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Exhibit 12
VOTING AGREEMENT
THIS VOTING AGREEMENT dated as of March 3, 2000 (this "AGREEMENT"), is
entered into by the undersigned stockholder ("Stockholder") of Data Transmission
Network Corporation, a Delaware corporation ("DTN"), and VS&A Communications
Partners III, L.P., a Delaware limited partnership ("ACQUIROR").
RECITALS
A. As of the date of this Agreement, Stockholder is the owner of the
number of shares of the common stock, par value $0.001, of DTN ("DTN COMMON
STOCK") as is set forth below Stockholder's name on the signature page of this
Agreement (the "SUBJECT SHARES").
B. Acquiror is contemplating the acquisition of DTN by means of a cash
tender offer for up to 100% of the outstanding shares of DTN Common Stock at a
price of $29.00 per share (the "TENDER OFFER"), followed by a cash merger, if
necessary, to acquire all of the remaining shares of outstanding DTN Common
Stock (the "MERGER"), all pursuant to the terms of an Agreement and Plan of
Merger between Acquiror and DTN (the "MERGER AGREEMENT").
C. Acquiror is unwilling to initiate the Tender Offer unless holders of
greater than 50.1% of the outstanding DTN Common Stock enter into an agreement
substantially in the form of this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements of the
parties herein contained, the sufficiency of which is hereby acknowledged, and
as an inducement to Acquiror to initiate the Tender Offer, the parties hereto,
intending to be legally bound, hereby agree as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES. Stockholder represents and
warrants that as of the date hereof he owns the Subject Shares. Stockholder
represents that he has delegated to Xxxxxx Asset Management, L.P., Stockholder's
investment adviser, the power to vote the Subject Shares, subject to
Stockholder's retained power to direct Xxxxxx Asset Management, L.P. as to the
voting of the Subject Shares. Stockholder shall cause Xxxxxx Asset Management,
L.P. to take such action (including, if applicable, voting in the manner
provided in this Agreement) as may be necessary to carry out Stockholder's
obligations under this Agreement).
SECTION 2. TENDER OR VOTING OF SUBJECT SHARES. (a) If on or prior to
Xxxxx 0, 0000, Xxxxxxxx and DTN enter into the Merger Agreement and holders of
greater than 50.1% of the outstanding shares of DTN Common Stock enter into
agreements substantially in the form of this Agreement with Acquiror, then
Stockholder agrees that he will either (i) tender the Subject Shares to Acquiror
in response to the Tender Offer or (ii) vote the Subject Shares in favor of the
Merger and the Merger Agreement (or, if not all of the Subject Shares are
purchased in the Tender Offer, he shall vote the remaining Subject Shares in
favor of the Merger and the Merger Agreement). In addition, Stockholder shall
not tender any of the Subject Shares in response to a tender offer by any third
party.
(b) Stockholder shall not transfer or permit the transfer
of any of the Subject Shares to a third party transferee unless as a condition
of such transfer the third party transferee executes a voting agreement
substantially in the form of this Agreement, and any such voting agreement shall
be deemed a supplement to this Agreement to which all Subject Shares then or
thereafter acquired by the third party transferee shall be subject.
(c) Stockholder shall not grant any proxy or power of
attorney or similar authorization with respect to any of the Subject Shares or
take any other action that is inconsistent with or that would limit or interfere
with his obligations under this Agreement.
(d) Stockholder authorizes the Company and Acquiror to
publish and disclose in the documents relating to the Tender Offer and the
Merger (including all documents filed with the Securities and Exchange
Commission) his identity and the commitments and arrangements under this
Agreement.
SECTION 3. NO OWNERSHIP INTEREST. Nothing contained in this Agreement
shall be deemed to vest in Acquiror any direct or indirect ownership or
incidence of ownership of or with respect to any of the Subject Shares. All
rights, ownership and economic benefits of and relating to the Subject Shares
shall remain in and belong to Stockholder, and except as may be provided in the
Merger Agreement, Acquiror shall have no authority: (a) to manage, direct,
superintend, restrict, regulate, govern or administer any of the policies or
operations of DTN or of any of its subsidiaries; or (b) except as otherwise
expressly provided herein, to exercise any power or authority to direct
Stockholder in the voting of any of the Subject Shares or the performance of his
duties or responsibilities as a director, officer or stockholder of DTN.
SECTION 4. AMENDMENT AND MODIFICATION. This Agreement may only be
amended, modified or supplemented by
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a written instrument signed by Stockholder and Acquiror.
SECTION 5. ENTIRE AGREEMENT. Except for the Merger Agreement, this
Agreement evidences the entire agreement between the parties hereto with respect
to the matters provided for herein and there are no agreements, representations
or warranties with respect to the matters provided for herein other than those
set forth in this Agreement. This Agreement supersedes any agreement between DTN
and Stockholder concerning the acquisition, disposition or control of the stock
of DTN.
SECTION 6. SEVERABILITY. The parties agree that if any provision of
this Agreement shall under any circumstances be deemed invalid or inoperative,
this Agreement shall be construed with the invalid or inoperative provisions
deleted and the rights and obligations of the parties shall be construed and
enforced accordingly.
SECTION 7. GOVERNING LAW. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Delaware without regard
to the conflicts of laws rules.
SECTION 8. CAPTIONS, COUNTERPARTS AND CONSTRUCTION. The captions in
this Agreement are for convenience only and shall not be considered a part of or
affect the construction or interpretation of any provision of this Agreement.
This Agreement may be executed in counterparts, each of which shall constitute
one and the same instrument. 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 shall extend to and include all genders.
SECTION 9. ASSIGNMENT; PARTIES IN INTEREST. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
respective successors and assigns, but shall not be assigned by the parties
hereto, by operation of law or otherwise, without the prior written consent of
the other party. Except as otherwise expressly provided herein, nothing in this
Agreement, expressed or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement.
SECTION 10. TERMINATION. This Agreement shall terminate at the earlier
of: (a) the termination of the Merger Agreement; or (b) March 3, 2000, but only
if by such date either the Merger Agreement has not been executed by Acquiror
and DTN or holders of greater than 50.1% of the outstanding DTN Common Stock
have not entered into agreements substantially in the form of this Agreement
with Acquiror.
SECTION 11. LIMITATION OF PERSONAL LIABILITY. A copy of the Declaration
of Trust of Stockholder is on file with the Secretary of The Commonwealth of
Massachusetts, and notice is hereby given that this instrument is executed on
behalf of the Trustees of Stockholder as Trustees and not individually and that
the obligations of this instrument are not binding upon any of the Trustees,
officers or shareholders of Stockholder individually but are binding only upon
the assets and property of the series of Stockholder which is the owner of the
Subject Shares.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the day and year first above written.
ACQUIROR: STOCKHOLDER:
VS&A COMMUNICATIONS XXXXXX ADVISORS TRUST
PARTNERS III, L.P.
By: VS&A EQUITIES III, its G.P. By: /s/ Xxxxxxx X. Xxxxxx
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Signature
By: /s/ S. Xxxxxx Xxxxxxx Xxxxxxx X. Xxxxxx, Assistant Treasurer
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Name: S. Xxxxxx Xxxxxxx Printed Name
Title: Managing Member
250,600 - Xxxxxx U.S. Small Cap Advisor series
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Number of Subject Shares
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