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EchoStar Communications Corporation
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November 30, 1998
American Sky Broadcasting, LLC
c/o The News Corporation Limited
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The News Corporation Limited
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MCI Telecommunications Corporation
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Ladies and Gentlemen:
Reference is made to the Purchase Agreement (the "Purchase Agreement"),
dated as of November 30, 1998, by and among American Sky Broadcasting, LLC
("ASkyB"), The News Corporation Limited ("News Corporation"), MCI
Telecommunications Corporation ("MCI") and EchoStar Communications
Corporation (the "Seller"). Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings set forth in the Purchase
Agreement.
1. As a further inducement for the News Corporation, MCI and ASkyB to
enter into the Purchase Agreement, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ hereby agrees that he
shall:
(i) vote any and all shares of Seller owned, directly or
indirectly, of record or beneficially, by him, in favor of the Purchase
Agreement and the transactions contemplated thereby at any meeting of
stockholders of Seller, held in connection therewith; and
(ii) until such time as the stockholders of Seller approve the
Purchase Agreement and the transactions contemplated thereby, not sell,
dispose of, transfer or encumber or grant any proxies or any other rights of
any nature whatsoever in or to any shares or other securities of Seller such
that his percentage of the voting power of Seller decreases to a percentage
of 50% or less.
2. As a further inducement for Seller to enter into the Purchase
Agreement, News Corporation and MCI agree that, for a period of five years
from the Closing Date, neither News Corporation or MCI nor any Affiliate of
News Corporation or MCI (regardless of whether such Person is an Affiliate on
the date hereof), except as provided herein, shall, directly or indirectly,
acting alone or in concert with others, undertake any of the following
actions unless expressly requested or consented to in writing in advance by
the Board of Directors of Seller to so act:
(i) make, or in any way "participate" in, directly or indirectly,
any "solicitation" of "proxies" or consents to vote, become a "participant"
in any "election contest" (as such terms are defined or used in the proxy
rules of the Securities and Exchange Commission), or seek to advise or
influence any person or entity with respect to the voting of any securities
of Seller or any Affiliate of Seller:
(ii) form, join or in any way participate in a "group" within the
meaning of section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, with respect to any securities of Seller or any Affiliate of Seller
or any securities carrying the right or option to acquire such securities;
(iii) otherwise act, directly or indirectly, alone or in
concert with others, to seek to control or influence in any manner, the
management, board of directors, policies or affairs of Seller or any
Affiliate of Seller or propose to seek to effectuate any combination or
merger with Seller or any Affiliate of Seller or any restructuring,
recapitalization or similar transaction with respect to Seller or any
Affiliate of Seller;
(iv) have any securities of Seller or any Affiliate of Seller on
deposit in a voting trust or subject any securities of Seller or any
Affiliate of Seller to any arrangements with respect to the voting of such
securities or other agreement having similar effect;
(v) initiate or propose, or induce or attempt to induce, advise,
assist or otherwise encourage any other Person to initiate or propose, (a)
any tender offer for any securities of Seller or any Affiliate of Seller (b)
any shareholder proposal with respect to Seller or any Affiliate of Seller,
or (c) any other action described in this paragraph 2; or
(vi) enter in any negotiation, arrangement or understanding with
any third party with respect to any of the foregoing.
3. As further inducement for Seller to enter into the Purchase
Agreement, each of News Corporation and MCI agrees that, for a period of five
years from the Closing Date, each of News Corporation and MCI will, and will
cause its respective Subsidiaries and Affiliates (regardless of whether such
Person is a Subsidiary or an Affiliate on the date hereof) to, at any regular
or special meeting of stockholders or by consent of stockholders at or by
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which News Corporation, MCI or its respective Subsidiaries or Affiliates
(regardless of whether such Person is a Subsidiary or an Affiliate on the
date hereof) are entitled to vote or consent, (i) with respect to the
election of directors of Seller, vote or consent in the manner recommended by
the Board of Directors of Seller, and (ii) with respect to any other action
to be taken by stockholders, either vote in the manner recommended by the
Board of Directors of Seller, or abstain from such vote; provided, however,
that the restrictions set forth in clause (ii) shall not apply to News
Corporation or MCI in the event that the outcome of any such action would
have the effect of discriminating against (x) the holders of Class A Common
Stock vis a vis holders of any other class of the Company's equity securities
or (y) News Corporation or MCI vis a vis any other holder of the Company's
equity securities.
4. Miscellaneous.
(i) Remedies. Any Person having rights under any provision of
this agreement shall be entitled to enforce such rights specifically to
recover damages caused by reason of any breach of any provision of this
agreement and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this agreement and that any party may in
its sole discretion apply to any court of law or equity of competent
jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this agreement. Failure of any party to
exercise any right or remedy under this agreement or otherwise, or delay by a
party in exercising such right or remedy, shall not operate as a waiver
thereof.
(ii) Governing Law; Severability. This agreement shall be
enforced, governed by and construed in accordance with the laws of New York
applicable to agreements made and to be performed entirely within such State.
In the event that any provision of this agreement is invalid or unenforceable
under any applicable statute or rule of law, then such provision shall be
deemed inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform with such statute or rule of law. Any provision
hereof which may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision hereof.
(iii) Merger Clause. This agreement, the Purchase Agreement and
the other Collateral Agreements (as defined in the Purchase Agreement)
(including all schedules and exhibits thereto) constitute the entire
agreement among the parties hereto with respect to the subject matter hereof
and thereof. There are no restrictions, promises, warranties or undertakings
other than those set forth or referred to herein and therein. This agreement
and the Purchase Agreement supersede all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof and
thereof.
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(iv) Counterparts. This agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same agreement. This agreement, once executed
by a party, may be delivered to any other party hereto by facsimile
transmission of a copy of this agreement bearing the signature of the party
so delivering this agreement.
(v) Amendment. The provisions of this agreement may be amended
and the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by an instrument in
writing executed by each of the parties hereto.
(vi) Notices. Any notices required or permitted to be given under
the terms hereof shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier (including a
nationally recognized overnight delivery service) or by facsimile and shall
be effective five days after being placed in the mail, if mailed by regular
U.S. mail, or upon receipt, if delivered personally or by courier (including
a nationally recognized overnight delivery service) or by facsimile, in each
case addressed to a party. The addresses and facsimile numbers for such
communications shall be as set forth in Section 9(g) of the Purchase
Agreement.
[Signature Page Follows]
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If the foregoing accurately reflects our agreement with respect to
the foregoing matters, please sign a copy of this letter in the space
provided below and return it to the undersigned.
Very truly yours,
ECHOSTAR COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Senior Vice President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Accepted and agreed as of the date
first-above written:
THE NEWS CORPORATION LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Director
MCI TELECOMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
AMERICAN SKY BROADCASTING, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President
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