this Agreement pursuant to Section 8.1(b), 8.1(c), 8.1(e),
8.1(f), 8.1(g) or 8.1(h) hereof, or if the Company terminates this Agreement
other than pursuant to Section 8.1(d) hereof (provided Purchaser is not
entitled to terminate this Agreement pursuant to Section 8.1(b), 8.1(c),
8.1(e), 8.1(f), 8.1(g) or 8.1(h) hereof) or Section 8.1(i) hereof, then the
Company shall immediately pay to Purchaser (a) an amount equal to the
Termination Fee, plus (b) all out-of-pocket costs and expenses (including
attorneys' fees and expenses), not to exceed $250,000 in the aggregate,
reasonably incurred by Purchaser and their Affiliates in connection with this
Agreement and the other Purchaser Transaction Documents, with the Termination
Fee to be paid concurrently with such termination of this Agreement, and the
expense amount under clause (b) above to be paid within five (5) business days
after receipt by the Company of reasonably detailed evidence of the same. Upon
receipt of such payments, Purchaser shall not be entitled to and shall be
deemed to have waived the right to seek Damages or remedies from the Company
for breach of, or otherwise in connection with, this Agreement.
Notwithstanding anything to the contrary in this Section 8.2, the Company shall
not be obligated to pay the Termination Fee or any out-of-pocket costs and
expenses of Purchaser in the event that this Agreement is terminated pursuant to
(i) Section 8.1(j) or (ii) Section 8.1(b) or (d) because any of the conditions
to Closing specified in Section 7.1, Section 7.2(c) or (d), or Section 7.3(b),
(c) or (k) have not been satisfied or waived (except, with respect to Section
7.2(d) and Section 7.3(c), where the failure to obtain the consents, approvals,
authorizations and permits of, actions by, filings with or notifications to,
Governmental Entities and third parties referred to in said Section 7.2(d) and
Section 7.3(c) shall be due to the failure by the Company to perform in all
material respects each of its obligations under this Agreement required to be
performed by the Company prior to the Closing).
8.3 Other Remedies. Notwithstanding any provision to the contrary
contained in this Agreement, if this Agreement is terminated pursuant to
Article VIII or otherwise by the Company, on the one hand, or Purchaser, on the
other hand, and the non-terminating party is not entitled to receive the
payments described in Section 8.2, then the non-terminating party shall be
entitled to pursue any available legal rights to recover Damages.
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ARTICLE IX
INDEMNIFICATION
9.1 General. From and after the Closing, the parties shall indemnify each
other as provided in this Article IX. No specifically enumerated
indemnification obligation with respect to a particular subject matter as set
forth below shall limit or affect the applicability of a more general
indemnification obligation as set forth below with respect to the same subject
matter. For the purposes of this Article IX, each party shall be deemed to have
remade all of its representations, warranties and covenants contained in this
Agreement at the Closing with the same effect as if originally made at the
Closing. No Person which may be subject to an indemnification obligation under
this Article IX shall be entitled to require that any action be brought against
any other Person before action is brought against it hereunder by a Person
seeking indemnification by such Person.
9.2 The Company's Indemnification Obligations. The Company shall
indemnify, save and keep harmless Purchaser and its officers, directors,
employees, agents, representatives, Affiliates, successors and permitted
assigns against and from all Damages sustained or incurred by any of them
resulting from or arising out of or by virtue of any inaccuracy in, breach of
or other failure to comply with any representation, warranty or covenant made
by the Company in this Agreement or any other Company Transaction Document. A
claim for indemnification under this Section 9.2 must be asserted by notice
delivered to the Company within ninety (90) days after the Company delivers to
Purchaser the Company's annual report on Form 10-K as filed with the SEC for
the year ended September 30, 1998 (such ninetieth (90th) day, hereinafter the
ASurvival Date"). Notwithstanding anything to the contrary in this Agreement,
no investigation or lack of investigation by Purchaser, nor any disclosure in
any Schedule hereto or knowledge of Purchaser as to any indemnifiable matters
referred to in this Section 9.2, shall in any way limit the Company's
indemnification obligations hereunder.
9.3 Purchaser's Indemnification Obligations. Purchaser shall indemnify,
save and keep harmless the Company and its officers, directors, employees,
agents, representatives, Affiliates, successors and permitted assigns against
and from all Damages sustained or incurred by any of them resulting from or
arising out of or by virtue of any inaccuracy in or breach of any representation
and warranty made by Purchaser to the Company in this Agreement or in any other
Purchaser Transaction Document. A claim for indemnification under this Section
9.3 must be asserted by notice delivered to the party from whom indemnification
is sought no later than the Survival Date.
9.4 Disputes; Mediation.
(a) If the recipient of a notice of a claim for indemnification
under either Section 9.2 or 9.3 desires to dispute such claim, it shall,
within fourteen (14) days after notice of the claim of loss against it or
a notice of dispute is given, give a counter notice, setting forth the
basis for disputing such claim, to Purchaser or the Company, as the case
may be. If no such counter notice is given within such fourteen (14) day
period, or if Purchaser or the Company, as the case may be, acknowledge
liability for indemnification, then such loss shall be promptly satisfied.
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(b) If the dispute is not promptly resolved, then, within fourteen
(14) days after delivery of the counter notice, or at such later time as
may be mutually agreed upon by the parties, the parties shall meet in
person to discuss and negotiate in good faith a resolution to the
dispute. The meeting shall be conducted in Chicago, Illinois or such
other place as may be mutually agreed upon by the parties.
(c) If the dispute is not resolved within thirty (30) days after the
first meeting of the parties referred to in Section 9.4 (b), the parties
shall initiate a voluntary, nonbinding mediation conducted by a mutually
agreed upon mediator. If the parties are unable to agree upon a
mediator, they shall request the clerk of the Circuit Court of Cook
County, Illinois to appoint a mediator for them. Each of the parties
shall bear their own costs and expenses (including attorneys' fees) and
their proportionate share of any other costs, fees or expenses associated
with this mediation and endeavor in good faith to resolve their
differences. The mediation shall be conducted in Chicago, Illinois or
such other place as may be mutually agreed upon by the parties.
ARTICLE X
DEFINITIONS
"Affiliate" shall mean, with respect to any person, any other person that
directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with such first person. As used in
this definition, "control" (including, with correlative meanings, "controlled
by" and "under common control with") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of management or
policies, whether through the ownership of securities or partnership or other
ownership interests, by contract or otherwise.
"Agreement Among Stockholders" means that certain Agreement Among
Stockholders, dated as of even date herewith, among Samstock, TNI, the Company
and Melvin Chasen.
"Charter Amendment" means an amendment to the Company's Certificate of
Incorporation, in form and content acceptable to Purchaser, eliminating the
"staggered" Board provisions such that all Board seats shall have
contemporaneous terms.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock, $.02 par value per share, of the
Company.
"Competing Equity Deal" means a Competing Transaction consisting of the
sale and issuance by the Company of any capital stock and/or other Equity
Securities to any other Person other than Purchaser, or any merger,
consolidation or other business combination involving the Company or any
Subsidiary and any other Person other than Purchaser.
"Competing Price Differential" means the excess, if any, of (i) the sum of
the aggregate cash and the fair market value of securities and other property
that would be received by the Company and/or its stockholders in the Competing
Equity Deal per share of capital stock and/or other Equity Securities that
would be acquired by the acquiring Person in the Competing Equity Deal, over
(ii) $4.00.
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"Contract" means any contract, agreement, commitment, indenture, lease,
note, bond, mortgage, license, plan, arrangement or understanding, whether
written or oral.
"Damages" means all liabilities, demands, claims, actions or causes of
action, regulatory, legislative or judicial proceedings or investigations,
assessments, levies, losses, fines, penalties, damages, costs and expenses,
including, without limitation, reasonable attorneys', accountants',
investigators', and experts' fees and expenses, sustained or incurred in
connection with the defense or investigation of any of the foregoing.
"Disclosed Competing Party" means any Person (and any other real party in
interest, including the direct and indirect owners of such Person) identified
by the Company to Purchaser in writing prior to the execution of this Agreement
with respect to whom the Company or its representatives has received any
inquiries or proposals (or desire to make a proposal) or any request for any
information with respect to a Competing Transaction where the terms, if any,
proposed or discussed with respect to any such Competing Transaction are
disclosed to Purchaser in writing together with the identity of said Person.
"Employment, Consulting or Severance Agreements" means all oral and
written (i) agreements for the employment for any period of time whatsoever, or
in regard to the employment, or restricting the employment, of any employee of
the Company or any Subsidiary, (ii) consulting, independent contractor or
similar agreements, and (iii) policies, agreements, arrangements or
understandings relating to the payment or provision of severance, termination
or similar pay or benefits to any present or former employees, officers,
directors, consultants, independent contractors or other agents of the Company
or any Subsidiary (including, without limitation, the Company's Senior
Executive Severance Policy, any successor thereto or any similar plan).
"Equity Securities" means, with respect to the Company or any
Subsidiary, as the case may be, (i) any class or series of common stock,
preferred stock or other capital stock, whether voting or non-voting,
including, without limitation, with respect to the Company, Common Stock
and Preferred Stock, (ii) any other equity securities issued by the Company
or such Subsidiary, as the case may be, whether now or hereafter authorized
for issuance by the Company's or such Subsidiary's, as the case may be,
Certificate of Incorporation, (iii) any debt, hybrid or other securities
issued by the Company or such Subsidiary, as the case may be, which are
convertible into, exercisable for or exchangeable for any other Equity
Securities, whether now or hereafter authorized for issuance by the Company's
or such Subsidiary's, as the case may be, Certificate of Incorporation, (iv)
any equity equivalents (including, without limitation, stock appreciation
rights, phantom stock or similar rights), interests in the ownership or
earnings of the Company or such Subsidiary, as the case may be, or other
similar rights, (v) any written or oral rights, options, warrants,
subscriptions, calls, preemptive rights, rescission rights or other rights to
subscribe for, purchase or otherwise acquire any of the foregoing, (vi) any
written or oral obligation of the Company or such Subsidiary, as the case may
be, to issue, deliver or sell, any of the foregoing, (vii) any written or oral
obligations of the Company or such Subsidiary, as the case may be, to
repurchase, redeem or otherwise acquire any Equity Securities, and (viii) any
bonds, debentures, notes or other indebtedness of the Company or such
Subsidiary, as the case may be, having the right to vote (or convertible into,
or exchangeable for securities having the right to vote) on any matters on
which the stockholders of the Company or such Subsidiary, as the case may be,
may vote.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fully Diluted Common Stock" means the total number of shares of Common
Stock outstanding after taking into account the following: (i) all shares of
Common Stock outstanding (exclusive of the Shares); (ii) all Shares and Warrant
Shares (assuming full exercise of the Warrant and issuance of all Warrant
Shares); (iii) all shares of Common Stock issuable upon conversion, exchange or
other exercise of the Company's Equity Securities outstanding; and (iv)
adjustments needed to account or adjust for stock splits, stock dividends,
recapitalizations, recombinations and similar events.
"Governmental Entity" means any court, administrative agency or commission
or other governmental authority or instrumentality, whether domestic (federal,
state or local) or foreign.
"IRS" means the Internal Revenue Service.
"Independent Directors" means directors of the Company who (i) are not
current or former employees or officers of the Company, (ii) are not holders of
more than 5% of the outstanding Common Stock, and (iii) have no financial
interest in and are not otherwise associated with Purchaser, the Company, any
Subsidiary or any holder of more than 5% of the outstanding Common Stock or any
of their respective Affiliates, excluding however any equity interest of not
more than 2% of any publicly-held entity other than the Company. The term
"associated" means having a business, financial or familial relationship that
might reasonably be expected to affect the individual's judgment with respect
to matters in which the associated person might be interested.
"Investment Agreement" means that certain Investment Agreement, dated as
of even date herewith, among Purchaser, the Company and the certain current
stockholders of the Company.
"Lien" means any preemptive or similar rights of any third party, purchase
options, calls, proxies, voting trusts, voting agreements, judgments, pledges,
charges, assessments, levies, escrows, rights of first refusal or first offer,
transfer restrictions, mortgages, indentures, claims, liens, equities,
mortgages, deeds of trust, deeds to secure debt, security interests and other
encumbrances of every kind and nature whatsoever, whether arising by agreement,
operation of law or otherwise, other than any created by Purchaser or the
Purchaser Transaction Documents.
"Material Adverse Effect" means a material adverse effect (or any
development which could reasonably be expected to have a material adverse
effect) on the business, operations, assets, financial or other condition,
results of operations or prospects of the Company and the Subsidiaries, taken
as a whole, or that could reasonably be expected to impair or delay the ability
of the Company to perform its obligations under this Agreement.
"Merchant" means restaurants, hotels, resorts and other participating
merchants who sell Rights to Receive to the Company.
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"Parachute Payment" means any Severance Payment constituting a "parachute
payment" within the meaning of Section 280G(b)(2) of the Code and the
regulations issued thereunder.
"Permit" means any permit, certificate, consent, approval, authorization,
order, license, variance, franchise or other similar indicia of authority
issued or granted by any Governmental Entity.
"Person" or "person" means any individual, corporation, partnership,
limited liability partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization or
Governmental Entity, or any agency or political subdivision thereof, or any
other entity.
"Preferred Stock" means the preferred stock, $.10 par value per share, of
the Company.
"Proxy Proposals" means the following proposals to be included in the
Proxy Statement for Stockholder Approval: (i) the issuance and sale of the
Shares and the Warrant and the other transactions contemplated by this
Agreement and the other Transaction Documents; (ii) the election to the Board
of the individuals designated in accordance with Section 6.5 hereof; and (iii)
the Charter Amendment.
"Purchaser Group" means (i) any controlled Affiliate of Samstock or TNI,
(ii) any member of Samstock or TNI, and (iii) any Affiliate of any member of
Samstock or TNI under control of, or common control with, such member.
"Rights to Receive" means credits purchased by the Company from Merchants
for food, beverage, lodging and other goods and services.
"Securities Act" means the Securities Act of 1933, as amended.
"Securitization Documents" means the following:
(i) Purchase Agreement dated as of December 1, 1996, among the
Company, Transmedia Restaurant Company, Inc., a Delaware corporation,
Transmedia Service Company, Inc., a Delaware corporation and TNI Funding
I, Inc., a Delaware special purpose corporation ("TNI");
(ii) Purchase and Servicing Agreement dated as of December 1, 1996,
among TNI Funding Company I, L.L.C., a Delaware limited liability company
("TNI Funding"), TNI, the Company, Frank Felix Associates, Ltd., a New
Jersey corporation and the Chase Manhattan Bank, a New York banking
corporation ("Trustee");
(iii) Security Agreement dated as of December 1, 1996, among TNI
Funding, Trustee, TNI and the Company, (the "Security Agreement"); and
(iv) Indenture dated as of December 1, 1996, between TNI Funding and
Trustee.
"SEC" means the Securities and Exchange Commission.
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"Severance Payment" means any termination, severance or similar payment or
benefit, including without limitation any such payment or benefit as would
constitute a Parachute Payment, to which any present or former employee,
officer, director, consultant, independent contractor or other agent of the
Company or any Subsidiary might be entitled pursuant to any Employment,
Consulting or Severance Agreement or otherwise, which entitlement results from
the Company's execution and delivery of this Agreement or the other Company
Transaction Documents or the consummation of the transactions contemplated
hereby or thereby, whether taken alone or taken together with any other action
or failure to act by Purchaser, the Company or any Subsidiary or any of their
respective officers, directors, employees, agents or other representatives,
other than any action or failure to act by Purchaser that would constitute a
material breach of Article III of the Investment Agreement.
"Stockholder Approval" means the requisite approval of the Company's
stockholders under the Company's Organizational Documents and the Delaware
General Corporation Law for the Proxy Proposals.
"Subsidiary" means each of (i) Transmedia Restaurant Company Inc., a
Delaware corporation, (ii) TMN International Incorporated, a Delaware
corporation, and (iii) Transmedia Service Company Inc., a Delaware corporation.
"Taxes" means all federal, state, local and foreign taxes, duties, fees,
levies, governmental charges or other assessments of any kind (whether imposed
directly or through withholding), including any interest, additions to tax or
penalties applicable thereto.
"Tax Return" means all federal, state, local and foreign tax returns,
declarations, statements, reports, schedules, forms and information returns and
any amendment to any of the foregoing.
"Termination Fee" means (i) $1,000,000 if there is a Competing Transaction
which is not a Competing Equity Deal, or (ii) if there is
a Competing Transaction which is a Competing Equity Deal, the greater of (A)
$1,000,000, or (B) fifty percent (50%) of the product of the Competing Price
Differential multiplied by the number 2,500,000.
"Transaction Document" means any Company Transaction Document and any
Purchaser Transaction Document.
"Undisclosed Competing Party" means any Person (and any other real party
in interest, including the direct and indirect owners of such Person) not
identified by the Company to Purchaser in writing prior to the execution of
this Agreement with respect to whom the Company or its representatives has
received any inquiries or proposals (or desire to make a proposal) or any
request for any information with respect to a Competing Transaction at any time
during the nine (9) month period immediately prior to the execution of this
Agreement.
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<PAGE> 33
ARTICLE XI
MISCELLANEOUS
11.1 Restrictive Legend. Purchaser agrees to the placing on the
certificates representing the Shares or the Warrant Shares of a legend, in
substantially the following form:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or applicable state securities laws and may not be
sold, transferred, assigned, offered, pledged or otherwise
disposed of unless (i) there is an effective registration
statement under such Act and such laws covering such
securities or (ii) such sale, transfer, assignment, offer,
pledge or other disposition is exempt from the registration
and prospectus delivery requirements of such Act and such
laws. The securities evidenced by this certificate are
subject to the restrictions on transfer contained in the
Investment Agreement dated as of November 6, 1997, and the
Agreement Among Stockholders dated as of November 6, 1997,
in each case, to which the Company is a party, as amended,
supplemented or otherwise modified from time to time, and
may not be transferred except in compliance therewith."
11.2 Notices. All notices, and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, sent by documented
overnight delivery service or, to the extent receipt is confirmed, facsimile,
to the appropriate address or facsimile number set forth below (or at such
other address or facsimile number for a party as shall be specified by like
notice):
if to Purchaser, Samstock or TNI:
c/o Samstock, L.L.C.
Two N. Riverside Plaza, Suite 600
Chicago, IL 60606
Attention: F. Philip Handy
Fax: (312) 454-0610
with an additional copy to:
Rosenberg & Liebentritt, P.C.
Two N. Riverside Plaza, Suite 1600
Chicago, IL 60606
Attention: Joseph M. Paolucci, Esq.
Fax: (312) 454-0335
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<PAGE> 34
if to the Company:
Transmedia Network Inc.
11900 Biscayne Boulevard
Miami, Florida 33181
Attention: Chief Executive Officer
Fax: (305) 892-3342
with a copy to:
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
Attention: Stephen P. Farrell, Esq.
Fax: (212) 309-6273
11.3 Expenses. Except as otherwise provided in this Agreement, the
Company shall bear all fees and expenses (i) incurred by the Company or any
Subsidiary in connection with, relating to or arising out of the execution,
delivery and performance of this Agreement and the other Company Transaction
Documents and the consummation of the transaction contemplated hereby and
thereby, including attorneys', accountants' and other professional fees and
expenses, or (ii) payable to Compass Partners International, L.L.C. Purchaser
shall bear all fees and expenses incurred by Purchaser in connection with,
relating to or arising out of the execution, delivery and performance of this
Agreement and the other Purchaser Transaction Documents and the consummation of
the transaction contemplated hereby and thereby, including attorneys',
accountants' and other professional fees and expenses.
11.4 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible
11.5 Entire Agreement; Amendment; Waiver; Assignment; Nature of
Obligations. This Agreement, together with the other Transaction Documents,
constitutes the entire agreement among the parties with respect to the subject
matter hereof and thereof and supersedes all prior agreements and undertakings,
both written and oral, among the parties, or any of them, with respect to the
subject matter hereof and thereof. No amendment, supplement, modification or
waiver of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
of this Agreement, whether or not similar, nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided. This Agreement shall not
be assigned by operation of law or otherwise; provided, however, that,
notwithstanding the foregoing, Samstock and/or TNI may assign its or their
rights and obligations hereunder to any member of the Purchaser Group; provided,
further, however,
-34-
<PAGE> 35
that no such assignment shall relieve the assigning party of any of its
liabilities or obligations under this Agreement. Any attempted assignment which
does not comply with the provisions of this Section 11.5 shall be null and void
ab initio. All of the obligations of Samstock and/or TNI under this Agreement
shall be joint and several.
11.6 Parties in Interest. Subject to the provisions regarding assignment
in Section 11.5 above, this Agreement shall be binding upon and inure solely to
the benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
11.7 Publicity. Neither the Company nor Purchaser will make or issue, or
cause to be made or issued, any announcement or written statements concerning
the Transaction Documents or the transactions contemplated thereby for
dissemination to the general public without the prior written consent of the
Company or Purchaser, as appropriate, which consent shall not be unreasonably
withheld. This provision will not apply to any announcement or written
statement required to be made by law or the regulations of the SEC or the New
York Stock Exchange, except that the party required to make such announcement
will, whenever practicable, consult with the other parties hereto concerning
the timing and content of such announcement before such announcement is made.
11.8 Governing Law. This Agreement shall be governed and controlled as to
validity, enforcement, interpretation, construction, effect and in all other
respects by the internal laws of the State of Delaware applicable to contracts
made in that State.
11.9 Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.10 Interpretation. Unless the context requires otherwise, all words
used in this Agreement in the singular number shall extend to and include the
plural, all words in the plural number shall extend to and include the
singular, and all words in any gender (including neutral gender) shall extend
to and include all genders.
11.11 Counterparts. This Agreement may be executed in two or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
11.12 Jurisdiction and Service of Process. THE COMPANY AND PURCHASER
HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN
THE STATE OF DELAWARE AND IRREVOCABLY AGREE THAT, SUBJECT TO THE OTHER
PROVISIONS OF THIS AGREEMENT, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT WHICH MAY BE LITIGATED SHALL BE LITIGATED IN SUCH
COURTS. EACH OF THE COMPANY AND PURCHASER ACCEPTS FOR SUCH PARTY AND IN
CONNECTION WITH SUCH PARTY'S PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
-35-
<PAGE> 36
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. EACH OF THE COMPANY AND
PURCHASER AGREES TO ACCEPT SERVICE OF ALL PROCESS BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IN ANY SUCH PROCEEDINGS IN ANY SUCH
COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY EACH SUCH PARTY TO BE
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. IF ANY AGENT APPOINTED BY THE
COMPANY, OR PURCHASER REFUSES TO ACCEPT SERVICE, SUCH PARTY HEREBY AGREES THAT
SERVICE UPON SUCH PARTY BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING
HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR SHALL LIMIT THE RIGHT OF THE COMPANY OR PURCHASER TO BRING PROCEEDINGS
AGAINST THE COMPANY OR PURCHASER IN THE COURTS OF ANY OTHER JURISDICTION.
11.13 Trial. EACH OF THE COMPANY AND PURCHASER HEREBY WAIVES SUCH PARTY'S
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THE PARTIES HERETO RELATING TO
THE SUBJECT MATTER HEREOF. EACH OF THE COMPANY AND PURCHASER ALSO WAIVES ANY
BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE
REQUIRED OF ANY PARTY TO THIS AGREEMENT WITH RESPECT TO ANY ACTION COMMENCED BY
ONE OF THEM AGAINST THE OTHER OF THEM. THE SCOPE OF THIS WAIVER IS INTENDED TO
BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND
THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. EACH OF THE COMPANY AND PURCHASER
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS
AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. EACH OF THE COMPANY AND PURCHASER FURTHER WARRANTS AND
REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH SUCH PARTY'S LEGAL
COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES SUCH PARTY'S JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
-36-
<PAGE> 37
IN WITNESS WHEREOF, Purchaser and the Company have executed this Stock
Purchase and Sale Agreement as of the date first above written.
PURCHASER:
TRANSMEDIA INVESTORS, L.L.C.
by Samstock, L.L.C., its managing member,
by SZ Investments, L.L.C., its managing member,
by Zell General Partnership, Inc., its managing member
/s/ Sheli Z. Rosenberg
-------------------------------------
By: Sheli Z. Rosenberg, Vice President
SAMSTOCK, L.L.C.
by SZ Investments, L.L.C., its managing member,
by Zell General Partnership, Inc., its managing member
/s/ Sheli Z. Rosenberg
-------------------------------------
By: Sheli Z. Rosenberg, Vice President
COMPANY:
TRANSMEDIA NETWORK INC.
-------------------------------------
By: Melvin Chasen, President and
Chief Executive Officer
-37-
<PAGE> 38
IN WITNESS WHEREOF, Purchaser and the Company have executed this Stock
Purchase and Sale Agreement as of the date first above written.
PURCHASER:
TRANSMEDIA INVESTORS, L.L.C.
by Samstock, L.L.C., its managing member,
by SZ Investments, L.L.C., its managing member,
by Zell General Partnership, Inc., its managing member
-------------------------------------
By: Sheli Z. Rosenberg, Vice President
SAMSTOCK, L.L.C.
by SZ Investments, L.L.C., its managing member,
by Zell General Partnership, Inc., its managing member
-------------------------------------
By: Sheli Z. Rosenberg, Vice President
COMPANY:
TRANSMEDIA NETWORK INC.
/s/ Melvin Chasen
-------------------------------------
By: Melvin Chasen, President and
Chief Executive Officer
-37-
<PAGE> 39
EXHIBIT A
TRANSMEDIA NETWORK INC.
WARRANT TO PURCHASE 1,200,000 SHARES OF COMMON STOCK
VOID AFTER _____ , 2003
THIS CERTIFIES THAT, for value received, [Samstock, L.L.C., a Delaware
limited liability company] [Transmedia Investors, L.L.C., a Delaware limited
liability company] (the "HOLDER"), is entitled to subscribe for and purchase
from Transmedia Network Inc., a Delaware corporation (the "COMPANY"), an
aggregate of 1,200,000 shares (as adjusted pursuant to Section 3 hereof) of
fully paid and nonassessable Common Stock (the "SHARES") of the Company, at the
price per share set forth below (the "EXERCISE PRICE") (as adjusted pursuant to
Section 3 hereof), and subject to the provisions and upon the terms and
conditions hereinafter set forth.
Shares Exercise Price Per Share
------- ------------------------
400,000 $6.00
400,000 $7.00
400,000 $8.00
1. Exercise; Payment.
(a) Time of Exercise; Expiration. This Warrant is immediately
exercisable. This Warrant shall expire at, and shall no longer be exercisable
after, 5:00 p.m., Chicago local time, on, 2003.
(b) Method of Exercise.
(i) Cash Exercise. The purchase rights represented by this Warrant may be
exercised by the Holder, at any time, in whole, or from time to time, in part,
by the surrender of this Warrant (with the notice of exercise form attached
hereto as Exhibit 1 duly executed) at the principal office of the Company, and
by the payment to the Company, by certified, cashier's or other check
acceptable to the Company, of an amount equal to the aggregate Exercise Price
of the Shares being purchased.
(ii) Net Issue Exercise. In lieu of exercising this Warrant, the Holder
may elect to receive Shares equal to the value of this Warrant (or the portion
thereof being canceled) by surrender of this Warrant at the principal office of
the Company together with notice of such election, in which event the Company
shall issue to the Holder a number of shares of the Company's Common Stock
computed using the following formula:
X = Y (A-B)
------
A
Where X = the number of Shares to be issued to the Holder.
<PAGE> 40
Y = the number of Shares purchasable under this Warrant.
A = the fair market value of one share of the Company's Common Stock.
B = the Exercise Price (as adjusted to the date of such calculation).
(iii) Fair Market Value. For purposes of this Section 1, the fair
market value of the Company's Common Stock shall mean:
A. The average closing price of the Company's Common Stock on
the New York Stock Exchange or in the event the Company's Common
Stock is not then traded on the New York Stock Exchange the average
closing price quoted on any exchange on which the Common Stock is
listed, as published in the Mid-Western Edition of the Wall Street
Journal for the ten consecutive trading days prior to the date of
determination of fair market value.
B. If the Company's Common Stock is not then traded on the New
York Stock Exchange or on another exchange, the per share fair
market value of the Common Stock shall be the fair market value
price per share as determined in good faith by the Company's Board
of Directors.
(c) Stock Certificates. In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of Common Stock so
purchased shall be delivered to the Holder within a reasonable time and, unless
this Warrant has been fully exercised or has expired, a new Warrant of
identical terms and provisions as those hereof, representing the shares with
respect to which this Warrant shall not have been exercised shall also be
issued to the Holder within such time.
2. Stock Fully Paid; Reservation of Shares. All of the Shares issuable
upon the exercise of the rights represented by this Warrant will, upon issuance
and receipt of the Exercise Price therefor, be fully paid and nonassessable,
and free from all taxes, liens and charges with respect to the issue thereof.
During the period within which the rights represented by this Warrant may be
exercised, the Company shall at all times have authorized and reserved for
issuance sufficient shares of its Common Stock to provide for the exercise of
the rights represented by this Warrant.
3. Adjustment of Exercise Price and Number of Shares. The number and kind
of Shares purchasable upon the exercise of this Warrant and the Warrant Price
shall be subject to adjustment from time to time upon the occurrence of certain
events, as follows:
(a) Reclassification. In case of any reclassification or change of
outstanding securities of the class issuable upon exercise of this Warrant
(other than a change in par value, or from par value to no par value, or from
no par value to par value, or as a result of a subdivision or combination), the
Company shall, as condition precedent to such transaction, execute a new
Warrant providing that the Holder shall have the right to exercise such new
Warrant and upon such exercise to receive, in lieu of each share of stock
theretofore issuable upon exercise of this Warrant, the kind and amount of
shares of stock, other securities, money and property receivable upon such
reclassification or change by a holder of one share of stock. Such new Warrant
shall provide for adjustments which shall be as nearly equivalent as may be
<PAGE> 41
practicable to the adjustments provided for in this Section 3. The provisions
of this Section 3(a) shall similarly apply to successive reclassifications or
changes.
(b) Subdivision or Combination of Warrant Shares. If the Company at any
time while this Warrant remains outstanding and unexpired shall subdivide or
combine its stock, the Warrant Price shall be proportionately decreased in the
case of a subdivision or increased in the case of a combination.
(c) Stock Dividends. If the Company at any time while this Warrant is
outstanding and unexpired shall pay a dividend with respect to stock payable
in, or make any other distribution with respect to stock (except any
distribution specifically provided for in the foregoing Section 3(a) and 3(b))
of stock, then the Exercise Price shall be adjusted, from and after the date of
determination of stockholders entitled to receive such dividend or
distribution, to that price determined by multiplying the Exercise Price in
effect immediately prior to such date of determination by a fraction (i) the
numerator of which shall be the total number of shares of stock outstanding
immediately prior to such dividend or distribution, and (ii) the denominator of
which shall be the total number of shares of stock outstanding immediately
after such dividend or distribution.
(d) Adjustment of Number of Warrant Shares. Upon each adjustment in the
Exercise Price, the number of shares of stock purchasable hereunder shall be
adjusted, to the nearest whole share, to the product obtained by multiplying
the number of Shares purchasable immediately prior to such adjustment in the
Exercise Price by a fraction, the numerator of which shall be the Exercise
Price immediately prior to such adjustment and the denominator of which shall
be the Exercise Price immediately thereafter.
4. Notice of Adjustments. Whenever the number of Shares purchasable
hereunder or the Exercise Price thereof shall be adjusted pursuant to Section 3
hereof, the Company shall provide notice by first class mail to the holder of
this Warrant setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated, and the number of Shares which may be purchased and the
Exercise Price therefor after giving effect to such adjustment.
5. Fractional Shares. No fractional shares of Common Stock will be issued
in connection with any exercise hereunder. In lieu of such fractional shares
the Company shall make a cash payment therefor based upon the Exercise Price
then in effect.
6. Warrant Exchangeable for Different Denominations. This Warrant is
exchangeable, upon the surrender hereof by the Holder at the principal office
of the Company, for new Warrants of like tenor
representing in the aggregate the purchase rights hereunder, and each of such
new Warrants will represent such portion of such rights as is designated by the
Holder at the time of such surrender. All Warrants representing portions of
the rights hereunder are referred to herein as the "Warrant."
7. Replacement. Upon receipt of evidence reasonably satisfactory to the
Company (an affidavit of the Holder is deemed to be reasonably satisfactory) of
the ownership and the loss, theft, destruction or mutilation of this Warrant,
and in the case of any such loss, theft or destruction, upon the receipt of
indemnity reasonably satisfactory to the Company, or, in the case of any such
mutilation upon surrender of such Warrant, the Company will (at its expense,
<PAGE> 42
except for the cost of any lost security indemnity bond required which shall be
paid for by the Holder) execute and deliver in lieu of such Warrant a new
Warrant of like kind representing the same rights represented by such lost,
stolen, destroyed or mutilated Warrant and dated the date of such lost, stolen,
destroyed or mutilated Warrant.
8. Restrictive Legend. The Shares issuable upon exercise of this Warrant
(unless registered under the Act) shall be stamped or imprinted with a legend
in substantially the following form:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or applicable state securities laws and may not be
sold, transferred, assigned, offered, pledged or otherwise
disposed of unless (i) there is an effective registration
statement under such Act and such laws covering such
securities or (ii) such sale, transfer, assignment, offer,
pledge or other disposition is exempt from the registration
and prospectus delivery requirements of such Act and such
laws. The securities evidenced by this certificate are
subject to the restrictions on transfer contained in the
Investment Agreement dated as of November 6, 1997, and the
Agreement Among Stockholders dated as of November 6, 1997,
in each case, to which the Company is a party, as amended,
supplemented or otherwise modified from time to time, and
may not be transferred except in compliance therewith."
9. Restrictions on Transfer. Neither this Warrant, nor any interest
herein, may be transferred to any party without the Company's prior written
consent; provided, however, that this Warrant may be transferred to any member
of the Zell Group (as defined in that certain Investment Agreement, dated as of
November 6, 1997, among the Company, Samstock, L.L.C., and Transmedia
Investors, L.L.C.) at any time, in whole, or from time to time, in part,
without the Company's consent, upon delivery to the Company of the Notice of
Transfer in the form of Exhibit 2 hereto.
10. Rights of Shareholders. No holder of this Warrant shall be entitled,
as a Warrant holder, to vote or receive dividends or be deemed the holder of
Common Stock or any other securities of the Company which may at any time be
issuable on the exercise hereof for any purpose, nor shall anything contained
herein be construed to confer upon the holder of this Warrant, as such, any of
the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action
(whether upon any recapitalization, issuance of stock, reclassification of
stock, change of par value, consolidation, merger, conveyance, or otherwise) or
to receive notice of meetings, or to receive dividends or subscription rights
or otherwise until the Warrant shall have been exercised and the Shares
purchasable upon the exercise hereof shall have become deliverable, as provided
herein.
11. Notices, Etc. All notices and other communications between the
Company and the Holder shall be mailed by first class registered or certified
mail, postage prepaid, (i) if to the Company, at the Company's executive
offices, and (ii) if to the Holder, at such address as may have been furnished
to the Company in writing by the Holder.
<PAGE> 43
12. Governing Law, Headings. This Warrant is being delivered in the State
of Delaware and shall be construed and enforced in accordance with and governed
by the laws of such State. The headings in this Warrant are for purposes of
reference only, and shall not limit or otherwise affect any of the terms
hereof.
Issued this ____ day of _____ 1998.
TRANSMEDIA NETWORK INC.
By:
----------------------------
Its:
----------------------------
<PAGE> 44
EXHIBIT 1
NOTICE OF EXERCISE
TO: TRANSMEDIA NETWORK INC.
11900 Biscayne Boulevard
Miami, Florida 33181
Attention: Chief Executive Officer
1. The undersigned hereby elects to purchase __________ shares of Common
Stock of TRANSMEDIA NETWORK INC. pursuant to the terms of the attached Warrant.
2. Method of Exercise (Please mark the applicable blank):
___ The undersigned elects to exercise the attached
Warrant by means of a cash payment, and tenders herewith
payment in full for the purchase price of the shares being
purchased.
___ The undersigned elects to exercise the attached
Warrant by means of the net exercise provisions of Section
1(b)(ii) of the Warrant.
3. Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
-----------------------------
(Name)
-----------------------------
-----------------------------
(Address)
---------------------------------
(Signature)
Title:
----------------------- ---------------------------
(Date)
<PAGE> 45
EXHIBIT 2
NOTICE OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______________________________ the right represented by the attached
Warrant to purchase _______* shares of Common Stock of TRANSMEDIA NETWORK INC.,
to which the attached Warrant relates, and appoints ________________
Attorney-in-Fact to transfer such right on the books of TRANSMEDIA NETWORK
INC., with full power of substitution in the premises.
Dated:
-----------------------
--------------------------------
By:
-----------------------------
--------------------------------
(Address)
- ------------------
* Insert here the number of shares without making any adjustment for
additional shares of Common Stock or any other stock or other securities or
property or cash which, pursuant to the adjustment provisions of the Warrant,
may be deliverable upon exercise.
<PAGE> 46
EXHIBIT B
OPINION OF COUNSEL FOR PURCHASER
(1) Each of Samstock and TNI is a limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized.
(2) Each of Samstock and TNI has the limited liability company power and
authority to execute and deliver the Purchase Agreement, the Investment
Agreement, the Agreement Among Stockholders and all other documents,
instruments and other writings to be executed and/or delivered by or on behalf
of Samstock and/or TNI to the Company or any of its representatives in
connection with the transactions contemplated by thereby (collectively,
"Purchaser Transaction Documents"), to perform its obligations thereunder and
to consummate the transactions contemplated thereby. The execution, delivery
and performance of each of the Purchaser Transaction Documents by Samstock
and/or TNI and the consummation by Samstock and/or TNI of the transactions
contemplated thereby have been duly authorized by the respective managing
members of Samstock and TNI, and no other limited liability company proceedings
on the part of Samstock or TNI are necessary to authorize the execution,
delivery and performance of the Purchaser Transaction Documents or the
transactions contemplated thereby. Each of the Purchaser Transaction Documents
has been duly executed and delivered by Samstock and/or TNI, as the case may
be, and, assuming due authorization, execution and delivery by the Company,
constitutes a legal, valid and binding obligation of Samstock and/or TNI, as
the case may be, enforceable against Samstock and/or TNI, as the case may be,
in accordance with its terms, except as such enforcement may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to creditors' rights generally and (ii) general principles of equity
(whether applied in a proceeding at law or in equity).
(3) The execution, delivery and performance of the Purchaser Transaction
Documents by Samstock or TNI, as the case may be, does not and will not: (i)
conflict with or violate the organizational documents of Samstock or TNI, as
the case may be; (ii) conflict with or violate any law, rule, regulation,
order, judgment or decree applicable to Samstock or TNI, as the case may be, or
by which any of its properties are bound or affected; (iii) require any
consent, approval, authorization or permit of, action by, filing with or
notification to, any Governmental Entity (other than any filing required under
Section 13(a) or (d), 14, 15(d) or 16(a) of the Exchange Act); or (iv) to our
knowledge after due inquiry, result in any breach or violation of or constitute
a default (or an event which with notice or lapse of time or both could become
a default) or result in the loss of a material benefit under, or give rise to
any right of termination, amendment, acceleration or cancellation of, or result
in the creation of a Lien on any of the property or assets of Samstock or TNI,
as the case may be, pursuant to, any Contract, Permit or other instrument or
obligation to which Samstock or TNI, as the case may be,
is a party or by which Samstock or TNI, as the case may be, or any of its
properties are bound or affected, except, in the case of clauses (ii), (iii)
and (iv), for any such conflicts, violations, breaches, defaults or other
occurrences which could not individually or in the aggregate, reasonably be
expected to materially impair the ability of Samstock or TNI, as the case may
be, to perform its obligations under the Purchase Agreement.
<PAGE> 47
EXHIBIT C
OPINION OF COMPANY COUNSEL
(1) Each of the Company and each Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has the requisite corporate power and
authority to carry on its business as it is now being conducted. Each of the
Company and each Subsidiary is duly qualified or licensed as a foreign
corporation to do business, and is in good standing, in each jurisdiction
(including any foreign country) set forth on Schedule I attached hereto.
(2) The certificates of incorporation of the Company and each Subsidiary
and the bylaws of the Company and each Subsidiary as currently in effect
(collectively, the "Organizational Documents") are in full force and effect,
and, to our knowledge after due inquiry, no other organizational documents are
applicable to or binding upon the Company or any Subsidiary.
(3) Upon payment of the Purchase Price, the Shares shall be validly
issued, fully paid and nonassessable. Upon exercise of the Warrant, in whole
or, from time to time, in part, and payment of the exercise price therefor, all
in accordance with the terms of the Warrant, all Warrant Shares issuable upon
such exercise shall be validly issued, fully paid and nonassessable.
(4) The Company has all necessary corporate power and authority to execute
and deliver the Purchase Agreement, the Investment Agreement, the Agreement
Among Stockholders, the Warrant and all other documents, instruments and other
writings to be executed and/or delivered by or on behalf of the Company to
Purchaser or any of its representatives in connection with the transactions
contemplated hereby or thereby (collectively, the 'Company Transaction
Documents"), to perform its obligations thereunder and to consummate the
transactions contemplated thereby. The execution, delivery and performance of
each of the Company Transaction Documents by the Company, and the consummation
by the Company of the transactions contemplated thereby, have been duly and
validly authorized by the Board of Directors of the Company (the "Board"), and
no other corporate proceedings on the part of the Company are necessary to
authorize the execution, delivery and performance of the Company Transaction
Documents or the consummation of the transactions contemplated thereby, other
than Stockholder Approval. The Board has approved each of the Company
Transaction Documents and the transactions contemplated hereby and thereby so
as to render inapplicable to such transactions, including, without limitation,
the issuance to Purchaser of the Shares, the Warrant and Warrant Shares, the
restrictions contained in Article Seventh of the Certificate of Incorporation
of the Company, and the restrictions contained in Section 203 of the Delaware
General Corporation Law. Each of the Company Transaction Documents has been
duly and validly executed and delivered by the Company and, assuming the due
authorization, execution and delivery hereof and thereof by Purchaser, each
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except
as such enforcement may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors' rights
generally and (ii) general principles of equity (whether applied in a
proceeding at law or in equity).
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(5) The execution, delivery and performance of the Company Transaction
Documents by the Company do not and will not: (a) conflict with or violate the
Organizational Documents of the Company or any Subsidiary; (b) conflict with or
violate any law, rule, regulation, order, judgment or decree applicable to the
Company or any Subsidiary or by which its or any of their respective properties
are bound or affected; (c) require any consent, approval, authorization or
permit of, action by, filing with or notification to, any Governmental Entity;
or (d) to our knowledge after due inquiry, result in any breach or violation of
or constitute a default (or an event which with notice or lapse of time or both
could become a default) or result in the loss by the Company or any Subsidiary
of a material benefit under, or give rise to any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a Lien
on any of the properties or assets of the Company or any Subsidiary pursuant
to, any Contract or Permit identified on any schedule to the Purchase
Agreement.
(6) The affirmative vote of the holders of no more than a majority of the
outstanding shares of Common Stock is the only vote of the holders of any class
or series of capital stock or other Equity Securities of the Company necessary
to approve the Proxy Proposals.
(7) No "fair price", "moratorium", "control share acquisition" or other
similar anti-takeover statute or regulation enacted under state or federal laws
or applicable stock exchange rules or regulations, including, without
limitation, Section 203 of the Delaware General Corporation Law, applicable to
the Company or any Subsidiary is applicable to the transactions contemplated by
the Purchase Agreement or any other Company Transaction Document, taken
individually or in the aggregate.
(8) Upon the filing of the Charter Amendment with the Delaware Secretary
of State, the Company's Certificate of Incorporation shall be in full force and
effect as amended as contemplated by the Charter Amendment, and no further
action by or on behalf of the Company shall be required therefor.
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NOTE: Company counsel opinion will be limited to Federal law, the law of New
York State and Delaware General Corporation Law.
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EXHIBIT 3
INVESTMENT AGREEMENT
Investment Agreement dated as of November 6, 1997 (as amended,
supplemented or otherwise modified from time to time, this "Agreement"), among
Transmedia Network Inc., a Delaware corporation (the "Company"), Samstock,
L.L.C., a Delaware limited liability company ("Samstock"), and Transmedia
Investors, L.L.C., a Delaware limited liability company ("TNI" and together
with Samstock, the "Investors").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Stock Purchase and Sale Agreement, dated
as of even date herewith, among the Company and the Investors (the "Purchase
Agreement"), the Company has agreed to issue and sell to Investors, and
Investors have agreed to purchase from the Company, an aggregate of (i)
2,500,000 newly issued shares (collectively, the "Shares") of the Company's
Common Stock, par value $.02 per share ("Common Stock"), and (ii) a warrant
(the "Warrant") to purchase an additional 1,200,000 shares (collectively, the
"Warrant Shares") of Common Stock, in each case in such proportions as are set
forth in a notice delivered to the Company pursuant to the terms of the
Purchase Agreement.
WHEREAS, the Company, the Investors and Melvin Chasen, an individual
residing in the State of Florida ("Chasen"), have entered into an Agreement
Among Stockholders, as of the date hereof (the "Agreement Among Stockholders").
WHEREAS, the Company and the Investors are entering into this Agreement to
establish certain arrangements with respect to the relationships between them.
WHEREAS, the Company believes that these arrangements will be in the best
interests of the Company and all of its stockholders.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
1.1 The terms "beneficial ownership," "person" and "group" shall have the
respective meanings ascribed to such terms pursuant to Regulation 13D-G adopted
by the Securities and Exchange Commission (the "SEC") under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as in effect on the date
hereof. The term "affiliate" shall have the meaning ascribed to such term
pursuant to Rule 12b-2 under the Exchange Act, as in effect on the date hereof.
1.2 The "Combined Voting Power" at any measurement date shall mean the
total number of votes which could have been cast in an election of directors of
the Company had a meeting of the stockholders of the Company been duly
held based upon a record date as of the measurement date if all Company Voting
Securities then outstanding and entitled to vote at such meeting were present
and voted to the fullest extent possible at such meeting.
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1.3 "Company Voting Securities" shall mean, collectively, Common Stock,
any preferred stock of the Company that is entitled to vote generally for the
election of directors, any other class or series of Company securities that is
entitled to vote generally for the election of directors and any other
securities, warrants, options or rights of any nature (whether or not issued by
the Company) that are convertible into, exchangeable for, or exercisable for
the purchase of, or otherwise give the holder thereof any rights in respect of,
Common Stock, Company preferred stock that is entitled to vote generally for
the election of directors, or any other class or series of Company securities
that is entitled to vote generally for the election of directors.
1.4 "Disinterested Director" means Independent Directors who are
"disinterested directors" as that term is used in Section 144 of the Delaware
General Corporate Law.
1.5 "Effective Date" means the Closing Date as defined in the Purchase
Agreement.
1.6 "Independent Director" means directors of the Company who (i) are not
current or former employees or officers of the Company, (ii) are not serving as
designees of Samstock pursuant to Section 4.2 hereof, (iii) are not 5% or
greater stockholders of the Company, and (iv) have no financial interest in and
are not otherwise associated with any of the Investors, the Company, any
subsidiary of the Company or any of their respective affiliates, excluding,
however, any equity interest of not more than 2% of any publicly-held entity.
The term "associated" means having a business, financial or familial
relationship that might reasonably be expected to affect the individual's
judgment with respect to matters in which a member of the Zell Group might be
interested.
1.7 The "Maximum Permitted Voting Power" at any measurement date shall
mean the Voting Power as of such measurement date of all Company Voting
Securities, regardless of the holder thereof, (i) represented by the Shares or
the Warrant Shares, (ii) outstanding as of the date hereof and subject to the
Agreement Among Stockholders or (iii) issued by the Company after the date
hereof and subject to the Agreement Among Stockholders upon issuance; provided,
however, that, in the event that the Company issues any Company Voting
Securities after the date hereof, the Maximum Permitted Voting Power shall be
adjusted so that the percentage of the Combined Voting Power represented by the
Maximum Permitted Voting Power shall not be reduced.
1.8 "Zell Affiliate" means Samstock, TNI and any of their respective
affiliates under control of or common control with Samstock or TNI (exclusive
of Chasen and his respective affiliates).
1.9 "Zell Group" means (i) Samstock, (ii) TNI, (iii) any member of
Samstock or TNI, (iv) any affiliate of any member of Samstock or TNI under
control of, or common control with, such member, and (v) any corporations,
partnerships, limited liability companies or other legal entities that
are the affiliates of any of the foregoing, collectively; provided, however,
that publicly held entities that might fall within this definition (a "Public
Zell Affiliate") shall not be treated as affiliates of any member of the Zell
Group hereunder unless any member of the Zell Group or any of its affiliates
took any action, directly or indirectly, to suggest, encourage or assist such
entity in taking the relevant action to be attributed to the Zell Group
hereunder. For purposes of the preceding sentence and the similar clause
appearing in the second sentence of Section 3.1, the failure of any member of
the Zell Group or any of its affiliates, upon learning of
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a Public Zell Affiliate's action, to request that such Public Zell Affiliate
refrain from taking such action because of the provisions of this Agreement
will be deemed to constitute "encouraging or assisting" in such action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Investors jointly and severally represent and warrant to the Company
and Chasen as follows:
(a) Each of Samstock and TNI is a limited liability company duly
organized, validly existing and in good standing under the laws of Delaware.
Each of Samstock and TNI has the limited liability company power and authority
to enter into this Agreement and perform its obligations hereunder.
(b) This Agreement has been duly authorized, executed and delivered by
each of Samstock and TNI and constitutes the legal, valid and binding agreement
of each of Samstock and TNI, enforceable against each of them in accordance
with the terms hereof.
(c) Neither the execution and delivery of this Agreement nor the
performance by Samstock or TNI of its obligations hereunder will conflict with,
or result in a breach of, or constitute a default under, any law, rule,
regulation, judgment, order or decree of any court, arbitrator or governmental
agency or instrumentality, or of any agreement or instrument to which Samstock,
TNI or their respective properties are bound or by which they are affected or
of any charter documents of Samstock or TNI.
(d) As of the date hereof, no shares of Common Stock are currently
beneficially owned by Samstock or TNI.
2.2 The Company represents and warrants to Investors as follows:
(a) The Company is a validly existing corporation under the laws of the
jurisdiction of its organization and has the corporate power and authority to
enter into this Agreement and perform its obligations hereunder.
(b) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with the terms hereof.
(c) Neither the execution and delivery of this Agreement nor the
performance of its obligations hereunder will conflict with, or result in a
breach of, or constitute a default under, any law, rule, regulation, judgment,
order or decree of any court, arbitrator or governmental agency or
instrumentality, or of any agreement or instrument to which the Company is
bound or by which it is affected or of any charter documents of the Company.
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<PAGE> 4
ARTICLE III
STANDSTILL AGREEMENT
3.1 Acquisition of Company Voting Securities. Except as the same may be
approved by a majority of the Disinterested Directors in a specific resolution
to that effect adopted prior to the taking of such action, from and after the
Effective Date and prior to the fifth anniversary of the Effective Date, no
member of the Zell Group shall, directly or indirectly, acquire, offer to
acquire, agree to acquire, become the beneficial owner of or obtain any rights
in respect of any Company Voting Securities, by purchase or otherwise, or take
any action in furtherance thereof, if the effect of such acquisition, agreement
or other action would be (either immediately or upon consummation of any such
acquisition, agreement or other action, or expiration of any period of time
provided in any such acquisition, agreement or other action) to increase the
aggregate beneficial ownership of Company Voting Securities by the Zell Group
to such number of Company Voting Securities that represents or possesses
greater than the Maximum Permitted Voting Power. Notwithstanding the foregoing
maximum limitations, (A) no member of the Zell Group shall be obligated to
dispose of any Company Voting Securities beneficially owned in violation of
such maximum limitations if, and solely to the extent that, its beneficial
ownership is or will be increased solely as a result of (1) a repurchase of any
Company Voting Securities by the Company or any of its subsidiaries if such
repurchase was approved by a majority of the Disinterested Directors or (2) the
purchase by any Public Zell Affiliate not otherwise constituting a part of the
Zell Group in accordance with Section 1.9 hereof unless any member of the Zell
Group took any action, directly or indirectly, to suggest, encourage or assist
in such purchase and (B) the foregoing shall not prohibit any purchase of
Company Voting Securities directly from the Company pursuant to the exercise of
the Warrant and any rights, oversubscription rights or standby purchase
obligations in connection with rights offerings by the Company or exercise of
any stock options granted by the Company. For purposes of calculating the
maximum limitations, all Company Voting Securities that are the subject of an
agreement, arrangement or understanding pursuant to which the Zell Group or any
member thereof has the right to obtain beneficial ownership of such securities
in the future (including the Warrant Shares to the extent the Warrant has not
been exercised or has not expired) shall also be deemed to be outstanding and
beneficially owned by the Zell Group or the applicable member thereof.
3.2 Proxy Solicitations, etc. Prior to the fifth anniversary of the
Effective Date, no member of the Zell Group shall solicit proxies, assist any
other person in any way, directly or indirectly, in the solicitation of
proxies, become a "participant" in a "solicitation" or assist any "participant"
in a "solicitation" (as such terms are defined in Rule 14a-1 of Regulation 14A
under the Exchange Act) in opposition to the recommendation of a majority of
the Disinterested Directors, submit any proposal for the vote of stockholders
of the Company, in each case (a) without the prior approval of the majority of
the Disinterested Directors or (b) other than with respect to Company Voting
Securities (i) held by any member of the Zell Group or (ii) subject to the
Agreement Among Stockholders.
3.3 No Voting Trusts, Pooling Agreements, or Formation of "Groups".
Except as the same may be approved by a majority of the Disinterested Directors
in a specific resolution to that effect adopted prior to the taking of such
action, prior to the fifth anniversary of the Effective Date, no member of the
Zell Group shall (a) form, join or in any other way participate in a
partnership, pooling agreement, syndicate, voting trust or other "group" with
respect to
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<PAGE> 5
Company Voting Securities other than (i) the Zell Group or (ii) with
any Company stockholders who are parties to the Agreement Among Stockholders as
of the date hereof or hereafter become parties to the Agreement Among
Stockholders in accordance with the terms thereof as a result of a sale,
assignment or other transfer of Company Voting Securities that are subject to
the Agreement Among Stockholders ("Other Covered Stockholders"); or (b) enter
into any agreement or arrangement or otherwise act in concert with any other
person other than a member of the Zell Group (provided such member of the Zell
Group is itself bound by the terms of this Agreement), or a holder of any
interest in any entity included within the Zell Group, for the purpose of
acquiring, holding, voting or disposing of Company Voting Securities, other
than with any Other Covered Stockholders.
3.4 No Solicitation of Bidders. Prior to the fifth anniversary of the
Effective Date, no member of the Zell Group shall directly or indirectly
assist, encourage or induce any person to bid for or acquire outstanding
Company Voting Securities (other than any Company Voting Securities held by the
Zell Group) in any transaction or series of related transactions, unless the
consummation of such transaction or series of related transactions requires
approval of a majority of the Board of Directors. Prior to disclosing any
confidential non-public information concerning the Company to such person, such
person shall have executed and delivered to the Zell Group a confidentiality
and standstill agreement on substantially the same terms as those set forth in
the letter agreement dated July 16, 1997, entered into between the Company and
an affiliate of the Investors in connection with the transactions contemplated
by the Purchase Agreement, with such duration as shall be appropriate under the
circumstances in the reasonable judgment of the Zell Group. Promptly upon the
Zell Group entering into any written agreement or arrangement with such person
concerning a transaction covered by this Section 3.4 (including such
aforementioned confidentiality and standstill agreement), the Zell Group shall
notify the Board and provide the Board with copies of the same; provided,
however, that the mere sale of Company Voting Securities by any member of the
Zell Group shall not constitute assisting, encouraging or inducing within the
meaning of this Section 3.4(b).
3.5 Non-Circumvention. Except as the same may be approved by a majority
of the Disinterested Directors in a specific resolution to that effect adopted
prior to the taking of such action, prior to the fifth anniversary of the
Effective Date, no member of the Zell Group shall take any action, alone or in
concert with any other person to circumvent the limitations of the provisions
of Article III of this Agreement. Without limiting the generality of the
foregoing, without such approval no member of the Zell Group shall (i) present
to the Company or to any third party any proposal that can reasonably be
expected to result in any increase beyond the Maximum Permitted Voting Power of
Company Voting Securities beneficially owned in the aggregate by the Zell
Group, (ii) publicly suggest or announce its willingness or desire to
engage in a transaction or group of transactions that would result in any
increase beyond the Maximum Permitted Voting Power of Company Voting Securities
beneficially owned in the aggregate by the Zell Group, or (iii) initiate,
request, induce or attempt to induce or give encouragement to any other person
to initiate any proposal that can reasonably be expected to result in any
increase beyond the Maximum Permitted Voting Power of Company Voting Securities
beneficially owned in the aggregate by the Zell Group.
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ARTICLE IV
VOTING OF COMPANY SECURITIES AND RELATED MATTERS
4.1 Each member of the Zell Group that is a holder of record of Company
Voting Securities shall be present, and each member of the Zell Group that is a
beneficial owner of Company Voting Securities shall cause the holder of record
to be present, in person or by proxy, at all meetings of stockholders of the
Company so that all Company Voting Securities owned of record or beneficially
by the Zell Group may be counted for the purpose of determining the presence of
a quorum at such meetings.
4.2 So long as Samstock is entitled to designate one or two directors in
accordance with the provisions of Section 4.4 hereof, except to the extent
otherwise provided herein, the Company shall take all necessary or appropriate
action to assist in the nomination and election as directors of (i) that number
of individuals specified in Section 4.4 below designated by Samstock to be
elected as directors of the Company, provided such designees are reasonably
acceptable to the Independent Directors at the time of their designation, and
(ii) two Independent Directors. All persons to be so designated as Independent
Directors shall be individuals selected by a majority of the Independent
Directors then in office and shall be mutually acceptable to Samstock on the
one hand and a majority of the Independent Directors on the other hand. The
Company hereby agrees and acknowledges that Sam Zell, F. Philip Handy, Rod
Dammeyer and Steven J. Halmos are reasonably acceptable to the Independent
Directors as directors of the Company. The Company hereby agrees and
acknowledges that Lester Wunderman is reasonably acceptable as an Independent
Director. The Company further agrees that one position on the Board of
Directors of the Company is intended to be filled by the chief executive
officer to be selected by the Board of Directors of the Company, and that in no
event shall the chief executive officer of the Company count as a designee of
Samstock. Samstock shall cause its designees on the Board of Directors of the
Company to take all necessary or appropriate action to assist in the nomination
and election as directors of all such nominees as may be selected to serve as
Independent Directors in the manner described above. The Zell Group and the
directors designated by Samstock shall not vote (as stockholders or directors)
in favor of, and shall not take any other action in furtherance of or seeking
to cause, a reduction of the number of directors of the Company below seven
directors or the removal of any Independent Directors.
4.3 For purposes of this Agreement, directors "designated by Samstock"
shall include directors designated by Samstock as anticipated by this Article
IV, and any other directors of the Company (other than the Company's chief
executive officer) affiliated or associated with any member of the Zell Group.
4.4 Samstock shall be entitled to designate the following number of
directors pursuant to Section 4.2 hereof:
(a) so long as the members of the Zell Group that have executed this
Agreement as parties (the "Zell Contracting Parties") beneficially own
collectively at least 15% of the Combined Voting Power of all Company
Voting Securities (including, for these purposes, the Warrant Shares
issuable upon exercise of the Warrant until such time as the Warrant
expires), Samstock shall have the right to designate two directors of the
Company, provided such designees are reasonably acceptable to the
Independent
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Directors at the time of their designation (it being hereby
acknowledged and agreed by the Company that each of Sam Zell, F. Philip
Handy, Rod Dammeyer and Steven J. Halmos will be acceptable to the
Company at the time of designation); and
(b) so long as the Zell Contracting Parties beneficially own less
than 15%, but at least 5% of the Combined Voting Power of all Company
Voting Securities (as so calculated), Samstock shall have the right to
designate one director of the Company, provided such designee is
reasonably acceptable to the Independent Directors at the time of his or
her designation (it being hereby acknowledged and agreed by the Company
that each of Sam Zell, F. Philip Handy, Rod Dammeyer and Steven J. Halmos
will be acceptable to the Company at the time of designation);
provided, however, that at any time when the Zell Contracting Parties
shall no longer beneficially own at least 15% of the Combined Voting Power of
all Company Voting Securities (as so calculated), Samstock shall cause one of
its two designees to resign forthwith such that only one designee remains on
the Board of Directors of the Company; and provided, further, that at any time
when the Zell Contracting Parties shall no longer beneficially own at least 5%
of the Combined Voting Power of all Company Voting Securities (as so
calculated), Samstock shall not have the right to designate any directors of
the Company, Samstock's rights under this Article IV shall terminate, Samstock
shall cause its designees to resign forthwith such that no designee of Samstock
remains on the Board of Directors of the Company and all of the covenants under
Article IV of this Agreement shall lapse and no longer be of any force or
effect. In addition, all of the covenants under Article III of this Agreement
shall lapse and no longer be of any force or effect if for any reason any of
the director designees who are designated by Samstock pursuant to the rights
granted by Section 4.2, and are reasonably acceptable to the Independent
Directors at the time of their designation in accordance with Sections 4.2 and
4.4, shall not be nominated for election as a director of the Company with the
unanimous recommendation of all of the directors of the Company (other than
those directors designated by Samstock pursuant to Section 4.2) at the next
election of directors of the Company following Samstock's designation. At any
time when Samstock shall have the right to designate one or two directors, as
the case may be, pursuant to this Article IV, the Company shall not increase
the number of directors to more than seven directors without the prior written
consent of Samstock.
4.5 Except as expressly set forth above, the Investors shall vote all
Company Voting Securities owned of record by the Investors and shall cause all
Company Voting Securities owned beneficially by the Investors to be voted with
respect to the election or removal of directors of Company, (a) either (i) in
accordance with the recommendations of a majority of the Disinterested
Directors, or (ii) in the same proportions (including abstentions) as the
holders of record of Company Voting Securities other than those beneficially
owned by the Zell Group that are entitled to vote on the election of
directors (or such other matter) vote their Company Voting Securities,
provided, however, that notwithstanding the foregoing subparagraph (a), the
Investors may at all times vote their Company Voting Securities for the
election or retention of the one or two directors, as the case may be,
designated by Samstock in accordance with Section 4.2.
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ARTICLE V
REGISTRATION RIGHTS
5.1 Definitions. For purposes of this Article V:
(a) The term "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the "Act").
(b) The term "Registrable Securities" means shares of Common Stock held,
from time to time, by any member of the Zell Group or any Other Covered
Stockholders.
(c) The term "Holder" means any (i) Zell Contracting Party or (ii) Other
Covered Stockholder who is a party hereto or who executes and delivers to the
Company a joinder agreement, agreeing to be legally bound by this Article V, in
each case who owns of record Registrable Securities.
(d) The term "Rule 415 Offering" means an offering on a delayed or
continuous basis pursuant to Rule 415 (or any successor rule to similar effect)
promulgated under the Act.
(e) The term "Shelf Registration Statement" means a registration statement
intended to effect a shelf registration in connection with a Rule 415 Offering.
5.2 Shelf Registrations.
(a) Shares and Warrant Shares. As soon as practicable after the Effective
Date, but in any event no later than ninety (90) days after the Effective Date,
the Company shall prepare and file with the SEC a Shelf Registration Statement
(which shall include pledgees of any selling stockholder under the caption
"plan of distribution" contained in such Shelf Registration Statement) with
respect to all Shares and Warrant Shares and use its reasonable efforts to
cause such Shelf Registration Statement to become effective and keep such
registration statement effective until such time as all Shares and Warrant
Shares have been sold or disposed of thereunder or sold, transferred or
otherwise disposed of (other than pursuant to a pledge of such Registrable
Securities) to a person that is not a Holder or, with respect to any Warrant
Shares for which the Warrant has not been exercised prior to its expiration,
until such time as the Warrant has expired. Notwithstanding the foregoing, if
the Company shall furnish to Samstock a certificate signed by the Chief
Executive, Chief Operating, or Chief Financial Officer of the Company stating
that, in the good faith judgment of a majority of the Disinterested Directors,
it would be materially detrimental to the Company for such registration
statement to be filed, the Company shall have the right to defer such filing
for a period of not more than 120 days after receipt of the Samstock's request;
provided, however, that the Company may not utilize this right more than once
in any 12-month period.
(b) Additional Shares. If the Company shall at any time receive a written
request from Samstock (or its designee) on behalf of any Zell
Affiliates who are the Holders of Registrable Securities that the Company file
a Shelf Registration Statement with respect to any Registrable Securities,
then, within sixty (60) days after the receipt of such request, the Company
shall prepare and file with the SEC a Shelf Registration Statement (which shall
include pledgees of any selling stockholder in the "plan of distribution") with
respect to all
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Registrable Securities which the Holders request to be registered and use its
reasonable efforts to cause such Shelf Registration Statement to become
effective and keep such Shelf Registration Statement effective until such time
as all Registrable Securities covered thereby have been sold or disposed of
thereunder or sold, transferred or otherwise disposed of (other than pursuant
to a pledge of such Registrable Securities) to a person that is not a Holder.
The rights to cause the Company to file a Shelf Registration Statement under
this Section 5.2(b) shall be in addition to the rights to cause the Company to
file a Shelf Registration Statement under Section 5.2(a). Notwithstanding the
foregoing, if the Company shall furnish to Samstock a certificate signed by the
Chief Executive, Chief Operating, or Chief Financial Officer of the
Company stating that, in the good faith judgment of a majority of the
Disinterested Directors, it would be materially detrimental to the Company for
such registration statement to be filed, the Company shall have the right to
defer such filing for a period of not more than 120 days after receipt of the
Samstock's request; provided, however, that the Company may not utilize this
right more than twice in any 12-month period.
(c) Schedule 13D Statement. Samstock and TNI covenant and agree that they
will, and that they shall cause each Zell Affiliate which shall at any time
hold Shares and/or Warrant Shares subject to Section 5.2(a) hereof to, include
in any Schedule 13D filed by or on behalf of such Holder a statement to the
effect that such Shelf Registration Statement was put in effect for the sole
purpose of facilitating such Holder's ability to margin its stock and does not
represent any present intention on behalf of the Holder to dispose of any
Shares or Warrant Shares covered thereby.
5.3 Additional Obligations of the Company. Whenever the Company has filed
a Shelf Registration Statement under this Article V, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC such amendments and supplements to such
Shelf Registration Statement and the prospectus used in connection therewith as
may be necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered thereby.
(b) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities covered by such Shelf
Registration Statement owned by them.
(c) Use its best efforts to register and qualify the securities covered by
such Shelf Registration Statement under such other securities or Blue Sky laws
of such states or other jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions where it is not so subject.
(d) Notify each Holder of Registrable Securities covered by such Shelf
Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and
then use its best
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<PAGE> 10
efforts to promptly correct such statement or omission. Notwithstanding the
foregoing and anything to the contrary set forth in this Section 5.2,
each Holder acknowledges that the Company shall have the right to suspend the
use of the prospectus forming a part of a Shelf Registration Statement if such
offering would interfere with a pending corporate transaction or for other
reasons until such time as an amendment to the Shelf Registration Statement has
been filed by the Company and declared effective by the SEC, or until such time
as the Company has filed an appropriate report with the SEC pursuant to the
Exchange Act. Each Holder hereby covenants that it will (a) keep any such
notice strictly confidential, and (b) not sell any shares of Common Stock
pursuant to such prospectus during the period commencing at the time at which
the Company gives the Holder notice of the suspension of the use of such
prospectus and ending at the time the Company gives the Holder notice that it
may thereafter effect sales pursuant to such prospectus. The Company shall
only be able to suspend the use of such prospectus for periods aggregating no
more than 90 days in respect of any registration.
5.4 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Article V with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
securities as shall be required to effect the registration of such Holder's
Registrable Securities and as may be required from time to time to keep such
registration current.
5.5 Expenses of Shelf Registration. All expenses incurred by or on behalf
of the Company in connection with registrations, filings or qualifications
pursuant to Section 5.2, including, without limitation, all registration,
filing and qualification fees, printers' and accounting fees, and fees and
disbursements of counsel for the Company, shall be borne by the Company. In no
event shall the Company be obligated to bear any underwriting discounts or
commissions or brokerage fees or commissions relating to Registrable Securities
or the fees and expenses of counsel to the selling Holders.
5.6 Indemnification. In the event any Registrable Securities are included
in a Shelf Registration Statement under this Article V:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder and the affiliates of such Holder, and their respective
directors, officers, general and limited partners, agents and
representatives (and the directors, officers, affiliates and controlling
persons thereof), and each other person, if any, who controls such Holder
within the meaning of the Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
including any preliminary prospectus (but only if such statement is not
corrected in the final prospectus) contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the
statements therein not misleading (but only if such omission is not corrected
in the final prospectus), or (iii) any violation or alleged violation by the
Company in connection with the registration of Registrable Securities under the
Act, the Exchange Act, any state securities law or any rule or regulation
promulgated under the Act, the Exchange Act or any state securities law; and
the Company will pay to each such Holder,
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<PAGE> 11
affiliate or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 5.6(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Holder or controlling
person. Each indemnified party shall furnish such information regarding itself
or the claim in question as an indemnifying party may reasonably request in
writing and as shall be reasonably required in connection with defense of such
claim and litigation resulting therefrom.
(b) To the extent permitted by law, each selling Holder will indemnify and
hold harmless the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls the
Company within the meaning of the Act, any underwriter, any other Holder
selling securities in such registration statement and any controlling person of
any such underwriter or other Holder, against any losses, claims, damages or
liabilities (joint or several) to which any of the foregoing persons may become
subject, under the Act, the Exchange Act or other federal or state law, insofar
as such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly for use
in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this Section 5.6(b) in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section
5.6(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of such Holder, which consent shall not be unreasonably withheld; provided,
that, in no event shall any indemnity under this Section 5.6(b) exceed the
gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section 5.6
of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 5.6, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties. The failure to deliver written notice to the
indemnifying party within a reasonable time after the commencement of any such
action, if materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 5.6 to the extent of such prejudice, but the omission so to
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 5.6. The indemnified party shall have the right, but not the
obligation, to participate in the defense of any action referred to above
through counsel of its own choosing and shall have the right, but not the
obligation, to assert any and all separate defenses, cross claims or
counterclaims which it may have, and the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the employment of
such counsel has been specifically authorized in
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<PAGE> 12
advance by the indemnifying party, (ii) there is a conflict of interest
that prevents counsel for the indemnifying party from adequately representing
the interests of the indemnified party or there are defenses available to the
indemnified party that are different from, or additional to, the defenses that
are available to the indemnifying party, (iii) the indemnifying party does not
employ counsel that is reasonably satisfactory to the indemnified party within
a reasonable period of time, or (iv) the indemnifying party fails to assume the
defense or does not reasonably contest such action in good faith, in which
case, if the indemnified party notifies the indemnifying party that it elects
to employ separate counsel, the indemnifying party shall not have the right to
assume the defense of such action on behalf of the indemnified party and the
reasonable fees and expenses of such separate counsel shall be borne by the
indemnifying party; provided, however, that, the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm (in addition to one firm acting as local counsel) for
all indemnified parties.
(d) The obligations of the Company and the holders under this Section 5.6
shall survive the completion of any offering of Registrable Securities in a
Shelf Registration Statement under this Article V.
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement (if
any) entered into in connection with any underwritten public offering of the
Registrable Securities are in conflict with the foregoing provisions, the
provisions in such underwriting agreement shall control.
5.7 Reports Under the Exchange Act. With a view to making available to
the holders the benefits of Rule 144 and any other rule or regulation of the
SEC that may at any time permit a Holder to sell securities of the Company to
the public without registration or pursuant to a registration on Form S-3, the
Company agrees to:
(a) use its best efforts to make and keep public information available, as
those terms are understood and defined in Rule 144;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required under the Act and the Exchange Act; and
(c) furnish to any Holder forthwith upon request (i) a written statement
by the Company as to its compliance with the reporting requirements of Rule
144, or as to whether it qualifies as a registrant whose securities may be
resold pursuant to Form S-3, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information (and the Company shall take such
action) as may be reasonably requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such securities without
registration or pursuant to such form.
5.8 No Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to this Article V may only be
assigned by a Holder to a transferee or assignee of any Registrable Securities
if (i) such transferee or assignee is a Zell Contracting Party and (ii)
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Act.
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<PAGE> 13
5.9 Waiver Procedures. The observance by the Company of any provision of
this Article V may be waived (either generally or in a particular instance and
either retroactively or prospectively) with the written consent of the Holders
of a majority of the Registrable Securities, and any waiver effected in
accordance with this paragraph shall be binding upon each Holder of Registrable
Securities.
5.10 "Market Stand-off" Agreement. Any Holder of Registrable Securities,
if requested by an underwriter of any registered public offering of Company
securities being sold in a firm commitment underwriting, agrees not to sell or
otherwise transfer or dispose of any Common Stock (or other Company
Voting Securities) held by such Holder other than shares of Registrable
Securities included in the registration during the seven days prior to, and
during a period of up to 180 days following, the effective date of the
registration statement. Such agreement shall be in writing in a form
reasonably satisfactory to the Company and such underwriter. The Company may
impose stop-transfer instructions with respect to the securities subject to the
foregoing restriction until the end of the required stand-off period.
ARTICLE VI
CONFIDENTIALITY
6.1 Confidential Material.
(a) Definitions. For purposes of this Section 6.1:
(i) The term "Confidential Material" means all information, whether
oral, written or otherwise (including any information furnished prior to
the execution of this Agreement), furnished by the Company to any member
of the Zell Group or any of the Representatives (as defined below), and
all notes, reports, analyses, compilations, studies and other materials
prepared by the Zell Group or any of the Representatives (in whatever
form maintained, whether documentary, computer storage or otherwise)
containing or based upon, in whole or in part, any such information, and
the fact that such information has been delivered to the Zell Group or
any of its Representatives. The term "Confidential Material" does not
include information which is or becomes generally available to the public
other than as a result of a disclosure by any member of the Zell Group or
any of the Representatives or becomes available to any member of the Zell
Group or any of the Representatives on a non-confidential basis from any
source that is not known by such member of the Zell Group or such
Representative to be bound by an obligation of confidentiality to the
Company.
(ii) The term "Representatives" shall mean any and all employees,
agents, financial advisors, partners, affiliates or other representatives
of any member of the Zell Group.
(b) Each member of the Zell Group and each of the Representatives will
preserve the confidentiality of the Confidential Material and will not disclose
any of the Confidential Material in any manner whatsoever; provided, however,
that (i) the Zell Group may make any disclosure of such information to which
the Company gives its prior consent, (ii) any of such information may be
disclosed to the Representatives who need to know such information, and who are
informed of the confidential nature of the Confidential Material and of the
terms of this
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<PAGE> 14
Section 6.1 and who agree to keep such information confidential, (iii)
any member of the Zell Group may make any disclosure of such information in
connection with any activity which such member of the Zell Group reasonably
believes to be in the best interests of the Company and not prohibited by this
Agreement, provided the recipient of such information is informed of the
confidential nature of the Confidential Material and of the terms of this
Section 6.1 and agrees to keep such information confidential and
(iv) any member of the Zell Group may make any disclosure of such information
to any other member of the Zell Group. In any event, the Zell Group will be
responsible for any actions by the Representatives which are not in accordance
with the provisions hereof.
(c) If any member of the Zell Group or any of the Representatives are
requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand, any informal or
formal investigation by any government or governmental agency or authority or
otherwise) to disclose any Confidential Material or such person's opinion,
judgment, view or recommendation concerning the Company as developed from the
Confidential Material, the Zell Group agrees (i) to promptly notify the Company
of the existence, terms and circumstances surrounding such a request, (ii) to
the extent possible, to consult with the Company on the advisability of taking
legally available steps to resist or narrow such request and (iii) if
disclosure of such information is required, to furnish only that portion of the
Confidential Material which, in the opinion of counsel to the relevant member
of the Zell Group, the Zell Group is legally compelled to disclose, and to
cooperate with any action by the Company to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be accorded
the Confidential Material.
(d) Each Investor hereby acknowledges that the United States securities
laws prohibit, in certain circumstances, any person who has received from an
issuer material, non-public information, including certain information that may
be part of the Confidential Material, while such information is non-public,
from purchasing or selling securities of such issuer or from communicating such
information to any other person under circumstances in which it is reasonably
foreseeable that such person is likely to purchase or sell such securities.
(e) This Section 6.1 shall survive until the earlier of the fifth
anniversary of this Agreement or two years following the date of termination of
this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1. CEO Search. The Company (represented by the Company's current chief
executive officer and the chairman of the Board's Compensation Committee) and
the Investors (represented by an individual designated by Samstock in its sole
discretion) shall jointly conduct a search to find a replacement for the
individual serving as the Company's chief executive officer as of the date of
this Agreement, which search shall commence promptly upon the execution of this
Agreement.
7.2. Term of Agreement; Certain Provisions Regarding Termination. Unless
this Agreement specifically provides for earlier or later termination with
respect to any particular right or obligation, this Agreement shall terminate
(a) contemporaneously with the termination of the Purchase Agreement in
accordance with Section 8.1 thereof, or (b) if the Zell Group shall,
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<PAGE> 15
at any time, sell or otherwise dispose of or otherwise cease to own Company
Voting Securities such that the Zell Group beneficially owns in the
aggregate Company Voting Securities representing less than 5% of the Combined
Voting Power of all Company Voting Securities (calculated in accordance with
Section 3.1 and including the Shares and, to the extent the Warrant has not
been exercised or has not expired, the Warrant Shares).
7.3 Legend and Stop Transfer Order. To assist in effectuating the
provisions of this Agreement, each of the Investors hereby consents to the
placement, in connection with the transactions contemplated by the Purchase
Agreement or otherwise within 10 business days after any Company Voting
Securities become subject to the provisions of this Agreement, of the legend
specified in Section 11.1 of the Purchase Agreement on all certificates
representing ownership of Company Voting Securities owned of record or
beneficially by any member of the Zell Group, until such shares are sold,
transferred or disposed in a manner permitted hereby to a person who is not
then a member of the Zell Group. The Company agrees to remove promptly all
legends and stop transfer orders with respect to the transfer of Company Voting
Securities being made to a person who is not then a member of the Zell Group in
compliance with the provisions of this Agreement.
7.4 Remedies.
(a) Each of the Investors and the Company acknowledge and agree that (i)
the provisions of this Agreement are reasonable and necessary to protect the
proper and legitimate interests of the parties hereto, and (ii) the parties
would be irreparably damaged in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that each party shall be entitled
to preliminary and permanent injunctive relief to prevent breaches of the
provisions of this Agreement by the other party (or its affiliates) without the
necessity of proving actual damages or of posting any bond, and to enforce
specifically the terms and provisions hereof and thereof in any court of the
United States or any state thereof having jurisdiction, which rights shall be
cumulative and in addition to any other remedy to which the parties may be
entitled hereunder or at law or equity.
(b) In addition to any other remedy the Company may have under this
Agreement or in law or equity, if any member of the Zell Group shall acquire or
transfer any Company Voting Securities in violation of this Agreement, such
Company Voting Securities which are in excess of the number permitted to be
owned or controlled by the Zell Group or which have been transferred by a
member of the Zell Group in violation of the provisions of this Agreement may
not be voted by the owner thereof or any proxy therefor.
7.5 Additional Zell Group Parties; Several Obligations. All of the
liabilities and obligations under this Agreement: (a) of members of the Zell
Group who are Zell Affiliates shall be joint and several; (b) as between
members of the Zell Group who are Zell Affiliates, on the one hand, and any
other persons or groups who are not Zell Affiliates, on the other hand, shall
be several and not joint. Notwithstanding anything to the contrary in this
Agreement, in no event shall any member of the Zell Group who is a Zell
Affiliate be responsible in any manner for any liability or obligation of any
person or group who is not a Zell Affiliate. Each member of the Zell
Group that shall become or have the right to become the beneficial owner,
within the meaning and scope of Section 3.1 hereof, of Company Voting
Securities shall, promptly upon becoming such owner or holder, execute and
deliver to the Company a joinder agreement,
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<PAGE> 16
agreeing to be legally bound by this Agreement to the same extent as if it had
signed this Agreement as an original signatory as a member of the Zell
Group (each such member of the Zell Group, a "Zell Contracting Party");
provided that failure to execute such an agreement shall not excuse such
member's non-compliance with any provision of this Agreement. No member of the
Zell Group shall transfer securities to another member of the Zell Group unless
the transferee shall agree to be bound by this Agreement in the manner
specified above in this Section 7.5.
7.6 Notices. All notices, and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, sent by documented
overnight delivery service or, to the extent receipt is confirmed, facsimile,
to the appropriate address or facsimile number set forth below (or at such
other address or facsimile number for a party as shall be specified by like
notice):
if to Investors:
Transmedia Investors, L.L.C.
Two N. Riverside Plaza - Suite 600
Chicago, IL 60606
Attention: F. Philip Handy
Fax: (312) 454-0610
with an additional copy to:
Rosenberg & Liebentritt, P.C.
Two N. Riverside Plaza - Suite 1600
Chicago, IL 60606
Attention: Joseph M. Paolucci, Esq.
Fax: (312) 454-0335
if to the Company:
Transmedia Network Inc.
11900 Biscayne Boulevard
Miami, Florida 33181
Attention: Chief Executive Officer
Fax: (305) 892-3342
with a copy to:
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
Attention: Stephen P. Farrell, Esq.
Fax: (212) 309-6273
7.7 Severability. 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 shall remain in full force and effect and shall in
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<PAGE> 17
no way be affected, impaired or invalidated. The parties hereto agree
that they will use their best efforts at all times to support and defend this
Agreement.
7.8 Amendments. This Agreement may be amended only by an agreement in
writing signed by each of the parties hereto; provided, however, that any
amendment executed by the Company must prior thereto be approved by a majority
of the Disinterested Directors then in office.
7.9 Governing Law. This Agreement shall be governed and controlled as to
validity, enforcement, interpretation, construction, effect and in all other
respects by the internal laws of the State of Delaware applicable to contracts
made in that State.
7.10 Descriptive Headings. Descriptive headings are for convenience only
and shall not control or affect the meaning or construction of any provision of
this Agreement.
7.11 Counterparts; Facsimile Signatures. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
bears the signatures of each of the parties hereto. This Agreement may be
executed in any number of counterparts, each of which shall be an original as
against the party whose signature appears thereon, or on whose behalf such
counterpart is executed, but all of which taken together shall be one and the
same agreement. A facsimile copy of a signature of a party to this Agreement
or any such counterpart shall be fully effective as if an original signature.
7.12 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the successors and assigns of the
parties hereto.
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<PAGE> 18
IN WITNESS WHEREOF, each of the Investors and the Company have executed
this Investment Agreement as of the date first above written.
INVESTORS:
TRANSMEDIA INVESTORS, L.L.C.
by Samstock, L.L.C., its managing
member, by SZ Investments, L.L.C., its
managing member, by Zell General
Partnership, Inc.,
its managing member
/s/ Sheli Z. Rosenberg
-------------------------------------
By: Sheli Z. Rosenberg, Vice President
SAMSTOCK, L.L.C.
by SZ Investments, L.L.C., its managing
member, by Zell General Partnership,
Inc.,
its managing member
/s/ Sheli Z. Rosenberg
-------------------------------------
By: Sheli Z. Rosenberg, Vice President
COMPANY:
TRANSMEDIA NETWORK INC.
/s/ Melvin Chasen
---------------------------------------
By: Melvin Chasen, President and
Chief Executive Officer
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<PAGE> 1
EXHIBIT 4
STOCKHOLDER COOPERATION AGREEMENT
Stockholder Cooperation Agreement, dated as of November 6, 1997, by and
among Transmedia Investors, L.L.C., a Delaware limited liability company
("TNI"), Samstock, L.L.C., a Delaware limited liability company ("Samstock"),
and Melvin Chasen and Iris Chasen, each individually (collectively, "Chasen").
RECITALS
WHEREAS, reference is made to the following agreements each dated as of
the date hereof: (i) that certain Stock Purchase and Sale Agreement ( the
"Purchase Agreement") among Transmedia Network, Inc., a Delaware company (the
"Company"), Samstock and TNI, (ii) that certain Investment Agreement among the
Company, Samstock and TNI, (the "Investment Agreement"), and (iii) that certain
Agreement Among Stockholders among Samstock, TNI and Chasen (the "Agreement
Among Stockholders" and together with the Purchase Agreement and the Investment
Agreement, the "Transaction Documents");
WHEREAS, as of the date hereof, Chasen owns of record and/or
beneficially, directly or indirectly, that number of shares of common stock of
the Company, par value $.02 per share ("Common Stock"), or options to purchase
shares of Common Stock, set forth opposite their names on Exhibit A hereto;
WHEREAS, the parties desire that Chasen take certain actions as more
fully provided herein in connection with the transactions contemplated by the
Transaction Documents;
WHEREAS, this Agreement is a material inducement to TNI and Samstock to
enter into the Transaction Documents; and
WHEREAS, Chasen will receive a material benefit from the consummation
of the transactions contemplated by the Transaction Documents.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. Chasen Voting Agreement. Chasen hereby agrees that during the period
commencing on the date hereof and continuing until the first to occur of (a) the
closing of the transactions contemplated by the Purchase Agreement (the
"Closing") or (b) termination of the Purchase Agreement in accordance with its
terms, at any meeting (whether annual or special and whether or not an adjourned
or postponed meeting) of the holders of Common Stock, however called, or in
connection with any written consent of the holders of Common Stock, Chasen shall
vote (or cause to be voted) the shares of Common Stock held of record or
beneficially by him or her or their respective affiliates (i) in favor of the
execution and delivery by the Company of the Transaction Documents and the
approval and adoption of the terms thereof and each of the other actions
provided for in the Transaction Documents and any actions required in
furtherance thereof; (ii) against any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Transaction Documents; and
(iii) except as otherwise agreed to in writing in advance by TNI or Samstock,
against the following actions (other than
<PAGE> 2
the transactions specifically contemplated by the Purchase Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its subsidiaries; (B) any
sale, lease or transfer of a material amount of assets of the Company or any of
its subsidiaries, or a reorganization, restructuring, recapitalization, special
dividend, dissolution or liquidation of the Company or any of its subsidiaries;
or (C)(1) any change in a majority of the persons who constitute the Board of
Directors of the Company; (2) any change in the present capitalization of the
Company, including any proposal to sell a substantial equity interest in the
Company and/or any of its subsidiaries; (3) any amendment of any of the articles
of incorporation or bylaws of the Company or any of its subsidiaries; (4) any
other change in the Company's corporate structure or business; or (5) any other
action which, in the case of each of the matters referred to in clauses (C)(1),
(2), (3) or (4) is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, or materially adversely affect the transactions
contemplated by the Transaction Documents. Chasen shall not enter into any
agreement or understanding with any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, or any other entity, the effect of which
would be inconsistent or violative of the provisions and agreements contained in
this Agreement.
2. Agreement to Cooperate. Chasen agrees to use all reasonable efforts
to take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by the Transaction
Documents, including providing information to the Company, Samstock and TNI and
using reasonable efforts to obtain all necessary or appropriate waivers,
consents and approvals. In case at any time after the Closing any further action
is necessary or desirable to carry out the purposes of the Transaction
Documents, Chasen shall execute such further documents (in form and content
reasonably satisfactory to Chasen) and shall take such further action as shall
reasonably be necessary or desirable to carry out the purposes of the
Transaction Documents, to the extent not inconsistent with applicable law.
3. Remedies. Any party having rights under this Agreement may
enforce such rights specifically to recover damages caused by reason of
any breach of any provision of this Agreement and to exercise all other rights
granted by law. The parties agree and acknowledge that money damages may not be
an adequate remedy for any breach of the provisions of this Agreement and,
accordingly, in addition to all other remedies available to any party, such
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief in
order to enforce, or prevent any violation of, the provisions of this
Agreement.
4. Non-Waiver. The failure in any one or more instances of a party
to insist upon performance of any of the terms, covenants or conditions
of this Agreement, to exercise any right or privilege in this Agreement
conferred, or the waiver by said party of any breach of any of the terms,
covenants or conditions of this Agreement, shall not be construed as a
subsequent waiver of any such terms, covenants, conditions, rights or
privileges, but the same shall continue and remain in full force and effect as
if no such forbearance or waiver had occurred. No waiver shall be effective
unless it is in writing and signed by an authorized representative of the
waiving party. A breach of any representation, warranty or covenant shall not
be affected by the fact that a more general or more specific representation,
warranty or covenant was not also breached.
-2-
<PAGE> 3
5. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and
all such counterparts shall constitute but one instrument.
6. Severability. The invalidity of any provision of this
Agreement or portion of a provision shall not affect the validity
of any other provision of this Agreement or the remaining portion of the
applicable provision.
7. Applicable Law. This Agreement shall be governed and
controlled as to validity, enforcement, interpretation, construction, effect
and in all other respects by the internal laws of the State of Delaware
applicable to contracts made in that State.
8. Binding Effect; Benefit, Non-circumvention. This Agreement shall
inure to the benefit of and be binding upon the parties hereto, and
their successors and permitted assigns. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto, and
their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement. Any
amendments, or alternative or supplementary provisions to this Agreement must
be made in writing and duly executed by an authorized representative or agent
of each of the parties hereto. No Stockholder shall take any action, alone or
in concert with any other person, to circumvent any of the provisions of this
Agreement.
10. Assignability. This Agreement shall not be assignable by any
party without the prior written consent of each of the other parties.
11. Headings. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning or
interpretation of this Agreement.
-3-
<PAGE> 4
IN WITNESS WHEREOF, the undersigned have executed this Stockholder
Cooperation Agreement as of the day and year first above written.
TRANSMEDIA INVESTORS, L.L.C.
by Samstock, L.L.C., its managing member,
by SZ Investments, L.L.C., its managing member,
by Zell General Partnership, Inc., its managing member
/s/ Sheli Z. Rosenberg
-------------------------------------
By: Sheli Z. Rosenberg, Vice President
SAMSTOCK, L.L.C.
by SZ Investments, L.L.C., its managing member,
by Zell General Partnership, Inc., its managing member
/s/ Sheli Z. Rosenberg
--------------------------------------
By: Sheli Z. Rosenberg, Vice President
/s/ Melvin Chasen
--------------------------------------
MELVIN CHASEN, INDIVIDUALLY
/s/ Iris Chasen
--------------------------------------
IRIS CHASEN, INDIVIDUALLY
-4-
<PAGE> 5
EXHIBIT A
---------
STOCKHOLDER COOPERATION AGREEMENT
OWNERSHIP OF TRANSMEDIA NETWORK INC.
COMMON STOCK AND OPTIONS
------------------------
Chasen Shares
Melvin Chasen Direct 684,961
Iris Chasen 186,958
Iris Chasen 13,820
Chasen Family Partnership 100,000
Chasen Family Partnership 39,600
Melvin Chasen - IRA 25,070
Melvin Chasen - Smith Barney 100
---------
1,050,509
Options Schedule
<TABLE>
<CAPTION>
Option Date Exp. Date Option Price Shares Outstanding Shares Exercisable
- ----------- --------- ------------ ------------------ ------------------
<S> <C> <C> <C> <C>
4/14/97 4/14/07 $ 4.3750 11,859 0
4/14/97 4/14/07 4.3750 8,141 0
3/23/95 3/23/05 12.2500 7,500 0
3/23/95 3/23/05 12.2500 22,500 15,000
3/22/94 3/22/04 15.0000 26,664 19,998
3/22/94 3/22/04 15.0000 18,336 13,752
9/20/93 9/20/98 7.4445 67,500 67,500
5/19/92 5/19/02 4.8333 135,000 135,000
------- -------
297,500 251,250
</TABLE>
