CUSIP No. 92656G 10 8 Page 7 of 16
EXHIBIT 99.18.1
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is entered into as of August
12, 1997, by and among TCI Music, Inc., a Delaware corporation ("TCI Music"),
and the Company Shareholders (as defined below).
Recitals
TCI Music, TCI Music Merger Sub, Inc. ("Merger Sub") and The Box
Worldwide, Inc. (the "Company") are entering into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of the date of this Agreement,
providing, among other things, for the merger of Merger Sub with and into the
Company. As an inducement to TCI Music to enter into the Merger Agreement, the
Company Shareholders have agreed to enter into this Agreement.
Agreement
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Certain Definitions.
(a) Capitalized terms that are used but not otherwise defined in this
Agreement will have the meanings given to them in the Merger Agreement.
(b) For the purposes of this Agreement, the following terms will have
the meanings set forth below:
A Person will be deemed the "Beneficial Owner", and to have "Beneficial
Ownership" of, and to "Beneficially Own," any securities as to which such Person
is or may be deemed to be the beneficial owner pursuant to Rule 13d-3 and 13d-5
under the Exchange Act, as such rules are in effect on the date of this
Agreement, as well as any securities as to which such Person has the right to
become a Beneficial Owner (whether such right is exercisable immediately or only
after the passage of time or the occurrence of conditions) pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants, options or other acquisition rights or
otherwise.
"Bankruptcy and Equity Exception" means an exception to enforceability
of an obligation because of the application of (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and (ii) general equity
principles.
CUSIP No. 92656G 10 8 Page 8 of 16
"Company Shareholders" means the Persons named on Schedule 1 to this
Agreement.
"Shares" means shares of Company Stock and any other shares of capital
stock or other voting securities of the Company.
2. Representations and Warranties of TCI Music. TCI Music represents
and warrants to each of the Company Shareholders that:
(c) TCI Music has all requisite corporate power and authority and has
taken all corporate action necessary in order to execute and deliver,
and to perform its obligations under, this Agreement; and
(d) this Agreement has been duly executed and delivered by TCI Music
and is a valid and binding agreement of TCI Music enforceable against
TCI Music in accordance with its terms, subject to the Bankruptcy and
Equity Exception.
3. Representations and Warranties of the Company Shareholders. Each of
the Company Shareholders severally represents and warrants to TCI Music that:
(e) such Company Shareholder Beneficially Owns the number of Shares set
forth on Schedule 3;
(f) each record holder of any Shares Beneficially Owned by such Company
Shareholder is identified on Schedule 3;
(g) such Company Shareholder, either alone or with one or more other
Company Shareholders, has (i) the right to vote, or to direct the
voting of, the Shares Beneficially Owned by such Company Shareholder
and (ii) the right to dispose, or to direct the disposition of, the
Shares Beneficially Owned by such Company Shareholder;
(h) such Company Shareholder has all requisite power and authority
(corporate or otherwise) and has taken all action (corporate or
otherwise) necessary in order to execute and deliver, and to perform
its obligations under, this Agreement;
this Agreement has been duly executed and delivered by such Company
Shareholder and is a valid and binding agreement of such Company Shareholder
enforceable against such Company Shareholder in
(i) accordance with its terms, subject to the Bankruptcy and Equity
Exception;
CUSIP No. 92656G 10 8 Page 9 of 16
(j) no notices, reports or other filings are required to be made by
such Company Shareholder with, and no consents, registrations,
approvals, permits or authorizations are required to be obtained by
such Company Shareholder from, any Governmental Entity or any other
Person, in connection with the execution, delivery and performance of
this Agreement by such Company Shareholder, except those that the
failure to make or obtain is not, individually or in the aggregate,
reasonably likely to prevent, delay or impair the ability of such
Company Shareholder to perform such Company Shareholder's obligations
under this Agreement; and
(k) the execution, delivery and performance of this Agreement by such
Company Shareholder do not, and the consummation by such Company
Shareholder of the transactions contemplated hereby will not,
constitute or result in (i) a breach or violation of, or a default
under (in the case of any Company Shareholder that is not a human
being), the articles or certificate of incorporation or the bylaws of
such Company Shareholder or any comparable governing instruments or
(ii) a breach or violation of, or a default under, or the acceleration
of any obligations of or the creation of a Lien on the assets of such
Company Shareholder (with or without notice, lapse of time or both)
pursuant to, any instrument or agreement binding on such Company
Shareholder or to which such Company Shareholder is subject or any
Legal Requirement to which such Company Shareholder is subject, except,
in the case of clause (ii) above, for any breach, violation, default,
acceleration, creation or change that, individually or in the
aggregate, is not reasonably likely to prevent, delay or impair the
ability of such Company Shareholder to perform such Company
Shareholder's obligations under this Agreement.
4. Agreement to Vote Shares. Each of the Company Shareholders severally
covenants and agrees with TCI Music: (a) to vote or to cause to be voted all
Shares that are Beneficially Owned by such Company Shareholder (to the extent
such Shares are entitled to be voted) in favor of (or to grant or to cause to be
granted consents with respect to such Shares for), and to cause any holder of
record of Shares to vote such Shares in favor of (or to grant consents with
respect to such Shares for), the adoption and approval of the Merger Agreement
and the Merger at every meeting of the shareholders of the Company (or any
solicitation of consents in lieu thereof) at which such matters are considered
and at every adjournment or postponement thereof; and (b) to vote or to cause to
be voted such Shares (to the extent such Shares are entitled to be voted)
against (or to withhold or to cause to be withheld consents with respect to such
Shares for), and to cause any holder of record of Shares to vote such Shares
against (or to withhold or to cause to be withheld consents with respect to such
CUSIP No. 92656G 10 8 Page 10 of 16
Shares for), any Acquisition Proposal (other than the proposal for the Merger)
or any other proposal that would compete or interfere with, or that would in any
way delay or otherwise inhibit the timely consummation of, the Merger and the
other transactions contemplated by the Merger Agreement.
5. No Voting Trusts or Transfers. Each Company Shareholder will not,
and will not permit any record holder of Shares to, (i) deposit any Shares
Beneficially Owned by such Company Shareholder in a voting trust or subject any
Shares to any arrangement with respect to the voting of such Shares other than
this Agreement or any other agreement entered into in furtherance of the Merger
or (ii) sell, assign, pledge, ▇▇▇▇▇ ▇ ▇▇▇▇ on or otherwise transfer any of its
interest in any Shares to any Person unless such transferee agrees in writing to
be bound by this Agreement to the same extent as such Company Shareholder.
6. Miscellaneous.
(l) Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH AND SUBJECT TO THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REFERENCE TO CONFLICTS OF LAWS PRINCIPLES.
(m) Venue; WAIVER OF JURY TRIAL. The parties hereby irrevocably submit
to the jurisdiction of the courts of the State of Delaware and the
federal court of the United States of America located in the State of
Delaware solely in respect of the interpretation and enforcement of the
provisions of this Agreement and of the documents referred to in this
Agreement and in respect of the transactions contemplated hereby, and
hereby waive, and agree not to assert, as a defense in any action, suit
or proceeding for the interpretation or enforcement hereof or of any
such document, that it is not subject thereto or that such action, suit
or proceeding may not be brought or is not maintainable in such courts
or that the venue thereof may not be appropriate or that this Agreement
or any such document may not be enforced in or by such courts, and the
parties irrevocably agree that all claims with respect to such action
or proceeding will be heard and determined in such a Delaware state or
federal court. Each party consents to and grants any such court
jurisdiction over the person of such party and over the subject matter
of such dispute and agrees that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in
paragraph (c) of this Section or in such other manner as may be
permitted by law will be valid and sufficient service thereof.
CUSIP No. 92656G 10 8 Page 11 of 16
(n) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii)
EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH (b).
(o) Notices. All notices, requests, claims, demands and other
communications required or permitted to be given or made pursuant to
this Agreement will be in writing and will be deemed given (i) on the
first business day following the date received, if delivered personally
or by telecopy (with telephonic confirmation of receipt by the
addressee), (ii) on the business day following timely deposit with an
overnight courier service, if sent by overnight courier specifying next
day delivery and (iii) on the first business day that is at least five
days following deposit in the mails, if sent by first class mail, to
the parties at the following addresses (or at such other address for a
party as will be specified by like notice):
if to the Company
Shareholders: As set forth on Schedule 1
if to TCI Music: c/o Liberty Media Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇, President
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
CUSIP No. 92656G 10 8 Page 12 of 16
with a copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(p) or to such other Persons or addresses as may be designated in
writing by the party to receive such notice as provided above.
(q) Severability. The provisions of this Agreement will be deemed
severable and the invalidity or unenforceability of any provision will
not affect the validity or enforceability of the other provisions
hereof. If any provision of this Agreement, or its application to any
Person or any circumstance, is invalid or unenforceable, (i) a suitable
and equitable provision will be substituted therefor in order to carry
out, so far as may be valid and enforceable, the intent and purpose of
such invalid or unenforceable provision and (ii) the remainder of this
Agreement and the application of such provision to other Persons or
circumstances will not be affected by such invalidity or
unenforceability, nor will such invalidity or unenforceability affect
the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
(r) Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original and all of
which will together constitute the same agreement.
(s) Termination. This Agreement will terminate (i) upon the mutual
written consent of all parties, (ii) at the Effective Time or (iii)
upon termination of the Merger Agreement.
(t) Captions. All captions in this Agreement are for convenience of
reference only and are not part of this Agreement, and no construction
or reference will be derived therefrom.
Specific Performance. Each party acknowledges that it will be impossible to
measure in money the damage to the other party if such party fails to comply
with any of the obligations imposed by this Agreement, that each such obligation
is material and that, in the event of any such failure, the other party will not
have an adequate remedy at law or damages. Accordingly, each party agrees that
injunctive relief or any other equitable remedy, in addition to remedies at law
or damages, is the appropriate remedy for any such failure and will not oppose
the granting of such relief on the basis that the other party has an adequate
remedy at law or in the form of damages. Each party agrees that it will not
seek, and
CUSIP No. 92656G 10 8 Page 13 of 16
(u) agrees to waive any requirement for, the securing or posting of a
bond in connection with any other party's seeking or obtaining such
equitable relief.
(v) Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns and will not be assignable without the written
consent of all other parties hereto.
(w) Entire Agreement; Amendment; Waiver. This Agreement (including any
schedules hereto) supersedes all prior agreements, written or oral,
among the parties with respect to the subject matter hereof and contain
the entire agreement among the parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or
modified, and no provision hereof may be modified or waived, except by
an instrument in writing signed by all the parties or, in the case of a
waiver, each party granting such waiver. No waiver of any provision
hereof by any party will be deemed a waiver of any other provision
hereof by any such party, nor will any such waiver be deemed a
continuing waiver of any provision hereof by such party.
(x) Further Assurances. The parties will execute and deliver such
additional instruments and other documents and will take such further
actions as may be necessary or appropriate to effectuate, carry out and
comply with all of the terms of this Agreement and the transactions
contemplated hereby.
(y) Third Party Beneficiaries. Nothing in this Agreement, express or
implied, is intended to confer upon any third party any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
In witness whereof, the parties have executed and delivered this
Agreement as of the date first written above.
TCI MUSIC, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: President
CUSIP No. 92656G 10 8 Page 14 of 16
THE COMPANY SHAREHOLDERS:
STARNET/CEA II PARTNERS
By: StarNet Interactive Entertainment, Inc.,
a General Partner
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: CEO
By: CEA Investors Partnership II, Ltd.,
a General Partner
By: CEA Investors, Inc., its General Partner
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman
/s/ ▇. ▇. ▇▇▇▇▇▇▇
----------------------------------
▇.▇. ▇▇▇▇▇▇▇
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr.
----------------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr.
CUSIP No. 92656G 10 8 Page 15 of 16
SCHEDULE 1
Company Shareholders
▇.▇. ▇▇▇▇▇▇▇
c/o The ▇▇▇▇▇▇▇ Group
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
copies to:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr.
c/o Communications Equity Associates, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
copies to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
StarNet/CEA II Partners
c/o Communications Equity Associates, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
copies to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
CUSIP No. 92656G 10 8 Page 16 of 16
SCHEDULE 3
Ownership of Shares
Company Shares
Shareholder Beneficially Owned Record Holder
-------------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇▇ 14,210,419(1) (2)
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr. 14,210,419(1) (2)
StarNet/CEA II Partners 14,210,419(1) (2)
------------------------
(1) Beneficial ownership is as described in Item 11 of the Company's
Form 10-KSB for the year ended December 31, 1996.
(2) Record Holders: StarNet/CEA II Partners 9,013,845
L. and ▇.▇. ▇▇▇▇▇▇▇ 1,647,647
Blanks and ▇▇▇▇▇▇ Puck 1,581,163
▇▇▇ Enterprises, L.P. 12,625
Michaels Family Trust 71,584
StarNet, Inc. 1,883,555
---------
Total 14,210,419
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