[CONFORMED COPY]
AMENDED AND RESTATED PROXY AGREEMENT
AMENDED AND RESTATED PROXY AGREEMENT, dated as of January
7, 1994, among VIACOM INC., a Delaware corporation ("Viacom"), and
each other person and entity listed on the signature pages hereof
(each, a "Stockholder").
WHEREAS, as of the date hereof each Stockholder owns
(either beneficially or of record) the number of shares of common
stock, par value $0.10 per share ("Blockbuster Common Stock"), of
Blockbuster Entertainment Corporation, a Delaware corporation
("Blockbuster"), set forth opposite such Stockholder's name on
Exhibit A hereto (all such shares and any shares hereafter acquired
by the Stockholders prior to the termination of this Agreement
being referred to herein as the "Shares");
WHEREAS, Viacom and Blockbuster propose to enter into an
Agreement and Plan of Merger, dated as of the date hereof (as the
same may be amended from time to time, the "Merger Agreement"),
which provides, upon the terms and subject to the conditions
thereof, for the merger of Blockbuster with and into Viacom (the
"Merger"); and
WHEREAS, as a condition to the willingness of Viacom to
enter into the Merger Agreement, Viacom has requested that each
Stockholder agree, and, in order to induce Viacom to enter into the
Merger Agreement, each Stockholder has agreed, severally and not
jointly, to grant Viacom proxies to vote such Stockholder's Shares;
NOW, THEREFORE, in consideration of the premises and of
the mutual agreements and covenants set forth herein and in the
Merger Agreement, the parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby
represents and warrants to Viacom as follows:
SECTION 1.01. Due Organization, etc. Such Stockholder
(if it is a corporation, partnership or other legal entity) is duly
organized and validly existing under the laws of the jurisdiction
of its incorporation or organization. Such Stockholder has full
power and authority (corporate or otherwise) to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary action (corporate or otherwise) on the
part of such Stockholder. This Agreement has been duly executed
and delivered by or on behalf of such Stockholder and, assuming its
due authorization, execution and delivery by Viacom, constitutes a
legal, valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms,
subject to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to the effect of
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 1.02. Title to Shares. Such Stockholder is the
record or beneficial owner of its Shares free and clear of any
proxy or voting restriction other than pursuant to this Agreement.
ARTICLE II
TRANSFER AND VOTING OF SHARES
SECTION 2.01. Transfer of Shares. During the Proxy Term
(as defined below), and except as otherwise provided herein, each
Stockholder shall not (a) sell, pledge (other than Permitted Liens
(as defined below)) or otherwise dispose of any of its Shares, (b)
deposit its Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares or grant any
proxy with respect thereto or (c) enter into any contract, option
or other arrangement or undertaking with respect to the direct or
indirect acquisition or sale, assignment, transfer or other
disposition of any Blockbuster Common Stock (other than, in the
case of ▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the Amended and Restated
Stockholders Stock Option Agreement, dated as of January 7, 1994,
among Viacom and each other person and entity listed on the
signature pages thereof). Exercise of rights or remedies pursuant
to bona fide pledges of Shares to banks or other financial
institutions ("Permitted Liens") are not restricted by this
Agreement. Viacom acknowledges that 575,000 of the Shares owned by
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ are subject to a pre-existing option and related
pledge agreement granted to an unrelated third party.
SECTION 2.02. Voting of Shares; Further Assurances. (a)
Each Stockholder, by this Agreement, with respect to those Shares
that it owns of record, does hereby constitute and appoint Viacom,
or any nominee of Viacom, with full power of substitution, during
and for the Proxy Term, as its true and lawful attorney and proxy,
for and in its name, place and stead, to vote each of such Shares
as its proxy, at every annual, special or adjourned meeting of the
stockholders of Blockbuster (including the right to sign its name
(as stockholder) to any consent, certificate or other document
relating to Blockbuster that the law of the State of Delaware may
permit or require) (i) in favor of the adoption of the Merger
Agreement and approval of the Merger and the other transactions
contemplated by the Merger Agreement, (ii) against any proposal for
any recapitalization, merger, sale of assets or other business
combination between Blockbuster and any person or entity (other
than the Merger) or any other action or agreement that would result
in a breach of any covenant, representation or warranty or any
other obligation or agreement of Blockbuster under the Merger
Agreement or which could result in any of the conditions to
Blockbuster's obligations under the Merger Agreement not being
fulfilled, and (iii) in favor of any other matter relating to
consummation of the transactions contemplated by the Merger
Agreement. Each Stockholder further agrees to cause the Shares
owned by it beneficially to be voted in accordance with the
foregoing.
(b) For the purposes of this Agreement, "Proxy Term"
shall mean the period from the execution of this Agreement until
the termination of the Merger Agreement, and following termination
of the Merger Agreement (other than a termination pursuant to
Section 8.01(c) thereof), during such time as a Competing
Transaction (as defined in the Merger Agreement) exists with
respect to Blockbuster; provided that in no event shall the Proxy
Term extend beyond the close of business on the 120th day following
termination of the Merger Agreement.
(c) Each Stockholder shall perform such further acts and
execute such further documents and instruments as may reasonably be
required to vest in Viacom the power to carry out the provisions of
this Agreement.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. Severability. If any term or other
provision of this Agreement is invalid, illegal or incapable of
being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected
in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal
or incapable of being enforced, the parties hereto shall negotiate
in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that
the transactions contemplated hereby are fulfilled to the extent
possible.
SECTION 3.02. Entire Agreement. This Agreement
constitutes the entire agreement of the parties and supersedes all
prior agreements and undertakings, both written and oral, between
the parties, or any of them, with respect to the subject matter
hereof.
SECTION 3.03. Assignment. This Agreement shall not be
assigned by operation of law or otherwise.
SECTION 3.04. Parties in Interest. This Agreement shall
be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any person any right, benefit or
remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION 3.05. 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 3.06. Governing Law. Except to the extent that
Delaware Law is mandatorily applicable to the rights of the
stockholders of Blockbuster, this Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York
applicable to contracts executed and to be performed entirely
within that state.
SECTION 3.07. Counterparts. This Agreement may be
executed in one or more counterparts, and by 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, the parties have executed this
Agreement as of the date first written above.
VIACOM INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman of the
Board
PHILIPS ELECTRONICS N.V.
By /s/ ▇.▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
Title: Executive Vice
President
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
WESTBURY (BERMUDA) LTD.
By /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ EX
Bermuda
/s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------
▇▇▇▇ ▇. ▇▇▇▇
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trustee,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
Testamentary Trust
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trustee,
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trustee,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trustee,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trustee,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. Trust
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trustee,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trustee,
▇▇▇▇▇▇▇▇ Family Video Trust
c/o Blockbuster Entertainment
Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT A
List of Stockholders
Number of Shares of
Name of Stockholder Blockbuster Common Stock
Philips Electronics N.V. 17,245,211
Westbury (Bermuda) Inc. 1,400,000
▇▇▇▇ ▇. ▇▇▇▇ 5,217,196
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 4,398,119
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 2,827,465
▇▇▇▇▇ ▇. ▇▇▇▇ 3,290,819
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 821,388
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as trustee
for ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇. Testamentary Trust 1,771,296
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 431,390
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as trustee
for ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust 50,000
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as trustee
for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust 20,800
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as trustee
for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust 20,800
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as trustee
for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. Trust 20,800
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as trustee
for ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust 20,800
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1,993,984
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 382,150
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as
trustee for ▇▇▇▇▇▇▇▇
Family Video Trust 355,506
