EXHIBIT 99.1
EXECUTION COPY
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement"), dated as of December
15, 2004, is hereby entered into by and between General Motors Corporation, a
Delaware corporation ("GM"), and United States Trust Company of New York, solely
in its capacity as trustee (the "Trustee") of the Sub-Trust of the General
Motors Welfare Benefit Trust (the "Sub-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 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). Capitalized terms used and not otherwise
defined herein shall have the respective meanings set forth in the Registration
Rights Agreement (as defined below).
WHEREAS, GM owns 980,670 shares (the "Note Shares") of Class A
Common Stock, par value $0.01 per share (the "Class A Common Stock"), of XM
Satellite Radio Holdings Inc., a Delaware corporation (the "Company"), which GM
received in connection with the conversion of certain GM Notes on February 26,
2004;
WHEREAS, GM owns an additional 10,000,000 shares (the "Warrant
Shares" and, together with the Note Shares, the "XMSR Shares") of Class A Common
Stock, which GM received in connection with the exercise of the GM Warrant on
April 29, 2004;
WHEREAS, GM desires, subject to the terms and conditions of this
Agreement, to contribute some or all of the XMSR Shares to the VEBA;
WHEREAS, the VEBA, subject to the terms and conditions of this
Agreement, is prepared to accept all of the XMSR Shares that may be contributed
to the VEBA as described in the preceding recital;
WHEREAS, the Company, GM and numerous other parties have entered
into a Second Amended and Restated Registration Rights Agreement, dated as of
January 28, 2003 (the "Registration Rights Agreement");
WHEREAS, GM has entered into a Lock-Up Agreement, dated November 19,
2004 (the "Lock-Up Agreement"), with Bear, Xxxxxxx & Co. Inc., a copy of which
is attached hereto as Exhibit A, pursuant to which GM has agreed not to dispose
of its shares of Class A Common Stock, including the XMSR Shares, prior to
February 16, 2005;
WHEREAS, the Lock-Up Agreement permits the transactions contemplated
by this Agreement, provided that the Sub-Trust agrees to be bound by the
provisions of the Lock-Up Agreement as if the Sub-Trust were a party thereto;
WHEREAS, pursuant to the Assignment Agreement (as defined below) and
effective upon completion of a Contribution, the Sub-Trust will agree to be
bound by the provisions of the Lock-Up Agreement as if it were a party thereto;
WHEREAS, the Trustee has been appointed by a named fiduciary for
investment purposes of the VEBA (the "VEBA Named Fiduciary") (as determined in
accordance with Section 402(a) of the Employee Retirement Income Security Act of
1974, as amended) to manage the XMSR Shares contributed to the VEBA 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 or trustees for any such shares);
and
WHEREAS, the Trustee has full power and authority to execute and
deliver this Agreement for the account and on behalf of the Sub-Trust and the
VEBA and to so bind the Sub-Trust and VEBA.
NOW, THEREFORE, in consideration of the foregoing and the promises
and covenants contained herein, the parties hereto agree as follows:
1. CONTRIBUTION OF XMSR SHARES.
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(a) Contribution Conditions. GM agrees that any contribution of XMSR
Shares made by GM to the VEBA pursuant to this Agreement (such contribution
being hereinafter referred to as the "Contribution") shall be made only (1) on
such days as the Nasdaq National Market ("Nasdaq") shall be open for trading (a
"Business Day"), (2) after each of GM, the Sub-Trust and the Company shall have
executed and delivered an Assignment and Assumption Agreement (the "Assignment
Agreement") in the form attached hereto as Exhibit B, and (3) if the Assignment
Agreement shall then continue to be in full force and effect.
(b) Contribution Teleconference. At any time after 4:30 p.m.,
New York City time, but in any event prior to 6:00 p.m., New York City time, on
the Business Day on which GM contemplates making a Contribution to the VEBA, GM
will give the Trustee and its valuation adviser notice by teleconference of its
possible interest in making a Contribution to the VEBA. In such teleconference,
GM will make one or more estimates of the specific number of XMSR Shares which
GM may contribute, and the Trustee, together with its valuation adviser, will
state the value per share it would assign for the Contribution based on each
such estimate, stated as a percentage of the mean between the highest and lowest
quoted selling prices of Class A Common Stock from between 9:30 a.m. and 4:00
p.m., New York City time, on such date on the Nasdaq, as reported by Reuters. If
GM so decides, it shall irrevocably commit itself in such teleconference to
contribute a number of XMSR Shares equal to one of such estimates, and the
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, (1) the Trustee's valuation adviser will deliver to the Trustee, with a
copy to GM, its written valuation opinion, confirming the valuation given in the
teleconference and (2) GM shall notify the Company that a Contribution has been
made effective.
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(c) Delivery of Securities. As soon as practicable after the
teleconference in which a Contribution is made, but in no event later than 5:00
p.m., New York City time, on the fourth full Business Day after such
Contribution, GM shall deliver to the VEBA at the office of the Trustee (or such
other place as may be mutually agreed) stock certificates representing (or other
evidence of ownership of) all of the XMSR Shares contributed to the VEBA duly
endorsed in blank or accompanied by duly-executed stock powers in a form
reasonably approved by the Trustee. 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 Trustee.
(d) VEBA Representations. The VEBA represents and warrants to GM
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 XMSR Shares. The VEBA understands and
acknowledges that the Contribution has not been and will not be registered under
the Securities Act of 1933, as amended (the "Securities Act"), or any state
securities law. The VEBA also understands and acknowledges that the XMSR Shares
received in the Contribution may not be offered or sold except (i) in a
transaction registered under the Securities Act and applicable state securities
laws or (ii) pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act and applicable state
securities laws.
(e) GM Representations. GM represents and warrants to the VEBA that
GM is (and at the time of any Contribution will be) the record and beneficial
owner of, and has (and at the time of any Contribution will have) good and valid
title to, all of the XMSR Shares, free and clear of any and all liens, claims
and encumbrances, other than those that may be imposed by applicable securities
laws, the Assignment Agreement, the Registration Rights Agreement and the
Lock-Up Agreement. GM represents and warrants to the VEBA that, except as may
arise under this Agreement, the Assignment Agreement, the Registration Rights
Agreement or the Lock-Up Agreement, none of the XMSR Shares is (and at the time
of any Contribution none of the XMSR Shares will be) subject to (i) any option,
warrant, purchase right or other contract that requires GM to sell, transfer or
otherwise dispose of any of the XMSR Shares or (ii) any voting trust, proxy or
other contract or understanding with respect to the voting, dividend rights,
preferences, sale, acquisition or other disposition of any of the XMSR Shares.
(f) Execution of Assignment Agreement. Each of GM and the Sub-Trust
shall promptly execute and deliver the Assignment Agreement at such time as the
Company executes and delivers the Assignment Agreement.
(g) No Changes to Registration Rights Agreement. GM covenants that
it will not, without the prior written consent of the Sub-Trust, agree to the
amendment or waiver of any provision of the Registration Rights Agreement, or
the addition to the Registration Rights Agreement of any new provision, that
would become applicable to the Sub-Trust or the XMSR Shares pursuant to the
Assignment Agreement upon completion of the Contribution.
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2. MISCELLANEOUS.
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(a) Termination. This Agreement shall terminate and be of no further
force and effect if GM shall not have committed itself in the teleconference
referred to in Section 1(b) on or prior to December 31, 2004 (or such later date
as may be agreed to in writing by the parties hereto) to contribute any XMSR
Shares. This Agreement may also be terminated at any time by mutual written
agreement of GM and the VEBA.
(b) 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 GM and the Sub-Trust. Any obligation of, or restriction
applicable to, the Sub-Trust hereunder may be waived by a writing signed by GM.
Any obligation of, or restriction applicable to, GM hereunder may be waived by a
writing signed by the Sub-Trust.
(c) Notices. Except where notice by teleconference is specifically
called for in this Agreement, notices and other communications under this
Agreement shall be in writing and shall be deemed properly served if: (i) mailed
by registered or certified mail, return receipt requested, (ii) delivered by a
recognized overnight courier service, (iii) delivered personally, or (iv) sent
by facsimile transmission addressed as follows (or to such other address, or to
the attention of such other person, as any party shall have furnished in writing
pursuant to this Section 2(c)):
(i) If to the VEBA or to the Sub-Trust:
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
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with copies to:
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General Motors Investment Management Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Investment Officer,
Affiliated Funds
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxx Day
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to GM:
General Motors Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
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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
Such notice shall be deemed to have been received: (i) when received
telephonically, if notice by teleconference is specifically called for by this
Agreement, (ii) three (3) Business Days after the date of mailing if sent by
certified or registered mail, (iii) one (1) Business Day after the date of
delivery if sent by overnight courier, (iv) the date of delivery if personally
delivered, or (v) the next succeeding Business Day after transmission by
facsimile.
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(d) No Third Party Beneficiaries. This Agreement shall be for the
sole and exclusive benefit of GM, the VEBA, the Sub-Trust, the Trustee and any
other investment manager or managers or trustee or trustees acting on behalf of
the VEBA or the Sub-Trust. Nothing in this Agreement shall be construed to give
any other person or entity any legal or equitable right, remedy or claim under
this Agreement.
(e) Adjustments. In the event of any stock dividend or distribution,
stock split (forward or reverse), combination of shares, recapitalization,
merger, consolidation, redemption, exchange of securities or other
reorganization or reclassification after the date hereof with respect to the
XMSR Shares or similar transactions affecting the XMSR Shares, all references
herein to any designation of securities and to any specific number of XMSR
Shares shall be appropriately adjusted to give full effect thereto.
(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 (including, without limitation, any successor investment
manager or trustee for the VEBA or the Sub-Trust). Except for an assignment to a
successor trustee or investment manager of the VEBA or the Sub-Trust as stated
herein, none of the rights or obligations under this Agreement shall be assigned
by the Sub-Trust without the consent of GM or by GM without the consent of the
Sub-Trust.
(g) Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) GOVERNING LAW; CHOICE OF FORUM; JURY TRIAL WAIVER.
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THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CONFLICT OF
LAW PROVISIONS THEREOF OTHER THAN NEW YORK GENERAL OBLIGATIONS LAW SECTIONS
5-1401 AND 5-1402.
IN THE EVENT THAT A JUDICIAL PROCEEDING IS NECESSARY, THE SOLE FORUM
FOR RESOLVING DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT IS THE
FEDERAL COURTS LOCATED IN THE STATE AND COUNTY OF NEW YORK AND RELATED APPELLATE
COURTS (OR IN THE EVENT SUCH COURTS WILL NOT ACCEPT JURISDICTION, THE COURTS OF
THE STATE OF DELAWARE). THE PARTIES HEREBY IRREVOCABLY CONSENT TO THE
JURISDICTION OF SUCH COURTS AND AGREE TO SAID VENUE.
THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
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(i) Severability. The holding of any provision of this Agreement to
be invalid or unenforceable by a court of competent jurisdiction shall not
affect any other provision of this Agreement, which shall remain in full force
and effect. If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, such provision shall be interpreted so as to remain
enforceable to the maximum extent permissible consistent with applicable law and
the remaining conditions and provisions or portions thereof shall nevertheless
remain in full force and effect and enforceable to the extent they are valid,
legal and enforceable, and no provisions shall be deemed dependent upon any
other covenant or provision unless so expressed herein.
(j) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(k) Further Assurances. The parties agree to execute and deliver all
such further documents, agreements and instruments and take such other and
further action as may be necessary or appropriate to carry out the purposes and
intent of this Agreement.
(l) Entire Agreement. This Agreement supersedes all other
agreements, written or oral, concerning the subject matter herein.
[Signatures begin on next page]
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IN WITNESS WHEREOF, the parties hereto, being duly authorized, have
executed and delivered this Contribution Agreement on the date first above
written.
GENERAL MOTORS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
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
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Exhibit A
Copy of Lock-Up Agreement
Exhibit B
Form of Assignment Agreement
