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EXHIBIT 10.4
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.
"Company Shareholders" means the Persons named on
Schedule 1 to this Agreement.
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"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:
(a) 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
(b) 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:
(a) such Company Shareholder Beneficially Owns
the number of Shares set forth on Schedule 3;
(b) each record holder of any Shares Beneficially
Owned by such Company Shareholder is identified on Schedule 3;
(c) 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;
(d) 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;
(e) 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
accordance with its terms, subject to the Bankruptcy and Equity Exception;
(f) 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
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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
(g) 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 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, xxxxx x Xxxx 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.
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6. Miscellaneous.
(a) 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.
(b) 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.
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).
(c) 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
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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
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxx, President
Fax No.: (000) 000-0000
with a copy to: Xxxxxxx & Xxxxxx L.L.C.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
or to such other Persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
(d) 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.
(e) 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.
(f) 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.
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(g) 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.
(h) 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 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
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In witness whereof, the parties have executed and delivered
this Agreement as of the date first written above.
TCI MUSIC, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------------------
Name: Xxxxx X. Xxxx
------------------------------------------
Title: President
-----------------------------------------
THE COMPANY SHAREHOLDERS:
STARNET/CEA II PARTNERS
By: StarNet Interactive Entertainment, Inc.,
a General Partner
By: /s/ X.X. Xxxxxxx
-----------------------------------
Name: X.X. Xxxxxxx
---------------------------------
Title: Chief Financial Officer
--------------------------------
By: CEA Investors Partnership II, Ltd.,
a General Partner
By: CEA Investors, Inc., its General
Partner
By: /s/ J. Xxxxxxx Xxxxxxxx
-----------------------------------
Name: J. Xxxxxxx Xxxxxxxx
---------------------------------
Title: Chairman
--------------------------------
/s/ X.X. Xxxxxxx
-----------------------------------------------
X.X. Xxxxxxx
/s/ J. Xxxxxxx Xxxxxxxx, Jr.
-----------------------------------------------
J. Xxxxxxx Xxxxxxxx, Jr.
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SCHEDULE 1
COMPANY SHAREHOLDERS
X.X. Xxxxxxx
c/o The Xxxxxxx Group
000 Xxxxxxx Xxxxxxxxx
Xxxx, Xxxxxxxxxxxx 00000
copies to:
Xxxx Xxxxx Xxxxxx & Xxxx
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
J. Xxxxxxx Xxxxxxxx, Jr.
c/o Communications Equity Associates, Inc.
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx
copies to:
Xxxxxxx & Xxxxxx
000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxx
StarNet/CEA II Partners
c/o Communications Equity Associates, Inc.
000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx
copies to:
Xxxxxxx & Xxxxxx
000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxx
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SCHEDULE 3
OWNERSHIP OF SHARES
Company Shares
Shareholder Beneficially Owned Record Holder
----------- ------------------ -------------
X.X. Xxxxxxx 14,210,419(1) (2)
J. Xxxxxxx Xxxxxxxx, 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 X.X. Xxxxxxx 1,647,647
Blanks and Xxxxxx Puck 1,581,163
Xxx Enterprises, L.P. 12,625
Michaels Family Trust 71,584
Starnet, Inc. 1,883,555
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Total 14,210,419
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