VOTING AGREEMENT
This Voting Agreement (the "Agreement") is made and entered into as of
December 29, 2000, by and among EchoStar DBS Corporation, a Colorado corporation
("EchoStar"), DBS Industries, Inc., a Delaware corporation ("DBSI"), E-Sat,
Inc., a Colorado corporation ("E-Sat") and Newstar Limited, a Bermuda
corporation ("Newstar") (hereinafter individually referred to as a "Party" or
collectively referred to as the "Parties"; DBSI, E-Sat and Newstar, together
with any of their Affiliates, are hereinafter sometimes referred to as the "DBSI
Parties").
WHEREAS, the Parties have entered into a Share Purchase Agreement dated
July 30, 1999 (the "Share Purchase Agreement") pursuant to which DBSI agreed to
purchase from EchoStar shares of E-Sat common stock owned by EchoStar sufficient
in number such that after such purchase DBSI would own eighty and one-tenth
percent (80.1%) of the equity ownership of E-Sat and EchoStar would own nineteen
and nine-tenths percent (19.9%) of the equity ownership of E-Sat (the "Shares"),
and EchoStar agreed to sell the Shares to DBSI, subject to the terms and
conditions of the Share Purchase Agreement;
WHEREAS, it is a condition to the closing of the purchase and sale of the
Shares that the Parties enter into a formal voting rights agreement, in a form
reasonably agreeable to DBSI and EchoStar, to memorialize certain rights granted
to EchoStar and certain duties and obligations imposed on the DBSI Parties under
the Share Purchase Agreement with regard to the election of an EchoStar
representative to the Board of Directors of E-Sat, EchoStar's E-Sat equity
securities and certain rights granted to EchoStar and certain duties and
obligations imposed on the DBSI Parties under the Share Purchase Agreement in
the event of the issuance of addition equity securities by E-Sat; and
WHEREAS, EchoStar and the DBSI Parties desire to enter into this Agreement
to satisfy the aforementioned condition by memorializing the aforementioned
rights, duties and obligations in a formal voting rights agreement agreeable to
all Parties
NOW THEREFORE, in consideration of the above recitals, the mutual covenants
made herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereby agree as
follows:
1. DEFINTIONS. In addition to the capitalized terms defined elsewhere
herein, the following terms shall have the meanings ascribed to them below:
1.1 "Affiliate" mean, with respect to a particular person or entity,
any person or entity directly or indirectly controlling, controlled by or under
common control with such person or entity.
2. ECHOSTAR REPRESENTATIVE.
2.1 ECHOSTAR BOARD DESIGNEE. Pursuant to Article VI of the Articles of
Incorporation of E-Sat, EchoStar has the right to designate, remove, and replace
one (1) representative (the "Representative") to serve on the Board of Directors
of E-Sat. During the
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term of this Agreement, upon DBSI's receipt of written notice of EchoStar's
designation of a Representative, the DBSI Parties shall use their best efforts
to cause such Representative to be elected (and maintain in office) as a member
of the Board of Directors of E-Sat, including without limitation voting all
shares of common stock of E-Sat now or hereafter directly or indirectly owned
(of record or beneficially) by the DBSI Parties in favor of electing such
Representative to, and retaining such Representative on, the Board of Directors
of E-Sat. For purposes of this Agreement, any individual who is designated for
election to the Board of Directors of E-Sat pursuant to this Section 2.1 is
hereinafter referred to as the "EchoStar Board Designee."
2.2 CHANGES IN ECHOSTAR BOARD DESIGNEE. From time to time during the
term of this Agreement, EchoStar may, in its sole discretion:
(a) remove from the Board of Directors of E-Sat the incumbent
EchoStar Board Designee; and/or
(b) designate a new EchoStar Board Designee to occupy a Board
seat for which EchoStar is entitled to designate the EchoStar Board Designee
under Section 2.1 (whether to replace an existing EchoStar Board Designee or to
fill a vacancy in such Board seat in the event that EchoStar elected not to
immediately fill a vacancy in such Board seat or to immediately designate a
Representative following execution of this Agreement).
In the event that EchoStar elects to remove or designate a new EchoStar Board
Designee under this Section 2.2, the DBSI Parties shall use their best efforts
to: (i) cause the removal from the Board of Directors of E-Sat of the EchoStar
Board Designee so designated for removal by ECHOSTAR; and/or (ii) cause the new
EchoStar Board Designee so designated for election by EchoStar to be elected
(and maintain in office) as a member of the Board of Directors of E-Sat,
including without limitation voting all shares of common stock of E-Sat now or
hereafter directly or indirectly owned (of record or beneficially) by the DBSI
Parties in favor of such removal and/or election and retention.
2.3 NOTICE. E-Sat shall promptly give each of the DBSI Parties written
notice of any proposal by EchoStar to remove or elect a new EchoStar Board
Designee.
3. ANTIDILUTION. Pursuant to Paragraph 4.3 of Article IV of the Articles of
Incorporation of E-Sat, in the event that E-Sat issues any securities in
addition to the shares of common stock of E-Sat issued and outstanding as of
December 29, 2000, E-Sat shall take any and all action (including, but not
limited to, issuing additional shares of equity securities to EchoStar for no
consideration) necessary to maintain EchoStar's (i) ownership of the total
number of outstanding equity securities of E-Sat (with respect to both voting
power and economic benefit); and (ii) control of the total voting power in
E-Sat, in each case, equal to 19.9%. In furtherance and without limitation of
the foregoing, the DBSI Parties shall cause E-Sat to take any and all action
(including, but not limited to, issuing additional shares of equity securities
to EchoStar for no consideration) necessary to maintain EchoStar's (i) ownership
of the total number of outstanding equity securities of E-Sat (with respect to
both voting power and economic benefit); and (ii) control of the total voting
power in E-Sat, in each case, equal to
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19.9%, including without limitation voting all shares of common stock of E-Sat
now or hereafter directly or indirectly owned (of record or beneficially) by the
DBSI Parties in favor of any and all such action necessary for such purposes.
4. FURTHER ASSURANCES.
4.1 VOTING AND OTHER ACTION. Each and all of the DBSI Parties agree not
to: (a) vote any shares of equity securities of E-Sat now or hereafter directly
or indirectly owned (of record or beneficially) by the DBSI Parties, (b) take
any other actions, or (c) fail to take any action, that would in any manner
defeat, impair, or adversely affect the stated intentions of the parties under
Sections 2 or 3 of this Agreement.
4.2 RESTRICTIONS ON TRANSFER. The Parties agree that all shares of the
Common Stock of E-Sat now owned or hereafter acquired by either of them (the
"Common Shares"), and all shares of any other class of capital stock of E-Sat
now owned or hereafter acquired by either of them (the Common Shares and such
other shares are hereinafter collectively referred to as the "Shares"),
including in either case all shares subsequently issued to either of them by
reason of a stock split, stock dividend, recapitalization, or otherwise, shall
be subject to and bound by the terms and conditions of this Agreement, and may
not be sold, assigned, transferred, pledged, encumbered, or otherwise disposed
of (voluntarily or involuntarily) except in accordance with this Agreement, and
the terms and conditions of this Agreement shall attach to, run with, and bind
the Shares; and E-Sat shall ensure that it (i) places stop transfer restrictions
with respect to the Shares on the books of E-Sat, and (ii) endorses upon each
certificate representing the Shares the following legend:
The sale, assignment, transfer, pledge, encumbrance or other disposition
(voluntary or involuntary) of the shares represented by this certificate is
restricted under, and subject to the terms of: (a) the Share Purchase
Agreement entered into as of July 30, 1999, by and among the Company,
EchoStar DBS Corporation, a Colorado corporation, DBS Industries, Inc., a
Delaware corporation, and Newstar Limited, a Bermuda corporation; (b) the
Voting Agreement made and entered into as of December 29, 2000, by and
among the same parties; and (c) the Registration Rights Agreement made and
entered into as of December 29, 2000, by and among the same parties, copies
of which agreements are on file at the offices of the Company and will be
furnished without charge by the Company to the holder hereof upon written
request. The Agreements include, among other things, restrictions on
transfers. By accepting the shares of stock represented by this
certificate, the holder agrees to be bound by, and subject to, all of the
Agreements.
5. ENFORCEMENT OF AGREEMENT. The DBSI Parties acknowledge and agree that
any breach by any of them of this Agreement shall cause EchoStar irreparable
harm which will not be adequately compensable by money damages. Accordingly, in
the event of a breach or threatened breach by any or all of the DBSI Parties of
any provision of this Agreement, EchoStar shall be entitled to the remedies of
specific performance, injunction or other preliminary or equitable relief,
including the right to compel any and all such breaching Parties,
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as appropriate, to: (a) use their best efforts to cause a Representative to be
elected (and maintain in office) as a member of the Board of Directors of E-Sat,
including without limitation voting all shares of common stock of E-Sat now or
hereafter directly or indirectly owned (of record or beneficially) by the DBSI
Parties in favor of electing such Representative to, and retaining such
Representative on, the Board of Directors of E-Sat; (b) use their best efforts
to: (i) cause the removal from the Board of Directors of E-Sat of the EchoStar
Board Designee so designated for removal by ECHSOTAR under Section 2.2 above;
and/or (ii) cause the new EchoStar Board Designee so designated for election by
EchoStar under Section 2.2 to be elected (and maintain in office) as a member of
the Board of Directors of E-Sat, including without limitation voting all shares
of common stock of E-Sat now or hereafter directly or indirectly owned (of
record or beneficially) by the DBSI Parties in favor of such removal and/or
election and retention; and (c) cause E-Sat to take any and all action
(including, but not limited to, issuing additional shares of equity securities
to EchoStar for no consideration) necessary to maintain EchoStar's (i) ownership
of the total number of outstanding equity securities of E-Sat (with respect to
both voting power and economic benefit); and (ii) control of the total voting
power in E-Sat, in each case, equal to 19.9%, including without limitation
voting all shares of common stock of E-Sat now or hereafter directly or
indirectly owned (of record or beneficially) by the DBSI Parties in favor of any
and all such action necessary for such purposes, in addition to such other
rights remedies as may be available to EchoStar for any such breach or
threatened breach, including but not limited to the recovery of money damages.
6. TERM. This Agreement shall commence as of the Closing (as such term is
defined in Section 1.2 of the Share Purchase Agreement) and shall terminate upon
the delivery by EchoStar of a written notice to E-Sat to terminate this
Agreement.
7. GENERAL PROVISIONS.
7.1 Waiver. The failure or delay of any party to exercise or enforce any
right or remedy hereunder or to insist upon strict performance of any provision
of this Agreement shall not be construed as a waiver of such right or remedy or
any subsequent breach or default of the same or similar nature. The delay or
failure of either Party to give notice of, or to terminate this Agreement for,
breach or default shall not be deemed to be a waiver of the right to do so for
that or any subsequent breach or default or for the persistence in a breach or
default of a continuing nature. All rights and remedies reserved to either party
shall be cumulative and shall not be in limitation of any other right or remedy
which such party may have at law or in equity.
7.2 Audit Rights. EchoStar shall have the right, at its sole cost and
expense, to inspect and audit, with reasonable frequency and upon reasonable
prior written notice to the DBSI Parties, the books and records of the DBSI
Parties relating to this Agreement for the purpose of determining the DBSI
Parties' compliance with their duties and obligations under this Agreement.
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7.3 Successor Interests. This Agreement is binding upon the heirs, legal
representatives, successors and permitted assigns of the DBSI Parties and
EchoStar. EchoStar may assign this Agreement in whole or in part at any time
without the consent of the DBSI Parties. This Agreement and any of the DBSI
Parties rights and obligations hereunder shall not be assigned or otherwise
transferred by the DBSI Parties, in whole or in part, to any person or entity
that does not succeed to all of the right, title and interest in and to all
assets of the assignor necessary for such person or entity to fulfill the
obligations of the DBSI Parties under this Agreement and the Share Purchase
Agreement, and which does not specifically agree to assume and fulfill all such
obligations. No such assignment shall relieve the DBSI Parties of their
obligations under this Agreement and the Share Purchase Agreement. This section
shall not be construed as obligating an assignee to assume the Board seat or
anti-dilution provisions of this Agreement, except with respect to transfers of
the stock or assets of E-Sat.
7.4 Governing Law.
7.4.1 The relationship between the Parties including all
disputes and claims, whether arising in contract, tort, or under statute, shall
be governed by and construed in accordance with the laws of the State of
Colorado without giving any effect to its conflict of law provisions. All
Parties hereto for themselves, their successors and assigns warrant and
represent that they have had the advice of the counsel of their choosing and
that they have been informed of and understand the rights and obligations
contained within this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting Party shall
not be employed in the interpretation of this Agreement or any amendments or
Exhibits hereto.
7.4.2 Any and all disputes arising out of, or in connection
with, the interpretation, performance or the nonperformance of this Agreement or
any and all disputes arising out of, or in connection with, transactions in any
way related to this Agreement and/or the relationship between the Parties
(including but not limited to the termination of this Agreement or the
relationship and each Party's rights thereunder or disputes under rights granted
pursuant to statutes or common law, including those in the state in which a
particular Party is located) shall be litigated solely and exclusively before
the United States District Court for the District of Colorado. The Parties
consent to the in personam jurisdiction of said court for the purposes of any
such litigation, and waive, fully and completely, any right to dismiss and/or
transfer any action pursuant to 28 U.S.C.S. 1404 or 1406 (or any successor
statute). In the event the United States District Court for the District of
Colorado does not have subject matter jurisdiction of said matter, then such
matter shall be litigated solely and exclusively before the appropriate state
court of competent jurisdiction located in Arapahoe County, State of Colorado.
7.5 Severability. The parties agree that each provision of this
Agreement shall be construed as separable and divisible from every other
provision and that the enforceability of any one provision shall not limit the
enforceability, in whole or in part, of any other provision hereof. In the event
that a court of competent jurisdiction determines that any term or provision
herein, or the application thereof to any person, entity, or circumstance, shall
to any extent be invalid or unenforceable, the remaining terms and provisions of
this Agreement shall not be
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affected thereby, and shall be interpreted as if the invalid term or provision
were not a part hereof.
7.6 Entire Agreement. This Agreement sets forth the entire, final and
complete understanding between the parties hereto relevant to the subject matter
of this Agreement, and it supersedes and replaces all prior and contemporaneous
understandings, representations and agreements, written, oral, and implied,
relevant to the subject matter of this Agreement. Except as expressly provided
by this Agreement, no waiver or modification of any of the terms or conditions
of this Agreement shall be effective unless in writing and signed by both
parties.
7.7 Survival. Any provision of this Agreement which logically would be
expected to survive termination or aspiration, shall survive for a reasonable
time period under the circumstances) whether or not specifically provided in
this Agreement.
7.8 Compliance with Law. The parties shall comply with, and agree that
this Agreement is subject to, all applicable federal, state, and local laws,
rules and regulations, and all amendments thereto, now enacted or hereafter
promulgated in force during the term of this Agreement.
7.9 Force Majeure. Notwithstanding anything to the contrary in this
Agreement, neither party shall be liable to the other for failure to fulfill its
obligations hereunder if such failure is caused by or arises out of an act of
force majeure including acts of God, war, riot, natural disaster, or any other
reason beyond the reasonable control of the party whose performance is prevented
during the period of such occurrence.
7.10 Remedies Cumulative. It is agreed that the rights and remedies
herein provided in case of default or breach by any party to this Agreement are
cumulative and shall not affect in any manner any other remedies that any other
party may have by reason of such default or breach. The exercise of any right or
remedy herein provided shall be without prejudice to the right to exercise any
other right or remedy provided herein, at law, or in equity.
7.11 Notice. Any notice to be given hereunder shall be in writing and
shall be sent by facsimile transmission, or by first class certified mail,
postage prepaid, or by overnight courier service, charges prepaid, to the party
notified, addressed to such party at the following address, or sent by facsimile
to the following tax number, or such other address or fax number as such party
may have substituted by written notice to the other parties. The sending of such
notice with confirmation of receipt thereof (in the case of facsimile
transmission) or receipt of such notice (in the case of delivery by mail or by
overnight courier service) shall constitute the giving thereof:
If to the DBSI Parties: DBS Industries, Inc.
000 Xxxxxxxxx Xxxxxxx, Xxxxx 000X
Xxxx Xxxxxx, Xxxxxxxxxx 00000
ATTN: Xxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
With copies to: Xxxxxx Eng Linn & Xxxxxxxx
000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
ATTN: Xxxxx X. Xxxxxx, Esq.
Fax No.: (000)000-0000
If to EchoStar: EchoStar DBS Corporation
0000 X. Xxxxx Xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
ATTN: Xxxxx X. Xxxxxxxxx
Fax No.: (000) 000-0000
[The remainder of this page intentionally left blank.]
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7.12 Counterparts and Signatures. This Agreement may be executed in one
or more counterparts and each counterpart shall be deemed to be an original
hereof. The signature pages of each counterpart may be detached from such
counterpart and attached to a single document which shall for all purposes be
treated as an original. The Parties further agree that signatures transmitted by
facsimile or other electronic means shall have equal dignity with original
signatures.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives as of the date
first -written above.
ECHOSTAR DBS CORPORATION
By: _________________________
Xxxxx X. Xxxxxxxxx
Senior Vice President and General Counsel
DBS INDUSTRIES, INC.
By: _________________________
Xxxx X. Xxxxxxxx
President and CEO
NEWSTAR LIMITED
By: _________________________
Xxxx X. Xxxxxxxx
Director
E-SAT, INC.
By: ________________________
Xxxx X. Xxxxxxxx on behalf of DBS Industries, Inc., a
shareholder, and as an Executive Officer of E-Sat, Inc.
By: ________________________
Xxxxx X. Xxxxxxxxx on behalf of EchoStar DBS
Corporation, Inc., a shareholder, and as an Executive
Officer of E-Sat, Inc.
