EXHIBIT 99.21.1
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.
"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:
(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 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.
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 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.
(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.
In witness whereof, the parties have executed and delivered this Agreement
as of the date first written above.
TCI MUSIC, INC.
By:/s/Xxxxx Xxxx
-------------------------------------------
Name: Xxxxx 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: CEO
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.
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
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
---------
Total 14,210,419
