EXHIBIT 10.2
SHAREHOLDERS AGREEMENT
AGREEMENT dated December 11, 1998, among GENERAL MOTORS
CORPORATION, a Delaware corporation ("GM"), XXXXXX ELECTRONICS CORPORATION, a
Delaware corporation and a direct wholly owned subsidiary of GM ("XXXXXX"),
HBI, a Minnesota corporation, Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxx (each a "SHAREHOLDER," and collectively, the
"SHAREHOLDERS").
W I T N E S S E T H:
WHEREAS, concurrently herewith, GM, Xxxxxx and United States Satellite
Broadcasting Company, Inc., a Minnesota corporation (the "COMPANY"), are
entering into an Agreement and Plan of Merger (as such agreement may
hereafter be amended from time to time, the "MERGER AGREEMENT"; capitalized
terms used and not defined herein have the respective meanings ascribed to
them in the Merger Agreement), pursuant to which the Company will be merged
with and into Xxxxxx and Xxxxxx shall continue as the surviving corporation
(the "MERGER");
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, GM and Xxxxxx have required that the Shareholders agree, and the
Shareholders have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "COMPANY COMMON STOCK" shall mean at any time, collectively,
the Common Stock, par value $.0001 per share (the "COMMON STOCK") and the
Class A Common Stock, par value $.0001 per share (the "CLASS A COMMON
STOCK"), of the Company. In the event of a stock dividend or distribution,
or any change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term "COMPANY COMMON STOCK" shall be deemed to refer to and include all such
stock dividends and distributions and any shares into which or for which any
or all of the shares of Company Common Stock may be changed or exchanged.
(b) "PERSON" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
(c) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to
any securities shall mean having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT")), including pursuant to any agreement,
arrangement or understanding, whether or not in writing.
Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would
constitute a "group" as within the meanings of Section 13(d)(3) of the
Exchange Act.
2. PROVISIONS CONCERNING COMPANY COMMON STOCK. Each Shareholder
hereby agrees that during the period commencing on the date hereof and
continuing until the first to occur of the Effective Time or termination of
the Merger Agreement in accordance with its terms, at any meeting of the
holders of Company Common Stock, however called, or in connection with any
written consent of the holders of Company Common Stock, such Shareholder
shall vote (or cause to be voted) the shares of Company Common Stock set
forth opposite such Shareholder's name on Schedule I hereto under the caption
"Option Shares" (collectively, and subject to the last sentence of this
Section 2, the "OPTION SHARES"), (i) in favor of the Merger, the execution
and delivery by the Company of the Merger Agreement and the approval of the
terms thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance thereof
and hereof; (ii) against any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement or
this Agreement; and (iii) except as otherwise agreed to in writing in advance
by Xxxxxx, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its Subsidiaries; (B) a sale, lease or
transfer of a material amount of assets of the Company or its Subsidiaries,
or a reorganization, recapitalization, dissolution or liquidation of the
Company or its Subsidiaries; (C) any change in a majority of the persons who
constitute the board of directors of the Company; (D) any change in the
present capitalization of the Company, any mandatory conversion of the Common
Stock into Class A Common Stock, or any amendment of the Company's
Certificate of Incorporation or Bylaws; (E) any other material change in the
Company's corporate structure or business; or (F) any other action involving
the Company or its Subsidiaries which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or materially adversely
affect the Merger and the transactions contemplated by this Agreement and the
Merger Agreement. Such Shareholder shall not enter into any agreement or
understanding with any person or entity the effect of which would be
inconsistent with or violative of the provisions and agreements contained in
this Section 2. The number of Option Shares shall be reduced or increased
after the date hereof to a number of shares which represent 19.9% of the
voting power of the issued and outstanding shares of capital stock of the
Company.
3. OPTIONS. In order to induce GM and Xxxxxx to enter into the Merger
Agreement, each of the Shareholders hereby grants to Xxxxxx an irrevocable
option (each, a "STOCK OPTION" and collectively, the "STOCK OPTIONS") to
purchase the Option Shares at a purchase price per share equal to the Share
Value, payable in cash (the "PURCHASE PRICE"). The Share Value shall be
computed in the manner provided by the Merger Agreement, except that the date
on which the Stock Options become exercisable pursuant to this Section 3
shall be substituted for the "Closing Date" under the Merger Agreement for
the purposes of such computation. If the Merger Agreement is terminated
pursuant to Section 7.1(e), but only if the basis for such termination is the
Company's breach of Section 5.8 of the Merger Agreement, or Section 7.1(f)
thereof, or any Shareholder materially breaches any agreement contained in
this Agreement, the Stock Options
Exhibit 10.2-2
shall, in any such case, become immediately exercisable with respect to all
Shareholders, in whole or in part, at any time and from time to time upon
such termination or upon GM and Xxxxxx being informed of such breach, as the
case may be, and until the date which is 120 days after the date of such
termination or the date on which GM and Xxxxxx are informed of such breach,
as the case may be, PROVIDED, that if at the expiration of such 120-day
period the Stock Options cannot be exercised by reason of any preliminary or
final injunction or other order issued by any court or governmental,
administrative or regulatory agency or authority prohibiting the exercise of
the Stock Options pursuant to this Agreement, or because all waiting periods
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended
(the "HSR ACT"), required for the purchase of the Option Shares upon such
exercise shall not have expired or been waived, the Stock Options shall be
exercisable until 10 business days after the later of the date on which such
impediment to exercise shall have been removed or shall have become final and
not subject to appeal. In the event that Xxxxxx wishes to exercise the Stock
Options, Xxxxxx shall send a written notice (the "NOTICE") to the
Shareholders identifying the place and date (not less than two business days
from the date of the Notice) for the closing of such purchase. At such
closing, Xxxxxx shall receive certificates for the Option Shares, duly
endorsed for transfer, and shall make payment therefor by wire transfer of
immediately available funds.
4. OTHER COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE
SHAREHOLDERS. Each Shareholder hereby covenants, represents and warrants to
each of GM and Xxxxxx as follows:
(a) OWNERSHIP OF SHARES. Such Shareholder is the record holder of
or Beneficially Owns the number of Shares of Common Stock and Class A Common
Stock, respectively, set forth opposite such Shareholder's name on SCHEDULE I
hereto. On the date hereof, the shares set forth opposite such Shareholder's
name on Schedule I hereto constitute all of the Shares owned of record or
Beneficially Owned by such Shareholder. Such Shareholder has sole voting
power and sole power to issue instructions with respect to the matters set
forth in Section 2 hereof, sole power of disposition, sole power of
conversion, sole power to exercise dissenters' rights and sole power to agree
to all of the matters set forth in this agreement, in each case with respect
to all of the Shares of Common Stock and Class A Common Stock, respectively,
set forth opposite such Shareholder's name on Schedule I hereto, with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) POWER; BINDING AGREEMENT. Such Shareholder has the legal
capacity, power and authority to enter into and perform all of such
Shareholder's obligations under this Agreement. the execution, delivery and
performance of this Agreement by such Shareholder will not violate any other
Agreement to which such Shareholder is a party including, without limitation,
any voting agreement, shareholders agreement or voting trust. In addition, if
such Shareholder is a corporation, the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby (i) have been duly
authorized by the board of directors and stockholders of such Shareholder, and
(ii) do not and will not violate any provision of the certificate or articles of
incorporation or by-laws of such Shareholder. This Agreement has been duly and
validly executed and delivered by such Shareholder and constitutes a valid and
binding agreement of such Shareholder, enforceable against such Shareholder in
accordance with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust
Exhibit 10.2-3
of which such shareholder is trustee whose consent is required for the
execution and delivery of this agreement or the consummation by such
shareholder of the transactions contemplated hereby. if such shareholder is
married and such shareholder's shares constitute community property, this
agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, such shareholder's spouse,
enforceable against such person in accordance with its terms.
(c) NO CONFLICTS. Except for filings, permits, authorizations,
consents and approvals under the HSR Act and the Communications Act, if
applicable, (A) no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for the
execution of this Agreement by such Shareholder and the consummation by such
Shareholder of the transactions contemplated hereby and (B) none of the
execution and delivery of this Agreement by such Shareholder, the consummation
by such Shareholder of the transactions contemplated hereby or compliance by
such Shareholder with any of the provisions hereof shall (1) conflict with or
result in any breach of any applicable organizational documents applicable to
such Shareholder, (2) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which such Shareholder is a
party or by which such Shareholder or any of such Shareholder's properties or
assets may be bound, or (3) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to such Shareholder or
any of such Shareholder's properties or assets.
(d) NO ENCUMBRANCES. Except as applicable in connection with the
transactions contemplated hereby, such Shareholder's Shares and the certificates
representing such Shares are now, and at all times during the term hereof will
be, held by such Shareholder, or by a nominee or custodian for the benefit of
such Shareholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances or proxies
arising hereunder in favor of GM.
(e) NO FINDER'S FEES. No broker, investment banker, financial
adviser or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Shareholder.
(f) NO SOLICITATION. No Shareholder shall, in his or its capacity as
such, directly or indirectly, solicit (including by way of furnishing
information) or respond to any inquiries or the making of any proposal by any
person or entity (other than Xxxxxx or any affiliate of Xxxxxx) with respect to
the Company that constitutes an Acquisition Proposal. If any Shareholder
receives any such inquiry or proposal, then such Shareholder shall promptly
inform Xxxxxx of the existence thereof. Each Shareholder will immediately cease
and cause to be terminated any existing activities, discussions or negotiations
with any parties conducted heretofore with respect to any of the foregoing.
Exhibit 10.2-4
(g) RESTRICTION ON TRANSFER OF SHARES, PROXIES AND NON-INTERFERENCE.
Beginning on the date hereof and ending on the last date the Stock Options are
exercisable pursuant to Section 3 hereof, except as contemplated by this
Agreement or the Merger Agreement, no Shareholder shall, directly or indirectly,
(i) offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
such Shareholder's Option Shares or any interest therein; (ii) except as
contemplated by this Agreement, grant any proxies or powers of attorney, deposit
any Option Shares into a voting trust or enter into a voting agreement with
respect to any Option Shares; or (iii) take any action that would make any
representation or warranty of such Shareholder contained herein untrue or
incorrect or have the effect of preventing or disabling such Shareholder from
performing such Shareholder's obligations under this Agreement. Each
Shareholder agrees with, and covenants to, Xxxxxx that beginning on the date
hereof and ending on the last date the stock options are exercisable pursuant to
Section 3 hereof, such Shareholder shall not request that the Company register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of such Shareholder's option shares, unless such
transfer is made in compliance with this Agreement (including the provisions of
Section 2 hereof).
(h) RESTRICTION ON TRANSFER OF ACQUIROR STOCK. Each Shareholder
understands that such Shareholder may be deemed to be an "affiliate" of the
Company within the meaning of Rule 145 promulgated under the Securities Act of
1933, as amended (the "SECURITIES ACT"), and that the transfer of the shares of
Acquiror Stock acquired by such Shareholder in the Merger may only be made as
permitted by, and in accordance with, Rule 145 or any other applicable exemption
from registration under the Securities Act. In addition, each Shareholder
covenants to GM and Xxxxxx that such Shareholder, in connection with any
underwritten offering of Acquiror Stock occurring within two years of the
Effective Time, will sign a customary "lock-up" agreement restricting the
transfer of the shares of acquiror stock held by it during the pendency of such
offering; PROVIDED that such Shareholder shall not be required to agree to any
transfer restrictions more burdensome than those to which GM or its Affiliates
agree in connection with such offering.
(i) WAIVER OF DISSENTERS' RIGHTS. Each Shareholder hereby waives any
rights to dissent from the Merger that such Shareholder may have under Sections
302A.471 and 302A.473 of the Minnesota Business Corporation Act (the "MBCA").
Each Shareholder acknowledges that such Shareholder has received from counsel to
the Company a copy of Sections 302A.471 and 302A.473 of the MBCA relating to
dissenters' rights and a summary of those Sections.
(j) RELIANCE BY GM AND XXXXXX. Each Shareholder understands and
acknowledges that GM and Xxxxxx are entering into the Merger Agreement in
reliance upon such Shareholder's execution and delivery of this Agreement.
5. OTHER COVENANTS, REPRESENTATIONS AND WARRANTIES OF GM AND XXXXXX.
GM and Xxxxxx hereby covenant, represent and warrant to each Shareholder as
follows:
Exhibit 10.2-5
(a) POWER; BINDING AGREEMENT. Each of GM and Xxxxxx has the legal
capacity, power and authority to enter into and perform all of such party's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by GM and Xxxxxx will not violate any other material agreement
to which GM or Xxxxxx is a party. In addition, the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
(i) have been duly authorized by the board of directors and stockholders of
GM and Xxxxxx, and (ii) do not and will not violate any provision of the
certificate of incorporation or by-laws of GM or Xxxxxx. This Agreement has
been duly and validly executed and delivered by each of GM and Xxxxxx and
constitutes a valid and binding agreement of such party, enforceable against
such party in accordance with its terms.
(b) ADDITIONAL AGREEMENTS. On or prior to the Closing Date,
Xxxxxx shall, or shall cause DIRECTV to, enter into the following agreements
with HBI: (i) a Programming Agreement, substantially in the form of EXHIBIT A
hereto, (ii) an Asset Option Agreement, substantially in the form of EXHIBIT
B hereto (iii) a Trademark/Trade Name Option Agreement, substantially in the
form of EXHIBIT C hereto and (iv) an Affiliation Agreement, substantially in
the form of EXHIBIT D hereto. In addition, Xxxxxx and DIRECTV agree that
they will, when discussing the history of the direct broadcast industry in
public announcements, fairly acknowledge, as relevant and appropriate, the
role of the Xxxxxxx family in the development of the industry.
6. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute
and deliver such additional documents and take all such further lawful action
as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
7. TERMINATION; EXPENSES AND FEE. (a) The covenants and agreements
contained herein with respect to the Shares shall terminate (i) in the event
the Merger Agreement is terminated in accordance with its terms, upon such
termination, except that the provisions of Section 3 hereof shall survive any
such termination and (ii) in the event the Merger is consummated, at the
Effective Time, except that the provisions of Section 4(h) hereof shall
survive any such termination, PROVIDED, in each case, that the provisions of
Section 10 hereof and the last sentence of Section 5(b) hereof shall survive
any termination of this Agreement, and PROVIDED, FURTHER, that no termination
of this Agreement shall relieve any party of liability for a breach hereof.
(a) Each party shall bear its own expenses in connection with this
Agreement and the transactions contemplated hereby. Notwithstanding the
foregoing, in the event the Merger Agreement is terminated by Xxxxxx pursuant
to Section 7.1(f) thereof, HBI shall pay to Xxxxxx, within one week of such
termination, $50 million in immediately available funds to an account
designated by Xxxxxx on the date of such termination.
8. SHAREHOLDER CAPACITY. No person executing this Agreement who is
or becomes during the term hereof a director or officer of the Company makes
any agreement or understanding herein in his or her capacity as such director
or officer. Each Shareholder signs
Exhibit 10.2-6
solely in his or her capacity as the record and beneficial owner of, or the
trustee of a trust whose beneficiaries are the beneficial owners of, such
Shareholder's Shares.
9. SOPHISTICATION. Each Shareholder acknowledges that such
Shareholder is an informed and sophisticated investor and, together with such
Shareholder's advisors, has undertaken such investigation as they have deemed
necessary, including the review of the Merger Agreement and this Agreement,
to enable such Shareholder to make an informed and intelligent decision with
respect to the Merger Agreement and this Agreement and the transactions
contemplated thereby and hereby.
10. CONFIDENTIALITY. Each of the parties hereto recognizes that
successful consummation of the transactions contemplated by this Agreement
may be dependent upon confidentiality with respect to the matters referred to
herein. In this connection, pending public disclosure thereof, each party
hereby agrees not to disclose or discuss such matters with anyone not a party
to this Agreement (other than such party's counsel and advisors, if any)
without the prior written consent of the other party, except for filings
required pursuant to the Exchange Act and the rules and regulations
thereunder or disclosures such party's counsel advises are necessary in order
to fulfill such party's obligations imposed by law, in which event such party
shall give notice of such disclosure to the other party as promptly as
practicable so as to enable the other party to seek a protective order from a
court of competent jurisdiction with respect thereto.
11. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement, the Merger Agreement, the
agreements referred to in Section 5(b) hereof and the Ancillary Agreements
constitute the entire agreement between the parties with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to
the subject matter hereof.
(b) CERTAIN EVENTS. Each Shareholder agrees that this Agreement
and the obligations hereunder shall attach to such Shareholder's Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, such Shareholder's heirs,
guardians, administrators or successors, PROVIDED, that following the
Effective Time or termination of the Merger Agreement, this Agreement shall
not be binding on any purchaser of Shares in an open market transaction.
Notwithstanding any transfer of Shares, the transferor shall remain liable
for the performance of all obligations under this Agreement of the transferor.
(c) ASSIGNMENT. This Agreement shall not be assigned by operation
of law or otherwise without the prior written consent of the other party,
PROVIDED, that GM or Xxxxxx may assign, in its sole discretion, its rights
and obligations hereunder to any direct or indirect wholly owned subsidiary
of GM, but no such assignment shall relieve GM or Xxxxxx of its obligations
hereunder if such assignee does not or cannot perform such obligations and,
notwithstanding the foregoing, GM and Xxxxxx shall remain liable for their
obligations under Section 10 hereof.
Exhibit 10.2-7
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, with
respect to any one or more Shareholders, except upon the execution and
delivery of a written agreement executed by the relevant parties hereto;
PROVIDED that SCHEDULE I hereto may be supplemented by GM by adding the name
and other relevant information concerning any shareholder of the Company who
agrees to be bound by the terms of this Agreement without the agreement of
any other party hereto, and thereafter such added shareholder shall be
treated as a "Shareholder" for all purposes of this Agreement.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram,
telex or telecopy, or by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered
to the respective parties at the following addresses:
If to Shareholder: At the addresses set forth on Schedule I hereto
Copies to: Xxxxxxx Broadcasting, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
and Xxxxxxx, Street and Deinard Professional Association
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to GM or
Xxxxxx to: General Motors Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Facsimile: (000) 000-0000
and: Xxxxxx Electronics Corporation
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Exhibit 10.2-8
copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) SEVERABILITY. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause the aggrieved party to sustain damages for which
it would not have an adequate remedy at law for money damages, and therefore
each of the parties hereto agrees that in the event of any such breach the
aggrieved party shall be entitled to the remedy of specific performance of
such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity.
(h) 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.
(i) 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.
(j) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
(k) GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of law thereof.
Exhibit 10.2-9
(l) JURISDICTION. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware or the
United States District Court for the Southern District of New York or any court
of the State of New York located in the City of New York in any action, suit or
proceeding arising in connection with this Agreement, and agrees that any such
action, suit or proceeding shall be brought only in such court (and waives any
objection based on FORUM NON CONVENIENS or any other objection to venue
therein); PROVIDED, HOWEVER, that such consent to jurisdiction is solely for the
purpose referred to in this paragraph (l) and shall not be deemed to be a
general submission to the jurisdiction of said Courts or in the States of
Delaware or New York other than for such purposes. Each party hereto hereby
waives any right to a trial by jury in connection with any such action, suit or
proceeding.
(m) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(n) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
Exhibit 10.2-10
IN WITNESS WHEREOF, GM, Xxxxxx and each Shareholder have caused
this Agreement to be duly executed as of the day and year first above written.
GENERAL MOTORS CORPORATION
By: /s/ Xxxx Xxxxxxxxx
--------------------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Treasurer
XXXXXX ELECTRONICS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
HBI, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
------------------------------------------------------
Xxxxxx X. Xxxxxxx
Exhibit 10.2-11
SCHEDULE 1 TO
SHAREHOLDERS AGREEMENT
RECORD AND BENEFICIAL OWNERSHIP
CLASS A OPTION
NAME AND ADDRESS OF SHAREHOLDER COMMON STOCK COMMON STOCK SHARES
------------------------------- ------------ ------------ -------
1. Xxxxxxx Broadcasting Company, Inc. 5,715 46,051,225 12,688,841
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
2. Xxxxxxx X. Xxxxxxx 2,025 471,600
Xxxxxxx Broadcasting Company, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
3. Xxxxxxx X. Xxxxxxx 2,025 0
Xxxxxxx Broadcasting Company, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
4. Xxxxxx X. Xxxxxxx 2,025 0
Xxxxxxx Broadcasting Company, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
Exhibit 10.2
Schedule 1-1
