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EXHIBIT 12
CO-SALE AND VOTING AGREEMENT
This CO-SALE AND VOTING AGREEMENT ("Agreement") is dated as of April 28,
2000, by and among Transmedia Network Inc., a Delaware corporation (the
"Company"), Samstock, L.L.C., a Delaware limited liability company ("Samstock"),
and each of the investors listed on the signature pages hereto (collectively,
the "New Investors"). Capitalized terms used and not otherwise defined in this
Agreement have the meanings ascribed to them in Section 4 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 April 28, 2000, (the "Purchase Agreement") among the
Company and the New Investors, pursuant to which the New Investors agreed to
purchase from the Company, and the Company has agreed to sell to the New
Investors, (a) an aggregate of 657,536 newly issued shares of common stock of
the Company, par value $.02 per share (the "Common Stock"), and (b) warrants to
purchase an additional 1,315,072 shares of Common Stock in the aggregate; and
(ii) that certain Investment Agreement, dated as of even date herewith, among
the Company and the New Investors other than Samstock (the "Investment
Agreement"). Capitalized terms used and not defined in this Agreement shall have
the meanings ascribed to them in the Investment 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. Co-Sale Rights. In the event that Samstock 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 Samstock, Samstock shall first notify the New
Investors 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 Samstock and shall have no effect on Samstock's or the New
Investors' rights or obligations under this Section 1). The New Investors
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 Samstock; provided,
however, that the New Investors' right to participate in the proposed sale shall
be subordinate to the rights of (A) the Stockholder (as such term is defined in
each of (i) the Amended and Restated Agreement Among Stockholders (the
"Agreement Among Stockholders") dated as of March 3, 1998, by and
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among Samstock, EGI-Transmedia Investors, L.L.C., a Delaware limited liability
company (formerly known as Transmedia Investors, L.L.C., "TNI"), Stockholder and
the Company, and (ii) the Stockholders' Agreement ("Stockholders' Agreement")
dated as of March 3, 1998, by and among Samstock, TNI, Stockholder and the
Company) and (B) the investors (the "Minotaur Investors") named in that certain
Co-Sale and Voting Agreement (the "Minotaur Co-Sale and Voting Agreement") dated
as of April 28, 2000, by and among the Company, Samstock, Minotaur Partners II,
L.P., an Illinois limited partnership, Xxxxxxx Xxxxxxx and Xxxxxxx Bank), to
participate in the proposed sale. In order to exercise its co-sale rights, the
New Investors, within ten (10) business days after receiving notice from
Samstock, shall deliver to Samstock a written election to participate in the
sale to the extent allowed by this Section 1. If the New Investors have elected
to participate in the proposed sale, the New Investors 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
the New Investors by the aggregate number of Shares owned by the New Investors
and Samstock multiplied by (ii) (a) the total number of Shares to be sold by
them in the proposed sale less (b) the total number of Shares that Stockholder
and/or the Minotaur Investors shall have elected to sell pursuant to the co-sale
rights granted to Stockholder in each of the Agreement Among Stockholders, the
Stockholders' Agreement and the Minotaur Co-Sale and Voting Agreement.
Notwithstanding anything to the contrary in this Section 1, the sale proceeds to
which the New Investors would otherwise be entitled by reason of its
participation in a sale pursuant to this Section 1 shall be reduced by an amount
equal to the product of the New Investors' 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 Samstock in connection with the sale or the
exercise of the New Investors' rights under this Section 1. The New Investors
shall, as promptly as practicable and as a condition to its participation, enter
into such agreements as shall be reasonably requested by Samstock for the sale
of its Shares in the proposed sale.
Section 2. Drag-Along Rights. If Samstock owns more Company Voting
Securities than the New Investors and Samstock 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 Assignees or the New
Investors), in a single arms-length transaction or related series of arms-length
transactions with an independent third party or group of independent third
parties, Samstock may require that the New Investors sell all of their Shares to
such purchaser or group of purchasers at a net price and on terms and conditions
the same as those on which Samstock has agreed to sell its Shares; provided,
however, that, notwithstanding the foregoing, prior to the first anniversary of
this Agreement, Samstock shall not be entitled to require the New Investors to
sell their Shares if the contemplated transaction would result in an internal
rate of return for the New Investors on their initial investment of less than
25% unless Samstock makes a cash payment to the New Investors in such amount as
to provide the New Investors with an internal rate of return on their initial
investment of 25%. Samstock shall give prompt notice to the New Investors that
Samstock has entered into an agreement of the type described in this Section 2,
and the New Investors shall, as promptly as practicable, enter into such
agreements as shall reasonably be requested by Samstock for the sale of all the
Shares in the proposed sale. Notwithstanding anything to the contrary in this
Section 2, the sale proceeds to which the New Investors would otherwise be
entitled by reason of its participation in a sale pursuant to this Section 2
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 the New Investors, multiplied by
(ii) the sum of any costs, fees and expenses, including, without limitation,
attorneys', accountants' and investment
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bankers' fees and expenses, incurred by Samstock in connection with the sale or
the exercise of Samstock's rights under this Section 2.
Section 3. Stockholder Proposal. Samstock shall vote all Company Voting
Securities owned of record by Samstock or with respect to which Samstock has
voting control in favor of the Proxy Proposal (as defined in the Purchase
Agreement).
Section 4. 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.
"Permitted Assignee" means:
(i) with respect to the Transfer of Shares by Samstock, any Affiliate
of Samstock or any stockholder, partner or member of any such Affiliate;
and
(ii) with respect to any Transfer of Shares by any New Investor, any
Management Investor.
"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 New Investor which is either approved by Samstock in writing
prior to the pledge, hypothecation or grant of security interest or is
effected by Samstock or any Affiliate of Samstock shall not constitute a
"Transfer" of Shares for any purpose under this Agreement; and
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(ii) any Transfer effected as a result of a New Investor's death,
pursuant to the laws of descent and distribution, by operation of law or
otherwise, to such New Investor'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 5. 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 Samstock:
Equity Group Investments, L.L.C.
Two X. Xxxxxxxxx Xxxxx - Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Fax: (000) 000-0000
with an additional copy to:
Equity Group Investments, L.L.C.
Two X. Xxxxxxxxx Xxxxx - Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Vice President, Deputy General Counsel
Fax: (000) 000-0000
if to any Investor, at their respective addresses
set forth on the signature pages hereto.
with an additional copy to:
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if to the Company:
Transmedia Network Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
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Section 6. Termination. This Agreement shall terminate and its provisions
shall be of no further force and effect if (i) the Management Investors 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 7.1 thereof.
Section 7. 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 8. 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 9. 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.
Section 10. 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.
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Section 11. 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 12. 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 13. 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 New Investor shall take any
action, alone or in concert with any other person, to circumvent any of the
provisions of this Agreement.
Section 14. Assignability. This Agreement shall not be assignable by any
party without the prior written consent of each of the other parties; provided,
however, that, notwithstanding the foregoing, any Investor may assign its or
their rights and obligations hereunder to any Permitted Assignee, upon the
receipt by the Company of the agreement in writing of any such Permitted
Assignee to be bound by the terms this Agreement.
Section 15. Headings. The headings contained in this Agreement are for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement.
Section 16. Joint Action by the New Investors. For purposes of Sections 1
and 2 of this Agreement, each of the New Investors and any of their Permitted
Transferees shall act through a single representative; provided that each of the
foregoing shall be entitled to individually determine whether it will exercise
its rights under Section 1 hereof. Such representative shall initially be
______________________________, and such representative may be replaced upon
notice to the Company by agreement of the New Investors and any of their
Permitted Transferees.
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IN WITNESS WHEREOF, the undersigned have executed this Co-Sale and Voting
Agreement as of the day and year first above written.
THE PURCHASERS:
/s/ Xxxx X. Xxxxxxxxx
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XXXX X. XXXXXXXXX
Address: Transmedia
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00000 Xxxxxxxx Xxxx, #000
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X. Xxxxx, XX 00000
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/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
Address: 26 Broadway 8472
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Xxx Xxxx, XX 00000
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On behalf of myself and certain
family members.
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/s/ Xxxxx X. Xxxxxxxxx
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XXXXX X. XXXXXXXXX
Address: 00 Xxxx Xxxxx
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Xxxxxxxxxxxx, Xxx Xxxx 00000
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/s/ Xxxxxxx X. Xxxxxxxxx
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XXXXXXX X. XXXXXXXXXX
Address: 0000 X. Xxxxxxxxx Xx.
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Xxxxxxx, XX 00000
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/s/ Xxxx X. Xxxx
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XXXX X. XXXX
Address: 000 Xxxxx Xxxxxx
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Xxx Xxxx, XX 00000
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/s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX X. XXXXXXXXX
Address: 000 Xxxxxxxxx Xxxxx
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Xxxxxxxxx, XX 00000
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/s/ Xxxxxxxxx X. Xxxxxxx
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XXXXXXXXX X. XXXXXXX
Address: 0000 Xxxxx XxxxxXxxx
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Xxxxxxxxx, XX 00000
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/s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX
Address: 30 Xxxxxxx Dr.
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Englewood Cliffs, NJ
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/s/ Xxxxxx Xxxxxxx
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XXXXXX XXXXXXX
Address: 000 00xx Xx. Xxx. 00X
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Xxx Xxxx, XX 00000
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On behalf of myself and certain
family members.
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/s/ Xxxxxx Xxxxxxxxxx
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XXXXXX XXXXXXXXXX
Address: 0000 Xxxxxxxxx Xxxx Xx.
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Xxxx Xxxxx, XX 00000
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/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX
Address: C/O Ordertrust
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000 Xxxxxxxxxx Xxxxxx
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Xxxxxx, XX 00000
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COMPANY:
TRANSMEDIA NETWORK INC.
/s/ Xxxx X. Xxxxxxxxx
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By: Xxxx X. Xxxxxxxxx, President and
Chief Executive Officer
Transmedia
00000 Xxxxxxxx Xxxx. #000
X. Xxxxx, Xx 00000
SAMSTOCK, L.L.C.
/s/ Xxx Xxxxxxxx
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By: Xxx Xxxxxxxx
Its: Vice President
Address: 0 X. Xxxxxxxxx Xxxxx
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Xxxxxxx, XX 00000
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