EXHIBIT 99.9
CONTRIBUTION AND TRANSFER AGREEMENT
This Contribution and Transfer Agreement (the "Agreement") is
entered into on October 28, 2001 by and among United States Trust Company of New
York, as trustee (the "Pension Plan Trustee") of the General Motors Special
Hourly Employees Pension Trust established under the General Motors Hourly-Rate
Employees Pension Plan (the "Pension Plan") for the account and on behalf of the
Pension Plan (which shall thereby be deemed a party to this Agreement), United
States Trust Company of New York, as a trustee (the "VEBA Trustee") of the
Sub-Trust of the General Motors Welfare Benefit Trust established under the
General Motors Welfare Benefit Trust, a voluntary employees' beneficiary
association trust established to fund certain collectively bargained hourly
retiree health care benefits under the General Motors Health Care Program for
Hourly Employees and certain collectively bargained hourly retiree life
insurance benefits under the General Motors Life and Disability Benefits Program
for Hourly Employees and such benefits under other applicable collectively
bargained welfare plans (the "VEBA"), for the account and on behalf of the VEBA
(which shall thereby be deemed a party to this Agreement) and General Motors
Corporation, a Delaware corporation ("GM").
WHEREAS, GM, the Pension Plan and the VEBA entered into a
Registration Rights Agreement and a Transfer Agreement (the "Current Transfer
Agreement"), each dated as of June 12, 2000, in connection with the contribution
by GM of 60,500,000 shares (without giving effect to the stock split described
below) of Class H Common Stock, par value $0.10 per share, of GM (the "GM Class
H Common Stock") to the Pension Plan and the VEBA;
WHEREAS, the Pension Plan and the VEBA became holders of
record of such 60,500,000 shares of GM Class H Common Stock as of June 12, 2000;
WHEREAS, the Board of Directors of GM declared a three-for-one
stock split in respect of the GM Class H Common Stock in the form of a 200
percent stock dividend, payable on June 30, 2000, to holders of record as of
June 13, 2000, as a result of which such 60,500,000 shares became 181,500,000
shares of GM Class H Common Stock;
WHEREAS, to reflect such stock split of the GM Class H Common
Stock, GM, the Pension Plan and the VEBA entered into that certain Restated
Registration Rights Agreement, dated as of July 1, 2000 (the "Current
Registration Rights Agreement");
WHEREAS, Xxxxxx Electronics Corporation, a Delaware
corporation ("Xxxxxx") is currently a wholly owned subsidiary of GM;
WHEREAS, Xxxxxx and EchoStar Communications Corporation
("EchoStar") desire to combine the business of EchoStar with the business of
Xxxxxx pursuant to a merger of EchoStar with and into Xxxxxx, with Xxxxxx as the
surviving corporation (the "Xxxxxx Merger"), as contemplated by that
certain Agreement and Plan of Merger (the "Merger Agreement") of even date
herewith by and between Xxxxxx and EchoStar;
WHEREAS, prior to the Xxxxxx Merger, Xxxxxx will be separated
from GM pursuant to a spin-off or split-off of Xxxxxx (the "Spin-Off") in
connection with a series of other transactions (the "GM Transactions");
WHEREAS, as a result of the GM Transactions, the GM Class H
Common Stock will be redeemed and exchanged for shares of Xxxxxx Class C Common
Stock (as defined below) in exchange for all of the outstanding shares of GM
Class H Common Stock and, among other things, in connection therewith, GM shall
distribute to holders of record of GM's Series H 6.25% Automatically Convertible
Preference Stock, par value $0.10 per share (the "GM Series H Preference
Stock"), shares of Preference Stock, par value $0.10 per share, of Xxxxxx (the
"Xxxxxx Preference Stock") in exchange for all of the outstanding shares of GM
Series H Preference Stock;
WHEREAS, immediately following the consummation of the GM
Transactions, the Xxxxxx Merger will be consummated;
WHEREAS, the Donees, GM, Xxxxxx and Xxxxxxx X. Xxxxx have
entered into a Letter Agreement, of even date herewith (the "Letter Agreement")
and, as contemplated by the terms of the Letter Agreement, anticipate entering
into a Registration Rights Agreement (the "Donees Registration Rights
Agreement"), with Xxxxxx which would become effective at the effective time of
the Xxxxxx Merger;
WHEREAS, at the effective time of the Xxxxxx Merger, the
Current Registration Rights Agreement will be either terminated pursuant to the
terms of the Letter Agreement or replaced in its entirety by the Donees
Registration Rights Agreement, in either case, such that GM shall be released
from all obligations under the Current Registration Rights Agreement and shall
have no further obligations to the Donees except as specifically set forth
herein;
WHEREAS, the Trustee has been appointed by the named fiduciary
of the Pension Plan (the "Pension Plan Named Fiduciary") (as determined in
accordance with Section 402(a) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), to manage the Registrable Securities owned by the
Pension Plan as described herein and to exercise all rights, powers and
privileges appurtenant to such shares (subject to the authority of the Pension
Plan Named Fiduciary to terminate such appointment and appoint one or more other
investment managers for any such shares);
WHEREAS, the Trustee has been appointed by the named fiduciary
of the VEBA (the "VEBA Named Fiduciary") (as determined in accordance with
Section 402(a) of ERISA), to manage the Registrable Securities owned by the VEBA
as described herein and to exercise all rights, powers and privileges
appurtenant to such shares (subject to the authority of the VEBA Named Fiduciary
to terminate such appointment and appoint one or more other investment managers
for any such shares);
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WHEREAS, GM, the Pension Plan and the VEBA desire to terminate
the Current Transfer Agreement upon (but only upon) the consummation of the
Xxxxxx Merger, except as and to the extent contemplated by this Agreement;
WHEREAS, GM may from time to time, in its sole and absolute
discretion and subject to the satisfaction of certain regulatory and other
conditions, contribute shares of Xxxxxx Class C Common Stock to the VEBA;
WHEREAS, the VEBA Trustee has full power and authority to
execute and deliver this Agreement for the account and on behalf of the VEBA and
to so bind the VEBA; and
WHEREAS, the Pension Plan Trustee has full power and authority
to execute and deliver this Agreement for the account and on behalf of the
Pension Plan and to so bind the Pension Plan;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements set forth herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, GM, the Pension
Plan and the VEBA agree as follows:
1. Contribution of Securities.
(a) This Section 1 shall be effective upon (but only upon) the
consummation of the Xxxxxx Merger.
(b) Subject to Section 1(g), GM shall have the right, in its
sole and absolute discretion, to contribute shares of Xxxxxx Class C Common
Stock to the VEBA (such contribution being hereinafter referred to as a
"Contribution"). GM agrees that a Contribution shall be made only on a day that
the primary securities exchange (the "Exchange") upon which the Xxxxxx Class C
Common Stock is listed is open for trading (a "Business Day").
(c) GM agrees that it shall give the VEBA Trustee and its
valuation adviser notice by teleconference after the close of normal trading on
the Exchange but no later than 5:00 p.m., New York time, on the Business Day
prior to the Business Day on which GM contemplates making a Contribution to the
VEBA, that it contemplates making such a Contribution; provided, however, that
such notice shall be revocable by GM at any time in its sole discretion prior to
the conclusion of the teleconference referred to in this Section 1(c). In such
teleconference, GM shall state the date on which GM contemplates making the
proposed Contribution and a range for the number of shares of Xxxxxx Class C
Common Stock which may be contributed, and the VEBA Trustee together with its
valuation adviser, will estimate a value per share, based on the mean between
the highest and lowest quoted selling prices on the date of notice on the
Exchange of Xxxxxx Class C Common Stock, at various points within such range.
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(d) At any time after 4:30 p.m., New York time, but in any
event prior to 11:00 p.m., New York time, on the day of the proposed
Contribution, GM will give the VEBA Trustee and its valuation adviser notice by
teleconference of its continued interest, if any, in making a Contribution to
the VEBA. In such teleconference, GM will make one or more estimates of the
specific number of shares of Xxxxxx Class C Common Stock which GM may contribute
and the VEBA Trustee, together with its valuation adviser, will state the value
per share it would assign for the Contribution based on each such estimate and
based on the mean between the highest and lowest quoted selling prices on such
date on the Exchange of Xxxxxx Class C Common Stock. If GM so decides, it shall
irrevocably commit itself in such teleconference to contribute a number of
shares of Xxxxxx Class C Common Stock equal to one of such estimates, and, as
applicable, the VEBA Trustee's valuation adviser shall be irrevocably committed
to opine to the applicable value per share previously stated by it in such
teleconference. The Contribution, if any, shall be effective at the end of such
teleconference, and the value per share for purposes of such Contribution shall
be such stated value. As soon as practicable after the teleconference in which a
Contribution is made, GM shall deliver instructions to Xxxxxx' transfer agent to
issue the shares of Xxxxxx Class C Common Stock so contributed (in the form
described below) and to register such shares of Xxxxxx Class C Common Stock in
the name of the VEBA or its nominees, and GM shall confirm such Contribution by
delivering copies of such transfer instructions to the VEBA Trustee. As soon as
practicable after the teleconference, the VEBA Trustee's valuation adviser will
deliver to the VEBA Trustee with a copy to GM, its written valuation opinion,
confirming the valuation given in the teleconference.
(e) Delivery of certificates representing (or other evidence
of ownership of) shares of Xxxxxx Class C Common Stock contributed in a
Contribution shall be made to the VEBA at the offices of the VEBA Trustee (or
such other place as may be mutually agreed upon) in such form as shall permit,
subject to the provisions of this Agreement, the Transfer of the shares of
Xxxxxx Class C Common Stock through normal means of settlement (subject to the
proviso in the next following sentence), not later than 5:00 p.m., New York
time, on the fourth full Business Day after such Contribution. Such certificates
(or other evidence of ownership) shall be in due and proper form for delivery
under applicable corporate law and shall be accompanied by such other documents
and certificates as may be reasonably requested by the VEBA Trustee to confirm
that the VEBA, upon receipt of such certificates (or other evidence of
ownership), may, subject to the provisions of this Agreement, Transfer record
and beneficial ownership of the shares of Xxxxxx Class C Common Stock
represented by such certificates (or other evidence of ownership thereof);
provided, however, that the VEBA agrees and acknowledges that the certificates
representing the Xxxxxx Class C Common Stock contributed in any Contribution may
bear such restrictive legends as Xxxxxx deems appropriate and each
uncertificated share of Xxxxxx Class C Common Stock may have an appropriate
designation made in the book-entry records of Xxxxxx relating thereto, in each
case to reflect restrictions on Transfer applicable to such shares of Xxxxxx
Class C Common Stock.
(f) The VEBA represents and warrants that it, together with
its investment managers, has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Xxxxxx Class C Common Stock. The VEBA understands and
acknowledges that the Contributions have not been and will not be registered
under the Securities Act or
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any state securities law and that the Xxxxxx Class C Common Stock may not be the
subject of any Transfer except as expressly permitted by this Agreement and the
Donees Registration Rights Agreement (if executed and delivered as contemplated
by the terms of the Letter Agreement).
(g) Notwithstanding any provision in this Agreement to the
contrary, the VEBA shall not be obligated to accept any proposed contribution of
Xxxxxx Class C Common Stock unless and until the VEBA Trustee has determined, in
its sole and absolute discretion, that such contribution is in the interest of
the VEBA beneficiaries and will not result in a violation by the VEBA or the
VEBA Trustee of the requirements of ERISA or any other applicable law.
2. Transfer Restrictions. Notwithstanding any other provision of this
Agreement, the Current Registration Rights Agreement, the Letter Agreement, the
Donees Registration Rights Agreement (if executed and delivered as contemplated
by the terms of the Letter Agreement), or the Current Transfer Agreement,
neither the Pension Plan nor the VEBA shall make any Transfer of any Registrable
Securities from the date hereof until the end of the Tax Restriction Period;
provided, however, that nothing in this Agreement shall prohibit the Donees from
making any Transfer of Registrable Securities if and to the extent that such
Transfer is required pursuant to the terms of the Spin-Off.
3. Private Letter Ruling. Upon the joint request of the Pension Plan
and the VEBA at any time following the date that is six (6) months after the
Merger Effective Time (as defined in the Merger Agreement), GM shall prepare and
file with the Internal Revenue Service, as promptly as reasonably practicable
after GM's receipt of such request, a request for a private letter ruling to the
effect that sales of the Registrable Securities by the Donees shall not be
treated as made pursuant to a Section 355(e) Plan (as defined below) that
includes the Spin-Off.
4. Other Agreements. Without limiting the provisions of the Current
Transfer Agreement which shall remain effective, as modified by this Agreement,
prior to the Merger Effective Time, the following provisions shall be effective
as of and after the Merger Effective Time:
(a) The Donees (or the Pension Plan Trustee and the VEBA
Trustee (collectively, the "Trustees") on behalf of the Pension Plan and the
VEBA) will vote against any proposed business combination involving two or more
corporations, or any other transaction (or series of related transactions)
involving the issuance, exchange, conversion, recapitalization or redemption of
Xxxxxx Class C Common Stock or any other stock issued in respect thereof by any
successor issuer, as applicable (a "Merger"), or similar transaction for which
it is entitled or permitted to cast a vote if GM delivers to the Trustees, no
later than three Business Days prior to the scheduled date for the stockholders
meeting at which such Merger or similar transaction is to be voted on or the
expiration date for the consent solicitation with respect thereto, as the case
may be, an opinion of tax counsel reasonably satisfactory to the Trustees (which
tax counsel may have been and be retained, employed or consulted from time to
time by GM) that there is a material risk that such Merger or similar
transaction would have an adverse impact on the tax-free status of the Spin-Off.
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(b) Each of the parties shall treat all notices of and
information relating to proposed Transfers, the Spin-Off and Mergers that are
received from the other party with the strictest confidence and shall not
disseminate such information; provided, however, that nothing herein shall
prohibit disclosure of any such notice or information to the then issuer of the
Registrable Securities. Nothing herein shall be construed to require GM or any
of its Affiliates to make any public disclosure of information at any time.
5. Remedies. Each of the parties to this Agreement shall be entitled to
enforce its rights under this Agreement specifically, to recover damages and
costs (including reasonable attorneys fees) caused by any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that either Donee's breach of
any term or provision of this Agreement will materially and irreparably harm GM,
that money damages will accordingly not be an adequate remedy for any breach of
the provisions of this Agreement by the Donees and that GM, in its sole
discretion and in addition to any other remedies it may have at law or in
equity, may apply to any court of law or equity of competent jurisdiction
(without posting any bond or deposit) for specific performance and/or other
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
6. Termination of Current Registration Rights Agreement; Release of GM.
By their execution and delivery of this Agreement and the Letter Agreement, GM,
the Pension Plan and the VEBA, who are all of the parties to the Current
Registration Rights Agreement, acknowledge and agree that upon (but only upon)
the consummation of the Xxxxxx Merger, the Current Registration Rights Agreement
shall be either terminated pursuant to the terms of the Letter Agreement or
replaced in its entirety by the Donees Registration Rights Agreement (if
executed and delivered as contemplated by the terms of the Letter Agreement). By
their execution and delivery of this Agreement, GM, the Pension Plan and the
VEBA, who are all of the parties to the Current Transfer Agreement, acknowledge
and agree that upon (but only upon) the consummation of the Xxxxxx Merger, the
Current Transfer Agreement shall be terminated and of no force and effect. Until
the consummation of the Xxxxxx Merger, the Current Registration Rights Agreement
and the Current Transfer Agreement, each as modified by this Agreement and as
each may be amended or modified pursuant to the terms thereof, shall remain in
full force and effect. The parties hereto agree and acknowledge that upon the
consummation of the Xxxxxx Merger, GM, the Pension Plan and the VEBA shall each
be automatically released (without further action by any of the parties hereto)
from all obligations under the Current Registration Rights Agreement, Current
Transfer Agreement and any and all side letters entered into in connection
therewith. If the Merger Agreement is terminated for any reason, this Agreement
and the Donees Registration Rights Agreement (if executed and delivered as
contemplated by the terms of the Letter Agreement) shall terminate automatically
(without further action by any of the parties hereto) and shall become null and
void and the Current Registration Rights Agreement and the Current Transfer
Agreement, as each may be amended or modified pursuant to the terms thereof,
shall remain in full force and effect.
7. Definitions.
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"Affiliate" shall have the meaning set forth in Rule 12b-2 under the
Exchange Act (or any successor thereto).
"Agreement" shall have the meaning set forth in the recitals hereto.
"Business Day" shall have the meaning set forth in Section 1(b).
"Contribution" shall have the meaning set forth in Section 1(b).
"Current Transfer Agreement" shall have the meaning set forth in the
recitals hereto.
"Current Registration Rights Agreement" shall have the meaning set
forth in the recitals hereto.
"Donees" means the Pension Plan and the VEBA.
"Donees Registration Rights Agreement" shall have the meaning set forth
in the recitals hereto.
"EchoStar" shall have the meaning set forth in the recitals hereto.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange" shall have the meaning set forth in Section 1(b).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"GM" shall have the meaning set forth in the recitals hereto.
"GM Class H Common Stock" shall have the meaning set forth in the
recitals hereto.
"GM Series H Preference Stock" shall have the meaning set forth in the
recitals hereto.
"GM Transactions" shall have the meaning set forth in the
recitals hereto.
"Hedging Transaction" means (A) directly or indirectly offering,
pledging, announcing the intention to sell, selling or contracting to sell any
option for, or announcing the intention to purchase, purchasing or contracting
to purchase any option for, or granting any option, right or warrant with
respect to any Subject Securities or (B) entering into any swap, option, future,
forward or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of any Subject Securities or (C) any
amendment, supplement or modification to any transaction described in (A) or (B)
above, whether any such
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transaction described in clause (A), (B) or (C) of this definition is to be
settled by delivery of Subject Securities, in cash or otherwise.
"Xxxxxx" shall have the meaning set forth in the recitals hereto.
"Xxxxxx Class C Common Stock" means the Class C Common Stock, par value
$0.01 per share, of Xxxxxx and any securities issued or issuable with respect to
the Xxxxxx Class C Common Stock in connection with any stock dividend, stock
split (forward or reverse), combination of shares, recapitalization, merger,
consolidation, redemption, exchange of securities or other reorganization or
reclassification after the date hereof.
"Xxxxxx Preference Stock" shall have the meaning set forth in the
recitals hereto.
"Xxxxxx Merger" shall have the meaning set forth in the recitals
hereto.
"Letter Agreement" shall have the meaning set forth in the recitals
hereto.
"Merger" shall have the meaning set forth in Section 4(a) hereto.
"Merger Agreement" shall have the meaning set forth in the recitals
hereto.
"Pension Plan" shall have the meaning set forth in the recitals hereto.
"Pension Plan Named Fiduciary" shall have the meaning set forth in the
recitals hereto.
"Pension Plan Trustee" shall have the meaning set forth in the recitals
hereto.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Registrable Securities" for the purposes of this Agreement means (i)
until such shares become shares of common stock of Xxxxxx as a result of the
Spin-Off, the Registrable Securities (as such term is defined in the Current
Registration Rights Agreement), (ii) immediately following the consummation of
the Spin-Off, the Xxxxxx Class C Common Stock into which the Registrable
Securities described in (i) above are converted and (iii) the securities issued
or issuable with respect to the securities referred to in clauses (i) and (ii)
in connection with any stock dividend, stock split (forward or reverse),
combination of shares, recapitalization, merger, consolidation, redemption,
exchange of securities or other reorganization or reclassification after the
date hereof.
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"Section 355(e) Plan" means any transaction or series of transactions
or any agreement, understanding or arrangement or any substantial negotiations
with respect to any transaction or series of transactions, that is, or that is
presumed to be, for purposes of Section 355(e) of the Internal Revenue Code of
1986 and any proposed, temporary or final Treasury Regulations promulgated
thereunder, part of a plan or series of related transactions.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Spin-Off" shall have the meaning set forth in the recitals hereto.
"Spin-Off Effective Time" means the latest effective date of any and
all distributions of Xxxxxx Class C Common Stock and Xxxxxx Preference Stock,
made in connection with or pursuant to the Spin-Off.
"Subject Securities" means the Registrable Securities or any securities
that are substantially similar to the Registrable Securities, including any
securities convertible into or exercisable or exchangeable for, that represent
the right to receive, or that have a value derived from shares of Registrable
Securities or any substantially similar securities.
"Tax Restriction Period" means the period from and including the date
of this Agreement to and including the date of the second anniversary of the
Spin-Off Effective Time; provided, however, that if (a) the Internal Revenue
Service issues to GM an unconditional private letter ruling to the effect that
sales of the Registrable Securities by the Donees shall not be treated as being
made pursuant to a Section 355(e) Plan that includes the Spin-Off and (b) such
private letter ruling is acceptable to counsel to GM then, as to a sale of
Registrable Securities by a Donee that complies fully with the restrictions and
limitations, if any, contained in such private letter ruling, the Tax
Restriction Period shall end upon the date of the delivery of such private
letter ruling, but only if and so long as such private letter ruling has not
been withdrawn, invalidated, revoked or otherwise terminated or modified in an
adverse manner, and so long as GM shall not have been notified by the Internal
Revenue Service, and shall not have otherwise reasonably determined, on the
basis of an opinion of outside tax counsel, that there is more than an
immaterial possibility that the sales of the Registrable Securities by the
Donees will be treated as being made pursuant to a Section 355(e) Plan that
includes the Spin-Off.
"Transfer" means any sale, transfer, or other disposition of
Registrable Securities (including, without limitation, any sale in compliance
with the applicable provisions of Rule 144 under the Securities Act or any
successor provision thereto, any offering pursuant to Rule 144A under the
Securities Act or any successor provision thereto, any privately-negotiated sale
with one or more transferees, any brokerage or market transaction or any block
sale), any Hedging Transaction (including any pledge and any disposition upon
the foreclosure of any pledge) or any agreement, understanding or arrangement to
do any of the foregoing or any substantial negotiations with respect thereto.
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"Trustees" shall have the meaning set forth in Section 4(a).
"VEBA" shall have the meaning set forth in the recitals hereto.
"VEBA Named Fiduciary" shall have the meaning set forth in the recitals
hereto.
"VEBA Trustee" shall have the meaning set forth in the recitals hereto.
8. Miscellaneous.
(a) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented except by a writing signed by the VEBA, the Pension Plan and GM.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be in writing and, except as specified herein,
shall be made by hand delivery, by registered or certified first-class mail,
return receipt requested, overnight courier or facsimile transmission:
(1) If to the Pension Plan:
United States Trust Company of New York
000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Authorized Agent
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
General Motors Investment Management Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Managing Director, North American
Equities
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxx, Day, Xxxxxx & Xxxxx
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0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to the VEBA:
United States Trust Company of New York
000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Authorized Agent
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
General Motors Investment Management Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Investment Officer,
GM Subsidiaries
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) If to GM:
General Motors Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
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Facsimile: (000) 000-0000
with a copy to:
General Motors Corporation
Legal Staff
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx 000-X00-X00
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices and communications shall be deemed to have been duly given and
received: when received telephonically, if notice by teleconference is
specifically called for by this Agreement; when delivered by hand, if hand
delivered; the fifth Business Day after being deposited in the mail, registered
or certified, return receipt requested, first class postage prepaid, or earlier
Business Day actually received, if mailed; the first Business Day after being
deposited with an overnight courier, postage prepaid, if by overnight courier;
upon oral confirmation of receipt, if by facsimile transmission. Each party
agrees promptly to confirm receipt of all notices. Whenever notices are required
to be given by any investment manager (including the VEBA Trustee and the
Pension Plan Trustee) with respect to the shares of Xxxxxx Class C Common Stock
contributed hereunder, such notices may only be given by an officer or employee
of such investment manager designated in advance in writing to the recipient of
such notice.
(c) No Third Party Beneficiaries. This Agreement shall be for
the sole and exclusive benefit of GM, the VEBA, the VEBA Trustee, the Pension
Plan, the Pension Plan Trustee and any other investment manager or managers
acting on behalf of the VEBA or the Pension Plan with respect to the Registrable
Securities owned by the VEBA or the Pension Plan, and their respective
successors, and directors, trustees, officers, employees, agents and controlling
Persons indemnified hereunder. Nothing in this Agreement shall be construed to
give any other Person any legal or equitable right, remedy or claim under this
Agreement.
(d) Descriptive Headings. The headings of the sections of this
Agreement are inserted for convenience only and shall not constitute a part
hereof.
(e) Cooperation. Each party hereto shall take such further
action, and execute such additional documents, as may be reasonably requested by
any other party hereto in order to carry out the purposes of this Agreement.
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(f) Binding Effect; Assignment. This Agreement shall be
binding upon and shall inure to the benefit of and be enforceable by each of the
parties and their successors and the directors, trustees (including, without
limitation, any successor trustee for the VEBA or the Pension Plan), officers,
employees, agents and controlling Persons of the parties. Except for an
assignment to a successor trustee or to an investment manager as stated herein,
none of the rights or obligations under this Agreement shall be assigned by VEBA
or the Pension Plan without the consent of GM or by GM without the consent of
the VEBA and the Pension Plan.
(g) Counterparts. This Agreement may be executed in
counterparts, and shall be deemed to have been duly executed and delivered by
all parties when each party has executed a counterpart hereof and delivered an
original or facsimile copy thereof to the other party. Each such counterpart
hereof shall be deemed to be an original, and all of such counterparts together
shall constitute one and the same instrument.
(h) Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement shall be governed by the internal
laws (and not the laws of conflict) of the State of Delaware.
(i) Acknowledgments. Each of the VEBA and the Pension Plan
agrees that it will obtain written acknowledgments, and provide a copy of such
acknowledgments to GM and Xxxxxx, from each of its investment managers relating
to the Registrable Securities owned by it, and, with respect to the VEBA (other
than the VEBA Trustee), the shares of Xxxxxx Class C Common Stock contributed
hereunder and from the valuation advisers of the VEBA Trustee and the Pension
Plan Trustee, confirming that such entity has received and reviewed this
Agreement and the Donees Registration Rights Agreement (if executed and
delivered as contemplated by the terms of the Letter Agreement), and will comply
with the terms of this Agreement and the Donees Registration Rights Agreement
(if executed and delivered as contemplated by the terms of the Letter Agreement)
applicable to it.
* * * * *
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IN WITNESS WHEREOF, the parties hereto, being duly authorized, have
executed and delivered this Contribution and Transfer Agreement on the date
first above written.
GENERAL MOTORS SPECIAL HOURLY
EMPLOYEES PENSION TRUST
By: United States Trust Company of New York,
As Trustee
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
SUB-TRUST OF THE GENERAL MOTORS WELFARE
BENEFIT TRUST
By: United States Trust Company of New York,
As Trustee
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
GENERAL MOTORS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant General Counsel
14
