STOCKHOLDER VOTING AGREEMENT
among
CHARLES W. ERGEN,
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 Charles W. Ergen.
"CWE Trust" means The Samburu Warrior Revocable Trust, created by that Certain Trust Instrument Establishing The Samburu Warrior Revocable Trust, Charles W. Ergen, Trustee.
"Hughes" means Hughes 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 Hughes, 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 Jean-Marie Messier, 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 in ...