EXHIBIT 2.15
VOTING AGREEMENT (this "Agreement"), dated as of [ ],
1998, between TIME WARNER ENTERTAINMENT COMPANY, L.P., a Delaware
limited partnership ("TWE"), and ADVANCE/XXXXXXXX PARTNERSHIP, a
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New York general partnership ("Xxxxxxxx", and together with TWE,
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the "Parties" and each individually, a "Party").
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WHEREAS, each of TWE and Xxxxxxxx, together with certain other parties
are parties to a Merger and Contribution Agreement dated as of February 6, 1998
(the "Restructuring Agreement"), pursuant to which the Restructuring Transaction
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(as defined therein) will be consummated by the parties thereto or their
respective affiliates;
WHEREAS, in connection with the Restructuring Transaction and as a
condition thereof, the parties and certain other persons have entered into an
agreement regarding the voting, conversion and future dispositions of shares of
Class C Common Stock of the Company beneficially owned by the parties (the
"Stockholders Agreement"). Capitalized terms used herein that are not defined
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herein are as defined in the Stockholders Agreement, and certain other terms
used herein are defined in Section 16 of this Agreement;
WHEREAS, pursuant to the Restructuring Transaction, as of the
Effective Date, TWE shall be the record and beneficial owner and shall hold
voting control of [ ] shares of Class C Common Stock of PRIMESTAR, Inc. (the
"Class C Stock"), and Xxxxxxxx shall be the record and beneficial owner and
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shall hold voting control of [ ] shares of Class C Stock (the "Initial Xxxxxxxx
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Shares")/1/; and
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WHEREAS, the parties agree to the transfer and voting provisions
relating to the Class C Stock held by each of TWE and Xxxxxxxx, respectively, as
set forth herein.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
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/1/ To be filled in prior to closing.
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SECTION 1. Agreement to Vote. During the Voting Period, Xxxxxxxx
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hereby agrees to vote or act by written consent with respect to (or cause to be
voted or acted upon by written consent) (x) all Xxxxxxxx Shares held of record
or beneficially owned by Xxxxxxxx at the time of such vote or action by written
consent and (y) all Xxxxxxxx Shares as to which Xxxxxxxx at the time of such
vote or action by written consent has voting control, in each case, as directed
by TWE (or any officer of TWE) in its (or his or her) sole and absolute
discretion, including, without limitation, all matters requiring or permitting
the voting of any Xxxxxxxx Shares or the granting of a consent, proxy or
approval in respect of any Xxxxxxxx Shares, including, without limitation,
ordinary or extraordinary corporate actions and all matters submitted to
stockholder vote at general or special stockholder meetings of the Company,
subject in each case to applicable provisions in the Stockholders Agreement.
Xxxxxxxx further agrees not to enter into any other agreement or transaction
that is intended, or could reasonably be expected, to impede, interfere with,
delay, postpone, discourage or adversely affect Xxxxxxxx'x obligations to vote
the Xxxxxxxx Shares as provided in this Agreement, and agrees not to enter into
any other voting agreement or voting trust or grant any proxy, consent or
approval or otherwise transfer, directly or indirectly, voting power with
respect to any Xxxxxxxx Shares, in each case except as provided herein.
SECTION 2. Agreement Not to Transfer. Xxxxxxxx hereby agrees not to
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Transfer any shares of Class C Stock which are held of record or beneficially
owned by Xxxxxxxx at any time during the term of this Agreement, except in
compliance with Section 5 of this Agreement.
SECTION 3. Grant of Irrevocable Proxy. In the event that Xxxxxxxx
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fails to comply with the provisions of this Agreement, Xxxxxxxx hereby
irrevocably grants to and appoints TWE (or any officer of TWE), Xxxxxxxx'x proxy
and attorney-in-fact (with full power of substitution), for and in the name,
place and stead of Xxxxxxxx, to vote or act by written consent with respect to
all Xxxxxxxx Shares held of record or beneficially owned by Xxxxxxxx or as to
which Xxxxxxxx has voting control and to grant a consent, proxy or approval in
respect of any Xxxxxxxx Shares held of record or beneficially owned by Xxxxxxxx
or as to which Xxxxxxxx has voting control, in each case in such manner as TWE
(or any officer of TWE) shall determine in its (or his or her) sole and absolute
discretion, including, without limitation, all matters requiring or permitting
the voting of any Xxxxxxxx Shares or the granting of a consent, proxy or
approval in
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respect of any Xxxxxxxx Shares, including, without limitation, ordinary or
extraordinary corporate actions and matters submitted to stockholder vote at
general or special stockholder meetings of the Company, subject in each case to
applicable provisions in the Stockholders Agreement. Xxxxxxxx hereby affirms
that the irrevocable proxy set forth in this Section 3 is given in connection
with the execution of the asset transfer and merger agreements executed in
respect of the Restructuring Transaction, and that such irrevocable proxy is
given to secure the performance of the obligations of Xxxxxxxx under this
Agreement. Xxxxxxxx hereby further affirms that each proxy hereby granted shall,
for the term of this Agreement, be irrevocable and shall be deemed coupled with
an interest, in accordance with Section 212(e) of the GCL.
SECTION 4. Nomination of Directors. (a) During the Voting Period, so
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long as (i) TWE has the right pursuant to Section 7 of the Stockholders
Agreement to nominate at least one C Director to the Board and (ii) Xxxxxxxx has
not Transferred (other than to any Affiliate of Xxxxxxxx) any of the Initial
Xxxxxxxx Shares, TWE shall nominate one person chosen by Xxxxxxxx in its sole
discretion (the "Xxxxxxxx Nominee") to serve on the Board as a C Director for
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the term specified in the Charter and until his or her successor has been
elected and has qualified, in accordance with Article VI of the Charter.
(b) So long as Xxxxxxxx shall have the right to nominate one C
Director as provided above in Section 4(a), TWE shall vote or cause to be voted
all shares of Class C Stock held of record or beneficially owned by TWE and all
Xxxxxxxx Shares as to which TWE has voting control in favor of the election of
the Xxxxxxxx Nominee to the Board.
SECTION 5. Restrictions on Transfer. During the term of this
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Agreement, Xxxxxxxx shall not Transfer any shares of Class C Stock held of
record or beneficially owned by Xxxxxxxx, except to any person (each, a
"Permitted Transferee"):
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(i) that is an Affiliate of Xxxxxxxx, provided that (x) such person
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remains an Affiliate of Xxxxxxxx and (y) such person agrees in writing
to become a party to this Agreement and to be bound by all the terms
of this Agreement with respect to such shares, without such shares
being subject to Section 5(ii) below; and
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(ii) subject to Section 5(i) above, after compliance with the rights
of first refusal of each other Class C Holder (including TWE) pursuant
to Section 18 of the Stockholders Agreement.
SECTION 6. Right of First Refusal. (a) Except as provided in Section
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6(b) below, TWE and Xxxxxxxx, together with their respective Affiliates, shall
collectively be a single Class C Holder and a single Acquiring Class C Holder
(unless either of them is a Class C Transferor, in which case each shall be a
separate Class C Holder) for purposes of Sections 17 and 18 of the Stockholders
Agreement, and TWE shall have the exclusive right to exercise the right of first
refusal pursuant to Sections 17 and 18 of the Stockholders Agreement on behalf
of TWE and Xxxxxxxx; provided, however, that Xxxxxxxx shall have the right, at
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its option, to acquire record and beneficial ownership of up to its pro rata
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portion of any shares of Common Stock of the Company which TWE acquires on
behalf of TWE and Xxxxxxxx collectively pursuant to Sections 17 and 18 of the
Stockholders Agreement (based, with respect to each class of common stock of the
Company, on the number of shares of such class held of record by each of
Xxxxxxxx and TWE at the time of such acquisition).
(b) Notwithstanding anything to the contrary in Section 18 of the
Stockholders Agreement, Xxxxxxxx shall individually be an Acquiring Class C
Holder for purposes of this Section 6 and Section 18 of the Stockholders
Agreement in the event that TWE intends to Transfer pursuant to Section 18 of
the Stockholders Agreement any Transferred C Interest and (i) pursuant to such
Transfer, TWE, Xxxxxxxx and their respective Affiliates collectively shall cease
to have the right to nominate any C Directors pursuant to Section 7 of the
Stockholders Agreement and (ii) Xxxxxxxx shall not have Transferred (other than
to an Affiliate of Xxxxxxxx) any Initial Xxxxxxxx Shares. In such event, TWE
shall provide Xxxxxxxx with a Transfer Notice, and Xxxxxxxx shall have the right
to acquire, in its discretion, prior to any other Class C Holder, any Specified
Class B Holder or GE up to a number of shares of the Transferred C Interest as
shall be necessary for Xxxxxxxx to become entitled pursuant to Section 7(a)(i)
of the Stockholders Agreement to nominate one C Director (but not including any
additional shares that would need to be acquired by Xxxxxxxx to prevent Section
7(a)(ii) of the Stockholders Agreement from being applicable to it). In the
event that Xxxxxxxx elects to acquire all or part of such Transferred C
Interest, Xxxxxxxx shall deliver a written notice (an "Exercise Notice") to each
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Class C Holder within thirty (30) calendar days of receipt of the
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applicable Transfer Notice, and any shares of Class C Stock acquired by Xxxxxxxx
pursuant to this Section 6(b) shall be Transferred to Xxxxxxxx on the terms set
forth in the Transfer Notice associated with such shares.
(c) In accordance with applicable provisions of the Stockholders
Agreement, any shares of Class C Stock held of record or beneficially owned by
Xxxxxxxx shall collectively become a Transferred C Interest, and shall become
subject to the right of first refusal process of Section 18 of the Stockholders
Agreement, in the event of:
(i) the Bankruptcy of Xxxxxxxx;
(ii) a Change in Control with respect to Xxxxxxxx; or
(iii) the dissolution of Xxxxxxxx.
SECTION 7. Allocation of Shares Between TWE and Xxxxxxxx. Xxxxxxxx
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shall have the right to acquire record and beneficial ownership of up to its pro
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rata portion of any shares of any class of common stock of the Company that TWE
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acquires on behalf of TWE and Xxxxxxxx collectively pursuant to this Agreement
and Sections 16, 17, 18 and 19 of the Stockholders Agreement. No later than 10
days prior to the date when TWE would be required to exercise its right to
acquire shares of any series of common stock on behalf of TWE and Xxxxxxxx
collectively pursuant to this Agreement and Sections 16, 17, 18 and 19 of the
Stockholders Agreement, Xxxxxxxx shall give irrevocable notice to TWE stating
the number, if any, of such shares it wishes to acquire, not to exceed its pro
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rata portion of the total shares that TWE and Xxxxxxxx together are entitled to
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acquire.
SECTION 8. Covenant of Xxxxxxxx. Xxxxxxxx hereby covenants and
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agrees to retain record and beneficial ownership and voting control of all
Xxxxxxxx Shares for the entire term of this Agreement, except for any Xxxxxxxx
Shares that are Transferred by Xxxxxxxx in accordance with Section 5 of this
Agreement. Subject to the terms and conditions herein and subject to applicable
law, Xxxxxxxx hereby further agrees to use its commercially reasonable efforts
promptly to take or cause to be taken all other actions, and do or cause to be
done all other things, necessary or appropriate under applicable laws and
regulations to consummate and make effective all its agreements hereunder.
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SECTION 9. Term. This Agreement shall become effective on the date
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hereof and shall continue in effect until the tenth anniversary of such date,
whereupon it shall terminate; provided that obligations incurred under this
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Agreement prior to such termination shall survive such termination, and the
provisions of this Section 9 and Sections 10 through 17 shall survive such
termination.
SECTION 10. Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the substantive laws of the State of New York,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof, except to the extent the laws of the State of
Delaware are mandatorily applicable hereunder.
SECTION 11. Exclusive Jurisdiction. With respect to any suit, action
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or proceeding relating to this Agreement (collectively, a "Proceeding"), each
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Party irrevocably:
(i) consents and submits to the exclusive jurisdiction of the courts
of the States of New York and Delaware and any court of the United States
located in the Borough of Manhattan in New York City or the State of
Delaware;
(ii) waives any objection which such Party may have at any time to the
laying of venue of any Proceeding brought in any such court, waives any
claim that such Proceeding has been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceeding, that
such court does not have jurisdiction over such Party; and
(iii) consents to the service of process at the address set forth for
notices in Section 12 herein; provided that such manner of service of
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process shall not preclude the service of process in any other manner
permitted under applicable law.
SECTION 12. Notices. Any notice or other communication that is
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required or that may be given in connection with this Agreement shall be in
writing and shall be delivered personally, telecopied or sent by certified,
registered or express mail or by Federal Express or similar courier service,
postage prepaid, and shall be deemed given when so received if delivered
personally or by telecopy or, if mailed, seven (7) calendar days after the date
of mailing (three (3) calendar days in the case of express mail, Federal Express
or similar courier service), as follows:
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If to TWE:
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention of General Counsel,
Time Warner Cable
Facsimile: (000) 000-0000
With a separate copy delivered to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention of Xxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Xxxxxxxx:
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Attention of Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
With a separate copy delivered to:
Xxxxx, Xxxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention of Xxxxxx X. Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
SECTION 13. No Assignment. No Party hereto may assign any of its
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rights or obligations under this Agreement to any person, other than, in the
case of Xxxxxxxx, a Permitted Transferee thereof. Any purported assignment in
violation of this Section 13 shall be void and unenforceable.
SECTION 14. Integration. This Agreement, the Restructuring
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Agreement, the Merger Agreements, the Asset Transfer Agreements, the US West
Guarantee, the Xxxxxx Letter, the Reimbursement Agreements, the Stockholders
Agreement, the Registration Rights Agreement, the Voting Agreements, the Tax
Sharing Agreement, the TSAT Merger Agreement, the TSAT Stockholders Agreement,
the Drop Down Agreement and the TSAT Tempo Agreement (each as defined in the
Restructuring Agreement) constitute the entire agreement and understanding
between the Parties relating to the subject matter hereof and supersede all
prior agreements and understandings between the parties with respect thereto.
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SECTION 15. Severability. If any term or other provision of this
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Agreement is invalid, illegal or incapable of being enforced by any rule or law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
SECTION 16. Amendments. This Agreement may not be modified or
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amended in any respect except by an instrument in writing signed by each Party.
SECTION 17. Specific Performance. The parties hereto acknowledge
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that the benefits to them under this Agreement are unique, that they are willing
to enter into this Agreement only upon performance by each other Party of all
their obligations hereunder and that monetary damages would not afford an
adequate remedy for failure to perform any such obligations hereunder.
Accordingly, the Parties hereby consent to specific performance of their
obligations hereunder and waive any requirement for securing or posting of any
bond in connection with the obtaining of any injunctive or other equitable
relief to enforce their rights hereunder.
SECTION 18. Definitions. The following terms used herein shall have
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the following definitions:
"Agreement" is defined in the preamble hereto.
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"Bankruptcy" with respect to Xxxxxxxx, means (x) the filing of a
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voluntary bankruptcy petition by Xxxxxxxx, seeking liquidation, reorganization,
arrangement, or readjustment, in any form, of its debts under Title 11 of the
U.S. Code or any other bankruptcy or insolvency law, or Xxxxxxxx'x acquiescence
to such petition, (y) the making of any assignment by Xxxxxxxx for the benefit
of its creditors or the admission by Xxxxxxxx in writing of its inability to pay
its debts or (z) the expiration of 60 days after the filing of an involuntary
petition under Title 11 of the U.S. Code, an application for the appointment of
a receiver for the assets of Xxxxxxxx, or an involuntary petition seeking
liquidation, reorganization, arrangements, composition,
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dissolution or readjustment of the debts of Xxxxxxxx or similar relief under any
bankruptcy or insolvency law, provided that the same shall not have been
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vacated, set aside or stayed within such 60 day period.
"Board" is defined in Section 4(a).
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"Change in Control", with respect to Xxxxxxxx shall mean any event
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pursuant to which Xxxxxxxx shall cease to be wholly owned, directly or
indirectly, by (x) one or more lineal descendants (including adoptees) of Xxxxx
and Xxxx Xxxxxxxx, any Person that is wholly owned, directly or indirectly, by
one or more of such lineal descendants, (y) the trustee of a trust, or a
custodian under the Uniform Gift to Minors Act or similar fiduciary, the primary
beneficiaries of which (or primary income beneficiaries of which, in the case of
a charitable remainder or similar trust) include only the respective natural
Persons described in clause (x) above (provided that such trust may grant a
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general or specific power of appointment to any such Person and may permit trust
assets to be used to pay taxes, legacies and other obligations of the trust or
the estate of any such Person, as applicable), and (z) the executor,
administrator, guardian or personal representative of the estate of any of the
respective natural Persons described in clause (x) above.
"Class C Stock" is defined in the preamble hereto.
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"Comcast" is defined in the preamble hereto.
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"Company" is defined in the preamble hereto.
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"Cox" is defined in the preamble hereto.
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"Effective Date" is defined in the preamble hereto.
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"Exercise Notice" is defined in Section 6.
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"GE" is defined in the preamble hereto.
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"Initial Xxxxxxxx Shares" is defined in the preamble hereto.
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"MediaOne" is defined in the preamble hereto.
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"Xxxxxxxx" is defined in the preamble hereto.
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"Xxxxxxxx Nominee" is defined in Section 4(a).
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"Xxxxxxxx Shares" means (i) the Initial Xxxxxxxx Shares, (ii) the
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Subsequent Xxxxxxxx Shares, (iii) any securities of the Company or any other
Person issued in exchange for (including pursuant to a merger, consolidation or
other business combination), or as a dividend on, or pursuant to the split,
subdivision, combination, reclassification or recapitalization of, any Initial
Xxxxxxxx Shares or Subsequent Xxxxxxxx Shares, or pursuant to the conversion of
any Initial Xxxxxxxx Shares or Subsequent Xxxxxxxx Shares or any such other
securities and (iv) any securities of the Company or any other Person that are
distributed on any of the securities described in clauses (i), (ii) or (iii) of
this definition and any securities which shall result from the conversion or
exchange of any securities distributed on any securities described in clauses
(i), (ii) and (iii) of this definition. For the avoidance of doubt, the Class A
Stock issued to Xxxxxxxx in connection with the Restructuring Transaction (and
any shares issued in exchange for (including pursuant to a merger, consolidation
or other business combination), or as a dividend on, or pursuant to the split,
subdivision, combination, reclassification or other recapitalization of, such
shares) are not subject to this Agreement.
"Party" is defined in the preamble hereto.
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"Proceeding" is defined in Section 11.
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"Restructuring Transaction" is defined in the preamble hereto.
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"Stockholders Agreement" is defined in Section 1.
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"Subsequent Xxxxxxxx Shares" means any shares of Class C Stock or
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Class B Stock, record or beneficial ownership of which is acquired by Xxxxxxxx
pursuant to Sections 13, 16, 17, 18 or 19 of the Stockholders Agreement.
"TSAT" is defined in the preamble hereto.
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"TWE" is defined in the preamble hereto.
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"Voting Period" means the period commencing on the Effective Date and
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ending on the date that TWE and its Affiliates collectively hold of record less
than 10% of the shares of Class C Stock held by TWE on the Effective Date.
SECTION 19. Terms and Usage Generally. The definitions in Section 18
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shall apply equally to both the singular and plural forms of the terms defined
therein.
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Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. All references herein to Sections shall be
deemed to be references to Sections of this Agreement, unless the context shall
otherwise require. The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation". The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement. Unless otherwise expressly provided herein, any agreement,
instrument or statute defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument or
statute as from time to time amended, modified or supplemented, including (in
the case of agreements or instruments) by waiver or consent and (in the case of
statutes) by succession of comparable successor statutes and references to all
attachments thereto and instruments incorporated therein.
SECTION 20. Descriptive Headings. The headings in this Agreement are
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for reference purposes only and do not form part of this Agreement, nor shall
such headings in any way affect the meaning or interpretation of any provisions
herein.
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SECTION 21. Counterparts. This Agreement may be executed in
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counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each Party has executed this Agreement in one or
more counterparts as of the day and year first above written.
TIME WARNER ENTERTAINMENT
COMPANY, L.P.,
by AMERICAN TELEVISION AND
COMMUNICATIONS
CORPORATION, a general
partner,
by
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Name:
Title:
ADVANCE/XXXXXXXX PARTNERSHIP,
by ADVANCE COMMUNICATION
CORP., a general partner,
by
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Name:
Title:
