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 ("Stockholders"), General Motors
Corporation, a Delaware corporation ("GM") and Xxxxxx Electronics Corporation,
a Delaware corporation (together with any successor thereto, as further defned
below, the "Company").
WHEREAS, the Company, a wholiy 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
126-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date of this Agreement.
(g) "Equity Securities" sball nncan 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 oar 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(6) or Section 707(6)(1) of the
Code that is Controlled by Stockholder, (ii) any Controlled Affliate 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 aaquiie, or accuritics coxAveitiblc 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's 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- 213 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, tire 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 nay 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 my 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 oar 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 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, write, 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 the Company or any of its Affiliates with, any third
party oar governmental authority.
ARTICLE 4
CONSENT TO EXCESS SHARE PROVISION IN XXXXXX
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(c) 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 terns 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 000000
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 terns, 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 CAM 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 bereof 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 WITNES 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: Xxxx-Xxxxx Xxxxxxx
Title: Chairman & Chief
Executive Officer
XXXXXX ELECTRONICS
CORPORATION,
by: /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
GENERAL MOTORS CORPORATION
by: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant General
Counsel
