EXHIBIT 99.3
EXECUTION COPY
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated
as of December 15, 2004, is hereby entered into by and among General Motors
Corporation, a Delaware corporation ("GM"), the Sub-Trust of the General Motors
Welfare Benefit Trust (the "Sub-Trust") established under the General Motors
Welfare Benefit Trust, a voluntary employees' beneficiary association trust
established to fund certain collectively bargained hourly retiree health care
benefits under the General Motors Health Care Program for Hourly Employees and
such benefits under other applicable collectively bargained welfare plans (the
"VEBA"), for the account and on behalf of the VEBA (which shall thereby be
deemed a party to this Agreement), and XM Satellite Radio Holdings Inc., a
Delaware corporation (the "Company"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings set forth in the Registration
Rights Agreement (as defined below).
WHEREAS, GM owns 980,670 shares (the "Note Shares") of Class A
Common Stock, par value $0.01 per share (the "Class A Common Stock"), of the
Company, which GM received in connection with the conversion of certain GM Notes
on February 26, 2004;
WHEREAS, GM owns an additional 10,000,000 shares (the "Warrant
Shares" and, together with the Note Shares, the "XMSR Shares") of Class A Common
Stock, which GM received in connection with the exercise of the GM Warrant on
April 29, 2004;
WHEREAS, GM desires to contribute some or all of the XMSR Shares to
the VEBA (the "Contribution") pursuant to the terms and conditions of a
Contribution Agreement, dated as of December 15, 2004 (the "Contribution
Agreement"), by and between GM and United States Trust Company of New York,
solely in its capacity as trustee of the Sub-Trust of the VEBA (the "Trustee");
WHEREAS, the Company, GM and numerous other parties have entered
into a Second Amended and Restated Registration Rights Agreement, dated as of
January 28, 2003 (the "Registration Rights Agreement");
WHEREAS, each of GM, the VEBA and the Company desires, subject to
the terms and conditions of this Agreement, that GM assign to the Sub-Trust, and
that the Sub-Trust assume from GM, certain of GM's rights and obligations under
the Registration Rights Agreement;
WHEREAS, GM has entered into a Lock-Up Agreement, dated November 19,
2004, with Bear, Xxxxxxx & Co. Inc., a copy of which is attached hereto as
Exhibit A, pursuant to which GM has agreed not to dispose of its shares of Class
A Common Stock, including the XMSR Shares, prior to February 16, 2005;
WHEREAS, the Lock-Up Agreement permits the Contribution, provided
that the Sub-Trust agrees to be bound by the provisions of the Lock-Up Agreement
as if the Sub-Trust were a party thereto;
WHEREAS, the Trustee has been appointed by a named fiduciary for
investment purposes of the VEBA (the "VEBA Named Fiduciary") (as determined in
accordance with Section 402(a) of the Employee Retirement Income Security Act of
1974, as amended) to manage the XMSR Shares contributed to the VEBA and to
exercise all rights, powers and privileges appurtenant to such shares (subject
to the authority of the VEBA Named Fiduciary to terminate such appointment and
appoint one or more other investment managers or trustees for any such shares);
and
WHEREAS, the Trustee has full power and authority to execute and
deliver this Agreement for the account and on behalf of the Sub-Trust and the
VEBA and to so bind the Sub-Trust and VEBA.
NOW, THEREFORE, in consideration of the foregoing and the promises
and covenants contained herein, the parties hereto agree as follows:
1. ASSIGNMENT AND ASSUMPTION OF RIGHTS AND OBLIGATIONS.
----------------------------------------------------
(a) Assignment and Assumption of Rights. Effective
upon completion of a Contribution of XMSR Shares to the VEBA, and without any
further action on the part of any of GM, the VEBA, the Sub-Trust, the Trustee or
the Company, GM hereby assigns to the Sub-Trust and the Sub-Trust hereby assumes
from GM, pursuant to Section 4.5 of the Registration Rights Agreement, all of
the rights of GM (as such term is defined in the Registration Rights Agreement)
under the Registration Rights Agreement as a Holder of the XMSR Shares so
contributed; provided, however, that:
(i) GM is not so assigning to the Sub-Trust and the
Sub-Trust is not so assuming any right to initiate a Demand
Registration pursuant to Section 2.1(a)(i) of the
Registration Rights Agreement; and
(ii) GM is so assigning to the Sub-Trust and the Sub-Trust
is so assuming one of GM's two rights to initiate a GM Demand
Registration pursuant to Section 2.1(a)(iv) of the Registration
Rights Agreement (and GM is retaining its other such right),
but only for so long as the VEBA owns any of the XMSR Shares, it
being understood that if the VEBA sells, transfers or otherwise
conveys all of the XMSR Shares without the Sub-Trust having
exercised such right to initiate a GM Demand Registration, then,
effective at the time of the VEBA's sale, transfer or other
disposition of the last of the XMSR Shares, the Sub-Trust's
unused right shall be relinquished by the Sub-Trust and
deemed returned to GM.
(b) Assignment and Assumption of Obligations. Effective upon
completion of a Contribution of XMSR Shares to the VEBA, and without any further
action on the part of any of GM, the VEBA, the Sub- Trust, the Trustee or the
Company, (i) GM hereby assigns to the Sub- Trust and the Sub-Trust hereby
assumes from GM, pursuant to Section 4.5 of the Registration Rights Agreement,
all of GM's obligations under the Registration Rights Agreement with respect to
the XMSR Shares so contributed, (ii) the Sub-Trust agrees to be bound by all of
the terms and conditions of the Registration Rights Agreement applicable to GM
with respect to the XMSR Shares, and (iii) the Sub- Trust agrees to be bound by
the provisions of the Lock-Up Agreement as if it were a party thereto.
(c) Notification to the Company. As soon as practicable after
completion of the Contribution, GM shall notify the Company that the
Contribution has been made effective, and the Company may rely upon this notice
as conclusive evidence of the assignment and assumption of rights and
obligations described in Sections 1(a) and (b) above.
2. REGISTRATION STATEMENT.
-----------------------
(a) The Company hereby agrees to use its reasonable best
efforts to take the following actions as soon as practicable after completion of
the Contribution and no later than February 16, 2005:
(i) amend its existing Registration Statement for an
offering to be made on a delayed or a continuous basis
pursuant to Rule 415 (or any appropriate similar rule
that may be adopted by the Securities and Exchange
Commission (the "Commission")) under the Securities Act
covering the resale of the Warrant Shares to reflect
ownership and proposed resale of such shares by the VEBA
rather than GM, and cause such amendment to become effective
under the Securities Act; and
(ii) prepare and file with the Commission a Registration
Statement for an offering to be made on a delayed or a
continuous basis pursuant to Rule 415 (or any appropriate similar
rule that may be adopted by the Commission) under the Securities
Act covering the resale of the Note Shares by the VEBA, and
cause such Registration Statement to become effective under the
Securities Act;
or utilize any other method mutually agreed to by the Company and the Sub-Trust
to cause a Registration Statement covering the resale by the VEBA of all of the
XMSR Shares contributed to the VEBA to become effective under the Securities Act
as soon as practicable after completion of the Contribution and no later than
February 16, 2005.
(b) Following completion of the Contribution of XMSR Shares to the
VEBA, the Company hereby agrees to cooperate with the VEBA, the Sub-Trust and
the Trustee in connection with any disposition of such XMSR Shares by the VEBA,
including, without limitation, (i) instructing the transfer agent for the Class
A Common Stock to reissue such XMSR Shares to the VEBA in book-entry form
(subject to appropriate restrictions, if done prior to effectiveness of the
applicable Registration Statement), (ii) when appropriate, removing restrictive
legends from such XMSR Shares, and (iii) registering such XMSR Shares in such
name or names as the VEBA, the Sub-Trust or the Trustee may request in
connection with any such disposition.
3. CONSENTS AND WAIVERS OF PIGGYBACK REGISTRATION RIGHTS.
------------------------------------------------------
(a) Registration under Section 2. Parties to the Registration Rights
Agreement have certain rights to effect a Piggyback Registration, and the
Company has sought consents and waivers in the past from major Holders of
Registrable Securities to avoid having to go through the notice and waiting
periods required by the Registration Rights Agreement. Rights to effect a
Piggyback Registration may be applicable to the actions to be taken by the
Company under Section 2 above. Each of GM and the Sub-Trust hereby consents to
the amendment or waiver of the Registration Rights Agreement such that Holders
shall not have any right to cause a Piggyback Registration in connection with
the actions to be taken by the Company under Section 2 above, including
amendment of an existing Registration Statement covering the Warrant Shares and
filing of a new Registration Statement covering the Note Shares. In the event
that the Company is obtaining consents and waivers of the same from other major
Holders of Registrable Securities, each of GM and the Sub-Trust hereby consents
to execute a written consent and waiver, in form reasonably acceptable to GM or
the Sub-Trust respectively, to such effect.
(b) Future Registrations. To the extent that rights to effect a
Piggyback Registration may be applicable to or in connection with future
offerings of Class A Common Stock or securities convertible into or exchangeable
for Class A Common Stock ("Future Offerings"), the Sub-Trust hereby agrees to
maintain a process, from and after the date on which the Contribution is
completed, to consider future requests for the amendment or waiver of the
Registration Rights Agreement with respect to Piggyback Registration in
connection with such Future Offerings, including identifying to the Company at
least two persons who are or would be authorized to consent to any such
requests. In the event that the Company requests one or more consents and
waivers of Piggyback Registration in connection with any one or more Future
Offerings, the Sub-Trust hereby agrees to consider such requests promptly and in
good faith, in accordance with the process referred to in the prior sentence.
4. COMPLIANCE MATTERS.
-------------------
(a) Chinese Wall. The parties acknowledge that GM presently has a
representative serving on the board of directors of the Company, and that such
representative or even GM may from time to time be in possession of material
non-public information regarding the Company. Each of GM and the Sub-Trust
hereby represents to the Company that it has put in place a process or program,
sometimes referred to as a "Chinese Wall," reasonably expected to avoid any
material non-public information regarding the Company which may from time to
time be in the possession of GM or its representative serving on the board of
directors of the Company from being disclosed to the Sub-Trust. Each of GM and
the Company agrees to use all reasonable efforts to avoid disclosing to the
Sub-Trust any material non-public information regarding the Company.
(b) Securities Law Compliance Matters. The parties acknowledge that
each of GM, the Sub-Trust and the VEBA has been advised by its own counsel in
regard to securities law compliance matters. They also acknowledge that no
representations have been made to GM, the Sub-Trust or the VEBA by or on behalf
of the Company with regard to the treatment of the Sub-Trust or the VEBA under
any applicable securities laws, including whether or not the Sub-Trust and the
VEBA would be considered an "affiliate" for purposes of those laws.
5. MISCELLANEOUS.
--------------
(a) Termination. This Agreement shall terminate and be of no further
force and effect if a Contribution shall not have been completed on or prior to
January 15, 2005 (or such later date as may be agreed to in writing by the
parties). This Agreement may be terminated at any time prior to the completion
of a Contribution by mutual written agreement of GM and the Sub-Trust, without
the consent of the Company. GM shall promptly notify the Company of any such
termination.
(b) Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may not be amended, modified or supplemented
except by a writing signed by GM, the Sub-Trust and the Company. Any obligation
of, or restriction applicable to, the Sub-Trust hereunder may be waived by a
writing signed by GM and the Company. Any obligation of, or restriction
applicable to, GM hereunder may be waived by a writing signed by the Sub-Trust
and the Company.
(c) Notices. Notices and other communications under this Agreement
shall be in writing and shall be deemed properly served if: (i) mailed by
registered or certified mail, return receipt requested, (ii) delivered by a
recognized overnight courier service, (iii) delivered personally, or (iv) sent
by facsimile transmission addressed as follows (or to such other address, or to
the attention of such other person, as any party shall have furnished in writing
pursuant to this Section 3(c)):
(i) If to the VEBA or to the Sub-Trust:
United States Trust Company of New York
000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Authorized Agent
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
---------------
General Motors Investment Management Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Investment Officer,
Affiliated Funds
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxx Day
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to GM:
General Motors Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
---------------
General Motors Corporation
Legal Staff
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx 000-X00-X00
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) If to the Company:
XM Satellite Radio Holdings Inc.
0000 Xxxxxxxxx Xxxxx XX
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
---------------
Xxxxx & Xxxxxxx L.L.P.
000 00xx Xxxxxx XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Such notice shall be deemed to have been received: (i) three (3) Business Days
after the date of mailing if sent by certified or registered mail, (ii) one (1)
Business Day after the date of delivery if sent by overnight courier, (iii) the
date of delivery if personally delivered, or (iv) the next succeeding Business
Day after transmission by facsimile.
(d) No Third Party Beneficiaries. This Agreement shall be for the
sole and exclusive benefit of the Company, GM, the VEBA, the Sub-Trust, the
Trustee and any other investment manager or managers or trustee or trustees
acting on behalf of the VEBA or the Sub-Trust. Nothing in this Agreement shall
be construed to give any other person or entity any legal or equitable right,
remedy or claim under this Agreement. Each agreement and consent of the
Sub-Trust under Section 3 and 4 above shall be on behalf of itself and the VEBA.
(e) Adjustments. In the event of any stock dividend or distribution,
stock split (forward or reverse), combination of shares, recapitalization,
merger, consolidation, redemption, exchange of securities or other
reorganization or reclassification after the date hereof with respect to the
XMSR Shares or similar transactions affecting the XMSR Shares, all references
herein to any designation of securities and to any specific number of XMSR
Shares shall be appropriately adjusted to give full effect thereto.
(f) Binding Effect; Assignment. This Agreement shall be binding upon
and shall inure to the benefit of and be enforceable by each of the parties and
their successors (including, without limitation, any successor trustee or
investment manager for the Sub-Trust or the VEBA). Except for an assignment to a
successor trustee or investment manager of the Sub-Trust or the VEBA as stated
herein, none of the rights or obligations under this Agreement shall be assigned
by the Sub-Trust without the consent of GM and the Company, or by GM without the
consent of the Sub-Trust and the Company.
(g) Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) GOVERNING LAW; CHOICE OF FORUM; JURY TRIAL WAIVER.
--------------------------------------------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CONFLICT OF
LAW PROVISIONS THEREOF OTHER THAN NEW YORK GENERAL OBLIGATIONS LAW SECTIONS
5-1401 AND 5-1402.
IN THE EVENT THAT A JUDICIAL PROCEEDING IS NECESSARY, THE SOLE FORUM
FOR RESOLVING DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT IS THE
FEDERAL COURTS LOCATED IN THE STATE AND COUNTY OF NEW YORK, AND RELATED
APPELLATE COURTS (OR IN THE EVENT SUCH COURTS WILL NOT ACCEPT JURISDICTION, THE
COURTS OF THE STATE OF DELAWARE). THE PARTIES HEREBY IRREVOCABLY CONSENT TO THE
JURISDICTION OF SUCH COURTS AND AGREE TO SAID VENUE.
THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
(i) Severability. The holding of any provision of this Agreement to
be invalid or unenforceable by a court of competent jurisdiction shall not
affect any other provision of this Agreement, which shall remain in full force
and effect. If any provision of this Agreement shall be declared by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced in
whole or in part, such provision shall be interpreted so as to remain
enforceable to the maximum extent permissible consistent with applicable law and
the remaining conditions and provisions or portions thereof shall nevertheless
remain in full force and effect and enforceable to the extent they are valid,
legal and enforceable, and no provisions shall be deemed dependent upon any
other covenant or provision unless so expressed herein.
(j) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(k) Further Assurances. The parties agree to execute and deliver all
such further documents, agreements and instruments and take such other and
further action as may be necessary or appropriate to carry out the purposes and
ntent of this Agreement.
(l) Entire Agreement. This Agreement supersedes all other
agreements, written or oral, concerning the subject matter herein.
(m) No Contribution Mandate. Nothing contained in this Agreement
shall obligate GM to complete any Contribution.
[Signatures begin on next page]
IN WITNESS WHEREOF, the parties hereto, being duly authorized, have
executed and delivered this Assignment and Assumption Agreement on the date
first above written.
GENERAL MOTORS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
SUB-TRUST OF THE GENERAL MOTORS WELFARE
BENEFIT TRUST
By: United States Trust Company of
New York, As Trustee
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
XM SATELLITE RADIO HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: EVP, General Counsel
Exhibit A
Copy of Lock-Up Agreement
