EXHIBIT B
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
by and among
XXXXXX ELECTRONICS CORPORATION,
THE NEWS CORPORATION LIMITED
and
GMH MERGER SUB, INC.
Dated as of April 9, 2003
EXECUTION COPY
TABLE OF CONTENTS
Page
ARTICLE I BASIC TRANSACTION ............................................................................... 2
1.1 The Merger ......................................................................................... 2
1.2 Merger Effective Time .............................................................................. 3
1.3 Effects of the Merger .............................................................................. 3
1.4 Certificate of Incorporation and By-laws ........................................................... 3
1.5 Board of Directors, Committees and Officers ........................................................ 3
1.6 Additional Actions ................................................................................. 3
1.7 Conversion of Securities ........................................................................... 4
(a) Conversion of Xxxxxx Common Stock ............................................................ 4
(b) Treatment of the Xxxxxx Class B Common Stock ................................................. 4
(c) Conversion of Merger Sub Shares .............................................................. 5
(d) Treasury Shares; Shares held by Purchaser or any Subsidiary of Purchaser ..................... 5
(e) Determination of Record Holders .............................................................. 5
(f) Certain Adjustments .......................................................................... 5
(g) Certain Definitions .......................................................................... 6
1.8 Exchange ........................................................................................... 7
(a) Exchange Agent; Deposit of Merger Consideration .............................................. 7
(b) Exchange Procedures .......................................................................... 7
(c) Surrender of Certificates .................................................................... 7
(d) Rules Governing Exchange ..................................................................... 8
(e) Distributions With Respect to Unexchanged Certificates ....................................... 8
(f) Fractional Shares ............................................................................ 8
(g) Termination of Exchange Fund ................................................................. 9
(h) No Liability ................................................................................. 9
(i) Transfer Taxes; Withholding Rights ........................................................... 9
1.9 Treatment of Options ............................................................................... 10
ARTICLE II CONDITIONS TO CLOSE ............................................................................. 10
2.1 Conditions to Obligation to Close .................................................................. 10
ARTICLE III TERMINATION ..................................................................................... 11
3.1 Termination of Agreement ........................................................................... 11
3.2 Effect of Termination .............................................................................. 11
ARTICLE IV MISCELLANEOUS ................................................................................... 11
4.1 Amendment .......................................................................................... 11
4.2 Extension; Waiver .................................................................................. 11
4.3 Notices ............................................................................................ 11
4.4 Interpretation; Absence of Presumption ............................................................. 12
4.5 Counterparts ....................................................................................... 13
4.6 Entire Agreement; Severability ..................................................................... 13
4.7 Third Party Beneficiaries .......................................................................... 13
4.8 Governing Law ...................................................................................... 13
4.9 Specific Performance ............................................................................... 14
4.10 Assignment ......................................................................................... 14
4.11 Tax Treatment ...................................................................................... 14
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EXHIBIT
Exhibit A - Surviving Corporation Board of Directors, Committees and Certain
Officers
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INDEX OF DEFINED TERMS
Page
20-Day Average Price ............................................ 6
Agreement ....................................................... 1
Certificate of Merger ........................................... 3
Certificates .................................................... 7
Code ............................................................ 9
Delaware Secretary of State ..................................... 3
DGCL ............................................................ 2
Excess Purchaser Shares ......................................... 9
Excess Surviving Corporation Shares ............................. 9
Exchange Act .................................................... 10
Exchange Agent .................................................. 7
Exchange Fund ................................................... 7
Exchange Matters ................................................ 8
Exchange Option ................................................. 10
GM .............................................................. 1
GM $1-2/3 Common Stock .......................................... 2
GM Charter Amendment ............................................ 1
GM Class H Common Stock ......................................... 1
Xxxxxx .......................................................... 1
Xxxxxx Class B Common Stock ..................................... 1
Xxxxxx Common Stock ............................................. 1
Xxxxxx Stock Sale Shares ........................................ 1
Letter of Transmittal ........................................... 7
Merger .......................................................... 2
Merger Consideration ............................................ 4
Merger Effective Time ........................................... 3
Merger Sub ...................................................... 1
NYSE ............................................................ 6
Option .......................................................... 10
Purchaser ....................................................... 1
Purchaser Consideration ......................................... 4
Purchaser Fraction .............................................. 6
Purchaser Stock ................................................. 4
SEC ............................................................. 10
Separation Agreement ............................................ 1
Split-Off ....................................................... 1
Split-Off Outstanding Shares .................................... 4
Stock Purchase Agreement ........................................ 1
Stock Sale ...................................................... 1
Surviving Corporation ........................................... 2
Surviving Corporation Class B Common Stock ...................... 5
Surviving Corporation Common Stock .............................. 4
Surviving Corporation Fraction .................................. 4
Surviving Corporation Stock Consideration ....................... 4
Transactions .................................................... 2
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is made and
entered into as of April 9, 2003, by and among Xxxxxx Electronics Corporation, a
Delaware corporation ("Xxxxxx"), The News Corporation Limited, an Australia
corporation ("Purchaser"), and GMH Merger Sub, Inc., a Delaware corporation
("Merger Sub").
WHEREAS, Xxxxxx is currently a wholly owned subsidiary of General
Motors Corporation, a Delaware corporation ("GM"); and
WHEREAS, simultaneously with the Stock Sale (as defined below), GM,
pursuant to provisions to be implemented pursuant to the Stock Purchase
Agreement (as defined below) by means of an amendment of the Restated
Certificate of Incorporation of GM (the "GM Charter Amendment"), a copy of which
is attached to the Stock Purchase Agreement as Exhibit A, shall distribute to
the holders of record of GM's Class H common stock, par value $0.10 per share
(the "GM Class H Common Stock"), as of immediately prior to the effective time
of the Split-Off (as defined below), shares of common stock, par value $0.01 per
share, of Xxxxxx (the "Xxxxxx Common Stock") in exchange for all of the
outstanding shares of GM Class H Common Stock in accordance with the GM Charter
Amendment, and the GM Class H Common Stock will be redeemed and cancelled (the
"Split-Off"); and
WHEREAS, pursuant to the Split-Off, Xxxxxx shall become an independent,
publicly owned company, separate from and no longer wholly owned by GM; and
WHEREAS, GM and Xxxxxx shall consummate the separation of Xxxxxx from
GM pursuant to a Separation Agreement in the form attached to the Stock Purchase
Agreement as Exhibit B (the "Separation Agreement"), to be entered into
concurrently with the execution of this Agreement; and
WHEREAS, prior to and as a condition to the Split-Off, Xxxxxx shall
distribute a special cash dividend to GM in an amount equal to Two Hundred
Seventy Five Million Dollars ($275,000,000.00) (the "Special Dividend"); and
WHEREAS, simultaneously with, and as a condition to consummation of,
the Split-Off, GM shall sell to Purchaser, (or a Qualified Subsidiary (as such
term is defined in the Stock Purchase Agreement) designated by Purchaser), and
Purchaser shall purchase (or cause such Qualified Subsidiary to purchase) from
GM, all of the shares of Class B common stock, par value $0.01 per share, of
Xxxxxx (the "Xxxxxx Class B Common Stock"), then held by GM (the "Xxxxxx Stock
Sale Shares") for the purchase price and upon the terms and conditions set forth
in that certain Stock Purchase Agreement entered into by and among GM, Xxxxxx
and Purchaser on the date hereof (the "Stock Purchase Agreement") (the "Stock
Sale"); and
WHEREAS, Merger Sub is a wholly owned subsidiary of Purchaser's
Subsidiary NPAL (as defined in the Stock Purchase Agreement) and has been formed
for the sole purpose of merging, immediately following the consummation of the
Split-Off and the Stock Sale, with and into Xxxxxx, with Xxxxxx as the surviving
corporation; and
WHEREAS, the Special Dividend, the consummation of the Split-Off and
the separation of Xxxxxx from GM as contemplated by the Separation Agreement
(together with the Stock Sale and the Merger, the "Transactions") are
conditioned on, among other things, the approval by the holders of a majority of
the outstanding shares of GM's common stock, par value $1-2/3 per share (the "GM
$1-2/3 Common Stock"), and by the holders of a majority of the outstanding
shares of GM Class H Common Stock, each voting as a separate class and both
voting together as a single class based on their respective per share voting
power, of matters pertaining to the Transactions, including the GM Charter
Amendment; and
WHEREAS, the consummation of the Stock Sale is conditioned upon the
consummation of the Split-Off and shall occur at the time of the consummation of
the Split-Off; and
WHEREAS, the consummation of the Merger is conditioned upon the
consummation of the Split-Off and the Stock Sale and shall occur immediately
after the consummation of the Split-Off and the Stock Sale; and
WHEREAS, the respective Boards of Directors of Xxxxxx, Purchaser and
Merger Sub have each determined that the transactions contemplated hereby are
advisable, desirable and in the best interests of their respective stockholders
and, by resolutions duly adopted, the respective Boards of Directors of Xxxxxx,
Purchaser and Merger Sub have each approved and adopted this Agreement; and
WHEREAS, immediately after the execution of this Agreement, each of GM,
as the sole stockholder of Xxxxxx, and Purchaser's Subsidiary NPAL, as the sole
stockholder of Merger Sub, shall have approved the Merger and adopted this
Agreement at a meeting of the stockholders of Xxxxxx and Merger Sub,
respectively;
NOW, THEREFORE, in consideration of the premises 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 I
BASIC TRANSACTION
1.1 The Merger. Upon the terms and subject to the conditions hereof, and in
accordance with the provisions of the General Corporation Law of the State of
Delaware (as amended from time to time, the "DGCL"), Merger Sub shall be merged
with and into Xxxxxx (the "Merger") on the Closing Date (as defined in the Stock
Purchase Agreement) as soon as practicable following the satisfaction or waiver
of the condition set forth in Article II. Following the Merger, the separate
corporate existence of Merger Sub shall cease and Xxxxxx shall continue its
existence under the laws of the State of Delaware. Xxxxxx, in its capacity as
the corporation surviving the Merger, is hereinafter referred to as the
"Surviving Corporation."
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1.2 Merger Effective Time. The Merger shall be consummated by filing with
the Secretary of State of the State of Delaware (the "Delaware Secretary of
State") a certificate of merger (the "Certificate of Merger") in such form as is
required by and executed in accordance with the DGCL. The Merger shall become
effective (the "Merger Effective Time") when the Certificate of Merger has been
filed with the Delaware Secretary of State or at such later time as the parties
shall agree and as shall be specified in the Certificate of Merger. Prior to the
filing referred to in this Section 1.2, a closing shall be held at the offices
of Weil, Gotshal & Xxxxxx LLP located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
or such other place as the parties hereto may agree on the Closing Date, which
shall in any event occur immediately following the consummation of the Split-Off
and the Stock Sale.
1.3 Effects of the Merger. From and after the Merger Effective Time, the
Merger shall have the effects set forth in this Agreement, the Certificate of
Merger and Section 259 of the DGCL.
1.4 Certificate of Incorporation and By-laws. At the Merger Effective Time:
(a) the Xxxxxx Certificate of Incorporation will be amended to read in its
entirety as set forth in Exhibit D to the Stock Purchase Agreement, and the
Xxxxxx Certificate of Incorporation, as in effect at and as of the Merger
Effective Time, shall be the Certificate of Incorporation of the Surviving
Corporation until thereafter amended in accordance with the DGCL; and (b) the
By-laws of Xxxxxx will be amended to read in their entirety as set forth in
Exhibit E to the Stock Purchase Agreement, and the By-laws of Xxxxxx, as in
effect at and as of the Merger Effective Time, shall be the By-laws of the
Surviving Corporation until thereafter amended in accordance with the DGCL.
1.5 Board of Directors, Committees and Officers. The Surviving Corporation
shall take all appropriate action so that, at the Merger Effective Time, the
Board of Directors, committees of the Board of Directors, composition of such
committees (including chairpersons thereof) and certain officers of the
Surviving Corporation shall be as set forth on Exhibit A until the earlier of
the resignation or removal of any individual listed on or designated in
accordance with Exhibit A or until their respective successors are duly
appointed or elected and qualified, as the case may be. If any officer listed on
or appointed in accordance with Exhibit A ceases to be a full-time employee of
Xxxxxx or the Purchaser prior to the Merger Effective Time, or if any director,
committee member or committee chairperson listed or designated on Exhibit A is
not available to serve as such at the Merger Effective Time, the parties hereto
shall, except as otherwise provided in Exhibit A, mutually agree upon another
person to serve in such person's stead.
1.6 Additional Actions. If, at any time after the Merger Effective Time,
the Surviving Corporation shall consider or be advised that any further deeds,
assignments or assurances in law or any other acts are necessary or desirable to
(a) vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of Xxxxxx or Merger Sub, (b) comply with any filing,
recording or other requirement of Applicable Law (as defined in the Stock
Purchase Agreement) in connection with the Merger or (c) otherwise carry out the
provisions of this Agreement, Xxxxxx and Merger Sub, and their respective
directors and officers shall be deemed to have granted to the Surviving
Corporation an irrevocable power of attorney to execute and deliver all such
deeds, assignments or assurances in
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law and to take all acts necessary, proper or desirable to vest, perfect or
confirm title to and possession of such rights, properties or assets in the
Surviving Corporation and otherwise to carry out the provisions of this
Agreement, and the directors and officers of the Surviving Corporation are
authorized in the name of Xxxxxx or Merger Sub, as the case may be, or otherwise
to take any and all such actions.
1.7 Conversion of Securities.
(a) Conversion of Xxxxxx Common Stock. At and as of the Merger
Effective Time, by virtue of the Merger and without any action on the part of
Xxxxxx, Purchaser, any Qualified Subsidiary of Purchaser, NPAL, Merger Sub, any
holder of any capital stock of Xxxxxx, any holder of any capital stock of Merger
Sub or any other person, each share of Xxxxxx Common Stock issued and
outstanding as of immediately prior to the Merger Effective Time (other than
shares that shall be cancelled or converted in accordance with Section 1.7(c) or
(d)) shall be converted into the Surviving Corporation Stock Consideration (as
defined below) and the right to receive the Purchaser Consideration (as defined
below), provided that:
(i) the "Surviving Corporation Stock Consideration" shall mean
the fraction (the "Surviving Corporation Fraction") of a share of fully
paid and nonassessable shares of common stock, par value $0.01 per share,
of the Surviving Corporation (the "Surviving Corporation Common Stock")
that shall be determined by dividing (A) the product resulting from
multiplying (1) the aggregate number of issued and outstanding shares of
Xxxxxx Common Stock and Xxxxxx Class B Common Stock immediately prior to
the Merger Effective Time (the "Split-Off Outstanding Shares," which number
shall be equal to the Split-Off Denominator (as defined in the Stock
Purchase Agreement)) by (2) sixty-six percent (66%) by (B) the difference
obtained by subtracting (x) the number of Xxxxxx Stock Sale Shares from (y)
the number of Split-Off Outstanding Shares;
(ii) the "Purchaser Consideration" shall mean the number of
shares (or fraction of a share) of fully paid and nonassessable American
Depositary Receipts representing American Depositary Shares of Purchaser
("Purchaser Stock"), each of which represents four (4) Preferred Limited
Voting Ordinary Shares of Purchaser, that shall be determined by
multiplying (A) the Exchange Ratio by (B) the Purchaser Fraction (as
defined below); provided, however, that if Purchaser shall have delivered a
SPA Cash Payment Election Notice, the Purchaser Consideration shall mean
(x) the number of shares (or a fraction thereof) of Purchaser Stock that
shall be determined by multiplying (1) the Exchange Ratio by (2) the
Purchaser Fraction by (3) the Stock Fraction (as defined in the Stock
Purchase Agreement) and (y) an amount in cash that shall be determined by
multiplying (1) the same price per share of Xxxxxx Common Stock as is paid
to GM pursuant to Section 2.1 of the Stock Purchase Agreement for the
Variable Price Shares (as defined in the Stock Purchase Agreement) by (2)
the Purchaser Fraction by (3) the Cash Fraction (as defined in the Stock
Purchase Agreement); and
(iii) the "Merger Consideration" shall mean the Surviving
Corporation Stock Consideration collectively with the Purchaser
Consideration.
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(b) Treatment of the Xxxxxx Class B Common Stock. Each of the Xxxxxx Stock
Sale Shares shall remain outstanding and unchanged by the Merger and shall
constitute an equal number of shares of Class B common stock, par value $0.01
per share, of the Surviving Corporation (the "Surviving Corporation Class B
Common Stock"), without any action on the part of Purchaser, any Qualified
Subsidiary of Purchaser, Xxxxxx, Merger Sub or any other person.
(c) Conversion of Merger Sub Shares. At and as of the Merger Effective
Time, by virtue of the Merger and without any action on the part of Xxxxxx,
Purchaser, any Qualified Subsidiary of Purchaser, NPAL, Merger Sub, any holder
of any capital stock of Xxxxxx, any holder of any capital stock of Merger Sub or
any other person, all of the capital stock of Merger Sub issued and outstanding
as of immediately prior to the Merger Effective Time shall, in the aggregate, be
converted into the number of fully paid and nonassessable shares of Surviving
Corporation Common Stock which, when added to the Xxxxxx Stock Sale Shares,
shall equal thirty-four percent (34%) of the aggregate number of shares of
Surviving Corporation Common Stock and Surviving Corporation Class B Common
Stock issued and outstanding immediately following the Merger.
(d) Treasury Shares; Shares held by Purchaser or any Subsidiary of
Purchaser. At and as of the Merger Effective Time, by virtue of the Merger,
without any action on the part of Purchaser, any Qualified Subsidiary of
Purchaser, Xxxxxx, NPAL, Merger Sub or any other person, each share of Xxxxxx
Common Stock and Xxxxxx Class B Common Stock owned by Xxxxxx, any Subsidiary (as
defined in the Stock Purchase Agreement) of Xxxxxx, Purchaser or any Subsidiary
of Purchaser (other than the Xxxxxx Stock Sale Shares) as of immediately prior
to the Merger Effective Time shall be cancelled and retired, and no payment
shall be made in respect thereof.
(e) Determination of Record Holders. From and after the Merger Effective
Time, (i) for all purposes of determining the record holders of Surviving
Corporation Common Stock, the holders of record of Xxxxxx Common Stock (other
than Purchaser or any Subsidiary of Purchaser) and the holders of capital stock
of Merger Sub, in each case as of immediately prior to the Merger Effective
Time, shall be deemed to be holders of the shares of Surviving Corporation
Common Stock distributed to such holders pursuant to this Section 1.7, (ii) for
all purposes of determining the record holders of Surviving Corporation Class B
Common Stock, the holders of record of Xxxxxx Class B Common Stock immediately
prior to the Merger Effective Time shall be deemed to be holders of the shares
of Surviving Corporation Class B Common Stock distributed to such holders
pursuant to this Section 1.7 and (iii) subject to any transfer of such stock,
each such holder shall be entitled to receive all dividends payable on, and
exercise voting rights and all other rights and privileges with respect to, the
shares of Surviving Corporation Common Stock or Surviving Corporation Class B
Common Stock, as the case may be, distributed to such holders pursuant to this
Section 1.7 in accordance with the terms of this Agreement and Applicable Law.
(f) Certain Adjustments, etc. If between the date of this Agreement and the
Merger Effective Time, the outstanding shares of Purchaser Stock shall have been
changed into a different number of shares or a different class, by reason of any
stock dividend, subdivision, reclassification, recapitalization, rights
offering, split, combination or exchange of shares, the
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Purchaser Consideration and the $14.08, $17.92 and $26.88 amounts set forth
herein correspondingly shall be adjusted to the extent warranted to reflect such
stock dividend, subdivision, reclassification, recapitalization, rights
offering, split, combination or exchange of shares. In addition, each
determination of a fraction or a percentage of a share or a ratio set forth in
this Agreement shall be calculated to the nearest five decimal places.
(g) Certain Definitions. For the purposes of this Agreement, the
following terms shall have the following meanings:
(i) "Adjusted Purchaser Stock Price" means the volume weighted
average price per share of the Purchaser Stock during each of the twenty
(20) consecutive trading days (defined as 9:30 a.m. through 4:30 p.m.,
Eastern time) ending on and including the fifth Business Day prior to the
Closing Date (except as otherwise provided herein), as published by
Bloomberg (or its successor corporation) with respect to "US Equity" on
page "AQR" (or its successor page), or if not published by Bloomberg (or
its successor corporation), the volume weighted average price per share of
the Purchaser Stock during each of the twenty (20) consecutive trading days
ending on and including the fifth Business Day prior to the Closing Date
(except as otherwise provided herein) for transactions conducted on the New
York Stock Exchange (the "NYSE") as reported by the NYSE (or, if not
reported by the NYSE, as reported by another authoritative source agreed to
by Xxxxxx and Purchaser); provided, however, that (x) if such Adjusted
Purchaser Stock Price is equal to or greater than $26.88, then,
notwithstanding the foregoing, such Adjusted Purchaser Stock Price shall be
deemed to be equal to $26.88 and (y) if such Adjusted Purchaser Stock Price
is equal to or less than $17.92, then, notwithstanding the foregoing, such
Adjusted Purchaser Stock Price shall be deemed to be equal to $17.92;
(ii) "20-Day Average Purchaser Stock Price" means the Adjusted
Purchaser Stock Price determined without regard to the proviso in the
definition thereof;
(iii) "Exchange Ratio" means the quotient resulting from dividing
(1) $14.00 by (2) the Adjusted Purchaser Stock Price; provided, however,
that if GM shall have delivered a Floor Price Termination Notice (as
defined in the Stock Purchase Agreement) and Purchaser shall have delivered
a Top-Off Election Notice, the Exchange Ratio shall be equal to the greater
of (A) the Exchange Ratio calculated in accordance with this definition of
Exchange Ratio without giving effect to this proviso and (B) the quotient
resulting from dividing (1) $11.00 by (2) the 20-Day Average Purchaser
Stock Price;
(iv) "Purchaser Fraction" means the difference obtained by
subtracting (A) the Surviving Corporation Fraction (expressed as a number)
from (B) one (1.0); and
(v) "Top-Off Election Notice" means a written notice delivered
from Purchaser to GM pursuant to the Stock Purchase Agreement following the
delivery of a Floor Price Termination Notice in which Purchaser elects to
pay the consideration specified in the definition of Exchange Ratio in such
circumstances for purposes of this Agreement and the Stock Purchase
Agreement (it being understood that the decision with
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respect to the form of consideration to be paid by Purchaser shall not be
affected by the delivery of a Top-Off Election Notice, which decision need
not be made until the third Business Day prior to the Closing Date).
1.8 Exchange.
(a) Exchange Agent; Deposit of Merger Consideration. Promptly
following the Merger Effective Time, (i) the Surviving Corporation shall deposit
with a bank or trust company to be designated by Xxxxxx and Purchaser prior to
the Merger Effective Time (the "Exchange Agent"), for the benefit of the holders
of Xxxxxx Common Stock and the holder of the capital stock of Merger Sub for
exchange in accordance with this Article I, certificates representing the
aggregate number of shares of Surviving Corporation Common Stock to be issued
pursuant to Section 1.7 (or other appropriate documentation of book-entry
ownership as applicable) and (ii) Purchaser shall deposit with the Exchange
Agent, for the benefit of the holders of Xxxxxx Common Stock for exchange in
accordance with this Article I, certificates representing (or other evidence of
ownership of) the aggregate Purchaser Consideration that shall take the form of
shares of Purchaser Stock; provided, however, that if Purchaser elects pursuant
to Section 1.7(a) hereof to have all or a portion of the Purchaser Consideration
consist of cash, Purchaser shall deposit with the Exchange Agent, at or prior to
the Merger Effective Time, the aggregate amount of cash that shall be included
in the Purchaser Consideration. Such deposit of cash shall be made by Purchaser
by wire transfer of immediately available funds to an account designated in
writing by the Exchange Agent at least two (2) Business Days prior to the Merger
Effective Time. The securities and/or cash deposited pursuant to clauses (i) and
(ii) are hereinafter referred to as the "Exchange Fund." The Surviving
Corporation Common Stock and the Purchaser Stock into which Xxxxxx Common Stock
shall be converted pursuant to the Merger shall be deemed to have been issued at
the Merger Effective Time for all purposes, including for purposes of
entitlement to dividends declared, if any, after the Merger Effective Time.
(b) Exchange Procedures. As soon as reasonably practicable after
the Merger Effective Time, the Exchange Agent shall mail to each holder of
record of Xxxxxx Common Stock as of immediately prior to the Merger Effective
Time (other than holders of shares of Xxxxxx Common Stock that shall have been
cancelled or converted in accordance with Section 1.7(c) or (d)) (i) a letter of
transmittal (the "Letter of Transmittal") that shall specify that delivery shall
be effected, and risk of loss and title to the certificates representing (or
other evidence of ownership of) the Xxxxxx Common Stock (the "Certificates")
shall pass, only upon delivery of such Certificates to the Exchange Agent and
shall be in such form and have such other provisions as Xxxxxx shall specify,
and (ii) instructions for use in effecting the surrender of the Certificates in
exchange for the Merger Consideration with respect to the Xxxxxx Common Stock
formerly represented thereby. The Exchange Agent shall be entitled to treat
certificates representing (or other evidence of ownership of) GM Class H Common
Stock immediately prior to the Split-Off as representing an equal number of
shares of Xxxxxx Common Stock immediately after the Split-Off.
(c) Surrender of Certificates.
(i) Upon surrender of a Certificate to the Exchange Agent,
together with the Letter of Transmittal, duly executed, and such other
documents as the Surviving
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Corporation or the Exchange Agent shall reasonably request, the holder
of such Certificate shall be entitled to receive, promptly after the
Merger Effective Time in exchange therefor, (i) certificates
representing (or other evidence of ownership of) the Surviving
Corporation Common Stock that such holder has the right to receive,
(ii) certificates representing (or other evidence of ownership of) the
Purchaser Stock, if any, which such holder has the right to receive,
(iii) a cash payment in the amount of the Purchaser Consideration, if
any, which such holder has the right to receive in cash and (iv) a cash
payment in the amount equal to the aggregate amount of any cash in lieu
of fractional shares of Surviving Corporation Common Stock or Purchaser
Stock pursuant to Section 1.8(f) (in the case of clauses (iii) and (iv)
without interest and less the amount of any required withholding taxes,
if any, in accordance with Section 1.8(i)).
(ii) Upon surrender of the certificate representing (or other
evidence of ownership of) the capital stock of Merger Sub to the
Exchange Agent, and such other documents as the Surviving Corporation
or the Exchange Agent shall reasonably request, the holder of such
certificate shall be entitled to receive, promptly after the Merger
Effective Time in exchange therefor, certificates representing (or
other evidence of ownership of) the Surviving Corporation Common Stock
that such holder has the right to receive.
(d) Rules Governing Exchange. Xxxxxx (prior to the Merger Effective
Time) and the Surviving Corporation (after the Merger Effective Time) shall have
the right to establish reasonable rules and procedures, not inconsistent with
the terms of this Agreement, governing the submission and validity of Letters of
Transmittal, the issuance and delivery of certificates representing (or other
evidence of ownership of) Surviving Corporation Common Stock and Purchaser
Stock, the distribution of cash in the event that Purchaser elects pursuant to
Section 1.7(a) hereof to have all or a portion of the Purchaser Consideration
consist of cash and all other matters pertaining to the exchange of Certificates
(collectively, the "Exchange Matters"). The determinations of Xxxxxx and the
Surviving Corporation, as applicable, with respect to all matters pertaining to
the Exchange Matters shall be final and binding on all stockholders of the
Surviving Corporation.
(e) Distributions With Respect to Unexchanged Certificates. No
dividends or other distributions with respect to shares of Surviving Corporation
Common Stock or Purchaser Stock, as the case may be, with a record date after
the Merger Effective Time, shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of Surviving Corporation Common Stock or
Purchaser Stock they are entitled to receive as Merger Consideration until such
Certificate has been surrendered by such holder.
(f) Fractional Shares. Notwithstanding any other provision of this
Agreement, no fraction of a share of Surviving Corporation Common Stock or
Purchaser Stock shall be issued pursuant to the Merger, no dividend or other
distribution, stock split or interest with respect to a share of Surviving
Corporation Common Stock or Purchaser Stock shall relate to any such fractional
share and such fractional share shall not entitle the owner thereof to vote or
to any rights as a holder of the Surviving Corporation Common Stock or Purchaser
Stock, as the case may be. In lieu of any such fractional shares, each holder
entitled to receive a fraction of a share of Surviving Corporation Common Stock
or Purchaser Stock pursuant to the Merger, upon
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surrender of a Certificate for exchange pursuant to this Section 1.8, shall be
entitled to receive, in accordance with the provisions of this Section 1.8, from
the Exchange Agent a cash payment representing such holder's proportionate
interest in the net proceeds from the sale by the Exchange Agent on behalf of
all such holders of the aggregate of the fractions of Surviving Corporation
Common Stock or Purchaser Stock that would otherwise be issued (respectively,
the "Excess Surviving Corporation Shares" and the "Excess Purchaser Shares").
The sale of the Excess Surviving Corporation Shares and the Excess Purchaser
Shares by the Exchange Agent shall be executed on the NYSE through one or more
member firms of the NYSE and shall be executed in round lots to the extent
practicable. Subject to its right to deduct and withhold for taxes as described
in Section 1.8(i) hereof, the Surviving Corporation shall pay all commissions,
transfer taxes (other than those transfer taxes for which Xxxxxx' former
stockholders are solely liable pursuant to Section 1.8(i) hereof) and other
out-of-pocket transaction costs, including the expenses and compensation of the
Exchange Agent incurred in connection with such sale of the Excess Surviving
Corporation Shares and the Excess Purchaser Shares. As soon as practicable after
the determination of the amount of cash, if any, to be paid to holders of Xxxxxx
Common Stock in lieu of any fractional shares of Surviving Corporation Common
Stock or Purchaser Stock, the Exchange Agent shall make available such amounts
to such holders without interest.
(g) Termination of Exchange Fund. Any portion of the Exchange Fund
that remains undistributed to the former holders of Xxxxxx Common Stock for
twelve (12) months after the Merger Effective Time shall be delivered to the
Surviving Corporation, upon demand, and any former holders of Xxxxxx Common
Stock who have not theretofore complied with this Article I shall thereafter
look only to the Surviving Corporation for the Merger Consideration to which
they are entitled pursuant to this Article I.
(h) No Liability. None of Xxxxxx, Purchaser, Merger Sub or the
Surviving Corporation shall be liable to any former holder of Xxxxxx Common
Stock or capital stock of Merger Sub for any Merger Consideration from the
Exchange Fund delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(i) Transfer Taxes; Withholding Rights. If any certificate
representing (or other evidence of ownership of) the right to receive either
Surviving Corporation Common Stock or Purchaser Stock is to be exchanged, or
cash is to be remitted, in a name other than that in which the shares of Xxxxxx
Common Stock exchanged therefor are registered, it shall be a condition of such
exchange that the Certificate so surrendered shall be properly endorsed and
otherwise in proper form for transfer and that the person requesting such
exchange shall (i) pay to the Surviving Corporation or the Exchange Agent any
transfer or other taxes required by reason of the payment of the Merger
Consideration to a person other than the registered holder of the Certificate so
surrendered, or (ii) establish to the satisfaction of the Surviving Corporation
or the Exchange Agent that such tax either has been paid or is not applicable.
The Surviving Corporation and the Exchange Agent shall be entitled to deduct and
withhold, from the consideration otherwise payable pursuant to this Agreement to
any former holder of Xxxxxx Common Stock, such amounts as the Surviving
Corporation or the Exchange Agent is required to deduct and withhold with
respect to the making of such payment under the Internal Revenue Code of 1986,
as amended (the "Code"), or any provision of state, local or foreign tax law. To
the extent that amounts are so withheld by the Surviving Corporation or the
Exchange Agent, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to
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the former holder of the Xxxxxx Common Stock in respect of which such deduction
and withholding was made by the Surviving Corporation or the Exchange Agent.
1.9 Treatment of Options. Prior to the Merger Effective Time, Xxxxxx and
Merger Sub shall take all such actions as may be necessary to cause each
unexpired and unexercised option, whether or not vested or exercisable, under
stock option plans of Xxxxxx with respect to Xxxxxx Common Stock (each, an
"Option") to be automatically converted at the Merger Effective Time into an
option (an "Exchange Option") to purchase, on the same terms and conditions as
were applicable to each such Option immediately before the Merger Effective Time
(except for any changes in vesting rights or acceleration of exercise rights
pursuant to the terms of the stock option plans and related agreements in
existence as of the date of this Agreement, that result from the occurrence of
the Transactions), (i) that number of shares of Surviving Corporation Common
Stock equal to the number of shares of Xxxxxx Common Stock issuable immediately
prior to the Merger Effective Time upon exercise of the Option and (ii) at a
price per share equal to the exercise price which existed under the
corresponding Option immediately prior to the Merger Effective Time; provided,
however, that in the case of any Option to which Section 421 of the Code applies
by reason of its qualification under Section 422 of the Code, the conversion
formula shall be adjusted, if necessary, to comply with Section 424(a) of the
Code. In connection with the issuance of Exchange Options, the Surviving
Corporation shall (a) reserve for issuance the number of shares of Surviving
Corporation Common Stock that will become subject to Exchange Options pursuant
to this Section 1.9 and (b) from and after the Merger Effective Time, upon
exercise of Exchange Options, make available for issuance all shares of
Surviving Corporation Common Stock covered thereby, subject to the terms and
conditions applicable thereto. Prior to the Merger Effective Time, the Board of
Directors of Xxxxxx, or an appropriate committee of non-employee directors
thereof, as applicable, shall adopt resolutions consistent with the interpretive
guidance of the U.S. Securities and Exchange Commission (the "SEC") and any
other applicable securities regulatory authorities so that the disposition of
the Options and the acquisition of the Exchange Options, any shares of Surviving
Corporation Common Stock or any other equity securities or derivative securities
of the Surviving Corporation pursuant to this Agreement by any officer or
director of Xxxxxx who may become a covered person of the Surviving Corporation
for purposes of Section 16(b) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (the "Exchange
Act"), shall be exempt for purposes of Section 16 of the Exchange Act.
Restricted stock units with respect to Xxxxxx Common Stock and other incentive
compensation awards (including awards under the LTAP (as defined in the Stock
Purchase Agreement)) payable in, or determined by reference to, shares of Xxxxxx
Common Stock will be converted into an equal number of restricted stock units
(or incentive compensation awards) with respect to Surviving Corporation Common
Stock.
ARTICLE II
CONDITIONS TO CLOSE
2.1 Conditions to Obligation to Close. The obligation of the parties to
consummate the Merger shall be subject to the consummation of the Stock Sale in
accordance with the terms and conditions set forth in the Stock Purchase
Agreement. It is understood and agreed by the
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parties that, pursuant to the Stock Purchase Agreement, the consummation of the
Stock Sale is subject to the simultaneous consummation of the Split-Off.
ARTICLE III
TERMINATION
3.1 Termination of Agreement. This Agreement shall terminate automatically
in the event of the termination of the Stock Purchase Agreement.
3.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 3.1 above, this Agreement shall become void and have no effect, without
any liability on the part of any party or its directors, officers, employees or
stockholders. Notwithstanding the foregoing, nothing in this Section 3.2 shall
relieve any party to this Agreement of liability under the Stock Purchase
Agreement or any other Transaction Agreement (as defined in the Stock Purchase
Agreement) to which it is a party.
ARTICLE IV
MISCELLANEOUS
4.1 Amendment. This Agreement may be amended by the parties hereto by
action taken or authorized by their respective Boards of Directors at any time
if set forth in an instrument in writing signed on behalf of each of the parties
hereto; provided, however, that any such amendment made after the Requisite
Stockholder Approval of the Requisite Vote Matters (as such terms are defined in
the Stock Purchase Agreement) shall not, without the approval of the parties
hereto and the Board of Directors of GM, (a) alter or change the amount or kind
of shares, securities, cash and/or property to be distributed to, or the rights
to be received in exchange for the Xxxxxx Common Stock, (b) alter or change any
term of the Certificate of Incorporation of the Surviving Corporation or (c)
alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class or series
of GM capital stock or Xxxxxx Common Stock or Xxxxxx Class B Common Stock.
4.2 Extension; Waiver. At any time prior to the Merger Effective Time,
Xxxxxx (with respect to Purchaser and Merger Sub) and Purchaser (with respect to
Xxxxxx) by action taken or authorized by their respective Boards of Directors,
may, to the extent legally allowed, (a) extend the time for the performance of
any of the obligations or other acts of such other party and (b) waive
compliance by such other party with any of the agreements or conditions
contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in a written instrument
signed on behalf of such party.
4.3 Notices. All notices 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 Xxxxxx:
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxx.
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
and
Jenner & Block, LLC
Xxx XXX Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
(b) if to Purchaser or Merger Sub:
c/o The News Corporation Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxx
Xxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
4.4 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
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(including all of the Exhibits hereto) and not to any particular provision of
this Agreement, and Article, Section, paragraph, and Exhibit are to the
Articles, Sections, paragraphs, and Exhibits to this Agreement unless otherwise
specified, (iii) 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, (vi) all references to any period of days shall be deemed to
be to the relevant number of calendar days, and (vii) all references to the word
"shares" shall be deemed also to refer to fractions of shares, as the context
requires.
(b) The Article, Section and paragraph 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.
4.5 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.
4.6 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, supersedes all previous agreements,
negotiations, discussions, 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 any
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.
4.7 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.
4.8 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware (without regard to principles
of conflicts of law).
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4.9 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, and all
such rights and remedies shall be cumulative. Any requirements for the securing
or posting of any bond with such remedy are waived.
4.10 Assignment. Except as set forth in the Stock Purchase Agreement,
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 parties; provided,
however, that Purchaser may at any time assign the rights and obligations of
Merger Sub to another wholly owned Subsidiary of Purchaser, so long as Purchaser
remains liable for such wholly owned Subsidiary's performance of such
obligations. 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 and assigns.
4.11 Tax Treatment. The parties agree that for federal (and, where
applicable, state and local) income tax purposes: (i) to the extent that the
holders of record of Xxxxxx Common Stock (A) receive Purchaser Stock and/or cash
(as applicable) pursuant to the Merger, such holders will be treated as having
sold their Xxxxxx Common Stock directly to Purchaser in exchange for Purchaser
Stock and/or cash (as applicable) in a transaction in which gain or loss is
recognized under the Code and (B) receive Surviving Corporation Common Stock
pursuant to the Merger, such holders will be treated as having retained their
Xxxxxx Common Stock; and (ii) the Xxxxxx Stock Sale Shares will be treated as
retained by Purchaser (or its Subsidiary) and otherwise unaffected by the
Merger.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXXX ELECTRONICS CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------------
Title: Senior Vice President and
General Counsel
THE NEWS CORPORATION LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Director
GMH MERGER SUB, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Senior Executive Vice President
