1
Exhibit 10.5
VOTING AND SUPPORT AGREEMENT - USA
THIS VOTING AND SUPPORT AGREEMENT (this "Agreement"), dated as of February
15, 1999, is made and entered into by and among BR Holding, Inc., a Delaware
corporation ("Parent"), Bull Run Corporation, a Georgia corporation ("Bull
Run"), USA Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of Parent ("Merger Sub"), and the stockholders of Universal Sports
America, Inc., a Delaware corporation (the "Company"), listed on Exhibit A and
Exhibit B.
WHEREAS, Parent, Bull Run, Capital Sports Properties, Inc., Host
Communications, Inc., the Company, Merger Sub and two other wholly owned
subsidiaries of Parent have entered into an Agreement and Plan of Merger of even
date herewith (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"), pursuant to which, among other things, the parties have
agreed, on the terms and conditions set forth in the Merger Agreement, to the
merger of Merger Sub with and into the Company, with the Company as the
surviving corporation (the "Merger");
WHEREAS, as of the date hereof, each of the persons listed on Exhibit A
(the "Common Stockholders") is the owner of the number of shares of common
stock, par value $1.00 per share (the "Company Common Stock"), of the Company
set forth opposite such person's name on Exhibit A (the "Existing Common Shares"
and, together with any shares of Company Common Stock acquired after the date
hereof and prior to the termination hereof, whether upon exercise of options,
conversion of convertible securities, or otherwise, the "Common Shares"); and
WHEREAS, as of the date hereof, each of the persons listed on Exhibit B
(the "Preferred Stockholders") is the owner of the number of shares of Series A
Convertible Preferred Stock, par value $1.00 per share (the "Company Preferred
Stock"), of the Company set forth opposite such person's name on Exhibit B ( the
"Existing Preferred Shares" and, together with any shares of Company Preferred
Stock acquired after the date hereof and prior to the termination hereof,
whether upon exercise of options, conversion of convertible securities or
otherwise, the "Preferred Shares"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent and Bull Run have required that each of the Common
Stockholders and the Preferred Stockholders (collectively, the "Subject
Stockholders") agree, and each of the Subject Stockholders has agreed, to vote
all of the Common Shares and Preferred Shares (collectively, the "Shares") owned
by such Subject Stockholder on the terms and conditions provided for herein;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements herein contained, the parties hereby agree
as follows:
2
1. Definitions. Capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement.
2. Agreement to Vote. From and after the date of this Agreement, at any
meeting of the stockholders of the Company, however called, or in any other
circumstance upon which the vote, consent, or other approval of the holders of
shares of Company Common Stock and Company Preferred Stock is sought, each
Subject Stockholder shall vote (or cause to be voted) all of the Shares owned by
such Subject Stockholder (i) in favor of the Merger, the execution and delivery
by the Company of the Merger Agreement and each of the other actions
contemplated by the Merger Agreement and any actions required in furtherance
thereof; (ii) against any action or agreement that would result in a breach of
any covenant, agreement, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement; and (iii) against the
following actions (other than in connection with the Merger and the transactions
contemplated by the Merger Agreement), (A) any Acquisition Proposal and (B) to
the extent that such actions (1) are intended to, or could reasonably be
expected to, impede, interfere with, delay, postpone or materially adversely
affect the Merger, the value of the Company on a consolidated basis or the
transactions contemplated by the Merger Agreement or (2) are intended to, or
could reasonably be expected to, implement or lead to any Acquisition Proposal,
(x) any change in a majority of the persons who constitute the Board of
Directors of the Company, (y) any change in the present capitalization of the
Company or any amendment of the Company's Certificate of Incorporation or
Bylaws, in each case, as currently in effect; or (z) any other material change
in the Company's corporate structure or business. In addition to the other
covenants and agreements of the Subject Stockholders provided for elsewhere in
this Agreement, each Subject Stockholder agrees that he shall not enter into any
agreement or understanding with any person or entity the effect of which would
be inconsistent with or violate the provisions and agreements contained in this
Section 2. Nothing herein shall in any way restrict or limit a Subject
Stockholder from taking any action in his or her capacity as a director or
officer of the Company or otherwise fulfilling his or her fiduciary obligations
as a director or officer of the Company.
3. Representations and Warranties of Each Subject Stockholder. Each
Subject Stockholder hereby represents and warrants to the Company as to his
ownership of Shares as follows:
(a) Ownership of Shares. On the date hereof, the Existing Common
Shares or Existing Preferred Shares (collectively, the "Existing Shares"), as
the case may be, are owned of record and beneficially by such Subject
Stockholder and, as of the date hereof, the Existing Shares constitute all of
the shares of Company Common Stock or Company Preferred Stock, as the case may
be, owned of record or beneficially by such Subject Stockholder. Such Subject
Stockholder has sole power of disposition, sole power of conversion (if
applicable), sole power to demand appraisal right and sole power to vote or
otherwise agree to all of the matters set forth in this Agreement, in each case
with respect to all of the Existing Shares, with no material limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
2
3
(b) Power; Binding Agreement. Such Subject Stockholder has the legal
capacity, power and authority to enter into and perform all of his obligations
under this Agreement. The execution, delivery and performance of this Agreement
by such Subject Stockholder will not violate any other agreement to which such
Subject Stockholder is a party, including, without limitation, any voting
agreement, stockholders' agreement or voting trust. This Agreement has been duly
and validly executed and delivered by such Subject Stockholder and constitutes a
valid and binding obligation of such Subject Stockholder, enforceable against
such Subject Stockholder in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(c) No Conflict. No filing with, and no permit, authorization,
consent, or approval of, any state or federal public body or authority is
necessary for the execution and delivery of this Agreement by such Subject
Stockholder and the consummation by him of the transactions contemplated hereby,
except where the failure to obtain such consent, permit, authorization, approval
or filing would not interfere with such Subject Stockholder's ability to perform
his obligations hereunder, and none of the execution and delivery of this
Agreement by such Subject Stockholder, the consummation by such Subject
Stockholder of the transactions contemplated hereby or compliance by such
Subject Stockholder with any of the provisions hereof shall (A) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which such Subject Stockholder is a party or by
which such Subject Stockholder or any of his properties or assets may be bound,
or (B) violate any order, writ, injunction, decree, judgment, statute, rule, or
regulation applicable to such Subject Stockholder or any of its properties or
assets, in each such case except to the extent that any conflict, breach,
default or violation would not interfere with the ability of such Subject
Stockholder to perform his obligations hereunder.
(d) No Liens. Except as permitted by this agreement, the Existing
Shares and the certificates representing such shares are now, and at all times
during the term hereof will be, held by such Subject Stockholder, or by a
nominee or custodian for the benefit of such Subject Stockholder, free and clear
of all Liens, proxies, voting trusts or agreements, understandings or
arrangements or any other rights whatsoever, except for any such Liens or
proxies arising under this Agreement.
(e) No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such Subject
Stockholder.
3
4
4. Certain Covenants of the Subject Stockholders. Except in accordance
with the terms of this Agreement, each Subject Stockholder hereby covenants and
agrees as follows:
(a) No Solicitation. In his capacity as a stockholder of the
Company, such Subject Stockholder shall not, directly or indirectly, (i) solicit
or initiate any inquiries or proposals that constitute an Acquisition Proposal,
(ii) engage in negotiations or discussions concerning, or provide any non-public
information to any person or entity relating to, any such inquiries or any such
Acquisition Proposal or (iii) agree to, approve or recommend any Acquisition
Proposal. Such Subject Stockholder shall notify Parent orally (within one
business day) and in writing (as promptly as practicable) of all relevant
details relating to, and all material aspects of, all inquiries and proposals
which he may receive relating to any Acquisition Proposal and, if such inquiry
or proposal is in writing, such Subject Stockholder shall deliver to Parent a
copy of such inquiry or proposal as promptly as practicable. Such Subject
Stockholder will immediately cease and cause to be terminated any existing
activities, discussions, or negotiations with any parties conducted heretofore
with respect to any of the foregoing.
(b) Restriction on Transfer, Proxies, and Non-Interference. Such
Subject Stockholder shall not (i) except as contemplated by the Merger Agreement
and except, in the case of a Subject Stockholder who is an individual, upon such
Subject Stockholder's death, offer for sale, sell transfer, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to the offer for sale, transfer,
pledge, encumbrance, assignment, or other disposition of any of the Shares, (ii)
grant any proxies or powers of attorney (except for the purpose of approving the
Merger Agreement), deposit any Shares into a voting trust, or enter into a
voting agreement with respect to any Shares, or (iii) take any action that could
reasonably be expected to make any representation or warranty of such Subject
Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling such Subject Stockholder from performing its obligations
under this Agreement.
(c) Waiver of Appraisal Rights. Such Subject Stockholder hereby
waives any rights of appraisal or rights to dissent from the Merger that such
Subject Stockholder may have, to the extent that any rights of appraisal or
dissent are applicable.
(d) Additional Shares. Such Subject Stockholder shall promptly
notify Parent and Bull Run of the number of any new shares of Company Common
Stock or Company Preferred Stock acquired by such Subject Stockholder after the
date hereof.
(e) Stop Transfer Order. In furtherance of this Agreement,
concurrently herewith, such Subject Stockholder shall and hereby does authorize
the Company's counsel to notify the Company's transfer agent that there is a
stop transfer order with respect to all of the Existing Shares held as of the
date hereof (and that this Agreement places limits on the voting and transfer of
such Existing Shares).
4
5
5. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) Binding Agreement. This Agreement and the obligations hereunder
shall attach to each Subject Stockholder's Shares and shall be binding upon any
Person or entity to which legal or beneficial ownership of each Subject
Stockholder's Shares shall pass, whether by operation of law or otherwise,
including, without limitation, such Subject Stockholder's administrators or
successors. Notwithstanding any transfer of Shares, the transferor shall remain
liable for the performance of all obligations of the transferor under this
Agreement.
(c) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other party; provided,
however, that each of Parent, Bull Run and Merger Sub may assign all of its
rights hereunder to any direct or indirect wholly owned subsidiary of Parent to
which it has assigned all of its rights under the Merger Agreement.
(d) Amendments. This Agreement may not be amended, changed,
supplemented or otherwise modified or terminated, except upon the execution and
delivery of a written agreement executed by the parties hereto.
(e) 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 received if so given) by hand delivery, telegram, telex
or telecopy or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
following addresses or the addresses set forth on the signature pages hereto:
If to Parent, Bull
Run or Merger Sub: Bull Run Corporation
0000 Xxxxxxxxx Xxxx, XX
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx III, Esq.
Facsimile: (000) 000-0000
5
6
If to any
Subject
Stockholder: to the address set forth on the signature page for
such Subject Stockholder attached hereto.
copies to: Xxxxx, Xxxxxxx & Xxxxxx
Two Lincoln Center
0000 XXX Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal, or unenforceable provision or portion of any provision had never been
contained herein.
(g) Specific Performance. Each of the Subject Stockholders
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause Parent and Bull Run to sustain damages
for which they would not have an adequate remedy at law for money damages and,
therefore, in the event of any such breach, Parent and Bull Run shall be
entitled to the remedy of specific performance of such covenants and agreements
and injunctive and other equitable relief in addition to any other remedy to
which they may be entitled, at law or in equity.
(h) Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
(i) No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto; provided, however, that in the event of a
Subject Stockholder's death, the benefits and obligations of such Subject
Stockholder hereunder shall inure to his or her successors and heirs.
6
7
(j) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(k) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(l) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but all of which, taken
together, shall constitute one and the same agreement. This Agreement shall not
be effective as to any party hereto until such time as this Agreement or a
counterpart thereof has been executed and delivered by each party hereto.
(m) Confidentiality; Press Releases. Each Subject Stockholder shall
keep confidential all information obtained by it with respect to Parent, Bull
Run, Merger Sub, the Merger Agreement or the transactions contemplated by the
Merger Agreement, and will use such information solely in connection with the
transactions contemplated by the Merger Agreement and this Agreement. If the
transactions contemplated by the Merger Agreement and this Agreement are not
consummated, each Subject Stockholder shall, upon request, return to Parent,
Bull Run and Merger Sub or destroy (and certify to Parent, Bull Run and Merger
Sub that he has so destroyed), without retaining a copy thereof, any schedules,
documents or other written information, and any reports, notes, computer files
or other evidence, whether written or electronic, that reflect, refer to or
contain such information. Without limiting the generality of the foregoing, no
Subject Stockholder shall make any press release or other public statements with
respect to the Merger Agreement or the transactions contemplated by the Merger
Agreement, including the Mergers, and shall not issue any such press release or
make any such public statement, without the prior written consent of Parent,
Bull Run and Merger Sub (which may be given or withheld in their respective sole
discretion). Notwithstanding the foregoing, no Subject Stockholder shall be
required to keep confidential or return any information which (a) is required to
be disclosed by law, pursuant to an order or request of a judicial authority or
Governmental Entity having competent jurisdiction (provided the Subject
Stockholder seeking to disclose such information provides Parent, Bull Run and
Merger Sub with at least five business days prior written notice thereof), or
(b) which can be shown to have been generally available to the public otherwise
than as a result of a breach of this Agreement.
(n) Expiration. This Agreement shall expire upon the first to occur
of (i) the USA Effective Time, (ii) the termination of the Merger Agreement in
accordance with the terms thereof or (iii) written notice of termination of this
Agreement by Parent and Bull Run.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7
8
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
BR HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
BULL RUN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
USA MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
NBC SPORTS VENTURES, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
HOST COMMUNICATIONS, INC.
By: /s/ X. Xxxxx Host
-------------------------------------
Name: X. Xxxxx Host
Title: Chief Executive Officer
8
9
XXXX CAPITAL PARTNERS, L.P. (as successor
by merger to Xxxx Capital Group, L.L.C.)
By: XXXX CAPITAL GROUP, L.L.C.
its General Partner
By: J.R. Holland, Jr.
-------------------------------------
Name: J.R. Holland, Jr.
Title: President and Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
9
10
Exhibit A
COMMON STOCKHOLDERS
Number of
Name Shares Owned % of Outstanding
---- ------------ ----------------
NBC Sports Ventures, Inc. 384.06 23.4%
Host Communications, Inc. 720.00 43.9%
Xxxxxx X. Xxxxxx 280.32 17.1%
Xxxxxxx X. Xxxxxx 148.56 9.1%
Xxxxxxx X. Xxxxxx 107.56 6.5%
------- -----
TOTAL 1640.50 100%
======= =====
A-1
11
Exhibit B
PREFERRED STOCKHOLDERS
Number of
Name Shares Owned % of Outstanding
---- ------------ ----------------
Xxxx Capital Partners, L.P. 425 86.7%
Bull Run Corporation 65 13.3%
--- ------
Total 490 100.0%
--- ------
B-1
