EXHIBIT 99.7
SPECIAL EMPLOYEE ITEMS AGREEMENT
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SPECIAL EMPLOYEE ITEMS AGREEMENT, dated as of October 28, 2001
(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 ("HEC"), each a "Party", and
collectively, the "Parties."
WHEREAS, following the separation of HEC from GM pursuant to a
Separation Agreement (the "Separation Agreement") entered into by and between
HEC and GM, HEC and Echostar Communications Corporation, a Nevada corporation
("Echostar") desire to combine the business of Echostar with the business of HEC
pursuant to a merger (the "Merger") of Echostar with and into HEC, with HEC as
the surviving corporation ("New HEC"), as contemplated by that certain Agreement
and Plan of Merger (the "Merger Agreement") entered into by and between HEC and
Echostar; and
WHEREAS, in connection with the transactions contemplated by
the Separation Agreement and the Merger Agreement, the Parties hereto are
entering into this SEI Agreement in order to address certain special employee
items;
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 Merger 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 General Motors
Retirement Program for Salaried Employees ("GM SRP") who transferred from GM or
any member of the GM Control Group to HEC 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 and the General Motors
Benefit Equalization Plan - Retirement ("BEP-R"). The GM SRP and BEP-R will, for
employees who remain continuously employed by HEC, New HEC or any member of the
HEC Control Group until retirement with eligibility for immediate commencement
of retirement benefits from HEC, New HEC or a member of the HEC 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, utilize the average monthly base salary at HEC in effect on
the Merger Effective Time increased three percent (3%) non-
compounded per year for each full year of continuous salaried employment at HEC,
New HEC or a member of the HEC Control Group from the Merger Effective Time
until retirement; and (3) provide benefits under the terms of the GM SRP and
BEP-R in effect at the time of retirement from HEC, New HEC or a member of the
HEC 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 and the BEP-R pursuant to this Section 2(a) shall be
liabilities, obligations and costs of GM or the applicable plan, and neither of
HEC nor Echostar shall have any obligation to indemnify the GM Indemnitees (as
defined in the Implementation Agreement) with respect to such liabilities,
obligations and costs pursuant to Article 7 of the Implementation Agreement.
(b) Subject to Applicable Law, a participant in the HEC Non Bargaining
Retirement Plan who transferred from HEC or a member of the HEC Control Group to
GM or any member of the GM Control Group with the consent of HEC management
under the applicable GM-EDS and Xxxxxx Transfer Procedure prior to the Merger
Effective Time will receive the following treatment from the HEC Non Bargaining
Retirement Plan or a replacement or successor plan implemented by HEC or New
HEC. The HEC Non Bargaining Retirement Plan or a replacement or successor plan
implemented by HEC or New HEC 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,
Delphi Automotive Systems, Corporation) 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 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 HEC Non Bargaining Retirement Plan or a
replacement or successor plan implemented by HEC or New HEC, 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; and (3) provide benefits under the terms of
the HEC Non Bargaining Retirement Plan or a replacement or successor plan
implemented by HEC or New HEC 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 HEC Non
Bargaining Retirement Plan or a replacement or successor plan implemented by HEC
or New HEC pursuant to this Section 2(b) shall be liabilities, obligations and
costs of HEC, New HEC or the applicable plan, and GM shall have no obligation to
indemnify the Xxxxxx Indemnitees or the Echostar Indemnitees (each as defined in
the Implementation Agreement) with respect to such liabilities, obligations and
costs pursuant to Article 7 of the Implementation Agreement. Notwithstanding any
provision of this Agreement, the foregoing provisions of this Section 2(b) shall
not apply to more than 180 participants.
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(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 HEC 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 neither HEC nor Echostar shall
have any obligation to indemnify the GM Indemnitees with respect to such
liabilities, obligations and costs pursuant to Article 7 of the Implementation
Agreement; provided, however, that New HEC shall be responsible for
administration of the GM Vehicle Purchase Program insofar as it requires
communication thereof by New HEC to its employees and insofar as implementation
of the program may require communication by New HEC or its employees to GM.
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.
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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/ X. X. Xxxxxx
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Title: Xxxxxxx Xxxxxx
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Date: Chief Financial Officer
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GENERAL MOTORS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Assistant General Counsel
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Date: 10-28-2001
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[Special Employee Items Agreement]
