SHAREHOLDERS AGREEMENT
AGREEMENT dated December 11, 1998, among GENERAL MOTORS CORPORATION,
a Delaware corporation ("GM"), ▇▇▇▇▇▇ ELECTRONICS CORPORATION, a Delaware
corporation and a direct wholly owned subsidiary of GM ("▇▇▇▇▇▇"), HBI, a
Minnesota corporation, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ (each a "Shareholder," and collectively, the "Shareholders").
W I T N E S S E T H:
WHEREAS, concurrently herewith, GM, ▇▇▇▇▇▇ and United States
Satellite Broadcasting Company, Inc., a Minnesota corporation (the "Company"),
are entering into an Agreement and Plan of Merger (as such agreement may
hereafter be amended from time to time, the "Merger Agreement"; capitalized
terms used and not defined herein have the respective meanings ascribed to them
in the Merger Agreement), pursuant to which the Company will be merged with and
into ▇▇▇▇▇▇ and ▇▇▇▇▇▇ shall continue as the surviving corporation (the
"Merger");
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, GM and ▇▇▇▇▇▇ have required that the Shareholders agree, and
the Shareholders have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) "Company Common Stock" shall mean at any time, collectively, the
Common Stock, par value $.0001 per share (the "Common Stock") and the Class A
Common Stock, par value $.0001 per share (the "Class A Common Stock"), of the
Company. In the event of a stock dividend or distribution, or any change in the
Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Company
Common Stock" shall be deemed to refer to and include all such stock dividends
and distributions and any shares into which or for which any or all of the
shares of Company Common Stock may be changed or exchanged.
(b) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other entity.
NYFS08...:\68\41668\0004\1323\AGR5268W.17F
(c) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" as within the meanings of Section 13(d)(3) of
the Exchange Act.
2. Provisions Concerning Company Common Stock. Each Shareholder
hereby agrees that during the period commencing on the date hereof and
continuing until the first to occur of the Effective Time or termination of the
Merger Agreement in accordance with its terms, at any meeting of the holders of
Company Common Stock, however called, or in connection with any written consent
of the holders of Company Common Stock, such Shareholder shall vote (or cause to
be voted) the shares of Company Common Stock set forth opposite such
Shareholder's name on Schedule I hereto under the caption "Option Shares"
(collectively, and subject to the last sentence of this Section 2, the "Option
Shares"), (i) in favor of the Merger, the execution and delivery by the Company
of the Merger Agreement and the approval of the terms thereof and each of the
other actions contemplated by the Merger Agreement and this Agreement and any
actions required in furtherance thereof and hereof; (ii) against any action or
agreement that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or this Agreement; and (iii) except as otherwise
agreed to in writing in advance by ▇▇▇▇▇▇, against the following actions (other
than the Merger and the transactions contemplated by the Merger Agreement): (A)
any extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company or its Subsidiaries; (B) a
sale, lease or transfer of a material amount of assets of the Company or its
Subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or its Subsidiaries; (C) any change in a majority of the persons
who constitute the board of directors of the Company; (D) any change in the
present capitalization of the Company, any mandatory conversion of the Common
Stock into Class A Common Stock, or any amendment of the Company's Certificate
of Incorporation or Bylaws; (E) any other material change in the Company's
corporate structure or business; or (F) any other action involving the Company
or its Subsidiaries which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, or materially adversely affect the
Merger and the transactions contemplated by this Agreement and the Merger
Agreement. Such Shareholder shall not enter into any agreement or understanding
with any person or entity the effect of which would be inconsistent with or
violative of the provisions and agreements contained in this Section 2. The
number of Option Shares shall be reduced or increased after the date hereof to a
number of shares which represent 19.9% of the voting power of the issued and
outstanding shares of capital stock of the Company.
2
3. Options. In order to induce GM and ▇▇▇▇▇▇ to enter into the
Merger Agreement, each of the Shareholders hereby grants to ▇▇▇▇▇▇ an
irrevocable option (each, a "Stock Option" and collectively, the "Stock
Options") to purchase the Option Shares at a purchase price per share equal to
the Share Value, payable in cash (the "Purchase Price"). The Share Value shall
be computed in the manner provided by the Merger Agreement, except that the date
on which the Stock Options become exercisable pursuant to this Section 3 shall
be substituted for the "Closing Date" under the Merger Agreement for the
purposes of such computation. If the Merger Agreement is terminated pursuant to
Section 7.1(e), but only if the basis for such termination is the Company's
breach of Section 5.8 of the Merger Agreement, or Section 7.1(f) thereof, or any
Shareholder materially breaches any agreement contained in this Agreement, the
Stock Options shall, in any such case, become immediately exercisable with
respect to all Shareholders, in whole or in part, at any time and from time to
time upon such termination or upon GM and ▇▇▇▇▇▇ being informed of such breach,
as the case may be, and until the date which is 120 days after the date of such
termination or the date on which GM and ▇▇▇▇▇▇ are informed of such breach, as
the case may be, provided, that if at the expiration of such 120-day period the
Stock Options cannot be exercised by reason of any preliminary or final
injunction or other order issued by any court or governmental, administrative or
regulatory agency or authority prohibiting the exercise of the Stock Options
pursuant to this Agreement, or because all waiting periods under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), required for the purchase of the Option Shares upon such exercise shall
not have expired or been waived, the Stock Options shall be exercisable until 10
business days after the later of the date on which such impediment to exercise
shall have been removed or shall have become final and not subject to appeal. In
the event that ▇▇▇▇▇▇ wishes to exercise the Stock Options, ▇▇▇▇▇▇ shall send a
written notice (the "Notice") to the Shareholders identifying the place and date
(not less than two business days from the date of the Notice) for the closing of
such purchase. At such closing, ▇▇▇▇▇▇ shall receive certificates for the Option
Shares, duly endorsed for transfer, and shall make payment therefor by wire
transfer of immediately available funds.
4. Other Covenants, Representations and Warranties of the
Shareholders. Each Shareholder hereby covenants, represents and warrants to each
of GM and ▇▇▇▇▇▇ as follows:
(a) Ownership of Shares. Such Shareholder is the record holder of or
Beneficially Owns the number of Shares of Common Stock and Class A Common Stock,
respectively, set forth opposite such Shareholder's name on Schedule I hereto.
On the date hereof, the Shares set forth opposite such Shareholder's name on
Schedule I hereto constitute all of the Shares owned of record or Beneficially
Owned by such Shareholder. Such Shareholder has sole voting power and sole power
to issue instructions with respect to the matters set forth in Section 2 hereof,
sole power of disposition, sole power of conversion,
3
sole power to exercise dissenters' rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the
Shares of Common Stock and Class A Common Stock, respectively, set forth
opposite such Shareholder's name on Schedule I hereto, with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(b) Power; Binding Agreement. Such Shareholder has the legal
capacity, power and authority to enter into and perform all of such
Shareholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Shareholder will not violate any other
agreement to which such Shareholder is a party including, without limitation,
any voting agreement, shareholders agreement or voting trust. In addition, if
such Shareholder is a corporation, the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby (i) have been duly
authorized by the board of directors and stockholders of such Shareholder, and
(ii) do not and will not violate any provision of the certificate or articles of
incorporation or by-laws of such Shareholder. This Agreement has been duly and
validly executed and delivered by such Shareholder and constitutes a valid and
binding agreement of such Shareholder, enforceable against such Shareholder in
accordance with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Shareholder is Trustee
whose consent is required for the execution and delivery of this Agreement or
the consummation by such Shareholder of the transactions contemplated hereby. If
such Shareholder is married and such Shareholder's Shares constitute community
property, this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, such Shareholder's spouse,
enforceable against such person in accordance with its terms.
(c) No Conflicts. Except for filings, permits, authorizations,
consents and approvals under the HSR Act and the Communications Act, if
applicable, (A) no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for the
execution of this Agreement by such Shareholder and the consummation by such
Shareholder of the transactions contemplated hereby and (B) none of the
execution and delivery of this Agreement by such Shareholder, the consummation
by such Shareholder of the transactions contemplated hereby or compliance by
such Shareholder with any of the provisions hereof shall (1) conflict with or
result in any breach of any applicable organizational documents applicable to
such Shareholder, (2) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which such Shareholder is a
party or by which such Shareholder or any of such Shareholder's properties or
assets may be bound, or (3) violate
4
any order, writ, injunction, decree, judgment, order, statute, rule or
regulation applicable to such Shareholder or any of such Shareholder's
properties or assets.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated hereby, such Shareholder's Shares and the certificates
representing such Shares are now, and at all times during the term hereof will
be, held by such Shareholder, or by a nominee or custodian for the benefit of
such Shareholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances or proxies
arising hereunder in favor of GM.
(e) No Finder's Fees. No broker, investment banker, financial
adviser or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Shareholder.
(f) No Solicitation. No Shareholder shall, in his or its capacity as
such, directly or indirectly, solicit (including by way of furnishing
information) or respond to any inquiries or the making of any proposal by any
person or entity (other than ▇▇▇▇▇▇ or any affiliate of ▇▇▇▇▇▇) with respect to
the Company that constitutes an Acquisition Proposal. If any Shareholder
receives any such inquiry or proposal, then such Shareholder shall promptly
inform ▇▇▇▇▇▇ of the existence thereof. Each Shareholder will immediately cease
and cause to be terminated any existing activities, discussions or negotiations
with any parties conducted heretofore with respect to any of the foregoing.
(g) Restriction on Transfer of Shares, Proxies and Non-Interference.
Beginning on the date hereof and ending on the last date the Stock Options are
exercisable pursuant to Section 3 hereof, except as contemplated by this
Agreement or the Merger Agreement, no Shareholder shall, directly or indirectly,
(i) offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
such Shareholder's Option Shares or any interest therein; (ii) except as
contemplated by this Agreement, grant any proxies or powers of attorney, deposit
any Option Shares into a voting trust or enter into a voting agreement with
respect to any Option Shares; or (iii) take any action that would make any
representation or warranty of such Shareholder contained herein untrue or
incorrect or have the effect of preventing or disabling such Shareholder from
performing such Shareholder's obligations under this Agreement. Each Shareholder
agrees with, and covenants to, ▇▇▇▇▇▇ that beginning on the date hereof and
ending on the last date the Stock Options are exercisable pursuant to Section 3
hereof, such Shareholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or
5
uncertificated interest representing any of such Shareholder's Option Shares,
unless such transfer is made in compliance with this Agreement (including the
provisions of Section 2 hereof).
(h) Restriction on Transfer of Acquiror Stock. Each Shareholder
understands that such Shareholder may be deemed to be an "affiliate" of the
Company within the meaning of Rule 145 promulgated under the Securities Act of
1933, as amended (the "Securities Act"), and that the transfer of the shares of
Acquiror Stock acquired by such Shareholder in the Merger may only be made as
permitted by, and in accordance with, Rule 145 or any other applicable exemption
from registration under the Securities Act. In addition, each Shareholder
covenants to GM and ▇▇▇▇▇▇ that such Shareholder, in connection with any
underwritten offering of Acquiror Stock occurring within two years of the
Effective Time, will sign a customary "lock-up" agreement restricting the
transfer of the shares of Acquiror Stock held by it during the pendency of such
offering; provided that such Shareholder shall not be required to agree to any
transfer restrictions more burdensome than those to which GM or its Affiliates
agree in connection with such offering.
(i) Waiver of Dissenters' Rights. Each Shareholder hereby waives any
rights to dissent from the Merger that such Shareholder may have under Sections
302A.471 and 302A.473 of the Minnesota Business Corporation Act (the "MBCA").
Each Shareholder acknowledges that such Shareholder has received from counsel to
the Company a copy of Sections 302A.471 and 302A.473 of the MBCA relating to
dissenters' rights and a summary of those Sections.
(j) Reliance by GM and ▇▇▇▇▇▇. Each Shareholder understands and
acknowledges that GM and ▇▇▇▇▇▇ are entering into the Merger Agreement in
reliance upon such Shareholder's execution and delivery of this Agreement.
5. Other Covenants, Representations and Warranties of GM and ▇▇▇▇▇▇.
GM and ▇▇▇▇▇▇ hereby covenant, represent and warrant to each Shareholder as
follows:
(a) Power; Binding Agreement. Each of GM and ▇▇▇▇▇▇ has the legal
capacity, power and authority to enter into and perform all of such party's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by GM and ▇▇▇▇▇▇ will not violate any other material agreement to
which GM or ▇▇▇▇▇▇ is a party. In addition, the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby (i) have
been duly authorized by the board of directors and stockholders of GM and
▇▇▇▇▇▇, and (ii) do not and will not violate any provision of the certificate of
incorporation or by-laws of GM or ▇▇▇▇▇▇. This Agreement has been duly and
validly executed and delivered by each of GM and ▇▇▇▇▇▇ and constitutes a valid
and binding agreement of such party, enforceable against such party in
accordance with its terms.
6
(b) Additional Agreements. On or prior to the Closing Date, ▇▇▇▇▇▇
shall, or shall cause DIRECTV to, enter into the following agreements with HBI:
(i) a Programming Agreement, substantially in the form of Exhibit A hereto, (ii)
an Asset Option Agreement, substantially in the form of Exhibit B hereto (iii) a
Trademark/Trade Name Option Agreement, substantially in the form of Exhibit C
hereto and (iv) an Affiliation Agreement, substantially in the form of Exhibit D
hereto. In addition, ▇▇▇▇▇▇ and DIRECTV agree that they will, when discussing
the history of the direct broadcast industry in public announcements, fairly
acknowledge, as relevant and appropriate, the role of the ▇▇▇▇▇▇▇ family in the
development of the industry.
6. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
7. Termination; Expenses and Fee. (a) The covenants and agreements
contained herein with respect to the Shares shall terminate (i) in the event the
Merger Agreement is terminated in accordance with its terms, upon such
termination, except that the provisions of Section 3 hereof shall survive any
such termination and (ii) in the event the Merger is consummated, at the
Effective Time, except that the provisions of Section 4(h) hereof shall survive
any such termination, provided, in each case, that the provisions of Section 10
hereof and the last sentence of Section 5(b) hereof shall survive any
termination of this Agreement, and provided, further, that no termination of
this Agreement shall relieve any party of liability for a breach hereof.
(b) Each party shall bear its own expenses in connection with this
Agreement and the transactions contemplated hereby. Notwithstanding the
foregoing, in the event the Merger Agreement is terminated by ▇▇▇▇▇▇ pursuant to
Section 7.1(f) thereof, HBI shall pay to ▇▇▇▇▇▇, within one week of such
termination, $50 million in immediately available funds to an account designated
by ▇▇▇▇▇▇ on the date of such termination.
8. Shareholder Capacity. No person executing this Agreement who is
or becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer. Each Shareholder signs solely in his or her capacity as the record and
beneficial owner of, or the trustee of a trust whose beneficiaries are the
beneficial owners of, such Shareholder's Shares.
9. Sophistication. Each Shareholder acknowledges that such
Shareholder is an informed and sophisticated investor and, together with such
Shareholder's advisors, has undertaken such investigation as they have deemed
necessary, including the review of the
7
Merger Agreement and this Agreement, to enable such Shareholder to make an
informed and intelligent decision with respect to the Merger Agreement and this
Agreement and the transactions contemplated thereby and hereby.
10. Confidentiality. Each of the parties hereto recognizes that
successful consummation of the transactions contemplated by this Agreement may
be dependent upon confidentiality with respect to the matters referred to
herein. In this connection, pending public disclosure thereof, each party hereby
agrees not to disclose or discuss such matters with anyone not a party to this
Agreement (other than such party's counsel and advisors, if any) without the
prior written consent of the other party, except for filings required pursuant
to the Exchange Act and the rules and regulations thereunder or disclosures such
party's counsel advises are necessary in order to fulfill such party's
obligations imposed by law, in which event such party shall give notice of such
disclosure to the other party as promptly as practicable so as to enable the
other party to seek a protective order from a court of competent jurisdiction
with respect thereto.
11. Miscellaneous.
(a) Entire Agreement. This Agreement, the Merger Agreement, the
agreements referred to in Section 5(b) hereof and the Ancillary Agreements
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
(b) Certain Events. Each Shareholder agrees that this Agreement and
the obligations hereunder shall attach to such Shareholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including, without
limitation, such Shareholder's heirs, guardians, administrators or successors,
provided, that following the Effective Time or termination of the Merger
Agreement, this Agreement shall not be binding on any purchaser of Shares in an
open market transaction. Notwithstanding any transfer of Shares, the transferor
shall remain liable for the performance of all obligations under this Agreement
of the transferor.
(c) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other party, provided,
that GM or ▇▇▇▇▇▇ may assign, in its sole discretion, its rights and obligations
hereunder to any direct or indirect wholly owned subsidiary of GM, but no such
assignment shall relieve GM or ▇▇▇▇▇▇ of its obligations hereunder if such
assignee does not or cannot perform such obligations and, notwithstanding the
foregoing, GM and ▇▇▇▇▇▇ shall remain liable for their obligations under Section
10 hereof.
8
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, with respect
to any one or more Shareholders, except upon the execution and delivery of a
written agreement executed by the relevant parties hereto; provided that
Schedule I hereto may be supplemented by GM by adding the name and other
relevant information concerning any shareholder of the Company who agrees to be
bound by the terms of this Agreement without the agreement of any other party
hereto, and thereafter such added shareholder shall be treated as a
"Shareholder" for all purposes of this Agreement.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to Shareholder: At the addresses set forth on Schedule I hereto
Copies to: ▇▇▇▇▇▇▇ Broadcasting, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and ▇▇▇▇▇▇▇, Street and Deinard Professional Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to GM or
▇▇▇▇▇▇ to: General Motors Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
9
and: ▇▇▇▇▇▇ Electronics Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
copy to: Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the aggrieved party to sustain damages for which it
would not have an adequate remedy at law for money damages, and therefore each
of the parties hereto agrees that in the event of any such breach the aggrieved
party shall be entitled to the remedy of specific performance of such covenants
and agreements and injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
10
(i) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of law thereof.
(l) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the Court of Chancery in the State of Delaware or the
United States District Court for the Southern District of New York or any court
of the State of New York located in the City of New York in any action, suit or
proceeding arising in connection with this Agreement, and agrees that any such
action, suit or proceeding shall be brought only in such court (and waives any
objection based on forum non conveniens or any other objection to venue
therein); provided, however, that such consent to jurisdiction is solely for the
purpose referred to in this paragraph (l) and shall not be deemed to be a
general submission to the jurisdiction of said Courts or in the States of
Delaware or New York other than for such purposes. Each party hereto hereby
waives any right to a trial by jury in connection with any such action, suit or
proceeding.
(m) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
11
IN WITNESS WHEREOF, GM, ▇▇▇▇▇▇ and each Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
GENERAL MOTORS CORPORATION
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇ ELECTRONICS CORPORATION
By:
------------------------------------
Name:
Title:
HBI, INC.
By:
------------------------------------
Name:
Title:
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
12
SCHEDULE 1 TO
SHAREHOLDERS AGREEMENT
RECORD AND BENEFICIAL OWNERSHIP
-------------------------------
Class A Option
Name and Address of Shareholder Common Stock Common Stock Shares
------------------------------- ------------ ------------ ------
1. ▇▇▇▇▇▇▇ Broadcasting 5,715 46,051,225 12,688,841
Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
2. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2,025 0
▇▇▇▇▇▇▇ Broadcasting
Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
3. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2,025 471,600
▇▇▇▇▇▇▇ Broadcasting
Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
4. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2,025 0
▇▇▇▇▇▇▇ Broadcasting
Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
13