EXHIBIT 99.75
EXECUTION COPY
STOCKHOLDER AGREEMENT
This Stockholder Agreement (this "Agreement") is made and
entered into as of October 28, 2001, by and among The Samburu Warrior Revocable
Trust, created by that certain Trust Instrument establishing The Samburu Warrior
Revocable Trust, Xxxxxxx X. Xxxxx, Trustee, dated December 22, 2000 (the
"Trust"), Xxxxxxx X. Xxxxx, an individual having a business address at c/o
EchoStar Communications Corporation, 0000 X. Xxxx Xx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000 ("Ergen", together with the Trust, the "Stockholders" and each a
"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 (the "Merger Agreement") entered into by and among the Company
and EchoStar concurrently with the execution and delivery of this 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 and 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 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) "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.
(g) "Exchange Act" means the U.S. Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
(h) "Merger Effective Time" shall have the meaning ascribed to
such term in the Merger Agreement.
(i) "Person" means and include 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.
(j) "Second Anniversary" shall mean the date that is the
second anniversary of the Merger Effective Time.
(k) "Tax Related Party" shall mean (i) any Person related to
any Stockholder within the meaning of Section 267(b) or Section 707(b)(1) of the
Code and (ii) any Person acting as agent for or at the behest of any Stockholder
or any Person described in clause (i) hereof; provided, however that for
purposes of this definition Section 267(c)(3) of the Code shall only be
applicable to a partnership in which a Stockholder is a partner if such
Stockholder owns five percent (5%) or more of the capital interest, or the
profits interest, of such partnership.
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ARTICLE 2
[Intentionally Omitted]
ARTICLE 3
RESTRICTIONS ON ACQUISITIONS
Section 3.1. Certain Restrictions on the Purchase of Shares.
From the date of this Agreement until the first day after the Second
Anniversary, Stockholders agree that each Stockholder shall not, and shall not
permit any of its Tax Related Parties to, directly or indirectly, enter into any
transaction or series of transactions pursuant to which any Stockholder or any
of its Tax Related Parties (i) would acquire, directly or indirectly as
determined for purposes of Section 355(e) of the Code, any Equity Securities or
any rights, warrants or options to acquire, or securities convertible into or
exchangeable for, any such Equity Securities or (ii) would acquire, directly or
indirectly, as determined for purposes of Section 355(e) 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, a Stockholder shall be permitted to acquire
ownership of Equity Securities directly from the Company, including options to
acquire Equity Securities issued to such Stockholder by the Company in
compensatory arrangements that comply with the applicable safe harbor for
purposes of Section 355(e) of the Code and the regulations thereunder.
Section 3.2. 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, Stockholders agree that each Stockholder shall not, and
shall not permit any of its Tax Related Parties to, acquire, directly or
indirectly, as determined for purposes of Section 355(e) 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 3.3. Non-Permitted Transfers. Any attempted
acquisition of Equity Securities other than in accordance with this Agreement
shall be void, and the Company shall refuse to recognize any such attempted
acquisition and shall not reflect on its records any change in record ownership
of any Equity Securities pursuant to any such attempted acquisition.
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Section 3.4. The Ruling Request. Stockholders shall cooperate
fully 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 (the "Implementation Agreement")) and any other IRS Submissions
(as defined in the Implementation Agreement) and shall 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.
Section 3.5. Non-Permitted Actions. Stockholders agree that
each Stockholder shall not, and shall not permit any of its Tax Related Parties
to, take any action in its capacity as a stockholder of the Company (including,
without limitation, voting for, or consenting to, a corporate action) to amend
any provision of the Amended and Restated Certificate of Incorporation or the
Amended and Restated Bylaws if such amendment would (i) adversely affect the
computation of "tainted" shares for purposes of Section 355(e) of the Code or
(ii) cause the failure of the Tax-Free Status of the Spin-Off. (as defined in
the Implementation Agreement). Each Stockholder will not enter into a plan or
arrangement (within the meaning of Section 355(e) of the Code) with any of its
partners in any partnership in which such Stockholder holds less than five
percent (5%) of the capital interests and profit interests to acquire directly
or indirectly any Equity Securities.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of Stockholders.
Each Stockholder hereby represents and warrants to the Company and GM as
follows:
(a) Due Authorization and Execution. Stockholder has full
legal power and authority to execute this agreement and to undertake and perform
the obligations required of it hereunder. 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. No consent, waiver, approval or
authorization of, or declaration or filing with, or notification to any third
party or governmental authority is required on the part of Stockholder in
connection with the execution and delivery of this Agreement or the compliance
by Stockholder with any of the provisions hereof.
(c) Ownership of GM Class H Common Stock and GM $1-2/3 Common
Stock. Except for 195,000 shares of GM Class H Common Stock and 2,000
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shares of GM $1-2/3 Common Stock, neither Stockholders nor any of their
respective Tax Related Parties own, directly or indirectly as determined for
purposes of Section 355(e) 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.
(d) Trust Instrument. The Trust is a valid trust created by a
trust instrument dated December 22, 2000, a true and correct copy of which is
attached as Attachment A hereto (except for the redaction of personal
information that is not pertinent for purposes of this Agreement), and such
trust instrument has not been amended, modified, revoked or terminated since the
date of its creation.
Section 4.2. Representations and Warranties of the Company.
The Company represents and warrants to Stockholders 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 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 the Company or its Affiliates under any of the terms,
conditions or provisions of any note, bond,
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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 4.3. Representations and Warranties of GM. GM
represents and warrants to the Company and Stockholders 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 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
(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.
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ARTICLE 5
[Intentionally Omitted]
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 4 of this Agreement shall not survive the Merger Effective Time;
provided that the each Stockholder's representations and warranties in Section
4.1(c) hereof shall survive indefinitely.
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 parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
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(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 any Stockholder:
Xxxxxxx X. Xxxxx
c/o EchoStar Communications Corporation
0000 Xxxxx Xxxx Xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx and
Xxxx X. X'Xxxxx
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,
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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.
[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.
STOCKHOLDERS
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
THE SAMBURU WARRIOR REVOCABLE TRUST
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx, as trustee
XXXXXX ELECTRONICS CORPORATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name:
Title:
GENERAL MOTORS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant General Counsel
[STOCKHOLDER AGREEMENT]
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