AMENDED AND RESTATED VOTING AGREEMENT
AMENDED AND RESTATED VOTING AGREEMENT, dated as of October 27, 1997
(the "Agreement"), among Video Update, Inc. a Delaware corporation ("BUYER"),
VUI Merger Corp., a Delaware corporation ("SUB"), Moovies, Inc., a Delaware
corporation ("COMPANY") and the persons listed on attached Schedule 1 annexed
hereto, each with an address as set forth on Schedule 1 (such individuals being
hereinafter referred to individually as "Stockholder" and collectively as
"Stockholders").
WHEREAS, BUYER, SUB, and COMPANY have entered into an Agreement and
Plan of Merger, dated as of July 9, 1997 and an Amendment to the Agreement and
Plan of Merger dated as of the date hereof (the "Amendment"), both of which are
collectively referred to as the "Merger Agreement";
WHEREAS, BUYER, SUB, COMPANY and Stockholders have entered into a
Voting Agreement dated as of July 9, 1997 (the "July 9, 1997 Voting Agreement");
WHEREAS, BUYER, SUB, COMPANY and Stockholders, in connection with the
Amendment, wish to amend and replace the July 9, 1997 Voting Agreement with this
Amended and Restated Voting Agreement dated as of October 27, 1997;
WHEREAS, initially capitalized terms not otherwise defined herein shall
have their respective meanings as set forth in the Merger Agreement, a copy of
which has been provided to each of the Stockholders;
WHEREAS, each of the Stockholders is familiar with the terms and
conditions of the Merger Agreement and the transactions referred to therein and
contemplated thereby ("Transactions");
WHEREAS, as of the date hereof, the Stockholders beneficially (as
defined in Rule 13-d promulgated under the Exchange Act) own that number of
BUYER or COMPANY Shares set forth opposite each Stockholder's respective name on
Schedule 1; and
WHEREAS, as a condition to the willingness of BUYER, SUB and COMPANY to
enter into the Merger Agreement, and to induce BUYER, SUB and COMPANY to enter
into the Merger Agreement, BUYER SUB, and COMPANY have required that each of the
Stockholders agree and the Stockholders have agreed to vote, or cause to be
voted, all their BUYER and COMPANY Shares, as the case may be, in favor of the
Merger and the Transactions, upon the terms and subject to the conditions of
this Agreement.
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 agree as follows:
ARTICLE 1.
AGREEMENT TO VOTE
SECTION 1.01. VOTING AGREEMENT. BUYER, SUB, COMPANY and Stockholders
hereby agree that (a) the July 9, 1997 Voting Agreement shall cease to be of any
further force or effect and (b) this Amended and Restated Voting Agreement shall
amend and replace the July 9, 1997 Voting Agreement. Until the Termination Date
(as hereinafter defined), each of the Stockholders agree with each other
Stockholder and with BUYER, SUB and COMPANY that he shall vote, or cause to be
voted, all of his BUYER and COMPANY Shares, as the case may be, and any other
BUYER, and COMPANY Shares, as the case may be, that may hereafter be acquired by
such Stockholder ("Additional Shares") in favor of the Merger and the
Transactions, as the case may be, and to the extent applicable and not
prohibited by contract, in favor of the Requisite BUYER Stockholder Proposal (as
defined in the Merger Agreement).
SECTION 1.02. NO TRANSFER. Until the Termination Date, no Stockholder
shall, except as permitted under any existing security agreement or encumbrance
relating to such Stockholder, transfer any interest in any of his or her BUYER
or COMPANY Shares, create, suffer or permit to be created any security interest,
lien, claim, pledge, option, right of first refusal, agreement, charges or other
encumbrances of any nature whatsoever on or with respect to his BUYER or COMPANY
Shares or any BUYER or COMPANY Additional Shares, other than those arising under
the Securities Act and any applicable state securities or "Blue Sky" laws.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders hereby represents and warrants to the other
Stockholders and to each of BUYER, SUB and COMPANY as follows:
SECTION 2.01. AUTHORITY RELATIVE TO THIS AGREEMENT. He has all
necessary power and authority to execute and deliver this Agreement to perform
his or her obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by such
Stockholder, constitutes a legal, valid and binding obligation of Stockholder,
enforceable against him in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
SECTION 2.02. 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 any governmental or regulatory authority,
domestic or foreign, (ii) conflict 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 affected, 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 or pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit franchise or other instrument or obligation to
which such Stockholder is a party or by which the Stockholder, BUYER or COMPANY
or any property or asset of the Stockholder or BUYER or COMPANY is bound or
affected.
SECTION 2.03. TITLE TO THE SHARES. As of the date hereof, the
Stockholder has sole voting authority with respect to the BUYER or COMPANY
Shares set forth opposite his name which are all the shares of BUYER or COMPANY
Common Stock owned, either of record or beneficially, by such Stockholder. The
Stockholder may vote such BUYER or COMPANY Shares free and clear of all options,
rights of first refusal, limitations on the Stockholder's voting rights, (other
than those arising under the Securities Act, and any applicable state securities
or "blue sky" laws), and, the Stockholder has not appointed or granted any proxy
which is still effective, with respect to the BUYER or COMPANY Shares and, until
the Effective Time (as defined in the Merger Agreement) shall take all actions
necessary to retain ownership of the BUYER or COMPANY Shares and to preserve his
rights to comply with Section 1.01.
SECTION 2.04. NO OTHER REPRESENTATIONS OR WARRANTIES. Notwithstanding
the representations and warranties contained in this Section 2, the Stockholders
make none of the representations or warranties contained in the Merger Agreement
with respect to BUYER or COMPANY or with respect to any obligations, property or
assets of BUYER or COMPANY.
ARTICLE 3.
MISCELLANEOUS
SECTION 3.01. FURTHER ASSURANCE. The parties will execute and deliver
all such further documents and instruments and take all such further action as
may be necessary in order to carry out the intentions of this Agreement.
SECTION 3.02. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
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 at law or in equity.
SECTION 3.03. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral,
between or among them with respect to the subject matter hereof.
SECTION 3.04. ASSIGNMENT; PARTIES IN INTEREST. This Agreement shall be
binding upon, inure solely to the benefit of, and be enforceable by, the parties
hereto and their successors and permitted assigns. Nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION 3.05. AMENDMENT; WAIVER. This Agreement may not be amended and
no term or condition hereof may be waived except by an instrument in writing
executed by the parties hereto.
SECTION 3.06. SEVERABILITY. If a court of competent jurisdiction shall
finally determine that any provision of this Agreement is invalid, illegal or
unenforceable, then all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect and such court shall modify such
invalid, illegal or unenforceable provision to the minimum extent necessary to
make same valid, legal an enforceable.
SECTION 3.07. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be delivered in person,
by telecopy, expedited delivery service (such as Federal Express) or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties as follows:
If to BUYER or SUB
Video Update, Inc.
0000 Xxxxx Xxxxx Xxxxxx
00 X. Xxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxxxxx X. Xxxxxxx, Esq.
Xxxxxx & Hannah LLP
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
if to any one or more of the Stockholders:
To the address set forth next to such stockholders name.
if to COMPANY:
Moovies, Inc.
000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: President and
Chief Executive Officer
with a copy to:
Xxxxxxxx Xxxxxx, Esq.
Xxx Xxxxxxxxx, Esq.
Arnall Golden & Xxxxxxx LLP
2800 One Atlantic Center
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Such notice shall be effective on the day following receipt of delivery
in person, by verified telecopy or by expedited delivery service and shall be
effective four days after mailing in accordance the foregoing. The person to
whom notice is to be given, and any address, may be changed from time to time in
the manner set forth above (provided that notice of any change of address shall
be effective only upon receipt thereof).
SECTION 3.08. JURY TRIAL WAIVER. All parties hereto hereby waive trial
by jury in any action, counterclaim or proceeding of any kind arising under or
out of or in connection with this Agreement, the negotiations leading thereto,
the inducements to the parties to enter into this Agreement and to the
transactions it contemplates.
SECTION 3.09. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State.
SECTION 3.10. 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.
SECTION 3.11. TERMINATION. This Agreement shall terminate on the first
to occur of (a) the termination of the Merger Agreement in accordance with
Section 7 thereof; (b) the closing of the Merger Agreement and the consummation
of the Transactions; or (c) one year from the date hereof (the "Termination
Date"). In the event of the termination of this Agreement, this Agreement shall
forthwith become void and there shall be no liability on the part of BUYER, SUB
or COMPANY or each of the Stockholders under this Agreement, except with regard
to any breach of this Agreement prior to such termination.
SECTION 3.12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and 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.
IN WITNESS WHEREOF, each of BUYER, SUB or COMPANY has caused this
Agreement to be executed by its officer thereunto duly authorized and each of
the Stockholders has duly executed this Agreement as of the date first written
above.
VIDEO UPDATE, INC.
By: Xxxxxx X. Xxxxxx
_______________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
VUI MERGER CORP.
By: Xxxxxx X. Xxxxxx
_______________________
Name: Xxxxxx X. Xxxxxx
Title: President
MOOVIES, INC.
By: Xxxx Xxxxxx
_______________________
Name: Xxxx Xxxxxx
Title: President and Chief
Executive Officer
STOCKHOLDERS:
/s/Xxxxxx X. Xxxxxx /s/Xxxx X. Xxxxxx
__________________________ _______________________
Xxxxxx X. Xxxxxx Xxxx X. Xxxxxx
/s/Xxxxxx X. Xxxxxx /s/Xxxxxx X. Xxxxxxx, III, individually
__________________________ ________________________________________
Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx, III, individually
/s/ Xxxxxxx Xxxxxx /s/Xxxxxx X. Xxxxxxx, III
__________________________ _________________________________________
Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxxx, III, as joint tenant
with the right of survivorship with
Xxx X. Xxxxxxx
/s/Xxxxx Xxxxxxx /s/Xxx X. Xxxxxxx
__________________________ _________________________________________
Xxxxx Xxxxxxx Xxx X. Xxxxxxx, as joint tenant with
the right of survivorship with Xxxxxx
X. Xxxxxxx, III
/s/Xxxxxxx Xxxxxxxx /s/F. Xxxxxx Xxxxxxxx
_________________________ _________________________________________
Xxxxxxx Xxxxxxxx F. Xxxxxx Xxxxxxxx
/s/Xxxxxx X. Xxxxx /s/Xxxxxxx X. Xxxxxxx
_________________________ _________________________________________
Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxx
/s/Xxxx Xxxxxx /s/Xxxxxxxx X. Xxxxxx
_________________________ __________________________________________
Xxxx Xxxxxx Xxxxxxxx X. Xxxxxx
/s/Xxxx Xxxxxxxxxx /s/Xxxxxxx X. Xxxxxx
_________________________ __________________________________________
Xxxx Xxxxxxxxxx Xxxxxxx X. Xxxxxx
/s/Xxxxxxx Xxxxxxxxx /s/Xxxxxxx X. Way
_________________________ _________________________________________
Xxxxxxx Xxxxxxxxx Xxxxxxx X. Way
/s/Xxxx X. Xxxxxx
_________________________
Xxxx X. Xxxxxx
Schedule 1
Stockholder/Address Number of Shares
1. Xxxxxx X. Xxxxxx 270,000 shares of Video Update
0000 XxXxxxxx Xxxxx Overlook Inc. Class A Common Stock, $.01
Xxxxxxxxxx, XX 00000 par value per share ("VUI Class A
Shares")
1,086,759 shares of Video Update Inc.
Class B Common Stock , $.01
par value per share ("VUI Class
B Shares")
2. Xxxx X. Xxxxxx 150,000 VUI Class A Shares
0000 Xxxxx Xxxx Xxxxx 878,117 VUI Class B Shares
Xxxx Xxxx, XX 00000
3. Xxxxxx X. Xxxxxx
000 X. Xxxxxxx Xxxxxx 35,124 VUI Class B Shares
Xx. Xxxx, XX 00000
4. Xxxxxxxxxxx X. Xxxxxxx 4,000 VUI Class A Shares
00000 0xx Xxxxxx Xxxxx
Xxxxxxxx, XX
5. Xxxxxxx Xxxxxx 0 VUI Class A Shares
000 X. 0xx Xxxxxx, Xxxxxxxxx 000
Xx. Xxxx, XX 00000
6. Xxxxx Xxxxxxx 0 VUI Class A Shares
0000 000xx Xxxxxx X.
Xxxxxxxxxx, XX 00000
7. Xxxxxxx Xxxxxxxx 0 VUI Class A Shares
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
8. Xxxxxx X. Xxxxx 78,750 VUI Class A Shares
00000 Xxxxx Xxxxxx Xxx. X.
Xxxxxx Xxxx, XX 00000
9. Xxxx Xxxxxxx Xxxxxx 0 VUI Class A Shares
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
10. Xxxx X. Xxxxxxxxxx 1,500 VUI Class A Shares
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
11. Xxxxxxx Xxxxxxxxx 0 VUI Class A Shares
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
12. Xxxx X. Xxxxxx 456,740 shares of Moovies
0000 Xxxxxxx Xxx Xxxxxx Stock, $.001 par
Xxxxxxx, XX 00000 value per share ("Moovies Shares")
87,000 Moovies Shares subject to margin call
13. F. Xxxxxx Xxxxxxxx 221,711 Moovies Shares
000 Xxxxxxx Xxxx
Xxxxx, XX 00000
14. Xxxxxxx X. Xxxxxx 629,149 Moovies Shares
0000 Xxxxx Xxxxxx 121,000 Moovies Shares subject to
Xxxxx, XX 00000 margin call
15. Xxxxxxx X. Xxxxxxx 637,649 Moovies Shares
0000 Xxxxxxxx Xxxx 28,000 Moovies Shares subject to
Xxxxxxxxxx, XX 00000 margin call
16. Xxxxxx X. Xxxxxxx, III 181,250 Moovies Shares
0000 X Xxxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
17. Xxxxxx X. Xxxxxxx, III and Xxx X. Xxxxxxx, 165,150 Moovies Shares
joint tenants with the right of survivorship
0000 X Xxxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
18. Xxxxxxx X. Way 14,000 Moovies Shares
c/o Ryan's Family Steakhouses, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
19. Xxxxxxxx X. Xxxxxx 0 Moovies Shares
00 Xxxxxx Xxxx
Xxxxxxx, XX 00000
