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VOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into this 25th day
of July, 2000 (this "Agreement"), among Liberty Media Corporation, a Delaware
corporation ("Liberty"), and the stockholders each other person and entity
listed on the signature pages hereof (each, a "Stockholder").
W I T N E S S E T H :
WHEREAS each Stockholder is the record holder on the date
hereof of the number of shares of Common Stock, par value $.01 per share ("VSC
Stock"), of Video Services Corporation, a Delaware Corporation ("VSC") set forth
opposite such Stockholder's name on Exhibit A hereto (all such shares and any
shares of VSC Stock hereafter acquired by the Stockholders prior to the
termination of this Agreement being referred to herein as the "Shares");
WHEREAS, concurrently with the execution and delivery of this
Agreement, AT&T Corp., a New York corporation ("AT&T"), E-Group Merger Corp., a
Delaware corporation and a wholly-owned subsidiary of AT&T ("Merger Sub"),
Liberty and VSC are entering 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, among other things, for the merger of Merger Sub
with and into VSC upon the terms and subject to the conditions provided for
therein;
WHEREAS, as a condition to the willingness of Liberty to enter
into the Merger Agreement, Liberty has required that each Stockholder agree,
and, in order to induce Liberty to enter into the Merger Agreement, each
Stockholder has agreed, severally and not jointly, to enter into this Agreement
with respect to all the Shares of such Stockholder;
WHEREAS, capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Merger Agreement.
NOW, THEREFORE, in consideration of the premises, covenants
and representations contained herein and in the Merger Agreement, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
VOTING OF SHARES
1.1 Voting of Shares. Each Stockholder hereby agrees that
during the time this Agreement is in effect, at any meeting of the stockholders
of VSC, however called (whether, annual, special or adjourned), and in any
action by written consent of the stockholders of VSC, such Stockholder shall
vote all Shares and all other voting
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securities of VSC owned beneficially or of record by such Stockholder, or with
respect to which such Stockholder has the right to vote or control the voting
(or execute, or control the execution of, as stockholder, any consent,
certificate or other document relating to VSC that the law of the State of
Delaware may permit or require): (a) in favor of approval and adoption of the
Merger Agreement, the Merger, the Merger Proposal and any other transactions
contemplated by the Merger Agreement for which a stockholder vote is required
and (b) against any other proposal for any investment in, acquisition of,
business combination with or other extraordinary transaction regarding VSC or
any direct or indirect subsidiary or division thereof, including, without
limitation, any merger, purchase or sale of securities or purchase or sale of
assets outside the ordinary course of business. Each Stockholder acknowledges
receipt of a copy of the Merger Agreement. Notwithstanding the foregoing, a
Stockholder shall not be required to vote in favor of the approval and adoption
of the Merger Agreement, the Merger or the Merger Proposal if, following the
date hereof and without the consent of such Stockholder, the Merger Agreement is
amended and such amendment (x) materially changes the consideration to be
received by stockholders of VSC in the Merger or (y) imposes any material
obligations on such Stockholder following the Merger.
1.2 Proxy. Each Stockholder hereby irrevocably appoints
Liberty (and any officer of Liberty), with full power of substitution, the proxy
of such Stockholder with full power and authority, in the event that such
Stockholder shall at any time fail to perform its obligations under Section 1.1
hereof, to vote or act by consent in respect of its Shares and all of its other
voting securities of VSC exclusively as provided in Section 1.1. The proxy
hereby granted shall, for the term of this Agreement, be irrevocable and shall
be deemed coupled with an interest, in accordance with Section 212 of the
Delaware General Corporation Law.
1.3 Further Assurances. Each Stockholder shall perform such
further acts and execute such further documents and instruments as may
reasonably be required to carry out the provisions of this Agreement.
ARTICLE 2
COVENANTS
2.1 Restrictions on Transfer. Each Stockholder hereby
covenants and agrees that such Stockholder shall not, and shall not permit any
company, trust or other entity controlled by such Stockholder to, directly or
indirectly, (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option, or other
arrangement or understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition of
any or all of its Shares or any other voting securities of VSC or any interest
therein or securities convertible there into or any voting rights with respect
thereto (except, in the case of a transfer, if the transferee agrees in writing
to be bound by the terms and conditions of this Agreement), (ii) except as
contemplated by this Agreement and the
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Merger Agreement, grant any proxy or power of attorney with respect to its
Shares or any other voting securities of VSC, deposit any of its Shares or any
other voting securities of VSC into a voting trust or enter into a voting
agreement with respect to its Shares or any other voting securities of VSC; or
(iii) take any action that would have the effect of preventing or disabling such
Stockholder from performing its obligations under this Agreement. Each
Stockholder hereby agrees with, and covenants to, each other party hereto, that
such Stockholder shall not request that VSC register the transfer (book entry or
otherwise) of any certificate or uncertificated interest representing any of its
Shares, unless such transfer is made in compliance with this Agreement
(including the provisions of this Section 2.1).
2.2 Changes in VSC Stock. In the event of a stock dividend or
distribution, or any change in VSC's stock by reason of any stock dividend,
split-up, reclassification, recapitalization, combination, exchange of shares or
the like, the term "Shares" shall be deemed to refer to and include the Shares
as well as all such stock dividends and distributions and any shares into which
or for which any or all of the Shares may be changed or exchanged.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents
and warrants to Liberty as follows:
3.1 Due Organization; Authority Relative to this Agreement.
Such Stockholder, if it is a trust, corporation or other legal entity, is duly
organized and validly existing under the laws of the jurisdiction of its
organization. Such Stockholder has full power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement by such Stockholder and the performance by such Stockholder of its
obligations thereunder have been duly and validly authorized by all necessary
action on the part of such Stockholder, and no other proceedings on the part of
such Stockholder are necessary to authorize such execution, delivery and
performance. This Agreement has been duly and validly executed and delivered by
or on behalf of such Stockholder and, assuming its due authorization, execution
and delivery by Liberty, constitutes a legal, valid and binding obligation of
such Stockholder, enforceable against such Stockholder in accordance with its
terms.
3.2 Title to Shares. Such Stockholder is the record or
beneficial owner of its Shares free and clear of all security interests, liens,
claims, pledges, options, rights of first refusal, agreements, proxy or voting
restrictions, charges and other encumbrances of any nature whatsoever, except as
provided for herein and as contemplated by the Merger Agreement, and, with
respect to any Shares held by a Stockholder as trustee for the benefit of any
other person, except for the rights of all beneficiaries under such trusts,
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which rights are not inconsistent with the provisions of this Voting Agreement.
Except as set forth in the Disclosure Schedule attached to the Merger Agreement,
such Stockholder does not own or hold any rights to acquire any additional
shares of VSC Stock or other securities of VSC or any interest therein or any
voting rights with respect to any additional shares of VSC Stock or any other
securities of VSC.
3.3 No Conflict. The execution and delivery of this Agreement
by such Stockholder do not, and the performance by such Stockholder of its
obligations hereunder shall not (i) conflict with or violate the trust and/or
organizational documents of such Stockholder, (ii) conflict with or violate any
order, judgment or decree applicable to such Stockholder or by which its Shares
or any of its other securities of VSC are bound or affected or (iii) result in
any breach of or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to any other person any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any of its Shares or any of its other
securities of VSC 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 such Stockholder or its Shares
or its other securities of VSC are bound or affected, except, in the case of
clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults
or other occurrences that would not prevent or delay the performance by such
Stockholder of its obligations under this Agreement.
ARTICLE 4
GENERAL
4.1 Term. This Agreement shall become effective on the date
hereof and shall continue in effect until the first to occur of (i) 90 days
following the termination of the Merger Agreement in accordance with its terms
and (ii) the consummation of the Merger and all other transactions contemplated
by the Merger Agreement. Upon termination of this Agreement, except for any
rights a party may have in respect of any breach by another party of its
obligations hereunder, none of the parties hereto shall have any further
obligation or liability hereunder.
4.2 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. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
4.3 Entire Agreement. This Agreement (together with the Merger
Agreement and the other agreements and documents expressly contemplated hereby
and
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thereby) constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, among the parties, or any of them, with
respect to such subject matter.
4.4 Amendment. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except by an instrument
in writing signed by Liberty and each of the Stockholders affected by such
amendment, change, supplement, waiver, modification or termination.
4.5 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns. Any transfer of Shares
notwithstanding, the applicable transferor shall remain liable for the
performance of all of its obligations under this Agreement.
4.6 Severability. If any term or other provision of this
Agreement or the application thereof is held invalid, illegal or incapable of
being enforced to any extent by any rule of law or public policy, the remainder
of this Agreement and the application of such term or provision to the other
parties or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by applicable law. Upon such determination that
any term or other provision or application thereof 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 a
mutually acceptable manner in order that the terms, other provisions and
application of this Agreement remain as originally contemplated and to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
4.7 Captions. Captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend, or
describe the scope of this Agreement or the intent of any of its provisions.
4.8 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed and to be performed entirely within that state, without
reference to rules governing conflicts of law.
4.9 Counterparts. This Agreement may be executed in any number
of counterparts, each of which when executed shall be an original instrument and
all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
LIBERTY MEDIA CORPORATION
By: _______________________
Name: _____________________
Title: ____________________
___________________________
XXXXXX X. XXXXXXXX
___________________________
XXXXX X. XXXXXXXXXX
___________________________
XXXXXXX XXXXXXXXXX
___________________________
XXXXXX X. XXXX
___________________________
XXXXXX XXXX
___________________________
XXXXXXXX X. XXXXX
___________________________
XXXXXXX XXXXXX
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SANDLER ASSOCIATES
By: _______________________
Name: _____________________
Title: ____________________
SANDLER CAPITAL MANAGEMENT
By: _______________________
Name: _____________________
Title: ____________________
J.K. MEDIA L.P.
By: _______________________
Name: _____________________
Title: ____________________
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Exhibit A
Stockholders' Holdings of VSC Stock
Name Shares Held
---- -----------
Xxxxxx X. Xxxxxxxx 2,959,582
Xxxxx X. Xxxxxxxxxx 2,508,082
Sandler Capital Management 1,719,000
Xxxxxx X. Xxxx 438,681
Sandler Associates 411,000
Xxxxxxx Xxxxxxxxxx 300,000
Xxxxxxxx X. Xxxxx 460,012
Xxxxxxx Xxxxxx 167,512
J.K. Media L.P. 140,500
Xxxxxx Xxxx 85,000
Xxxxx X. Xxxxxxxxxx, Trustee 344,900
Total 9,534,269
