Voting Agreement - Apollo Management LP and David Margolese
VOTING AGREEMENT
VOTING AGREEMENT, dated as of November 13, 1998, by and among APOLLO
INVESTMENT FUND IV, L.P., a Delaware limited partnership ("AIF IV"), APOLLO
OVERSEAS PARTNERS IV, L.P., a Cayman Islands limited partnership ("AOP IV", and
together with AIF IV, and including their respective successors and permitted
assigns, the "Purchasers"), and David Margolese (the "Stockholder").
WHEREAS, concurrently herewith, the Purchasers and CD Radio Inc., a
Delaware corporation (the "Company"), are entering into a Stock Purchase
Agreement pursuant to which the Company will issue to the Purchasers shares of
one or more series of preferred stock of the Company having an aggregate
liquidation preference of up to $200,000,000 (the "Purchase Agreement");
capitalized terms used herein without definition shall have the meanings
ascribed to them in the Purchase Agreement;
WHEREAS, the issuance of preferred stock of the Company pursuant to the
Purchase Agreement is subject to stockholder approval as set forth in the
Purchase Agreement;
WHEREAS, the Stockholder is the record and beneficial owner of certain
shares of Common Stock and exercises voting power with respect to certain
additional shares of Common Stock; and
WHEREAS, the Board of Directors of the Company has, prior to the
execution of this Agreement, duly and validly approved and adopted the Purchase
Agreement and the Contemplated Transactions;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, and as an inducement to the
Purchasers to enter into the Purchase Agreement, the parties hereto agree as
follows:
Section 1. Shares. (a) The Stockholder hereby represents and warrants
that (i) he is the record and beneficial owner, as of the date hereof, of
1,600,000 shares of Common Stock (the "Owned Shares"), (ii) that he has the sole
right and power to vote or to direct the voting of the Owned Shares and any
shares acquired upon exercise of any options to purchase shares of Common Stock
held by him as of the date of this Agreement, (iii) that he owns the Owned
Shares free and clear of all liens, charges, encumbrances, voting agreements and
commitments of every kind, other than this Agreement and (iv) that pursuant to
that certain Voting Trust Agreement, dated August 26, 1997, by and among Darlene
Friedland, as Grantor, David Margolese, as Trustee, and the Company (the "Trust
Agreement"), the Stockholder has the sole right and power to vote or direct the
voting with respect to an additional 2,834,500 shares of Common Stock (the
"Trust Shares"). The Owned Shares, the Trust Shares, and any other shares of
Common Stock or other securities of the Company entitled to vote with respect to
the Contemplated Transactions that are acquired by the Stockholder after the
date of this Agreement or with respect to which after the date of this Agreement
Stockholder becomes entitled to vote or direct the voting are collectively
referred to as "Voting Shares."
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Section 2. Consent; Agreement to Vote. (a) The Stockholder agrees that,
immediately following the execution and delivery of this Agreement and the
Purchase Agreement, he shall execute and deliver, or cause to be executed and
delivered by the record owner thereof, in accordance with Section 228 of the
General Corporation Law of the State of Delaware (the "DGCL"), the Stockholder
Consent in the form attached hereto as Annex A with respect to all Voting
Shares.
(b) The Stockholder hereby further agrees that, during the term of this
Agreement, he shall, from time to time, at the request of the Purchasers, (i)
timely execute and deliver (or cause to be timely executed and delivered) an
additional written consent with respect to, or (ii) vote, or cause to be voted,
at any meeting of stockholders of the Company held prior to the earlier of the
Closing and the termination of the Purchase Agreement, or at any adjournment or
postponement of such meeting, in person or by proxy, all Voting Shares, (x) in
favor of approval and adoption of the Purchase Agreement and the Contemplated
Transactions, and any action required in furtherance thereof, and (y) against
any action or agreement that would result in a material breach of any
representation, warranty, covenant or obligation of the Company contained in the
Purchase Agreement.
(c) The Stockholder agrees that prior to the earlier of (1) the date
that the Contemplated Transactions have been validly approved by written consent
of holders of a majority of the outstanding shares of Common Stock of the
Company or (2) the record date for a special meeting of stockholders of the
Company called for the purpose of obtaining the requisite stockholder approval
of the Contemplated Transactions, he will not contract to sell, sell or
otherwise pledge, encumber, transfer or dispose of any shares of Common Stock
owned beneficially or of record by him(or any interest therein or securities
convertible thereinto or any voting rights with respect thereto) and will not
encourage or assist any person to sell or otherwise dispose of the Trust Shares;
provided, however that in the event of any such sale, transfer or other
disposition, the Stockholder shall not (A) change his vote with respect to the
matters referred to in clauses (x) and (y) of paragraph (b), (B) withdraw any
consent, vote or proxy given pursuant to paragraph (a) or (b), or (C) cast any
vote or deliver any proxy or written consent that could have the effect of
frustrating, preventing or nullifying stockholder approval of the Contemplated
Transactions.
Section 3. Termination. In the event the Purchase Agreement is
terminated in accordance with its terms, this Agreement shall automatically
terminate and be of no further force or effect. Upon such termination, except
for any rights any party may have in respect of any breach by any other party of
its obligations hereunder, none of the parties hereto shall have any further
obligation or liability hereunder.
Section 4. Authority; Binding Effect. (a) The Stockholder represents
and warrants that he has full power and authority to enter into, execute and
deliver and perform his obligations under this Agreement and to make the
representations and warranties made herein.
(b) This Agreement constitutes the valid and binding agreement of the
Stockholder, enforceable against him in accordance with its terms.
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Section 5. Miscellaneous. (a) Notices, Etc. All notices or other
communications required or permitted hereunder shall be in writing and shall be
delivered personally, telecopied or sent by certified, registered or express
mail, postage prepaid. Any such notice shall be deemed given if delivered
personally or telecopied, on the date of such delivery or sent by reputable
overnight courier, on the first business day following the date of such mailing,
as follows:
If to the Purchasers:
c/o Apollo Management, L.P.
1301 Avenue of the Americas, 38th Floor
New York, NY 10019
Attention: Marc J. Rowan
Telecopy: (212) 261-4071
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attn: David A. Katz, Esq.
Telecopy: (212) 403-2000
If to the Stockholder:
David Margolese
CD Radio Inc.
1180 Avenue of the Americas
14th Floor
New York, New York 10036
Telecopy: (212) 899-5050
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Attn: Mitchell S. Fishman
Telecopy: (212) 757-3990
or to such other address as such party shall have designated by notice received
by each other party.
(b) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or, except as expressly set
forth in Section 3, terminated, except by an instrument in writing signed by
each party hereto.
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(c) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns; provided that neither the rights nor the
obligations of any party may be assigned or delegated without the prior written
consent of the other parties, except that the Purchasers may make any assignment
permitted by the Purchase Agreement without the written consent of the
Stockholder.
(d) Specific Performance. The parties acknowledge that money damages
are not an adequate remedy for violations of this Agreement and that any party
may, in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief or any requirement for a bond.
(e) Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, without regard to the principles of conflict of law thereof.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its general partner
By: Apollo Capital Management IV, Inc., its
general partner
By: /s/ Andrew Africk
---------------------
Name: Andrew Africk
Title: Vice President
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors, IV, L.P., its general partner
By: Apollo Capital Management IV, Inc., its
general partner
By: /s/ Andrew Africk
---------------------
Name: Andrew Africk
Title: Vice President
/s/ David Margolese
-------------------
DAVID MARGOLESE
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ANNEX A
WRITTEN CONSENT
OF STOCKHOLDERS
OF CD RADIO INC.
Pursuant to the provisions of Section 228 of the General Corporation Law
of the State of Delaware, I, David Margolese, the holder of the number shares of
Common Stock, par value $.001 per share (the "Common Stock"), of CD Radio Inc.
(the "Company") indicated below on my own behalf and the holder of the number
shares of Common Stock indicated below held by me as Trustee of such shares
pursuant to a Voting Trust Agreement, dated as of August 26, 1997, among the
Company, Darlene Friedland and myself, as Trustee (the "Voting Trust
Agreement"), do hereby consent to, approve and adopt the following resolution:
WHEREAS, the Board of Directors of the Company has approved the
Contemplated Transactions (as such term is defined in that certain Stock
Purchase Agreement, dated as of November 13, 1998, by and among the
Company, Apollo Investment Fund IV, L.P., a Delaware limited partnership,
and Apollo Overseas Partners IV, L.P., a Cayman Islands limited
partnership (the "Purchase Agreement")), including, without limitation,
the issuance or issuances by the Company of securities convertible into
Common Stock equaling 20% or more of the Common Stock or 20% or more of
the voting power outstanding before issuance (the "Issuances");
NOW THEREFORE, BE IT RESOLVED, that the Purchase Agreement and
the Contemplated Transactions, including the Issuances, be, and they
hereby are, consented to, approved and adopted in all respects.
DAVID MARGOLESE,
on his own behalf
/s/ David Margolese
-------------------
David Margolese
Shares of Common Stock Held: 1,600,000
DAVID MARGOLESE,
as Trustee with respect to securities of the Company
held in trust pursuant to the Voting Trust Agreement
/s/ David Margolese
-------------------
David Margolese, Trustee
Shares of Common Stock Held in Trust: 2,834,500
Date: November 13, 1998
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