Exhibit 10.1(w)
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE RESOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE ACT
OR AN OPINION OF COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
Right to Purchase 915,662 Shares of Common Stock of
Transmedia Asia Pacific, Inc.
TRANSMEDIA ASIA PACIFIC, INC.
Common Stock Purchase Warrant
No. W-4
TRANSMEDIA ASIA PACIFIC, INC., a Delaware corporation (the
"Company"), hereby certifies that, for value received, Koch Investment Group
Limited, or registered assigns (the "Holder"), is entitled, subject to the terms
set forth below, to purchase from the Company at any time or from time to time
after the date hereof, and before 5:00 p.m., New York City time, on the
Expiration Date (such capitalized term and all other capitalized terms used
herein having the meanings provided herein), 915,662 fully paid and
nonassessable shares of Common Stock at a purchase price per share equal to the
Purchase Price. The number of such shares of Common Stock and the Purchase Price
are subject to adjustment as provided in this Warrant.
As used herein the following terms, unless the context otherwise
requires, have the following respective meanings:
"Closing Price" means $0.6188 (subject to equitable adjustments from
time to time, on terms reasonably acceptable to the holders of this Warrant and
the other Warrant of like tenor issued on the Issuance Date who are entitled to
acquire a majority of the shares of Common Stock issuable pursuant hereto and
thereto, for stock splits, stock dividends, combinations, recapitalizations,
reclassifications, distributions, tender offers and similar events relating to
the Common Stock occurring or with respect to which "ex-" trading commences on
or after the Issuance Date).
"Common Stock" includes the Company's Common Stock, $.00001 par
value per share, as authorized on the date hereof, and any other securities into
which or for which the Common Stock may be converted or exchanged pursuant to a
plan of recapitalization, reorganization, merger, sale of assets or otherwise.
"Company" shall include Transmedia Asia Pacific, Inc., a Delaware
corporation, and any corporation that shall succeed to or assume the obligations
of Transmedia Asia Pacific, Inc. hereunder in accordance with the terms hereof.
"Exchange Agreement" means the Exchange Agreement, dated as of
December 12, 2000, by and among the Company and the original holders of this
Warrant and the other Warrant of like tenor issued on the Issuance Date, as
amended from time to time in accordance with its terms.
"Expiration Date" means December 13, 2005.
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"Issuance Date" means the first date of original issuance of this
Warrant.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"1933 Act" means the Securities Act of 1933, as amended.
"Other Securities" refers to any stock (other than Common Stock) and
other securities of the Company or any other person (corporate or otherwise)
which the Holder at any time shall be entitled to receive, or shall have
received, on the exercise of this Warrant, in lieu of or in addition to Common
Stock, or which at any time shall be issuable or shall have been issued in
exchange for or in replacement of Common Stock or Other Securities pursuant to
Section 4.
"Purchase Price" means $0.75 per share, subject to adjustment as
provided in this Warrant.
"Registration Rights Agreement" means the Amended and Restated
Registration Rights Agreement, dated as of December 12, 2000 by and among the
Company and the original holders of this Warrant and the other Warrant of like
tenor issued on the Issuance Date, as amended from time to time in accordance
with its terms.
"Trading Day" means a day on which the principal securities market
for the Common Stock is open for general trading of securities.
1. Exercise of Warrant.
1.1 Exercise. (a) Subject to the limitation on exercise in Section
1.1(b), this Warrant may be exercised by the Holder hereof in full or in part at
any time or from time to time during the exercise period specified in the first
paragraph hereof until the Expiration Date by surrender of this Warrant and the
subscription form annexed hereto (duly executed by the Holder), to the Company's
transfer agent and registrar for the Common Stock, with a copy to the Company,
and by making payment, in cash or by certified or official bank check payable to
the order of the Company, in the amount obtained by multiplying (a) the number
of shares of Common Stock designated by the Holder in the subscription form by
(b) the Purchase Price then in effect. On any partial exercise the Company will
forthwith issue and deliver to or upon the order of the Holder hereof a new
Warrant or Warrants of like tenor, in the name of the Holder hereof or as the
Holder (upon payment by the Holder of any applicable transfer taxes) may
request, providing in the aggregate on the face or faces thereof for the
purchase of the number of shares of Common Stock for which such Warrant or
Warrants may still be exercised.
(b) Notwithstanding any other provision of this Warrant, in no event
shall the Holder be entitled at any time to purchase a number of shares of
Common Stock on exercise of this Warrant in excess of that number of shares upon
purchase of which the sum of (1) the number of shares of Common Stock
beneficially owned by the Holder and all persons whose beneficial ownership of
shares of Common Stock would be aggregated with the Holder's beneficial
ownership of shares of Common Stock for purposes of Section 13(d) of the 1934
Act and Regulation 13D-G thereunder, (each such person other than the Holder an
"Aggregated Person" and all such persons other than the Holder, collectively,
the "Aggregated Persons") (other than shares of Common Stock deemed beneficially
owned through the ownership by the Holder and all Aggregated Persons of the
Holder of the unexercised portion of this Warrant and the unexercised or
unconverted portion of any other security of the Company which contains similar
provisions) and (2) the number of shares of Common Stock issuable upon exercise
of the portion of this Warrant with respect to which the determination in this
sentence is being made, would result in
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beneficial ownership by the Holder and all Aggregated Persons of the Holder of
more than 4.9% of the outstanding shares of Common Stock. For purposes of the
immediately preceding sentence, beneficial ownership shall be determined in
accordance with Section 13(d) of the 1934 Act and Regulation 13D-G thereunder,
except as otherwise provided in clause (1) of the immediately preceding
sentence.
1.2 Net Issuance. Notwithstanding anything to the contrary contained
in Section 1.1, the Holder may elect to exercise this Warrant in whole or in
part by receiving shares of Common Stock equal to the net issuance value (as
determined below) of this Warrant, or any part hereof, upon surrender of this
Warrant to the Company's transfer agent and registrar for the Common Stock
together with the subscription form annexed hereto (duly executed by the
Holder), in which event the Company shall issue to the Holder a number of shares
of Common Stock computed using the following formula:
X = Y (A-B)
-------
A
where:
X = the number of shares of Common Stock to be issued to the Holder
Y = the number of shares of Common Stock as to which this Warrant is
to be exercised
A = the current fair market value of one share of Common Stock
calculated as of the last Trading Day immediately preceding the
exercise of this Warrant
B = the Purchase Price
As used herein, current fair market value of Common Stock as of a
specified date shall mean with respect to each share of Common Stock the closing
sale price of the Common Stock on the principal securities market on which the
Common Stock may at the time be listed or, if there have been no sales on any
such exchange on such day, the average of the highest bid and lowest asked
prices on the principal securities market at the end of such day, or, if on such
day the Common Stock is not so listed, the average of the representative bid and
asked prices quoted in the Nasdaq System as of 4:00 p.m., New York City time,
or, if on such day the Common Stock is not quoted in the Nasdaq System, the
average of the highest bid and lowest asked price on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization, in each such case averaged
over a period of five consecutive Trading Days consisting of the day as of which
the current fair market value of a share of Common Stock is being determined (or
if such day is not a Trading Day, the Trading Day next preceding such day) and
the four consecutive Trading Days prior to such day. If on the date for which
current fair market value is to be determined the Common Stock is not listed on
any securities exchange or quoted in the Nasdaq System or the over-the-counter
market, the current fair market value of Common Stock shall be the highest price
per share which the Company could then obtain from a willing buyer (not a
current employee or director) for shares of Common Stock sold by the Company,
from authorized but unissued shares, as determined in good faith by the Board of
Directors of the Company, unless prior to such date the Company has become
subject to a merger, acquisition or other consolidation pursuant to which the
Company is not the surviving party, in which case the current fair market value
of the Common Stock shall be deemed to be the value received by the holders of
the Company's Common Stock for each share thereof pursuant to the Company's
acquisition.
2. Delivery of Stock Certificates, etc., on Exercise. As soon as
practicable after the exercise of this Warrant, and in any event within three
Trading Days thereafter, the Company at its expense (including the payment by it
of any applicable issue or stamp taxes) will cause to be issued in the
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name of and delivered to the Holder hereof, or as the Holder (upon payment by
the Holder of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable shares of Common
Stock (or Other Securities) to which the Holder shall be entitled on such
exercise, in such denominations as may be requested by the Holder, plus, in lieu
of any fractional share to which the Holder would otherwise be entitled, cash
equal to such fraction multiplied by the then current fair market value (as
determined in accordance with subsection 1.2) of one full share, together with
any other stock or other securities and property (including cash, where
applicable) to which the Holder is entitled upon such exercise pursuant to
Section 1 or otherwise. Upon exercise of this Warrant as provided herein, the
Company's obligation to issue and deliver the certificates for Common Stock
shall be absolute and unconditional, irrespective of the absence of any action
by the Holder to enforce the same, any waiver or consent with respect to any
provision thereof, the recovery of any judgment against any person or any action
to enforce the same, any failure or delay in the enforcement of any other
obligation of the Company to the Holder, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged breach by the
Holder or any other person of any obligation to the Company, and irrespective of
any other circumstance which might otherwise limit such obligation of the
Company to the Holder in connection with such exercise. If the Company fails to
issue and deliver the certificates for the Common Stock to the Holder pursuant
to the first sentence of this paragraph as and when required to do so, in
addition to any other liabilities the Company may have hereunder and under
applicable law, the Company shall pay or reimburse the Holder on demand for all
out-of-pocket expenses including, without limitation, reasonable fees and
expenses of legal counsel incurred by the Holder as a result of such failure.
3. Adjustment for Dividends in Other Stock, Property, etc.;
Reclassification, etc. In case at any time or from time to time after the
Issuance Date, all the holders of Common Stock (or Other Securities) shall have
received, or (on or after the record date fixed for the determination of
stockholders eligible to receive) shall have become entitled to receive, without
payment therefor,
(a) other or additional stock or other securities or property (other
than cash) by way of dividend, or
(b) any cash (excluding cash dividends payable solely out of
earnings or earned surplus of the Company), or
(c) other or additional stock or other securities or property
(including cash) by way of spin-off, split-up, reclassification,
recapitalization, combination of shares or similar corporate rearrangement,
other than additional shares of Common Stock (or Other Securities) issued as a
stock dividend or in a stock-split (adjustments in respect of which are provided
for in Section 5), then and in each such case the Holder, on the exercise hereof
as provided in Section 1, shall be entitled to receive the amount of stock and
other securities and property (including cash in the cases referred to in
subdivisions (b) and (c) of this Section 3) which the Holder would hold on the
date of such exercise if on the date thereof the Holder had been the holder of
record of the number of shares of Common Stock called for on the face of this
Warrant and had thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and all such other or
additional stock and other securities and property (including cash in the case
referred to in subdivisions (b) and (c) of this Section 3) receivable by the
Holder as aforesaid during such period, giving effect to all adjustments called
for during such period by Section 4. Notwithstanding anything in this Section 3
to the contrary, no adjustments pursuant to this Section 3 shall actually be
made until the cumulative effect of the adjustments called for by this Section 3
since the date of the last adjustment actually made would change the amount of
stock or other securities and property which the Holder would hold by more than
1%.
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4. Exercise upon Reorganization, Consolidation, Merger, etc. In case
at any time or from time to time after the Issuance Date, the Company shall (a)
effect a reorganization, (b) consolidate with or merge into any other person,
(c) effect an exchange of outstanding shares of the Company for securities of
any other person or (d) transfer all or substantially all of its properties or
assets to any other person under any plan or arrangement contemplating the
dissolution of the Company, then, in each such case, as a condition of such
reorganization, consolidation, merger, share exchange, sale or conveyance, (i)
the Company shall give at least 30 days notice to the Holder of such pending
transaction whereby the Holder shall have the right to exercise this Warrant
prior to any such reorganization, consolidation, merger, share exchange, sale or
conveyance and (ii) if the Holder does not so exercise this Warrant in full, the
Company shall cause effective provisions to be made so that the Holder shall
have the right thereafter, by exercising this Warrant (in lieu of the shares of
Common Stock of the Company purchasable and receivable upon exercise of the
rights represented hereby immediately prior to such transaction) to purchase the
kind and amount of shares of stock and other securities and property (including
cash) receivable upon such reorganization, consolidation, merger, share
exchange, sale or conveyance by a holder of the number of shares of Common Stock
that might have been received upon exercise of this Warrant immediately prior to
such reorganization, consolidation, merger, share exchange, sale or conveyance.
Any exercise of this Warrant pursuant to notice under this Section shall be
conditioned upon the closing of such reorganization, consolidation, merger, sale
or conveyance which is the subject of the notice and the exercise of this
Warrant shall not be deemed to have occurred until immediately prior to the
closing of such transaction.
5. Adjustment for Extraordinary Events. In the event that after the
Issuance Date the Company shall (i) issue additional shares of Common Stock as a
dividend or other distribution on outstanding Common Stock, (ii) subdivide or
reclassify its outstanding shares of Common Stock, or (iii) combine its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, then, in each such event, the Purchase Price shall, simultaneously with
the happening of such event, be adjusted by multiplying the Purchase Price in
effect immediately prior to such event by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding immediately prior to
such event and the denominator of which shall be the number of shares of Common
Stock outstanding immediately after such event, and the product so obtained
shall thereafter be the Purchase Price then in effect. The Purchase Price, as so
adjusted, shall be readjusted in the same manner upon the happening of any
successive event or events described herein in this Section 5. The Holder shall
thereafter, on the exercise hereof as provided in Section 1, be entitled to
receive that number of shares of Common Stock determined by multiplying the
number of shares of Common Stock which would be issuable on such exercise
immediately prior to such issuance by a fraction of which (i) the numerator is
the Purchase Price in effect immediately prior to such issuance and (ii) the
denominator is the Purchase Price in effect on the date of such exercise.
6. Adjustment for Certain Stock Issuances. In case at any time the
Company shall issue shares of its Common Stock or debt or equity securities
convertible into or exercisable or exchangeable for shares of Common Stock
(collectively, the "Newly Issued Shares"), other than (i) an issuance pro rata
to all holders of its outstanding Common Stock, (ii) issuances pursuant to
options, warrants and convertible securities outstanding on the Issuance Date
(including securities issued pursuant to the Exchange Agreement) and (iii)
issuances pursuant to employee stock option plans (other than in connection with
any corporate financing or acquisition transaction), at a price below the
Closing Price in effect at the time of such issuance, then following such
issuance of Newly Issued Shares the number of shares of Common Stock which the
Holder shall be entitled to receive upon exercise of this Warrant shall be
increased and the Purchase Price shall be decreased to the respective amounts
determined pursuant to this Section 6. The number of shares of Common Stock
purchasable upon the exercise of this Warrant following any such adjustment
shall be determined by multiplying the number of shares purchasable upon
exercise of this Warrant immediately prior to such adjustment by a fraction, the
numerator of which shall be the sum of (a) the number of shares of Common Stock
outstanding immediately prior to the issuance of the Newly Issued Shares
(calculated on a fully-diluted basis assuming the exercise or conversion of all
options, warrants, purchase rights or convertible securities which are
exercisable at the time of the issuance of the Newly Issued Shares), plus (b)
the number of Newly Issued Shares, and the denominator of which shall
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be the sum of (a) the number of shares of Common Stock outstanding immediately
prior to the issuance of the Newly Issued Shares (calculated on a fully-diluted
basis assuming the conversion of all options, warrants, purchase rights or
convertible securities which are exercisable at the time of the issuance of the
Newly Issued Shares), plus (b) the number of shares of Common Stock which the
aggregate consideration, if any, received by the Company for the number of Newly
Issued Shares would purchase at a price equal to the Closing Price in effect at
the time of such issuance. Upon any adjustment under this Section 6, the number
of shares of Common Stock purchasable upon exercise of this Warrant in full
immediately after such adjustment shall be rounded to the nearest
one-one-hundredth of a share of Common Stock subject, however, to Section 2 of
this Warrant relating to fractional shares of Common Stock. Such adjustment of
the number of shares purchasable provided for in this Section 6 may be expressed
as the following mathematical formula:
X = W x [O+N]
-----
[O+(A/C)]
where:
A = aggregate consideration received by the Company for the Newly
Issued Shares
C = Closing Price in effect at the time of the issuance of the Newly
Issued Shares
N = number of Newly Issued Shares
O = number of shares of Common Stock outstanding (on a fully diluted
basis, as described above) prior to the issuance of the Newly
Issued Shares
W = number of shares issuable upon exercise of this Warrant prior to
the issuance of the Newly Issued Shares
X = number of shares issuable upon exercise of this Warrant after the
issuance of the Newly Issued Shares
Upon the issuance of such Newly Issued Shares, the Purchase Price shall,
simultaneously with the happening of such event, be adjusted by multiplying the
Purchase Price in effect immediately prior to such event by a fraction, the
numerator of which shall be the number of shares of Common Stock issuable upon
exercise of this Warrant prior to the issuance of the Newly Issued Shares and
the denominator of which shall be the number of shares of Common Stock issuable
upon the exercise of this Warrant after the issuance of the Newly Issued Shares
as provided in this Section 6, and the product so obtained shall thereafter be
the Purchase Price then in effect. The number of shares issuable upon exercise
of this Warrant and the Purchase Price, as each is so adjusted, shall be
readjusted in the same manner upon the happening of any successive issuances of
Newly Issued Shares described in this Section 6. Notwithstanding the foregoing
provisions of this Section 6, no adjustment in the Purchase Price or the number
of shares of Common Stock issuable upon exercise of this Warrant shall be
required unless such adjustment would require an increase or decrease of at 1%
in such price or number; provided, however, that any adjustments which by reason
of this Section 6 are not required to be made shall be carried forward and taken
into account in any subsequent adjustment.
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7. Further Assurances. The Company will take all action that may be
necessary or appropriate in order that the Company may validly and legally issue
fully paid and nonassessable shares of stock, free from all taxes, liens and
charges with respect to the issue thereof, on the exercise of all or any portion
of this Warrant from time to time outstanding.
8. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend on, or any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any transfer of all
or substantially all of the assets of the Company to or consolidation or merger
of the Company with or into any other person (other than a wholly-owned
subsidiary of the Company), or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder, at least ten days prior to such record date, a notice specifying (i) the
date on which any such record is to be taken for the purpose of such dividend,
distribution or right, and stating the amount and character of such dividend,
distribution or right, (ii) the date on which any such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up is to take place, and the time, if any is
to be fixed, as of which the holders of record of Common Stock (or Other
Securities) shall be entitled to exchange their shares of Common Stock (or Other
Securities) for securities or other property deliverable on such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up, and (iii) the amount and character of
any stock or other securities, or rights or options with respect thereto,
proposed to be issued or granted, the date of such proposed issue or grant and
the persons or class of persons to whom such proposed issue or grant is to be
offered or made. Such notice shall also state that the action in question or the
record date is subject to the effectiveness of a registration statement under
the 1933 Act, or a favorable vote of stockholders if either is required. Such
notice shall be mailed at least ten days prior to the date specified in such
notice on which any such action is to be taken or the record date, whichever is
earlier.
9. Reservation of Stock, etc., Issuable on Exercise of Warrants. The
Company will at all times reserve and keep available out of its authorized but
unissued shares of capital stock, solely for issuance and delivery on the
exercise of this Warrant, a sufficient number of shares of Common Stock (or
Other Securities) to effect the full exercise of this Warrant and the exercise,
conversion or exchange of any other warrant or security of the Company
exercisable for, convertible into, exchangeable for or otherwise entitling the
holder to acquire shares of Common Stock (or Other Securities), and if at any
time the number of authorized but unissued shares of Common Stock (or Other
Securities) shall not be sufficient to effect such exercise, conversion or
exchange, the Company shall take such action as may be necessary to increase its
authorized but unissued shares of Common Stock (or Other Securities) to such
number as shall be sufficient for such purposes.
10. Transfer of Warrant. This Warrant shall inure to the benefit of
the successors to and assigns of the Holder. This Warrant and all rights
hereunder, in whole or in part, are registrable at
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the office or agency of the Company referred to below by the Holder hereof in
person or by his duly authorized attorney, upon surrender of this Warrant
properly endorsed.
11. Register of Warrants. The Company shall maintain, at the
principal office of the Company (or such other office as it may designate by
notice to the Holder hereof), a register in which the Company shall record the
name and address of the person in whose name this Warrant has been issued, as
well as the name and address of each successor and prior owner of such Warrant.
The Company shall be entitled to treat the person in whose name this Warrant is
so registered as the sole and absolute owner of this Warrant for all purposes.
12. Exchange of Warrant. This Warrant is exchangeable, upon the
surrender hereof by the Holder hereof at the office or agency of the Company
referred to in Section 11, for one or more new Warrants of like tenor
representing in the aggregate the right to subscribe for and purchase the number
of shares of Common Stock which may be subscribed for and purchased hereunder,
each of such new Warrants to represent the right to subscribe for and purchase
such number of shares as shall be designated by said Holder hereof at the time
of such surrender.
13. Replacement of Warrant. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of this Warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
14. Warrant Agent. In accordance with the Transfer Agent
Instructions, dated December 12, 2000, from the Company to American Stock
Transfer & Trust Company, as Transfer Agent and Registrar (the "Transfer
Agent"), the Company has appointed the Transfer Agent as the exercise agent for
purposes of issuing shares of Common Stock (or Other Securities) on the exercise
of this Warrant pursuant to Section 1. The Company may, by notice to the Holder,
appoint an agent having an office in the United States of America for the
purpose of exchanging this Warrant pursuant to Section 12 and replacing this
Warrant pursuant to Section 13, or either of the foregoing, and thereafter any
such exchange or replacement, as the case may be, shall be made at such office
by such agent.
15. Remedies. The Company stipulates that the remedies at law of the
Holder in the event of any default or threatened default by the Company in the
performance of or compliance with any of the terms of this Warrant are not and
will not be adequate, and that such terms may be specifically enforced by a
decree for the specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or otherwise.
16. No Rights or Liabilities as a Stockholder. This Warrant shall
not entitle the Holder hereof to any voting rights or other rights as a
stockholder of the Company. No provision of this Warrant, in the absence of
affirmative action by the Holder hereof to purchase Common Stock, and no mere
enumeration herein of the rights or privileges of the Holder hereof, shall give
rise to any liability of the Holder for the Purchase Price or as a stockholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
17. Notices, etc. All notices and other communications from the
Company to the registered Holder or from the registered Holder to the Company
shall be delivered personally (which shall include telephone line facsimile
transmission with answer back confirmation) or by courier and shall be effective
upon receipt, addressed to each party at the address or telephone line facsimile
transmission number for each party set forth in the Exchange Agreement or at
such other address or telephone line
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facsimile transmission number as a party shall have provided to the other party
in accordance with this provision.
18. Transfer Restrictions. By acceptance of this Warrant, the Holder
represents to the Company that this Warrant is being acquired for the Holder's
own account and for the purpose of investment and not with a view to, or for
sale in connection with, the distribution thereof, nor with any present
intention of distributing or selling this Warrant or the Common Stock issuable
upon exercise of this Warrant. The Holder acknowledges and agrees that this
Warrant and, except as otherwise provided in the Registration Rights Agreement,
the shares of Common Stock issuable upon exercise of this Warrant (if any) have
not been (and at the time of acquisition by the Holder, will not have been or
will not be), registered under the 1933 Act or under the securities laws of any
state, in reliance upon certain exemptive provisions of such statutes. The
Holder further recognizes and acknowledges that because this Warrant and, except
as provided in the Registration Rights Agreement, the Common Stock issuable upon
exercise of this Warrant (if any) are unregistered, they may not be eligible for
resale, and may only be resold in the future pursuant to an effective
registration statement under the 1933 Act and any applicable state securities
laws, or pursuant to a valid exemption from such registration requirements.
Unless the shares of Common Stock issuable upon exercise of this Warrant have
theretofore been registered for resale under the 1933 Act, the Company may
require, as a condition to the issuance of Common Stock upon the exercise of
this Warrant (i) in the case of an exercise in accordance with Section 1.1
hereof, a confirmation as of the date of exercise of the Holder's
representations pursuant to this Section 18, or (ii) in the case of an exercise
in accordance with Section 1.2 hereof, an opinion of counsel reasonably
satisfactory to the Company that the shares of Common Stock to be issued upon
such exercise may be issued without registration under the 1933 Act.
19. Legend. Unless theretofore registered for resale under the 1933
Act, each certificate for shares issued upon exercise of this Warrant shall bear
the following legend:
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended ("the Act"). The securities
have been acquired for investment and may not be resold, transferred or
assigned in the absence of an effective registration statement for the
securities under the Act or an opinion of counsel that such registration
is not required.
20. Amendment; Waiver. This Warrant and any terms hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. Notwithstanding any other provision of this Warrant or
the Exchange Agreement, in addition to the requirements of the immediately
preceding sentence, any amendment of (x) Section 1.1(b), (y) the definition of
the term Aggregated Person or (z) this sentence shall require approval by the
affirmative vote of the holders of a majority of the outstanding shares of
Common Stock, present in person or represented by proxy at a duly convened
meeting of stockholders of the Company, and entitled to vote, or the consent
thereto in writing by holders of a majority of the outstanding shares of Common
Stock, and the stockholders of the Company are hereby expressly made third party
beneficiaries of this sentence.
21. Miscellaneous. This Warrant shall be construed and enforced in
accordance with and governed by the internal laws of the State of New York. The
headings in this Warrant are for purposes of reference only, and shall not limit
or otherwise affect any of the terms hereof. The invalidity or unenforceability
of any provision hereof shall in no way affect the validity or enforceability of
any other provision.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed on its behalf by one of its officers thereunto duly authorized.
Dated:__________________, 2000 TRANSMEDIA ASIA PACIFIC, INC.
By:_____________________________________
Title:__________________________________
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FORM OF SUBSCRIPTION
TRANSMEDIA ASIA PACIFIC, INC.
(To be signed only on exercise of Warrant)
TO: American Stock Transfer CC: Transmedia Asia Pacific, Inc.
& Trust Company, 11 St. James's Square
as Exercise Agent London SW1Y 4LB
6201 Fifteenth Avenue England
Brooklyn, New York 11219
1. The undersigned Holder of the attached original, executed Warrant
hereby elects to exercise its purchase right under such Warrant with respect to
______________ shares of Common Stock, as defined in the Warrant, of Transmedia
Asia Pacific, Inc., a Delaware corporation (the "Company").
2. The undersigned Holder (check one):
|_| (a) elects to pay the aggregate purchase price for such shares of
Common Stock (the "Exercise Shares") (i) by lawful money of
the United States or the enclosed certified or official bank
check payable in United States dollars to the order of the
Company in the amount of $___________, or (ii) by wire
transfer of United States funds to the account of the Company
in the amount of $____________, which transfer has been made
before or simultaneously with the delivery of this Form of
Subscription pursuant to the instructions of the Company;
or
|_| (b) elects to receive shares of Common Stock having a value equal
to the value of the Warrant calculated in accordance with
Section 1.2 of the Warrant.
3. Please issue a stock certificate or certificates representing the
appropriate number of shares of Common Stock in the name of the undersigned or
in such other name as is specified below:
Name:__________________________________
Address:_______________________________
_______________________________
Dated: _______________, ________________________________________
(Signature must conform to name of
Holder as specified on the face of the
Warrant)
________________________________________
(Address)
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