EXHIBIT 99.4
EXECUTION COPY
SPECIAL EMPLOYEE ITEMS AGREEMENT
SPECIAL EMPLOYEE ITEMS AGREEMENT, dated as of April 9, 2003
(as the same may be amended from time to time, the "SEI Agreement"), among
General Motors Corporation, a Delaware corporation ("GM"), and Xxxxxx
Electronics Corporation, a Delaware corporation ("Xxxxxx"), each a "Party", and
collectively, the "Parties."
WHEREAS, GM 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 ("Xxxxxx
Common Stock") in exchange for all of the outstanding shares of GM Class H
Common Stock, and the GM Class H Common Stock will be redeemed and cancelled
(the "Split-Off");
WHEREAS, immediately following the Split-Off, GM shall sell to
The News Corporation Limited ("Purchaser"), and Purchaser shall purchase from
GM, all of the shares of Xxxxxx 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");
WHEREAS, GM and Xxxxxx shall consummate the separation of
Xxxxxx from GM pursuant to a Separation Agreement to be entered into immediately
prior to the Split-Off, by and between GM and Xxxxxx (the "Separation
Agreement");
WHEREAS, a wholly owned subsidiary of Purchaser will merge,
immediately following the consummation of the Stock Sale, with and into Xxxxxx,
with Xxxxxx as the surviving corporation (the "Merger");
WHEREAS, the consummation of the Split-Off and the separation
of Xxxxxx from GM as contemplated by the Separation Agreement (collectively, the
"Xxxxxx Separation Transactions" and, 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 $1-2/3 Common Stock
and GM Class H Common Stock;
WHEREAS, in connection with the Transactions, the Parties
hereto are entering into this SEI Agreement in order to address certain special
employee items and this SEI Agreement shall be a part of the Separation
Agreement and Stock Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
provisions hereinafter contained, the Parties hereto hereby agree as follows.
1) DEFINITIONS
All initially capitalized terms used herein shall have the
meanings ascribed to such terms in the Separation Agreement unless the context
indicates otherwise.
For purposes of this SEI Agreement, the term "Control Group," with
respect to any entity, means the controlled group of corporations (as defined in
Section 1563 of the Internal Revenue Code of 1986, as amended) of which such
entity is a member.
2) PENSION PLANS
(a) Subject to Applicable Law, a participant in the GM Retirement
Program for Salaried Employees ("GM SRP") and participants in the GM
Supplemental Executive Retirement Program ("GM SERP") who transferred from GM or
any member of the GM Control Group to Xxxxxx with the consent of GM management
under the applicable GM-EDS and Xxxxxx Transfer Procedure prior to the Closing
Date will receive the following treatment from the GM SRP, the GM Benefit
Equalization Plan--Retirement ("BEP-R"), and if they were a participant at the
time of transfer, the GM SERP. The GM SRP, BEP-R and GM SERP will, for employees
who remain continuously employed by Xxxxxx or any member of the Xxxxxx Control
Group until retirement with eligibility for immediate commencement of retirement
benefits from Xxxxxx or a member of the Xxxxxx Control Group: (1) treat the
transferred employee as not having incurred a break in credited service as a
result of the transactions contemplated by the Transaction Documents; (2) for
purposes of calculating final average monthly base salary under the GM SRP and
GM SERP, utilize the average monthly base salary at Xxxxxx in effect on the
Merger Effective Time increased three percent (3%) non-compounded per year for
each full year of continuous salaried employment at Xxxxxx or a member of the
Xxxxxx Control Group from the Merger Effective Time until retirement; (3) to the
extent the GM SERP or a replacement or successor plan implemented by GM takes
annual bonuses into account in calculating benefits, utilize any annual bonus
paid by Xxxxxx in calculating benefits, if any, under the GM SERP or a
replacement or successor plan implemented by GM; and (4) provide benefits under
the terms of the GM SRP, BEP-R and GM SERP in effect at the time of retirement
from Xxxxxx or a member of the Xxxxxx Control Group. Notwithstanding anything
contained in the Transaction Documents to the contrary, all liabilities,
obligations and costs arising under or relating to the GM SRP, the BEP-R and the
GM SERP pursuant to this Section 2(a) shall be liabilities, obligations and
costs of GM or the applicable plan, and neither Xxxxxx nor Purchaser shall have
any obligation to indemnify the GM Indemnitees with respect to such liabilities,
obligations and costs pursuant to Article 5 of the Separation Agreement.
(b) Subject to Applicable Law, a participant in the Xxxxxx
Non-Bargaining Retirement Plan or the Xxxxxx Salaried Employees Excess Benefit
Plan who transferred from Xxxxxx or a member of the Xxxxxx Control Group to GM
or any member of the GM Control Group with the consent of Xxxxxx management
under the applicable GM-EDS and Xxxxxx Transfer Procedure prior to the Merger
Effective Time will receive the following treatment from the Xxxxxx
Non-Bargaining Retirement Plan and the Xxxxxx Salaried Employees Excess Benefit
Plan or a replacement or successor plan implemented by Xxxxxx. The Xxxxxx
Non-Bargaining Retirement Plan and the Xxxxxx Salaried Employees Excess Benefit
Plan or a replacement or successor plan implemented by Xxxxxx will, for
employees who remain continuously employed by GM or a company or business unit
which was part of the GM Control Group at the time the participant transferred
(such as, but not limited to, DASC) or a member of their respective Control
Groups, until retirement with eligibility for immediate commencement of
retirement benefits from GM or a company or business unit which was part of the
GM Control Group at the time the participant transferred, or a member of their
respective Control Groups: (1) treat the
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transferred employee as not having incurred a break in credited service as a
result of the transactions contemplated by the Transaction Documents; (2) for
purposes of calculating final average monthly base salary under the Xxxxxx
Non-Bargaining Retirement Plan and the Xxxxxx Salaried Employees Excess Benefit
Plan or a replacement or successor plan implemented by Xxxxxx, utilize the
average monthly base salary in effect on the Merger Effective Time by GM or a
company which was part of the GM Control Group at the time the participant
transferred, or a member of their respective Control Groups, increased three
percent (3%) non-compounded per year for each full year of continuous salaried
employment at GM or a company which was part of the GM Control Group at the time
the participant transferred, or a member of their respective Control Groups,
from the Closing Date until retirement; (3) to the extent the Xxxxxx Non
Bargaining Retirement Plan or the Xxxxxx Salaried Employees Excess Benefit Plan
or a replacement or successor plan take bonuses or other non-base pay into
account in calculating benefits under the plan, utilize any bonus or enhanced
variable pay, comparable to the Xxxxxx Annual Incentive Plan or the Xxxxxx
Employees' Results Sharing Plan, paid by GM or a company or business unit which
was part of the GM Control Group at the time of the closing in calculating
benefits under the plan and (4) provide benefits under the terms of the Xxxxxx
Non-Bargaining Retirement Plan and the Xxxxxx Salaried Employees Excess Benefit
Plan or a replacement or successor plan implemented by Xxxxxx in effect at the
time of retirement from GM or a company which was part of the GM Control Group
at the time the participant transferred, or a member of their respective Control
Groups. Notwithstanding anything contained in the Transaction Documents to the
contrary, all liabilities, obligations and costs arising under or relating to
the Xxxxxx Non-Bargaining Retirement Plan and the Xxxxxx Salaried Employees
Excess Benefit Plan or a replacement or successor plan implemented by Xxxxxx
pursuant to this Section 2(b) shall be liabilities, obligations and costs of
Xxxxxx or the applicable plan, and GM shall have no obligation to indemnify the
Xxxxxx Indemnitees or the Purchaser Indemnitees with respect to such
liabilities, obligations and costs pursuant to Article 5 of the Separation
Agreement. Notwithstanding any provision of this Agreement, the foregoing
provisions of this Section 2(b) shall not apply to more than 180 participants.
(c) The parties will cooperate in providing the data required to comply
with the provisions of this SEI Agreement.
3) MISCELLANEOUS MATTERS
a) PARTICIPATION IN GM VEHICLE PURCHASE PROGRAM
Active and retired Xxxxxx employees as of the Closing Date may continue to
participate in the GM Vehicle Purchase Program applicable to non-bargaining unit
employees of GM as modified from time to time for GM employees for a period of
three years following the Merger Effective Time. Notwithstanding anything
contained in the Transaction Documents to the contrary, all liabilities,
obligations and costs arising under or relating to this Section 3(a) shall be
liabilities, obligations and costs of GM, and Xxxxxx shall not have any
obligation to indemnify the GM Indemnitees with respect to such liabilities,
obligations and costs pursuant to Article 5 of the Separation Agreement;
provided, however, that Xxxxxx shall be responsible for administration of the GM
Vehicle Purchase Program insofar as it requires communication thereof by Xxxxxx
to its employees and insofar as implementation of the program may require
communication by Xxxxxx or its employees to GM.
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b) NO THIRD PARTY BENEFICIARIES
No provision in this SEI Agreement shall confer upon any person other than
the signatories hereto any rights or remedies with respect to the matters set
forth in this SEI Agreement.
c) SEVERABILITY
In case any one or more of the provisions contained in this SEI Agreement
shall be held invalid, illegal or unenforceable in any respect by a court of
competent jurisdiction or a qualified arbitrator, the validity, legality and
enforceability of the remaining provisions contained herein and other
applications thereof shall not in any way be diminished.
d) GOVERNING LAW
To the extent not governed by federal law, this SEI Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
regardless of the laws that might otherwise govern under principles of conflicts
of laws applicable thereto.
e) ENTIRE AGREEMENT; AMENDMENTS
This SEI Agreement constitutes the entire agreement among the Parties and
supersedes all other pre-existing agreements, with respect to the matters
expressly provided for in this SEI Agreement. This Agreement may be amended or
modified only by mutual agreement in writing signed by an authorized
representative of each Party.
f) ORDER OF PRECEDENCE
This SEI Agreement shall be construed in a manner consistent with the
Transaction Documents and incorporates the provisions thereof by reference to
the extent relevant to this SEI Agreement. The Parties hereto agree that if any
terms of this SEI Agreement conflict with the terms in the Transaction
Documents, the terms of this SEI Agreement shall govern with respect to the
resolution of such conflict.
g) COUNTERPARTS
This SEI Agreement may by executed in counterparts, each of which shall be
deemed an original.
h) DESCRIPTIVE HEADINGS
The section and clause headings of this SEI Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this SEI
Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this SEI Agreement as of
the date written above.
XXXXXX ELECTRONICS CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Senior Vice President and General Counsel
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GENERAL MOTORS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Assistant General Counsel
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