EXHIBIT 10.6
CONFORMED COPY
VOTING AGREEMENT
This Voting Agreement (this "AGREEMENT") dated as of January 30, 2002,
is entered into among New UnitedGlobalCom, Inc., a Delaware corporation that
upon the effectiveness of the Merger described under "Background" below will be
renamed UnitedGlobalCom, Inc. ("UNITED"), and each of the Persons indicated as a
"Founder" on the signature pages hereto.
BACKGROUND
The Founders are currently the beneficial owners of Class B Common
Stock, par value $.01 per share ("OLD UNITED CLASS B COMMON STOCK"), of
UnitedGlobalCom, Inc., a Delaware corporation ("OLD UNITED"). Pursuant to
certain transactions described in the Amended and Restated Agreement and Plan of
Restructuring and Merger, dated as of December 31, 2001 (the "MERGER
AGREEMENT"), among Old United, United, United/New United Merger Sub, Inc., a
Delaware corporation ("MERGER SUB"), Liberty Media Corporation, a Delaware
corporation ("LIBERTY MEDIA"), Liberty Media International, Inc., a Delaware
corporation, Liberty Global, Inc., a Delaware corporation, ("LIBERTY GLOBAL")
and the Founders, prior to the merger (the "MERGER") of Merger Sub with and into
Old United, the Founders will cause their shares of Old United Class B Common
Stock to be contributed to United in exchange for an equal number of shares of
the Class B Common Stock, par value $0.01 per share, of United ("CLASS B COMMON
STOCK"). It is a condition to the consummation of the transactions contemplated
by the Merger Agreement, including without limitation the Merger, that United
and the Founders each execute and deliver this Agreement.
United and the Founders wish to set forth certain agreements regarding
the manner of the election of the Board of Directors of United that will become
effective immediately upon the effectiveness of a Class B Event provided that
such Class B Event occurs prior to the earlier of June 25, 2010 or the
termination of the Stockholders Agreement in its entirety.
AGREEMENT
In consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Section 1. CERTAIN DEFINITIONS. In this Agreement, the following terms
shall have the following meanings:
AGREEMENT. As defined in the preamble.
BOARD. The Board of Directors of United.
CLASS A COMMON STOCK. The Class A Common Stock, par value $0.01 per
share, of United.
CLASS B COMMON STOCK. As defined under "Background" on the first page
of this Agreement.
CLASS B EVENT. As defined in the Certificate of Incorporation of
United, as in effect immediately following the Merger.
CLASS C COMMON STOCK. The Class C Common Stock, par value $0.01 per
share, of United.
COMMON STOCK. The Class A Common Stock, the Class B Common Stock and
the Class C Common Stock.
CONTROLLING PRINCIPALS. Founders who are Principals and who hold a
majority of the aggregate voting power of all Equity Securities held by the
Founders who are Principals.
EFFECTIVE DATE. The first date on which any Class B Event occurs if
such Class B Event occurs prior to the first to occur of June 25, 2010 and the
termination of the Stockholders Agreement in its entirety.
EQUITY SECURITIES. The Common Stock and any other securities hereafter
issued by United that are entitled to vote generally in the election of
directors.
FOUNDER DIRECTOR. As defined in Section 2(a).
FOUNDERS. As defined in the Stockholders Agreement.
LIBERTY. Liberty Media and any successor (by merger, consolidation,
transfer or otherwise) to all or substantially all of its assets.
LIBERTY DIRECTOR. As defined in Section 2(a).
LIBERTY GLOBAL. As defined under "Background" on the first page of this
Agreement.
LIBERTY MEDIA. As defined under "Background" on the first page of this
Agreement.
LIBERTY PARTIES. As defined in the Stockholders Agreement.
MERGER. As defined under "Background" on the first page of this
Agreement.
MERGER AGREEMENT. As defined under "Background" on the first page of
this Agreement.
MERGER SUB. As defined under "Background" on the first page of this
Agreement.
OLD UNITED. As defined under "Background" on the first page of this
Agreement.
OLD UNITED CLASS B COMMON STOCK. As defined under "Background" on the
first page of this Agreement.
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PERMITTED TRANSFEREE. As defined in the Stockholders Agreement.
PERSON. Any individual, firm, corporation, partnership, limited
partnership, limited liability company, trust, joint venture or other legal
entity, and shall include any successor (by merger or otherwise) of such entity.
PRINCIPAL. Any of Xxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx,
Xxxxxxxx Investments, Ltd (so long as it is controlled by Xxxxxx or Xxxxxx
Xxxxxxxx), Xxxx X. Xxxxxxxxx, X. Xxxxxxxxx Holdings, Co. (so long as it is
controlled by Xxxx X. Xxxxxxxxx), Xxxxx X. Xxxxxxxxx and Xxxx X. Xxxxxxxxx.
STOCKHOLDERS AGREEMENT. The Stockholders Agreement dated as of the date
hereof among United, the Liberty Parties and the Founders.
TERMINATION DATE. As defined in Section 3.
UNITED. As defined in the preamble.
Section 2. FOUNDER VOTING OBLIGATION.
(a) Commencing immediately upon the Effective Date, (i) the
Controlling Principals shall have the right to nominate four
members of the Board or, if greater, such number of members of
the Board (rounded up to the next whole number) equal to
33-1/3% of the then-authorized number of members of the Board
(each such nominee, a "FOUNDER DIRECTOR"), (ii) pursuant to
the Standstill Agreement, the Liberty Parties will have the
right to nominate four members of the Board or, if greater,
such number of members of the Board (rounded up to the next
whole number) equal to 33-1/3% of the then-authorized number
of members of the Board (each such nominee, a "LIBERTY
DIRECTOR"), and (iii) the Board shall nominate the remaining
members of the Board.
(b) Each Founder and its Permitted Transferees shall vote or cause
to be voted all Equity Securities owned by them (or with
respect to which such Founder or Permitted Transferee has the
right to vote or direct the voting) for the election to the
Board of those persons nominated in accordance with this
Section 2 and will not seek the removal of any director (other
than a Founder Director) except for cause; provided that, if
the Liberty Parties request that the Controlling Principals
vote in favor of the removal of any Liberty Director, the
Controlling Principals will vote or cause to be voted all
Equity Securities owned by them (or with respect to which they
have the right to vote or direct voting) in favor of the
removal of such Liberty Director.
(c) United shall take all necessary or desirable action
(including, without limitation, nominations of the Founder
Directors) in order to cause the Board to have the
constituency provided for in Section 2(a) and to give effect
to this Section 2(c). The Controlling Principals shall have
the right to nominate persons to fill any vacancy on the Board
created by the resignation, removal, incapacity or death of
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any Founder Director. Pursuant to the Standstill Agreement,
Liberty shall have the right to nominate persons to fill any
vacancy on the Board created by the resignation, removal,
incapacity or death of any Liberty Director.
Section 3. TERMINATION. This Agreement shall terminate in its entirety
on the first to occur of June 25, 2010 and the date that the Stockholders
Agreement is terminated in its entirety (the date upon which the first of such
events occurs, the "TERMINATION DATE").
Section 4. APPLICABLE LAW, JURISDICTION. This Agreement shall be
governed by Colorado law without regard to conflicts of law rules. The parties
hereby irrevocably submit to the exclusive jurisdiction of any Colorado State or
United States Federal court sitting in Colorado over any action or proceeding
arising out of or relating to this Agreement or any agreement contemplated
hereby, and the undersigned hereby irrevocably agree that all claims in respect
of such action or proceeding shall be heard and determined in such State or
Federal court. The undersigned further waive any objection to venue in such
State and any objection to any action or proceeding in such State on the basis
of a non-convenient forum. Each party hereby IRREVOCABLY WAIVES ANY RIGHT TO A
TRIAL BY JURY in any proceeding brought with respect to this Agreement or the
transactions contemplated hereby.
Section 5. REMEDIES. Each of the parties acknowledges and agrees that
in the event of any breach of this Agreement, the nonbreaching party would be
irreparably harmed and could not be made whole by monetary damages. Accordingly,
the parties to this Agreement, in addition to any other remedy to which they may
be entitled hereunder or at law or in equity, shall be entitled to compel
specific performance of this Agreement.
Section 6. HEADINGS. The headings in this Agreement are for convenience
only and are not to be considered in interpreting this Agreement.
Section 7. COUNTERPART EXECUTION. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original but all of
which will constitute a single agreement.
Section 8. PARTIES IN INTEREST. Nothing in this Agreement, express or
implied, is intended to confer upon any Person other than the parties hereto and
their Permitted Transferees, and their permitted successors and assigns any
benefits, rights or remedies, except that Liberty is an intended beneficiary of
this Agreement. Neither this Agreement nor the rights or obligations of any
party may be assigned or delegated (other than to a Permitted Transferee in
accordance with the terms of the Stockholders Agreement) by operation of law or
otherwise without the prior written consent of the Controlling Principals and
United.
Section 9. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement in any application shall not affect the validity or
enforceability of such provision in any other application or the validity or
enforceability of any other provision.
Section 10. INTERPRETATION. As used herein, except as otherwise
indicated herein or as the context may otherwise require, the words "include,"
"includes" and "including" are deemed to
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be followed by "without limitation" whether or not they are in fact followed by
such words or words of like import; the words "hereof," "herein," "hereunder"
and comparable terms refer to the entirety of this Agreement and not to any
particular section hereof; any pronoun shall include the corresponding
masculine, feminine and neuter forms; the singular includes the plural and vice
versa; references to any agreement or other document are to such agreement or
document as amended and supplemented from time to time; references to "Section"
or another subdivision are to a section or subdivision hereof; and all
references to "the date hereof," "the date of this Agreement" or similar terms
(but excluding references to the date of execution hereof) refer to the date
first above written, notwithstanding that the parties may have executed this
Agreement on a later date.
Section 11. RULES OF CONSTRUCTION. The parties hereto agree that they
have been represented by counsel during the negotiation, preparation and
execution of this Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party drafting such
agreement or document.
Section 12. WAIVERS AND AMENDMENTS. No waiver of any provision of this
Agreement shall be deemed a further or continuing waiver of that provision or a
waiver of any other provision of this Agreement. This Agreement may not be
amended nor may any provision hereof be waived except in a writing signed by all
parties and Liberty or its successor. United may waive any provision of this
Agreement that imposes obligations on or restricts the rights of or actions by
the Founders and their Permitted Transferees only with the prior approval of a
majority of the Board.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
NEW UNITEDGLOBALCOM, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
-----------------------------------
Xxxxxxx X. Xxxxx
President
FOUNDER SIGNATURES
THE X. XXXXXXXXX GROUP
/s/ XXXX X. XXXXXXXXX
---------------------------
Xxxx X. Xxxxxxxxx
X. XXXXXXXXX HOLDINGS, CO.,
a Colorado limited partnership
By: /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
General Partner
THE XXXX X. XXXXXXXXX FAMILY TRUST
By: /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
Attorney-in-Fact
THE MLS FAMILY PARTNERSHIP LLLP
By: /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
Attorney-in-Fact
FOUNDER SIGNATURES
THE X. XXXXXXXXX GROUP
/s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
FOUNDER SIGNATURES
THE XXXXXXXX GROUP
XXXXXXXX LIMITED PARTNERSHIP
By: Xxxxxx Xxxxxxxx Trust
General Partner
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Xxxxxx X. Xxxxxxxx
Trustee
XXXXXX X. XXXXXXXX REVOCABLE TRUST
By: /s/ XXXXXX X. XXXXXXXX
----------------------
Xxxxxx X. Xxxxxxxx
Attorney-in-Fact
/s/ XXXXXX X. XXXXXXXX
-----------------------
Xxxxxx X. Xxxxxxxx
/s/ XXXXXX X. XXXXXXXX
-----------------------
Xxxxxx X. Xxxxxxxx
By Xxxxxx X. Xxxxxxxx, Attorney-in-Fact
/s/ XXXXXX X. XXXXXXXX
-----------------------
Xxx Xxxxxxxx
By Xxxxxx X. Xxxxxxxx, Attorney-in-Fact
/s/ XXXXXX X. XXXXXXXX
-----------------------
Xxxxx Xxxxxxx Xxxx
By Xxxxxx X. Xxxxxxxx, Attorney-in-Fact
/s/ XXXXXX X. XXXXXXXX
-----------------------
Xxxxxxxx Xxxxx
By Xxxxxx X. Xxxxxxxx, Attorney-in-Fact
FOUNDER SIGNATURES
THE XXXXXXX GROUP
/s/ XXXXXX X. XXXXXXX
----------------------
Xxxxxx X. Xxxxxxx
XXXXXXX COMPANY,
a Wyoming general partnership
By: /s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
General Partner
XXXXXX & XXXXXXX COMPANY,
a Wyoming trust
By: /s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
Attorney-in-Fact
XXXXX X. XXXXXXX LIVING TRUST
a Wyoming trust
By: /s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
Attorney-in-Fact
XXXX X. XXXXXXX LIVING TRUST
a Wyoming trust
By: /s/ XXXXXX X. XXXXXXX
---------------------
Xxxxxx X. Xxxxxxx
Attorney-in-Fact
FOUNDER SIGNATURES
THE FRIES GROUP
/s/ XXXXXXX X. XXXXX
--------------------
Xxxxxxx X. Xxxxx
THE FRIES FAMILY PARTNERSHIP LLLP
By: /s/ XXXXXXX X. XXXXX
--------------------
Xxxxxxx X. Xxxxx
Attorney-in-Fact
FOUNDER SIGNATURES
THE XXXXXX GROUP
/s/ XXXX X. XXXXXX
-------------------
Xxxx X. Xxxxxx
