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EXHIBIT B
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 26, 1998 (this
"AGREEMENT"), among Camelot Music Holdings, Inc., a Delaware corporation (the
"COMPANY") and the individual whose name and address is set forth on the
signature page hereto (the "STOCKHOLDER").
WHEREAS, Trans World Entertainment Corporation, a New York
Corporation ("PARENT") and its wholly owned subsidiary, CAQ Corporation, a
Delaware corporation ("SUBCO"), have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "MERGER AGREEMENT"), with the Company,
which Merger Agreement provides, among other things, that Subco will merge with
and into the Company pursuant to the merger contemplated by the Merger Agreement
(the "MERGER"); and
WHEREAS, as of the date hereof, the Stockholder owns (both
beneficially and of record) the number of shares of Common Stock, par value $.01
per share, of Parent ("PARENT COMMON STOCK") set forth opposite his name at the
foot of this Agreement; and
WHEREAS, the Stockholder has agreed to enter into this
Agreement governing the voting and disposition of the shares of Parent Common
Stock now owned and which may hereafter be acquired by the Stockholder (the
"SHARES").
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
1. VOTING OF SHARES. The Stockholder shall, until the
Termination Date (as hereinafter defined), cause the Shares owned by the
Stockholder to be voted (i) in favor of the Parent Merger Matters (as defined in
the Merger Agreement) and (ii) against any Acquisition Transaction (as defined
in Section 3) and any action or agreement that would impede, frustrate or
nullify this Agreement, or would result in a breach in any respect of any
covenant, representation or warranty or other obligation or agreement of Parent
under the Merger Agreement or which would result in any of the conditions set
forth in Article VI or VIII of the Merger Agreement not being fulfilled (the
subject matters of the foregoing clauses (i) and (ii) being referred to herein
as the "VOTING MATTERS") at any meeting of the stockholders of Parent where any
such vote shall be taken or in any consent in lieu of such a meeting. For the
purposes of this Agreement, "TERMINATION DATE" shall mean the earliest to
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occur of (i) the termination of the Merger Agreement in accordance with its
terms, (ii) the Effective Time (as defined in the Merger Agreement), (iii) the
termination of this Agreement by the mutual written agreement of the parties
hereto or pursuant to Section 7 of this Agreement or (iv) April 30, 1999, unless
the parties to the Merger Agreement shall amend the date specified in Section
10.02 thereto to specify some later date in which case the date specified in
this subsection (iv) shall be deemed to be for all purposes the same date as is
specified in Section 10.02 to the Merger Agreement, as it may then be amended.
2. NO DISPOSITION OR ENCUMBRANCE OF SHARES. The Stockholder
hereby covenants and agrees that, until the Termination Date has occurred,
except as contemplated by this Agreement, the Stockholder shall not, and shall
not offer or agree to, sell, transfer, tender, assign, hypothecate or otherwise
dispose of, or create or permit to exist any security interest, lien, claim,
pledge, option, right of first refusal, agreement, limitation on the
Stockholder's voting rights, charge or other encumbrance of any nature
whatsoever with respect to the Shares unless the transferee with respect to any
such transaction executes and delivers to the Company a voting agreement
substantially in the form of this Agreement with respect to the Shares which are
the subject of any such transaction and further agrees, if requested by Parent
in its sole discretion, to execute and deliver a Lock-up Agreement substantially
in the form of Exhibit B to the Merger Agreement and a Company Affiliate Letter
substantially in the form of Exhibit A to the Merger Agreement.
3. NO SOLICITATION OF TRANSACTIONS. Until the Termination Date
has occurred, the Stockholder shall not, in his capacity as a Stockholder,
directly or indirectly, through any agent or representative or otherwise,
solicit, initiate, facilitate or encourage (including by way of furnishing or
disclosing non-public information) any inquiries or the making of any proposal
with respect to any merger, consolidation or other business combination
involving Parent or acquisition of any kind of material portion of the assets or
capital stock of Parent (an "ACQUISITION TRANSACTION") or negotiate, explore or
otherwise communicate in any way with any third party with respect to any
Acquisition Transaction or enter into any agreement, arrangement or
understanding requiring it to abandon, terminate or fail to perform as
contemplated by this Agreement. Until the Termination Date has occurred, the
Stockholder immediately shall cease and cause to be terminated all existing
discussions or negotiations of the Stockholder and its agents or other
representatives with any Person conducted heretofore
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with respect to any of the foregoing. The Stockholder shall notify immediately
the Company if any proposal or offer, or any inquiry or contact with any Person
with respect to an Acquisition Transaction, is made and shall, in any such
notice to the Company, indicate in reasonable detail the identity of the Person
making such proposal, offer, inquiry or contact and the terms and conditions of
such proposal, offer, inquiry or contact.
4. LEGEND ON CERTIFICATES. If there shall be any proposed
Disposition with respect to any of the Shares, immediately prior to such
Disposition, the certificate(s) evidencing the Shares shall be endorsed with a
restrictive legend substantially as follows:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A
VOTING AGREEMENT DATED AS OF OCTOBER 25, 1998 BETWEEN THE
REGISTERED HOLDER HEREOF AND CAMELOT MUSIC HOLDINGS, INC., A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF PARENT.
THE HOLDER OF THIS CERTIFICATE, BY HIS ACCEPTANCE HEREOF,
AGREES TO BE BOUND BY ALL THE TERMS OF SUCH AGREEMENT, AS THE
SAME IS IN EFFECT FROM TIME TO TIME.
5. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The
Stockholder hereby represents and warrants with respect to itself and its
ownership of the Shares to the Company as follows:
a. AUTHORITY RELATIVE TO THIS AGREEMENT. The Stockholder has
all necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Stockholder and, assuming the due authorization, execution and
delivery by the Company, constitutes a legal, valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance with its
terms, except that such enforceability may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally.
b. NO CONFLICT. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder will not, (i) require any consent, approval, authorization or permit
of, or filing with or notification to (other than pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended and the
Securities Exchange Act of 1934, as amended), any governmental or regulatory
authority, domestic or foreign, (ii) conflict
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with or violate any law, rule, regulation, order, judgment or decree applicable
to the Stockholder or by which any property or asset of the Stockholder is
bound, or (iii) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any right of termination, amendment, acceleration or cancellation
of, or result in the creation of a lien or other encumbrance of any nature
whatsoever on any property or asset of the Stockholder pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Stockholder is a party
or by which the Stockholder or any property or asset of the Stockholder is
bound.
c. TITLE TO THE SHARES. The Shares owned by the Stockholder
are all the securities of Parent owned, either of record or beneficially, by the
Stockholder. The Stockholder owns all such Shares free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal, agreements,
limitations on the Stockholder's voting rights, charges and other encumbrances
of any nature whatsoever, and, except as provided in this Agreement, the
Stockholder has not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Shares.
d. BROKERS. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Stockholder.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants to the Stockholder that the Company has all
necessary power and authority to execute And deliver this Agreement and to
perform its obligations hereunder. The execution, delivery and performance of
this Agreement by the Company have been duly authorized by all necessary action
on the part of the Company. This Agreement has been duly and validly executed
and delivered by the Company and, assuming the due authorization, execution and
delivery by the Stockholder, constitutes a legal, valid and binding obligation
of the Company enforceable in accordance with its terms, except that such
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting creditors, rights generally.
7. TERMINATION OF AGREEMENT. The Company reserves the right in
its sole discretion at any time hereafter to terminate this Agreement.
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8. MISCELLANEOUS.
a. EXPENSES. Except as otherwise provided herein or in the
Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
b. FURTHER ASSURANCES. From time to time at the other party's
reasonable request, the Company and the Stockholder will execute and deliver all
such further documents and instruments and take all such further action as may
be necessary in order to consummate the transactions contemplated hereby.
c. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy to which they may be entitled at law or in equity.
d. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the Company and the Stockholder with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between the Company and the Stockholder with respect to the
subject matter hereof.
e. ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise, without the prior written consent of the parties.
f. OBLIGATIONS OF SUCCESSORS; PARTIES IN INTEREST. This
Agreement shall be binding upon, inure solely to the benefit of, and be
enforceable by, the successors and permitted assigns of the parties hereto.
Nothing in this Agreement, express or implied, is intended to or shall confer
upon any other person any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement.
g. AMENDMENT; WAIVER. This Agreement may not be amended or
changed except by an instrument in writing signed by the parties hereto. Any
party hereto may (i) extend the time for the performance of any obligation or
other act of the other party hereto, (ii) waive any inaccuracy in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (iii) waive compliance with any agreement or condition
contained herein. Any such extension or waiver
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shall be valid if set forth in an instrument in writing signed by the party or
parties to be bound thereby.
h. SEVERABILITY. The validity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
i. NOTICES. All notices, requests, claims, demands .and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telecopy, telegram or telex or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified in a notice given in
accordance with this Section 8(i)):
if to the Company:
CAMELOT MUSIC HOLDINGS, INC.
0000 Xxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxxx XXX
0000 XxXxxxxx Xxxxxxxxxx Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. XxXxx, Esq.
Telecopy: (000) 000-0000
and a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
0 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
if to the Stockholder:
at the addresses of the Stockholder set forth on the
signature page to this Agreement.
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j. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED IN AND TO BE PERFORMED IN THAT STATE.
k. HEADINGS. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
l. PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits or remedies or any nature whatsoever under or by
reason of this Agreement.
m. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
n. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ANY RIGHT IT
MIGHT HAVE TO A JURY TRIAL OF ANY DISPUTE ARISING IN CONNECTION WITH THIS
AGREEMENT.
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IN WITNESS WHEREOF, the Company and the Stockholder have duly
executed this Agreement, as of the date first written above.
COMPANY:
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CAMELOT MUSIC HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxx
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Name:
Title:
STOCKHOLDER: NUMBER OF SHARES OWNED:
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/s/ X. X. Xxxxxxx
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Name:
Address:
