EXHIBIT 99.76
EXECUTION COPY
STOCKHOLDER AGREEMENT
This Stockholder Agreement (this "Agreement") is made and
entered into as of December 14, 2001, by and among Vivendi Universal, S.A., a
societe anonyme organized under the laws of France ("Stockholder"), General
Motors Corporation, a Delaware corporation ("GM") and Xxxxxx Electronics
Corporation, a Delaware corporation (together with any successor thereto, as
further defined below, the "Company").
WHEREAS, the Company, a wholly owned subsidiary of GM, and
EchoStar Communications Corporation, a Nevada corporation ("EchoStar"), desire
to combine the business of the Company with the business of EchoStar, following
the separation of the Company from GM, pursuant to a merger of EchoStar with and
into the Company, with the Company as the surviving corporation (the "Merger"),
as contemplated by the Merger Agreement (as defined below); and
WHEREAS, the Merger will occur pursuant to an Agreement and
Plan of Merger by and among the Company and EchoStar, dated as of October 28,
2001, as amended from time to time (the "Merger Agreement");
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. Certain Defined Terms. For purposes of this
Agreement, the following terms shall have the meanings specified in this Section
1.1:
(a) "Affiliate" shall have the meaning ascribed to such term
in Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date of this Agreement.
(b) "Amended and Restated Bylaws" shall mean the Amended and
Restated Bylaws of the Company, as in effect at the Merger Effective Time and,
thereafter, as amended or restated from time to time.
(c) "Amended and Restated Certificate of Incorporation" shall
mean the Amended and Restated Certificate of Incorporation of the Company, as in
effect at the Merger Effective Time and, thereafter, as amended or restated from
time to time.
(d) "Code" shall mean the United States Internal Revenue Code
of 1986, as amended.
(e) "Company" shall mean Xxxxxx Electronics Corporation, a
Delaware corporation, and any successor (by merger, consolidation, transfer or
otherwise) to all or substantially all of its business and assets, including
without limitation, the surviving corporation of the Merger.
(f) "Control" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date of this Agreement.
(g) "Equity Securities" shall mean any and all shares,
interests, participation or other equivalents (however designated, whether
voting or non-voting) of capital stock, membership interests or equivalent
ownership interests in or issued by the Company.
(h) "Exchange Act" means the U.S. Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
(i) "Investment Agreement" means that certain Investment
Agreement, by and between EchoStar and Stockholder, dated as of the date hereof.
(j) "Merger Effective Time" shall mean the consummation of the
Merger provided for in Article 1 of the Merger Agreement (as in effect on the
date hereof).
(k) "Person" means and includes an individual, a partnership,
a limited liability company, a joint venture, a corporation, a trust, an
unincorporated organization, a governmental or regulatory body or any
department, instrumentality or agency thereof, and any court, but does not
include a pension plan or a retirement plan (including a pension trust or
retirement trust formed in connection with such a plan).
(l) "Second Anniversary" shall mean the date that is the
second anniversary of the Merger Effective Time.
(m) "Tax Affiliate" shall mean any Person, other than a Tax
Related Party, if at least five percent (measured by either voting power or
value) of the stock or other equity interests in that Person are owned directly
or indirectly by Stockholder and its Tax Related Parties, taken together.
(n) "Tax Related Party" shall mean (i) any Person related to
Stockholder within the meaning of Section 267(b) or Section 707(b)(1) of the
Code that is Controlled by Stockholder, (ii) any Controlled Affiliate of
Stockholder and (iii) any Person acting as agent for or at the behest of
Stockholder or any Person described in clauses (i) or (ii) hereof.
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ARTICLE 2
RESTRICTIONS ON ACQUISITIONS
Section 2.1. Certain Restrictions on the Purchase of Shares.
From the date of this Agreement until the first day after the Second
Anniversary, Stockholder shall not enter into, and shall not permit any Tax
Related Party to enter into, and Stockholder shall take and shall cause each Tax
Related Party to take commercially reasonable actions to prevent any Tax
Affiliate from entering into, any transaction or series of transactions pursuant
to which, for purposes of Section 355(e) of the Code, Stockholder, any Tax
Related Party or any Tax Affiliate (i) would acquire (other than solely by
reason of the constructive ownership rules contained in Section 355(e)(4)(C)(ii)
of the Code) any Equity Securities or any rights, warrants or options to
acquire, or securities convertible into or exchangeable for, any Equity
Securities or (ii) would acquire (other than solely by reason of the
constructive ownership rules contained in Section 355(e)(4)(C)(ii) of the Code)
(x) any interest in any Equity Securities, (y) any instrument that is treated,
for purposes of Section 355(e) of the Code, as an option to acquire any interest
in any Equity Securities or (z) any other security or instrument (including any
derivative contract), the value of which is determined principally by reference
to Equity Securities, or enter into any agreement, understanding or arrangement
or any substantial negotiations with respect to any such transaction.
Notwithstanding the foregoing, nothing in this Section 2.1 shall preclude
Stockholder and its Tax Related Parties from acquiring ownership of Equity
Securities (i) directly from the Company or its predecessors (including pursuant
to the Investment Agreement), (ii) in exchange for EchoStar stock in the Merger
or (iii) on settlement of the CVRs (as defined in the Investment Agreement) or
pursuant to Section 4.04 of the Investment Agreement.
Section 2.2. Restriction on Acquisition of GM Class H Common
Stock and GM $1-2/3 Common Stock. From the date of this Agreement until the
Merger Effective Time, Stockholder shall not acquire, and shall not permit any
of its Tax Related Parties to acquire, and Stockholder shall take and shall
cause each Tax Related Party to take commercially reasonable actions to prevent
any Tax Affiliate from acquiring, for purposes of Section 355(e) of the Code
(other than solely by reason of the constructive ownership rules contained in
Section 355(e)(4)(C)(ii) of the Code), (x) any interest in shares of GM's Class
H common stock, par value $0.10 per share ("GM Class H Common Stock") or GM's
common stock, par value $1-2/3 per share ("GM $1-2/3 Common Stock"), (y) any
instrument that is treated, for purposes of Section 355(e) of the Code, as an
option to acquire any interest in any shares of GM Class H Common Stock or GM
$1-2/3 Common Stock or (z) any other security or instrument (including any
derivative contract), the value of which is determined principally by reference
to GM Class H Common Stock or GM $1-2/3 Common Stock, or enter into any
agreement, understanding or arrangement or any substantial negotiations with
respect to any such acquisition.
Section 2.3. Non-Permitted Transfers. Any attempted
acquisition of Equity Securities, GM Class H Common Stock or GM $1-2/3 Common
Stock other than in accordance with this Agreement shall be void, and the
Company or GM, as applicable,
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shall refuse to recognize any such attempted acquisition and shall not reflect
on its records any change in record ownership of any Equity Securities, GM Class
H Common Stock or GM $1-2/3 Common Stock pursuant to any such attempted
acquisition.
Section 2.4. The Ruling Request. Stockholder shall use
commercially reasonable efforts to cooperate with GM in the preparation of the
Ruling Request (as defined in the Implementation Agreement by and among GM, the
Company and EchoStar, dated as of October 28, 2001, as amended from time to time
(the "Implementation Agreement")) and any other IRS Submissions (as defined in
the Implementation Agreement) and shall use commercially reasonable efforts to
provide GM with such representations and warranties and such covenants as may be
requested by the IRS (as defined in the Implementation Agreement) or reasonably
requested by GM in connection with the Ruling Request or any other IRS
Submission.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of Stockholder.
Stockholder hereby represents and warrants to the Company and GM as follows:
(a) Due Authorization and Execution. Stockholder is duly
organized and validly existing under the laws of France and has all requisite
corporate power and authority to carry on its business as presently conducted.
The execution and delivery of this Agreement by Stockholder has been duly
authorized by all necessary action on behalf of Stockholder. This Agreement has
been duly executed and delivered by Stockholder and, assuming the due
authorization, execution and delivery by the other parties hereto, constitutes
the legal, valid and binding obligation of Stockholder, enforceable against
Stockholder in accordance with its terms, except as enforceability may be
limited by bankruptcy, similar laws of debtor relief and general principles of
equity.
(b) No Conflicts; Consents. The execution and delivery of this
Agreement by Stockholder will not:
(i) violate any provision of the Restated Corporate
Statutes of Stockholder;
(ii) violate, conflict with, or result in a breach of
any provision of, or constitute a default (or an event which, with the
giving of notice, the passage of time or both, would constitute a
default) under, require the consent of any party under, or entitle any
party (with the giving of notice, the passage of time or both) to
terminate, accelerate, modify or call a default under, or result in the
creation of any liens, pledges, security interests, preemptive rights,
charges, restrictions, claims or other encumbrances of any kind or
nature (collectively, "Encumbrances") upon any of the properties or
assets of Stockholder or its Affiliates under any of the terms,
conditions or provisions of any material note,
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bond, mortgage, indenture, deed of trust, intellectual property or
other license, contract, undertaking, agreement, lease or other
instrument or obligation to which Stockholder is a party;
(iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Stockholder; or
(iv) require any consent or approval of, or
registration or filing by Stockholder or any of its Affiliates with,
any third party or governmental authority.
(c) Ownership of GM Class H Common Stock and GM $1-2/3 Common
Stock. To the knowledge of Stockholder, neither Stockholder nor any of its Tax
Related Parties or Tax Affiliates owns, for purposes of Section 355(e) of the
Code (other than solely by reason of the constructive ownership rules contained
in Section 355(e)(4)(C)(ii) of the Code), (x) any interest in shares of GM Class
H Common Stock or GM $1-2/3 Common Stock, (y) any instrument that is treated,
for purposes of Section 355(e) of the Code, as an option to acquire any interest
in any shares of GM Class H Common Stock or GM $1-2/3 Common Stock or (z) any
other security or instrument (including any derivative contract), the value of
which is determined principally by reference to GM Class H Common Stock or GM
$1-2/3 Common Stock, or has entered into any agreement, understanding or
arrangement or any substantial negotiations with respect to any such ownership.
Section 3.2. Representations and Warranties of the Company.
The Company represents and warrants to Stockholder and GM as follows:
(a) Corporate Power and Authority. The Company is a
corporation validly existing and in good standing under the laws of the State of
Delaware, with all corporate power to carry on its business as now conducted.
The Company has all requisite corporate power and authority to enter into this
Agreement. The execution and delivery of this Agreement by the Company has been
duly authorized by all necessary corporate action on the part of the Company.
This Agreement has been duly executed and delivered by the Company, and,
assuming the due authorization, execution and delivery by the other parties
hereto, constitutes the legal, valid and binding obligation of Company,
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by bankruptcy, similar laws of debtor relief and
general principles of equity.
(b) No Conflicts; Consents. The execution and delivery of this
Agreement by the Company will not:
(i) violate any provision of the Company's
certificate of incorporation or bylaws;
(ii) violate, conflict with, or result in a breach of
any provision of, or constitute a default (or an event which, with the
giving of notice, the passage of time or both, would constitute a
default) under, require the consent of
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any party under, or entitle any party (with the giving of notice, the
passage of time or both) to terminate, accelerate, modify or call a
default under, or result in the creation of any Encumbrances upon any
of the properties or assets of the Company or its Affiliates under any
of the terms, conditions or provisions of any material note, bond,
mortgage, indenture, deed of trust, intellectual property or other
license, contract, undertaking, agreement, lease or other instrument or
obligation to which the Company is a party;
(iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Company; or
(iv) require any consent or approval of, or
registration or filing by the Company or any of its Affiliates with,
any third party or governmental authority.
Section 3.3. Representations and Warranties of GM. GM
represents and warrants to the Company and Stockholder as
follows:
(a) Corporate Power and Authority. GM is a corporation validly
existing and in good standing under the laws of the State of Delaware, with all
corporate power to carry on its business as now conducted. GM has all requisite
corporate power and authority to enter into this Agreement. The execution and
delivery of this Agreement by GM has been duly authorized by all necessary
corporate action on the part of GM. This Agreement has been duly executed and
delivered by GM, and, assuming the due authorization, execution and delivery by
the other parties hereto, constitutes the legal, valid and binding obligation of
GM, enforceable against GM in accordance with its terms, except as
enforceability may be limited by bankruptcy, similar laws of debtor relief and
general principles of equity.
(b) No Conflicts; Consents. The execution and delivery of this
Agreement by GM will not:
(i) violate any provision of GM's certificate of
incorporation or bylaws;
(ii) violate, conflict with, or result in a breach of
any provision of, or constitute a default (or an event which, with the
giving of notice, the passage of time or both, would constitute a
default) under, require the consent of any party under, or entitle any
party (with the giving of notice, the passage of time or both) to
terminate, accelerate, modify or call a default under, or result in the
creation of any Encumbrances upon any of the properties or assets of GM
or its Affiliates under any of the terms, conditions or provisions of
any material note, bond, mortgage, indenture, deed of trust,
intellectual property or other license, contract, undertaking,
agreement, lease or other instrument or obligation to which GM is a
party;
(iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to GM; or
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(iv) require any consent or approval of, or
registration or filing by GM or any of its Affiliates with, any third
party or governmental authority.
ARTICLE 4
CONSENT TO EXCESS SHARE PROVISION IN CHARTER
Section 4.1. Restrictions on Ownership of Securities.
Stockholder hereby acknowledges that, for the purpose of protecting the Company
and its stockholders from potential adverse tax effects that could result for
United States federal income tax purposes from certain changes in ownership of
shares of the Company's stock in light of the Company's participation in the
Spin-Off and the Merger and related transactions, the Amended and Restated
Certificate of Incorporation shall contain a restriction on the ownership or
transfer of stock of the Company to the extent that such stock otherwise would
be owned, directly or indirectly for purposes of Section 355(e) of the Code, by
Stockholder or certain Persons that are related to Stockholder for tax purposes.
In general, these restrictions will cause the transfer of the restricted shares
to a trust, which will (i) sell the restricted shares to a permitted transferee
and (ii) remit to the purported transferee or owner of the restricted shares an
amount generally equal to the lesser of (x) the amount received by the trust on
the sale of the restricted shares and (y) the amount paid for the restricted
shares (in the case of a purported transferee) or the fair market value of the
restricted shares on the date on which the prohibited ownership arose (in the
case of a purported owner). The restrictions described in this Section 4.1 shall
not apply to shares of the Company's stock acquired by Stockholder or its Tax
Related Parties (i) directly from the Company or its predecessors (including
pursuant to the Investment Agreement), (ii) in exchange for EchoStar stock in
the Merger or (iii) on settlement of the CVRs or pursuant to Section 4.04 of the
Investment Agreement. Stockholder hereby consents to the adoption of such
restrictions and agrees to be bound by the terms thereof.
ARTICLE 5
MARKET ACCESS RESTRICTIONS
Section 5.1. Restrictions on Transfer.
(a) Stockholder agrees that it shall not make any Transfer (as
defined below) from and after the Merger Effective Time until the date which is
six (6) months following the Merger Effective Time.
(b) If, on the date that is four (4) years and six (6) months
after the Merger Effective Time, GM directly or indirectly owns any of the
Company's Class C common stock, par value $0.01 per share (or any securities
issued or issuable with respect thereto 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) (the "Class C Common Stock"), then
Stockholder shall not make any Transfer until the earlier to occur of (i) the
date that is
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five (5) years after the Merger Effective Time and (ii) such time as GM no
longer directly or indirectly owns any Class C Common Stock; provided, however,
that nothing in this clause (b) shall prohibit Stockholder from making any
Transfer the terms (including, without limitation, the specific calendar date of
consummation) of which were irrevocably contractually committed to by
Stockholder prior to the date that is (4) years and six (6) months after the
Merger Effective Time.
(c) In connection with any offering which is GM's
superpriority offering as contemplated by the letter agreement and term sheet
(collectively, the "Term Sheet"), attached as Exhibit K to the Implementation
Agreement, or as contemplated by the definitive registration rights agreement
which will be entered into prior to the Merger Effective Time between the
Company and GM, Stockholder agrees that it shall not make any Transfer (other
than any Transfer the terms (including the specific calendar date of
consummation) of which were irrevocably contractually committed to by
Stockholder prior to the commencement of the applicable period below), during
the following applicable period:
(i) unless otherwise agreed by the lead underwriter
in connection with the offering, commencing on the date which is ten
(10) days prior to the anticipated effective date of any registration
statement (other than a registration statement in connection with any
offering conducted on a delayed or continuous basis pursuant to Rule
415 under the Securities Act) and ending on the date which is ninety
(90) days following such effective date; and
(ii) unless otherwise agreed by the lead underwriter
in connection with the offering, commencing on the date which is ten
(10) days prior to the anticipated commencement of distribution in
connection with an offering conducted on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act and ending on the date
which is ninety (90) days following such commencement of distribution;
provided, however, that such period shall terminate
immediately upon the abandonment of such offering.
(d) Notwithstanding anything to the contrary contained in this
Agreement, Stockholder shall remain subject to the provisions of this Section
5.1 until such time (the "Termination Time") following the Merger Effective Time
that Stockholder, together with its Affiliates, holds a number of shares of
Class A Common Stock, par value $0.01 per share, of the Company (or any
securities issued or issuable with respect thereto 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) (the "Class A Common Stock"), which is
less than 2% of the total number of shares of Class A Common Stock and Class C
Common Stock then outstanding at the time of determination, determined after
giving effect to the conversion, exchange and exercise of any equity securities
convertible into or exchangeable or exercisable for the Class A Common Stock and
Class C Common Stock (other than employee stock options or similar securities
issued to
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employees, officers, directors, consultants and other persons pursuant to
employee benefit plans) (the "Common Stock Deemed Outstanding"); provided,
however, that if at any time after the Termination Time the Stockholder receives
shares of Class A Common Stock issued in settlement of the CVRs and, as a
result, Stockholder, together with its Affiliates, then holds a number of shares
of Class A Common Stock, including such shares issued in settlement of the CVRs,
which is 2% or more of the Common Stock Deemed Outstanding, the provisions of
this Section 5.1 shall be reinstated and remain in effect with respect to
Stockholder until such time thereafter that Stockholder, together with its
Affiliates, holds a number of shares of Class A Common Stock, including such
shares issued in settlement of the CVRs, which is less than 2% of the Common
Stock Deemed Outstanding.
(e) Stockholder shall ensure that any person to whom
Stockholder makes any Transfer (other than pursuant to a broad public
distribution pursuant to Rule 144 under the Securities Act) of any Preferred
Stock (as defined in the Investment Agreement), Class A Common Stock or CVRs
shall agree in writing to become bound by each of the provisions of this
Section.
(f) For the purposes of this Section 5.1, the following terms
shall have the following meanings:
(i) "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, (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
clause (A) or (B) above, whether any such transaction described in
clause (A), (B) or (C) above is to be settled by delivery of Subject
Securities, in cash or otherwise.
(ii) "Securities Act" means the Securities Act of
1933, as amended.
(iii) "Subject Securities" means Class A Common
Stock, Class B Common Stock, par value $0.01 per share, of the Company
(or any securities issued or issuable with respect thereto 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) (the "Class B Common Stock") and Class C Common Stock
or any securities of the Company that are substantially similar to the
Class A Common Stock, the Class B Common Stock or the Class C Common
Stock, 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 Class A Common Stock, Class B Common Stock
or Class C Common Stock or any substantially similar securities.
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(iv) "Transfer" means any sale, transfer, or other
disposition of Subject Securities (as defined above) (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 trade transaction), any Hedging
Transaction (as defined above) (including any pledge and any
disposition upon the foreclosure of any pledge) or any agreement,
understanding or arrangement to do any of the foregoing.
ARTICLE 6
EFFECTIVENESS AND SURVIVAL
Section 6.1. Effectiveness. This Agreement shall become
effective as of the date hereof.
Section 6.2. Survival of Representations and Warranties. The
parties hereto hereby agree that the representations and warranties contained in
Article 3 of this Agreement shall not survive the Merger Effective Time;
provided that the Stockholder's representations and warranties in Section 3.1(c)
hereof shall survive until the expiration of the last applicable statute of
limitations.
ARTICLE 7
MISCELLANEOUS
Section 7.1. Amendment. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except upon
the execution and delivery of a written agreement executed by each of the
parties hereto.
Section 7.2. Remedies Cumulative. All rights, powers and
remedies provided under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative, and the exercise of
any thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
Section 7.3. No Waiver. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
Section 7.4. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or dispatched by a nationally recognized
overnight courier service to the
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parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to the Company:
Xxxxxx Electronics Corporation
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
X.X. Xxx 000
Xx Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx and
Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
(b) if to Stockholder:
Vivendi Universal, S.A.
00, Xxxxxx xx Xxxxxxxxx
00000 Xxxxx Cedex 08
France
Attention: Xx. Xxxxxxxxx Hannezo
Telecopy No.: 00-0-0000-0000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(d) if to GM:
General Motors Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
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with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: R. Xxxxx Xxxx and Xxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
and with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
Section 7.5. Interpretation; Absence of Presumption.
(a) For the purposes of this Agreement, (i) words in the
singular shall be held to include the plural and vice versa and words of one
gender shall be held to include the other gender as the context requires, (ii)
the terms "hereof", "herein", and "herewith" and words of similar import shall,
unless otherwise stated, be construed to refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Article, Section and
paragraph references are to the Articles, Sections and paragraphs to this
Agreement unless otherwise specified, (iii) the use of the word "including" and
words of similar import when used in this Agreement shall mean "including,
without limitation," unless the context otherwise requires or unless otherwise
specified, (iv) the word "or" shall not be exclusive, (v) provisions shall
apply, when appropriate, to successive events and transactions and (vi) all
references to the word "shares" shall be deemed also to refer to fractions of
shares, as the context requires.
(b) The Article and Section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(c) This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party
drafting or causing any instrument to be drafted.
Section 7.6. Counterparts. This Agreement may be executed in
counterparts, which together shall constitute one and the same Agreement. The
parties may execute more than one copy of the Agreement, each of which shall
constitute an original.
Section 7.7. Entire Agreement; Severability.
(a) This Agreement (including the documents and the
instruments referred to herein) contains the entire agreement between the
parties with respect to the subject matter hereof, and supersede all previous
agreements, negotiations, discussions,
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writings, understandings, commitments and conversations with respect to such
subject matter, and there are no agreements or understandings between the
parties other than those set forth or referred to herein or therein.
(b) If any provision of this Agreement or the application
thereof to any Person or circumstance is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof, or the application of such provision to Persons or circumstances or in
jurisdictions other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to either party. Upon such determination, the parties shall negotiate in
good faith in an effort to agree upon such a suitable and equitable provision to
effect the original intent of the parties.
Section 7.8. No Third Party Beneficiaries. The provisions of
this Agreement are solely for the benefit of the parties and are not intended to
confer upon any Person except the parties any rights or remedies hereunder and
there are no third party beneficiaries of this Agreement and this Agreement
shall not provide any third Person with any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
Section 7.9. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware without
regard to principles of conflicts of law.
Section 7.10. Jurisdiction. Any suit, action or proceeding
seeking to enforce an provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated by this
Agreement may be brought against any of the parties in any Federal court located
in the State of Delaware, or any Delaware state court, and each of the parties
hereto hereby consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and waives any objection to venue laid therein. Process in any such suit, action
or proceeding may be served on any party anywhere in the world, whether within
or without the State of Delaware. Without limiting the generality of the
foregoing, each party hereto agrees that service of process upon such party at
the address referred to in Section 7.4 hereof, together with written notice of
such service to such party, shall be deemed effective service of process upon
such party.
Section 7.11. Specific Performance. The parties agree that the
remedies at law for any breach or threatened breach, including monetary damages,
are inadequate compensation for any loss and that any defense in any action for
specific performance that a remedy at law would be adequate is waived.
Accordingly, in the event of any actual or threatened default in, or breach of,
any of the terms, conditions and provisions of this Agreement, the party or
parties who are or are to be thereby aggrieved shall have the right to specific
performance and injunctive or other equitable relief of its rights under this
Agreement, in addition to any and all other rights and remedies at law or in
equity,
13
and all such rights and remedies shall be cumulative. Any requirements for the
securing or posting of any bond with such remedy are waived.
Section 7.12. Assignment. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other party. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors, heirs and assigns.
Section 7.13. Company Reorganization.
(a) The parties acknowledge and agree that GM and the Company
may, prior to the Spin-Off Effective Time (as defined in the Implementation
Agreement), implement a corporate reorganization (the "Company Reorganization"),
which would result in the creation of a holding company (organized as a Delaware
corporation) that would exist above the Company as a parent company and below GM
as a wholly owned subsidiary, either directly or through a wholly owned limited
liability company ("Xxxxxx Holdings"). As a result of the Company
Reorganization, the holder of common stock, par value $0.01 per share, of the
Company would become the holder of common stock, par value $0.01 per share, of
Xxxxxx Holdings. Xxxxxx Holdings would then be the entity that would be
separated from GM in accordance with the terms of the Implementation Agreement
and would merge with EchoStar in accordance with the terms of the Merger
Agreement.
(b) Upon the reasonable request of any party hereto, subject
to the agreement of each of the parties (whose agreement will not be
unreasonably withheld or delayed), the parties shall promptly amend and restate
this Agreement to the extent appropriate to reflect the implementation of the
Company Reorganization and the matters addressed in this Section 7.13, and the
parties hereby agree to execute and deliver any such amendment and restatement
of this Agreement prior to the implementation of the Company Reorganization.
Section 7.14. Other Strategic Investors. If (i) after the date
hereof but prior to the Second Anniversary, the Company agrees to issue stock or
equity-related securities in exchange for gross proceeds of at least five
hundred million dollars ($500,000,000) to a strategic investor other than
Stockholder and (ii) the new strategic investor is subject to restrictions on
the acquisition of Equity Securities that are less restrictive than the
restrictions imposed on Stockholder pursuant to Section 2.1 hereof (which less
restrictive provisions shall require the consent of GM), then, from and after
the time of such investment, Section 2.1 hereof shall be deemed to be amended to
conform to such less restrictive provisions imposed on the new strategic
investor.
[signature page follows]
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IN WITNESS WHEREOF, each of the undersigned, intended to be
legally bound, has caused this Agreement to be duly executed and delivered on
the date first above written.
STOCKHOLDER
VIVENDI UNIVERSAL, S.A.
By: /s/ Xxxx - Xxxxx Xxxxxxx
-----------------------------------------
Name:
Title:
XXXXXX ELECTRONICS
CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
GENERAL MOTORS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name:
Title:
[SIGNATURE PAGE TO STOCKHOLDER AGREEMENT]
