EXHIBIT 99(d)
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED
FOR THE PRIVATE INVESTMENT OF THE HOLDER HEREOF AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED UNTIL (A) A REGISTRATION STATEMENT
UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES LAWS SHALL HAVE
BECOME EFFECTIVE WITH REGARD THERETO, OR (B) IN THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY REGISTRATION UNDER THE ACT OR
SUCH APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION
WITH SUCH PROPOSED OFFER, SALE OR TRANSFER.
This Common Stock Purchase Warrant is issued this 3rd day of April, 1997,
by Transmedia Europe, Inc., a Delaware corporation (the "Company"), to Mr J V
Vittoria ("Holder").
W I T N E S S E T H:
1. Issuance of Warrant; Term. For good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company hereby
grants to Holder, subject to the provisions hereinafter set forth, the right to
purchase 125,000 shares of the Company's Common Stock, $.0000l par value per
share (the "Common Stock"), (this "Warrant"). The shares of Common Stock
issuable upon exercise of this Warrant are hereinafter referred to as the
"Shares". This Warrant shall be exercisable at any time after the date hereof
and on or before 5:00 p.m. on the 2nd day of April, 2002. The number of Shares
issuable upon exercise of this Warrant shall be subject to adjustment as
hereinafter set forth.
2. Exercise Price. The exercise price per share for which all or any
of the Shares may be purchased pursuant to the terms of this Warrant shall be
$1.25, subject to adjustment as hereinafter set forth (hereinafter referred to
as the "Exercise Price").
3. Exercise.
(a) This Warrant may be exercised by the Holder (but only on the
conditions hereinafter set forth) in whole or in part, upon delivery of written
notice to the Company, specifying the number of Shares which the Holder has
elected to purchase, at the following address: 11 St. James's Square, London
SW1Y 4LB, England, Attention: President, or such other address as the Company
shall designate in written notice to the Holder hereof, together with this
Warrant and payment (in the manner described in Section 3(b) below) for the
aggregate Exercise Price of the Shares so purchased. Upon exercise of this
Warrant as aforesaid, the Company shall as promptly as practicable execute and
deliver to
the Holder a certificate or certificates for the total number of whole Shares
for which this Warrant is being exercised in such names and denominations as are
requested by such Holder. If this Warrant shall be exercised with respect to
less than all of the Shares, the Holder shall be entitled to receive a new
Warrant covering the number of Shares in respect of which this Warrant shall not
have been exercised, which new Warrant shall in all other respects be identical
to this Warrant.
(b) Payment for the Shares to be purchased upon exercise of this
Warrant shall be made by the delivery of a certified or cashier's check payable
to the Company for the aggregate Exercise Price of the Shares to be purchased.
(c) If on any exercise of this Warrant the Holder would be entitled
to acquire a fraction of a share of Common Stock, in lieu of such fraction of a
share, the Holder of this Warrant otherwise entitled to a fraction of such share
of Common Stock shall receive, upon surrender to the Company of the Warrant held
by such Holder, a cash amount for such fraction of a share equal to the product
obtained by multiplying (i) such fraction of a share of Common Stock, by (ii)
the amount obtained by subtracting the Exercise Price from the average of the
bid and asked prices for a share of Common Stock in the over-the-counter market
at the close of business on the date of exercise of the Warrant, as reported by
the National Association of Securities Dealers Automated Quotation System.
4. Covenants and Conditions. The above provisions are subject to the
following:
(a) Neither this Warrant nor the Shares have been registered under
the Securities Act of 1933, as amended (the "Act"), or any state securities laws
("Blue Sky Laws"). This Warrant has been acquired by Holder for investment
purposes and not with a view to distribution or resale and may not be made
subject to a security interest, pledged, hypothecated, sold or otherwise
transferred without an effective registration statement for this Warrant under
the Act and such applicable Blue Sky Laws or an opinion of counsel reasonably
satisfactory to the Company and its counsel that registration is not required
under the Act and under any applicable Blue Sky Laws. Transfer of the Shares
issued upon the exercise of this Warrant shall be restricted in the same manner
and to the same extent as this Warrant, and the certificates representing such
Shares shall bear substantially the following legend:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED FOR THE
PRIVATE INVESTMENT OF THE HOLDER
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HEREOF AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED UNTIL (A) A
REGISTRATION STATEMENT UNDER THE ACT OR SUCH APPLICABLE STATE SECURITIES
LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD THERETO OR (B) IN THE OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY REGISTRATION UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED OFFER, SALE OR TRANSFER.
Other legends as required by applicable federal and state laws may be placed on
this Warrant and such certificates. The Holder and the Company agree to execute
such other documents and instruments as counsel for the Company reasonably deems
necessary to effect the compliance of the issuance of this Warrant and any
Shares issued upon exercise hereof with applicable federal and state securities
laws. The Holder agrees that the Company may decline to permit a transfer of
this Warrant if such transfer would result in this Warrant being held by more
than 35 persons, exclusive of "accredited" investors as defined under Regulation
D promulgated under the Act, or if such proposed transferee does not meet then
applicable qualifications for investors in securities offerings exempt from
registration. Furthermore, the unexercised Warrant may be transferred in full
(subject to the provisions hereof) but not in part.
(b) The Company covenants and agrees that all Shares which may be
issued upon exercise of this Warrant shall, upon issuance and payment therefor
in accordance with the terms hereof, be legally and validly issued and
outstanding, fully paid and nonassessable. The Company shall at all times
reserve and keep available for issuance upon the exercise of this Warrant such
number of authorized but unissued shares of Common Stock as will be sufficient
to permit the exercise in full of this Warrant and all other outstanding
Warrants.
5. Warrant Holder Not Shareholder. This Warrant does not confer upon
the Holder hereof, as such, any right or privilege whatsoever as a shareholder
of the Company until the Holder shall have delivered the notice and tendered
payment as required under the provisions of Sections 2 and 3 hereof.
6. Anti-Dilution. Wherever this Warrant specifies a number of Shares
or an Exercise Price per share, the specified number of Shares or the specified
Exercise Price per share shall be changed to reflect adjustments required by
this section. If prior to the expiration or exercise of this Warrant there shall
be any change in the capital structure of the Company, the Shares covered by
this Warrant and the Exercise Price payable therefor shall be adjusted as
follows:
(a) If a stock dividend is declared on the Common Stock, there shall
be added to the shares of Common Stock issuable
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under this Warrant the number of shares of Common Stock ("total additional
shares") which would have been issuable to the Holder had the Holder been the
holder of record only of the number of shares of Common Stock covered by this
Warrant but not exercised at the stock dividend record date. Such additional
shares resulting from such stock dividend shall be delivered without additional
cost, upon the exercise of this Warrant, and, in the event that less than all of
the Shares covered by this Warrant are purchased, the number of additional
shares to be delivered shall be the same fraction of the total additional shares
as the number of shares purchased bears to the total number of shares of Common
Stock covered by this Warrant. Any distribution to the holders of the Common
Stock of the Company, other than a distribution of cash as a dividend out of
surplus or net profits or a distribution by way of granting of rights to
subscribe for shares of capital stock of the Company, shall be treated as a
stock dividend.
(b) If an increase shall be effected in the number of outstanding
shares of Common Stock by reason of a subdivision of such shares, the number of
shares which may thereafter be purchased under this Warrant shall be increased
by the number of shares that would have been received by the Holder on such
subdivision had he been the holder of record only of the number of shares of
Common Stock covered by this Warrant at the effective date of the subdivision.
In such event, the Exercise Price per share shall be decreased by multiplying
the Exercise Price theretofore in effect by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately prior to such
subdivision and the denominator of which is the number of shares of Common Stock
outstanding immediately after the subdivisions
(c) If a decrease shall be effected in the number of outstanding
shares of Common Stock by reason of a combination or reverse stock split, the
number of shares which may thereafter be purchased under this Warrant shall be
changed to the number of shares which would have been held by the Holder after
said combination or reverse stock split had he been the holder only of the
number of shares of Common Stock covered by this Warrant at the effective date
of the combination or reverse stock split. In such event, the Exercise Price per
share shall be increased by multiplying the Exercise Price theretofore in effect
by a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately prior to the combination or reverse stock split and the
denominator of which is the number of shares of Common Stock outstanding
immediately after the combination or reverse stock split.
(d) If there is any capital reorganization or reclassification of
the capital stock of the Company, or any consolidation or merger of the Company
with any other corporation
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or corporations, or any sale or distribution of all or substantially all of the
Company's property and assets, adequate provision shall be made by the Company
so that there shall remain and be substituted under this Warrant the stock,
securities; or assets that would have been issuable or payable in respect of or
in exchange for the shares of Common Stock then remaining under this Warrant and
not theretofore purchased and issued hereunder, as if the Holder had been the
owner of such shares on the applicable record date. Until the expiration or
exercise of this Warrant, any shares of stock so substituted under this Warrant
shall be subject to adjustment as provided in this Section 6 in the same manner
and to the same effect as the shares of Common Stock covered by this Warrant.
7. Registration Rights. The Company covenants and agrees as follows:
(a) Rights in Connection with a Public Offering by the Company. At
any time the Company intends to make a public offering of its securities under
any form of registration statement suitable for secondary offerings, the Company
shall so notify the Holder hereof in writing, no less than 30 days before the
intended filing of such registration statement, and shall permit the Holder to
include any or all of his Shares in such offering (limited only by the
provisions of paragraph (d) of this Section 7), provided the Holder notifies the
Company in writing within 15 days of the date of such notice of his desire to be
included in such offering. Thereafter, the Company shall use its best efforts to
(i) file with all due promptness and endeavor to make effective, as soon as
reasonably practicable, a registration statement under the Act covering any and
all shares proposed (the number being limited only by the provisions of
paragraph (d) of this Section 7) to be sold or otherwise disposed of by the
Holder; (ii) qualify such shares under the Blue Sky laws of the jurisdiction(s)
in which the offers and sales or other dispositions are proposed to be made;
(iii) qualify such shares under the rules of any appropriate self-regulatory
organization or stock exchange; (iv) maintain the effectiveness of the
registration statement for a reasonable period of time but in no event to exceed
30 days and from time to time (within any such period of effectiveness) advise
any Holder whose securities are being registered of any stop order or any event
or development requiring amendment of the registration statement and prospectus
or rendering it inadvisable to use the prospectus until it is supplemented or
amended; and (v) with reasonable promptness prevent the issuance or cause to be
removed any stop order, and amend or supplement the registration statement and
prospectus used in connection therewith to the extent necessary or appropriate
in order to comply with the Act. Notwithstanding anything else to the contrary
contained herein, once the Holder has been afforded the right to have all of its
Shares registered under the Act and has elected to have some or
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all of its Shares so registered this Section 7 shall be of no further force or
effect if all of such request has been effected.
(b) Expenses. All expenses (including, but not limited to, all
registration fees paid to the Securities and Exchange Commission, fees and
expenses of accountants, fees and expenses of counsel, printing and engraving
expenses, transfer agent fees, escrow fees, N.A.S.D. registration or exchange
listing fees, but not including underwriting discounts and commissions relating
to Shares of any holder being offered thereby and fees and expenses of any
special counsel of any selling shareholder) of any registration(s) made pursuant
to paragraph (a) hereof shall be borne and paid by the Company. Underwriting
discounts and commissions shall be borne pro rata by any selling shareholder in
proportion to the number of shares being offered by such selling shareholder.
(c) Indemnification. The Company shall indemnify and hold harmless
the Holder, and any officer, director, partner or controlling person of each,
against any claim, liability, loss, damage, cost or expense (including
attorneys' fees) arising out of any violation of federal or state securities
laws or any alleged material misstatement or omission in any registration
statement filed pursuant to paragraph (a) hereof, or in documents incorporated
therein by reference, unless such misstatement or omission is contained in, or
relates to, information furnished or to have been furnished by the Holder,
provided the Company receives prompt written notice of any claim of any such
misstatement or omission and is afforded a reasonable opportunity, if it so
elects, to participate in or control the defense of such claim.
(d) Underwriting. If any registration is intended to be an
underwritten public offering, the Company shall so advise the Holder as a part
of the written notice given pursuant to paragraph (a) hereof. In such event, the
right of the Holder to registration, pursuant to paragraph (a) hereof, shall be
conditioned upon the Holder's participation in such underwriting and the
inclusion of the Holder's Company Common Stock in the underwriting to the extent
provided herein. The Holder proposing to distribute its securities through such
underwriting shall (together with the Company and any other persons distributing
their securities through such underwriting) enter into an underwriting agreement
in customary form with the underwriter or underwriters or representative
thereof, selected for such underwriting by the Company (hereinafter the
"Underwriter"). Notwithstanding any other provision of paragraph (a), if the
Underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the Underwriter may exclude some of the Holder's
shares of stock from such registration and underwriting, provided that shares of
stock
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proposed to be sold by stockholders other than the Holder are first excluded and
provided further that in any joint primary or secondary offering, no less than
one-third (1/3) of the aggregate number of shares offered thereby are offered by
the Holder (or such lesser fraction as will include all of the shares which the
Holder then desire to so offer). The number of shares of stock that may be
included in the registration and underwriting shall be allocated to each Holder
proposing to sell, in proportion, as nearly as practicable, to the number of
shares of capital stock of the Company held by such Holder at the time of filing
of the registration statement. If any such Holder disapproves of the terms of
any such underwriting, he may elect to withdraw therefrom by written notice to
the Company and the Underwriter. Any securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
(e) Assignment of Registration Rights. The rights to cause to
register securities granted the Holder under paragraph (a) may be assigned to a
transferee or assignee, provided that the Company shall be notified of any such
transfer within thirty (30) days of the date such transaction is effected, and
provided further that: (i) such assignee or transferee agrees to be bound by the
terms of this Plan; and (ii) such assignee or transferee is unable to publicly
transfer such stock without registration.
8. Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally, given by. prepaid
telegram or mailed first class, postage prepaid, registered or certified mail as
follows:
If to the Company: Transmedia Europe, Inc.
11 St. James's Square
London SW1Y 4LB
England
Attention: Edward J. Guinan, III
If to Holder: Mr J V Vittoria
1616 Ocean Boulevard
Palm Beach
Florida 33480
9. Governing Law. This Warrant shall be construed and enforced in
accordance with the laws of the state of New York.
10. Successors, Assigns. This Warrant shall be binding upon and
inure to the benefit of any successor or successors of the Company, and shall
inure to the benefit of and shall be
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enforceable by the Holder and the Holder's legal representatives, successors,
heirs and permitted assigns.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed and delivered by its duly authorized officer as of the date first above
written.
TRANSMEDIA EUROPE, INC.
By: s/s Paul L Harrison
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Paul L Harrison
COO, Director
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