EXECUTION VERSION
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STOCKHOLDER VOTING AGREEMENT
among
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
THE SAMBURU WARRIOR REVOCABLE TRUST
and
VIVENDI UNIVERSAL, S.A.
_________________________
Dated as of
December 14, 2001
_________________________
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STOCKHOLDER VOTING AGREEMENT (this
"Agreement"), dated as of December 14, 2001,
between VIVENDI UNIVERSAL, S.A., a societe anonyme
organized under the laws of France ("Vivendi" or
the "Investor"), and the Stockholders (as defined
herein).
WHEREAS, in order to facilitate the transactions contemplated by the
Investment Agreement dated as of December 14, 2001 (the "Investment
Agreement"), between EchoStar Communications Corporation, a Nevada corporation
(the "Company"), and the Investor, and as a condition to the willingness of
the Investor to consummate the transactions contemplated by the Investment
Agreement, the Stockholders and the Investor have agreed to enter into this
Agreement concerning certain voting and governance arrangements relating to
the Company and its capital stock to become effective following consummation
of the transactions contemplated by the Investment Agreement;
WHEREAS, as of the date hereof, CWE (as defined below) owns, legally
or beneficially, 2,353,866 shares of Class A Common Stock, par value $0.01 per
share, of the Company (the "Class A Common Stock"), and the CWE Trust (as
defined below) owns, legally or beneficially, 238,435,208 shares of Class B
common stock, par value $0.01 per share, of the Company (the "Class B Common
Stock") (such shares of Class A Common Stock and Class B Common Stock,
together with any other shares of Voting Securities (as defined below)
acquired by either Stockholder after the date of this Agreement and during the
term of this Agreement (including through the exercise of any stock options,
warrants or similar instruments), but excluding, at any time of determination,
any such Voting Securities that either Stockholder shall have disposed of
prior to such time, being collectively referred to herein as the "Subject
Shares").
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Definitions.
The following terms, when used in this Agreement, shall have the
following meanings:
"51% Holder" means the Investor, so long as the Investor, together
with its wholly owned subsidiaries, beneficially owns any combination of:
(a) shares of Series D mandatorily convertible participating
preferred stock, par value $0.01 per share, of the Company (the "Preferred
Stock"); or
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(b) Class A Common Stock issued upon conversion of the Preferred
Stock,
that together would represent (if all such Preferred Stock were converted into
Class A Common Stock) at least 51% of the Class A Common Stock issuable upon
conversion of all the Preferred Stock originally issued to the Investor (or
its wholly owned subsidiaries) pursuant to the Investment Agreement, as
adjusted for stock splits, combinations, subdivisions and similar changes to
the Company's capital structure.
"10% Holder" means the Investor, so long as the Investor, together
with its wholly owned subsidiaries, beneficially owns at least 10% of the
shares of Class A common stock, par value $0.01 per share, of the Surviving
Corporation (the "New Class A Common Stock") that are issued to the Investor
and its wholly owned subsidiaries upon consummation of the Merger, as adjusted
for stock splits, combinations, subdivisions and similar changes to the
Surviving Corporation's capital structure.
"CWE" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
"CWE Trust" means The Samburu Warrior Revocable Trust, created by
that Certain Trust Instrument Establishing The Samburu Warrior Revocable
Trust, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Electronics Corporation, a Delaware
corporation.
"Merger" means the transactions contemplated by Article I of the
Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger dated as
of October 28, 2001, by and between the Company and ▇▇▇▇▇▇, as it may be
amended from time to time.
"Merger Date" means the date upon which the Merger is consummated.
"Surviving Corporation" means the surviving corporation in the
Merger, or, if any successor entity replaces the surviving corporation in the
Merger following the Merger Date, such other entity.
"Stockholders" mean each of (i) CWE and (ii) the CWE Trust.
"Voting Securities" means Class A Common Stock, Class B Common
Stock, and any other securities of the Company entitled to vote generally in
the election of directors of the Company.
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ARTICLE II
Terms of the Stockholder Agreement
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SECTION 2.01. Covenants of the Stockholders. (a) Subject to the
provisions of Sections 2.01(b) and 2.04, each Stockholder covenants and agrees
that: (i) the Stockholder shall exercise all authority under applicable law,
including voting all Subject Shares or executing any written consent in
respect thereof, if necessary, to cause ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇, chairman and chief
executive officer of the Investor ("JMM"), to become, effective as of the date
on which the transactions contemplated by the Investment Agreement are
consummated, a member of board of directors of the Company (the "Board of
Directors"); (ii) the Stockholder shall exercise all authority under
applicable law, including voting all Subject Shares or executing any written
consent in respect thereof, in connection with each meeting of the
stockholders of the Company called for the election of directors coincident
with the expiration of JMM's then current term to cause the slate of director
nominees presented to the stockholders of the Company for election to the
Board of Directors at such meeting to include JMM as a nominee; (iii) in any
election of directors, or at any meeting of stockholders of the Company called
for the election or removal of directors of the Company, the Stockholder shall
be present, in person or by proxy (with the holder of any such proxy being
irrevocably instructed to vote the Subject Shares subject thereto in
accordance with this Section 2.01(a)), for purposes of establishing a quorum
and shall vote all Subject Shares in such election or at such meeting (x) in
favor of the election or re-election, as the case may be, of JMM, to the Board
of Directors if JMM is on the slate of director nominees being considered for
election or re-election and (y) otherwise against the removal of JMM from the
Board of Directors; and (iv) in the event that JMM is unable to fill the
positions listed in this Section 2.01(a) or is no longer the chief executive
officer of Vivendi, Vivendi's then chief executive officer shall succeed to
JMM's entitlements under this Section 2.01(a); provided, however, that nothing
in this Section 2.01(a) shall require the Stockholder, acting solely in his
capacity as a member of the Board of Directors, to take any action that the
Stockholder reasonably determines would violate his fiduciary duties as a
member of the Board of Directors.
(b) The respective obligations of the Stockholders set forth in
Section 2.01(a) will become effective in accordance with Section 2.04 and
shall have no further force and effect upon the earliest to occur of: (i) the
Merger Date; and (ii) the date upon which the Investor ceases to be a 51%
Holder.
(c) The respective obligations of the Stockholders set forth in
Section 2.01(a) are obligations to the Investor and are not personal to JMM.
SECTION 2.02. Covenants of the Investor. The Investor covenants and
agrees that, following the Merger Date, and for so long as the Investor is a
10% Holder, at any meeting (whether annual or special and whether or not an
adjourned or postponed meeting) of the stockholders of the Surviving
Corporation held thereafter which is called to seek stockholder approval or in
any other circumstances upon which a vote, consent or other approval
(including by written consent) is sought, the Investor shall, including by
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execution of a written consent solicitation if requested by the Surviving
Corporation in writing upon two days prior notice, vote (or cause to be voted,
including by consent) all shares of New Class A Common Stock, and any other
shares of capital stock of the Surviving Corporation held by the Investor or
any of its wholly owned subsidiaries, in the manner recommended by the board
of directors of the Surviving Corporation on all matters initially proposed
for such stockholder approval by parties other than the Board of Directors or
management of the Surviving Corporation.
SECTION 2.03. Recusal and Related Matters. JMM acknowledges that,
because of his position as chairman and chief executive officer of Vivendi, it
would be inappropriate for him to be made aware in his capacity as a member of
the Board of Directors or a member of the board of directors of the Surviving
Corporation, as the case may be, of certain competitively sensitive
information. Accordingly, JMM hereby agrees that at any meeting of either such
board of directors at which a vote is to be taken on any matter relating to
any agreement or arrangement between the Company or the Surviving Corporation,
as the case may be, and any programmer (including Vivendi), he will recuse
himself from voting on such matter and will absent himself from any meeting
(or portion thereof) at or during which such matters or the Company's or the
Surviving Corporation's program acquisition policy are to be discussed. JMM
further acknowledges that, because of the abovementioned considerations,
neither the Company nor the Surviving Corporation shall be obligated to, nor
will it, provide him with any materials or access to information that is
competitively sensitive (because of JMM's position as chairman and chief
executive officer of Vivendi, or, if JMM ceases to hold such positions,
otherwise as a director, officer or employee of, or consultant to, Vivendi or
any of its subsidiaries), or the provision to him of which, in the good faith
determination of the Company or the Surviving Corporation, as the case may be,
could reasonably be expected to be violative of applicable law,
notwithstanding his position as a member of the Board of Directors or as a
member of the board of directors of the Surviving Corporation. The Investor
acknowledges and agrees that any future chief executive officer of Vivendi who
succeeds to JMM's entitlements under Section 2.01(a) in accordance with
Section 2.01(a)(iv), will be subject to the foregoing obligations.
SECTION 2.04. Effectiveness of Obligations. Notwithstanding anything
to the contrary in this Agreement, the agreements, covenants and obligations
set forth in Sections 2.01, 2.02 and 2.03 shall be effective as of and, in
accordance with their terms from and after, but not prior to, the Closing (as
such term is defined in the Investment Agreement).
SECTION 2.05. Certain Representations and Warranties of Each of the
Stockholders. Each of the Stockholders represents and warrants to the Investor
that: This Agreement has been duly executed and delivered by the Stockholder
and, assuming the due authorization, execution and delivery by the Investor,
constitutes a valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms. The Stockholder is the
record and beneficial owner of the Subject Shares referred to in the preamble
hereto as being owned by him or it, as the case may be, as of the date hereof.
As of the date hereof, the Stockholder does not own, of record or
beneficially, any shares of capital stock of the Company other than the
Subject Shares
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referred to in the preamble hereto as being owned by him or it, as the case
may be, as of date hereof. The Stockholder has the sole right to vote the
Subject Shares owned by him or it, as the case may be, as of the date hereof,
and none of such Subject Shares is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting of such
Subject Shares that would prohibit or limit the Stockholder from voting such
Subject Shares in accordance with this Agreement.
ARTICLE III
General Provisions
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SECTION 3.01. Termination. Notwithstanding anything to the contrary
in this Agreement, this Agreement shall be terminated and the transactions
contemplated by this Agreement abandoned upon the termination of the
Investment Agreement in accordance with its terms. If the Closing (as such
term is defined in the Investment Agreement) occurs, this Agreement shall
terminate upon the latest to occur of (i) the Investor ceasing to be a 10%
Holder and (ii) JMM or any future chief executive officer of the Investor
ceasing to be a member of the Board of Directors or the board of directors of
the Surviving Corporation.
SECTION 3.02. Amendments and Waivers. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto. By an instrument in writing, the Investor, on the one hand, or
the Stockholder, on the other hand, may waive compliance by the other with any
term or provision of this Agreement that such other party was or is obligated
to comply with or perform.
SECTION 3.03. Notices. All notices and other communications required
or permitted to be given hereunder shall be in writing and be delivered by
hand or sent by facsimile or sent, postage prepaid, by registered, certified
or express mail or overnight courier service and shall be deemed given when so
delivered by hand; or facsimile (upon receipt of confirmation), or if mailed,
one day after mailing, as follows:
(i) If to the Investor, to:
Vivendi Universal
▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Cedex 08
France
Fax: ▇▇-▇-▇▇▇▇-▇▇▇▇
Attention: Mr. Guillamme Hannezo
with a copy to:
Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.; and
(ii) If to a Stockholder, to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
c/o EchoStar Communications Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
EchoStar Communications Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel
SECTION 3.04. Interpretation; Certain Definitions. (a) The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
(b) For all purposes hereof:
"including" means including, without limitation; and
"subsidiary" of any person means another person, an amount of the
voting securities, other voting rights or voting partnership interests of
which is sufficient to elect at least a majority of its board of directors or
other governing body (or, if there are no such voting interests, 50% or more
of the equity interests of which) is owned directly or indirectly by such
first person.
SECTION 3.05. Severability. This Agreement shall be deemed
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement or of
any other term or provision hereof. Furthermore, in lieu of any such invalid
or unenforceable term or provision, the parties hereto intend that there shall
be added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable provision as may be possible and be valid and
enforceable.
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SECTION 3.06. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more such counterparts has been signed
by each of the parties and delivered to the other parties.
SECTION 3.07. Entire Agreement; No Third-Party Beneficiaries. This
Agreement constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to
the subject matter hereof and is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
SECTION 3.08. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York regardless
of the laws that might otherwise apply under applicable principles of law
thereof.
SECTION 3.09. Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by any of the parties
without the prior written consent of the other parties. Without limiting the
generality of the foregoing, the rights of the Investor under Section 2.01(a)
shall not be transferable to any other person or entity, including any
transferee or purported transferee of shares of Preferred Stock or Class A
Common Stock. Any purported assignment without such consent shall be void.
Subject to the preceding sentences, this Agreement will be binding upon, inure
to the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
SECTION 3.10. Enforcement. The parties agree that irreparable damage
would occur and that the parties would not have any adequate remedy at law in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any New York state court, any
Federal court located in the State of New York or any Colorado state court or
Federal court located in the State of Colorado, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit itself to the personal
jurisdiction of any New York state court or any Federal court located in the
State of New York or any Colorado state court or Federal court located in the
State of Colorado in the event any dispute arises out of this Agreement, (ii)
agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court, (iii) agrees that it
will not bring any action relating to this Agreement in any court other than a
New York state court or any Federal court located in the State of New York or
any Colorado state court or Federal court located in the State of Colorado and
(iv) waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or any transaction contemplated
hereby.
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IN WITNESS WHEREOF, the Investor and the Stockholders have caused
this Agreement to be duly executed as of the day and year first above written.
VIVENDI UNIVERSAL, S.A.,
by /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
THE SAMBURU WARRIOR REVOCABLE TRUST,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Trustee
Acknowledged and agreed
as of the day and year first
above written:
/s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
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