EXHIBIT 10.5
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 Xxxxxx
Xxxxxx and Xxxx Xxxxxx, 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,
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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 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
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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.
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.
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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.
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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 Xxxx General
Partnership, Inc., its managing
member
/s/ Xxxxx X. Xxxxxxxxx
---------------------------------------------
By: Xxxxx X. Xxxxxxxxx, Vice President
SAMSTOCK, L.L.C.
by SZ Investments, L.L.C., its managing member,
by Xxxx General Partnership, Inc., its managing
member
/s/ Xxxxx X. Xxxxxxxxx
---------------------------------------------
By: Xxxxx X. Xxxxxxxxx, Vice President
/s/ Xxxxxx Xxxxxx
---------------------------------------------
XXXXXX XXXXXX, INDIVIDUALLY
/s/ Xxxx Xxxxxx
---------------------------------------------
XXXX XXXXXX, INDIVIDUALLY
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EXHIBIT A
STOCKHOLDER COOPERATION AGREEMENT
OWNERSHIP OF TRANSMEDIA NETWORK INC.
COMMON STOCK AND OPTIONS
Chasen Shares
Xxxxxx Xxxxxx Direct 684,961
Xxxx Xxxxxx 186,958
Xxxx Xxxxxx 13,820
Chasen Family Partnership 100,000
Chasen Family Partnership 39,600
Xxxxxx Xxxxxx - XXX 25,070
Xxxxxx Xxxxxx - Xxxxx Xxxxxx 100
-------
1,050,509
Options Schedule
Option Date Exp. Date Option Price Shares Outstanding Shares Exercisable
----------- --------- ------------ ------------------ ------------------
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
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