EXECUTION VERSION
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STOCKHOLDER VOTING AGREEMENT
among
XXXXXXX X. XXXXX,
THE SAMBURU WARRIOR REVOCABLE TRUST
and
VIVENDI UNIVERSAL, S.A.
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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
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 Xxxxxxx X. Xxxxx.
"CWE Trust" means The Samburu Warrior Revocable Trust, created by that
Certain Trust Instrument Establishing The Samburu Warrior Revocable Trust,
Xxxxxxx X. Xxxxx, Trustee.
"Xxxxxx" means Xxxxxx 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 Xxxxxx, 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
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 Xxxx-Xxxxx Xxxxxxx, 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
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
00, Xxxxxx xx Xxxxxxxxx
00000 Xxxxx Cedex 08
France
Fax: 00-0-0000-0000
Attention: Mr. Guillamme Hannezo
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with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxx, Esq.; and
(ii) If to a Stockholder, to:
Xxxxxxx X. Xxxxx
c/o EchoStar Communications Corporation
0000 Xxxxx Xxxxx Xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
with a copy to:
EchoStar Communications Corporation
0000 Xxxxx Xxxxx Xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxxxxxx, 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/ Xxxx-Xxxxx Xxxxxxx
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Name: Xxxx-Xxxxx Xxxxxxx
Title: Chairman and Chief
Executive Officer
Xxxxxxx X. Xxxxx,
by /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
THE SAMBURU WARRIOR REVOCABLE TRUST,
by /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Trustee
Acknowledged and agreed
as of the day and year first
above written:
/s/ Xxxx-Xxxxx Xxxxxxx
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Xxxx-Xxxxx Xxxxxxx
