Exhibit 99.13
STOCK TRANSFER AGREEMENT
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STOCK TRANSFER AGREEMENT, dated April 28, 1999 (the "Agreement"), by
and among GENERAL MOTORS CORPORATION, a Delaware corporation ("Issuer"),
PRIMESTAR, INC., a Delaware corporation ("Purchaser"), TCI SATELLITE
ENTERTAINMENT, INC., a Delaware corporation ("TSAT"), and ▇▇▇▇▇▇ ELECTRONICS
CORPORATION, a Delaware corporation and a wholly owned subsidiary of Issuer
("▇▇▇▇▇▇").
W I T N E S S E T H:
WHEREAS, Purchaser, PRIMESTAR Partners L.P., a Delaware limited
partnership, PRIMESTAR MDU, Inc., a Delaware corporation, ▇▇▇▇▇▇ and the
stockholders of Purchaser listed therein have entered into an Asset Purchase
Agreement, dated as of January 22, 1999 (the "Purchase Agreement," and
capitalized terms used herein and not defined shall have the respective meanings
assigned to such terms in the Purchase Agreement), which provides, among other
things, that a portion of the Purchase Price be paid in the form of 4,871,448
shares (the "Shares") of Class H Common Stock (the "Class H Stock") of Issuer;
and
WHEREAS, Issuer has issued to ▇▇▇▇▇▇ the Shares in connection with the
consummation of the transactions contemplated by the Purchase Agreement;
WHEREAS, ▇▇▇▇▇▇ desires to transfer the Shares to Purchaser as a
partial payment of the Purchase Price as contemplated by the Purchase Agreement,
subject to the terms and conditions set forth herein;
WHEREAS, Purchaser has requested ▇▇▇▇▇▇ to transfer 1,407,307 of the
Shares (the "TSAT Shares," with any reference to "Shares" herein being
understood to include those Shares that are TSAT Shares) to TSAT in payment of
the consideration Purchaser owes to TSAT pursuant to the Agreement dated January
22, 1999 (the "TSAT Agreement"), among TSAT, Purchaser and the Funding Parties
(as such term is defined in the TSAT Agreement), and Issuer is willing to
facilitate the use of the TSAT Shares as payment by Purchaser to TSAT by, among
other things, excepting such transfer to TSAT from the restriction on the
transfer of Shares herein, issuing one or more definitive stock certificates
evidencing the TSAT Shares registered in TSAT's name and including the TSAT
Shares in any registration of the Shares pursuant to the Registration Rights
Agreement dated the date hereof between Issuer and Purchaser (subject to any
limitation and conditions on the registration rights of the Shares as set forth
therein); and
WHEREAS, Issuer, ▇▇▇▇▇▇, Purchaser and TSAT are willing to effect the
transfer of the Shares subject to the terms and provisions hereof.
NOW, THEREFORE, in consideration of the agreements, covenants,
representations and warranties contained herein and in the Purchase Agreement,
the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Conveyance of the Shares. Subject to Section 6, ▇▇▇▇▇▇ by
this Agreement hereby conveys, assigns, transfers and delivers (x) to Purchaser,
3,464,141 of the Shares, and (y) to TSAT, 1,407,307 of the Shares, in each case
free and clear of all claims, liens and encumbrances. On the Closing Date,
Issuer shall deliver (x) to Purchaser, one (1) definitive stock certificate in
the amount of 3,464,141 shares of Class H Stock registered in the name of
PRIMESTAR, Inc., representing the Purchaser's ownership of such Shares, and (y)
to TSAT, one (1) definitive stock certificate in the amount of 1,407,307 shares
of Class H Stock registered in the name of TCI Satellite Entertainment, Inc.,
representing TSAT's ownership of such Shares.
Section 2. Representations and Warranties.
(a) Representations and Warranties of Purchaser and TSAT. Each of
Purchaser and TSAT, each as to itself only, hereby represents and warrants:
(1) Such party understands that the portion of the Shares being
transferred to it have not been registered under the Securities Act of
1933 and that the certificates for the Shares will bear a legend to
that effect. Such party also understands that the portion of the
Shares being transferred to it are being offered and sold pursuant to
an exemption from registration contained in the Securities Act of
1933, based in part upon its representations contained in this
Agreement and, in the case of the Purchaser, in the Purchase
Agreement.
(2) Such party is acquiring its portion of the Shares for its
own account for investment and not with a view toward distribution in
a manner which would violate the Securities Act of 1933.
(3) By reason of its business or financial experience, or the
business and financial experience of its management, such party has
the capacity to protect its own interests in connection with its
acquisition of its portion of the Shares. Such party is not a
corporation formed for the specific purpose of consummating this
transaction.
(4) Such party has been given access to all Issuer documents,
records and other information which such party has requested, and has
had adequate opportunity to ask questions of, and receive answers
from, Issuer's officers, employees, agents, accountants and
representatives concerning Issuer's business, operations, financial
condition, assets, liabilities and all other matters relevant to its
investment in the Shares.
(b) Representations and Warranties of Issuer and ▇▇▇▇▇▇. Each of
Issuer and ▇▇▇▇▇▇ represents and warrants to Purchaser and TSAT, with respect to
itself only, that (i) it is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Delaware; (ii) it is duly
authorized, qualified and licensed and is in good standing to conduct business
under the laws of each jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification or license necessary, except in such jurisdictions where the lack
of such qualification or license or the failure to be in good standing would not
have a material adverse effect; and (iii) it has full corporate power and
authority to carry on the businesses in which it is engaged as such businesses
are now being conducted, to own,
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lease and use the properties currently owned, leased and used by it, to execute
and deliver this Agreement, and to perform its obligations hereunder.
(c) Representations and Warranties of Issuer as to Shares. Issuer
hereby represents and warrants to Purchaser and TSAT that (i) the issuance of
the Shares, and the transfer of the Shares by Issuer to ▇▇▇▇▇▇, has been duly
authorized by all requisite corporate action of the Issuer; (ii) that the Shares
are validly issued, fully paid and nonassessable, and are free and clear of all
liens, restrictions or claims, other than any restriction on transfer under
applicable federal and state securities laws or herein, with no personal
liability attaching to the ownership thereof; and (iii) the holder of the Shares
will have the rights, preferences and privileges of an owner of Class H Stock,
subject to any restriction on transfer under applicable federal and state
securities laws or herein, with no personal liability attaching to the ownership
thereof.
(d) Representations and Warranties of ▇▇▇▇▇▇ as to Shares. ▇▇▇▇▇▇
hereby represents and warrants to Purchaser and TSAT that (i) it is the owner of
all right, title and interest in and to the Shares; (ii) that the Shares are
free and clear of all liens, restrictions or claims, other than any restriction
on transfer under applicable federal and state securities laws or herein; and
(iii) that the execution and delivery of this Agreement by ▇▇▇▇▇▇, and the
transfer of the Shares pursuant to this Agreement, has been duly authorized by
all requisite corporate action of ▇▇▇▇▇▇.
Section 3. Further Assurances. If at any time at or after the
Closing Date ▇▇▇▇▇▇, Purchaser or TSAT shall consider or be advised that any
instrument of conveyance or transfer, or other documentation or the taking of
any other act is reasonably necessary or desirable to vest, perfect or confirm
in Purchaser or TSAT, as applicable, the title to the portion of the Shares
transferred to such party pursuant to this Agreement, ▇▇▇▇▇▇ agrees to execute
and deliver all such instruments and documents and to do all things reasonably
necessary or desirable to vest, perfect or confirm title to such Shares and
otherwise to carry out the purposes of this Agreement.
Section 4. Restrictive Legends. Except as otherwise permitted by
this Agreement, each certificate for Shares shall be stamped or otherwise
imprinted with a legend in substantially the following form:
"The shares represented by this Certificate have not been
registered under the Securities Act of 1933 and may not be transferred
in the absence of such registration or any exemption therefrom under
such Act. Such shares may be transferred only in compliance with the
conditions specified in the Stock Transfer Agreement dated April __,
1999 by and among General Motors Corporation, PRIMESTAR, Inc., TCI
Satellite Entertainment, Inc. and ▇▇▇▇▇▇ Electronics Corporation. A
complete and correct copy of such Agreement is available for
inspection at the principal office of ▇▇▇▇▇▇ Electronics Corporation
and will be furnished without charge to the holder of such shares upon
written request."
Section 5. Transfers of Shares.
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(a) General Restrictions.
(1) Prior to the first anniversary of the Closing Date, neither
Purchaser nor TSAT may effect any transfer, sale, assignment, mortgage, pledge,
hypothecation, gift, placement in trust (voting or otherwise) or transfer by
operation of law by merger or otherwise all or any part of the Shares (any of
which being a "Transfer"), except a Transfer (i) to any of the Stockholders,
(ii) by Purchaser to TSAT, (iii) to any wholly-owned subsidiary of any
Stockholder, Purchaser or of TSAT, (iv) to a trust or trusts established by
Purchaser, TSAT or any Permitted Transferee (as defined below) in connection
with the issuance of share appreciation rights related to the Shares, or (v) to
any security or collateral agents to whom a security interest in the Shares is
granted in connection with the issuance of the share appreciation rights
described in clause (iv) above for the benefit of the holders of such share
appreciation rights (collectively, the "Permitted Transferees" and, each a
"Permitted Transferee"), in each case, in compliance with applicable law. Any
purported Transfer or purported purchase of any Shares or a portion thereof in
violation of the terms of this Agreement shall be null and void and of no
effect.
(2) In the event of any permitted Transfer to any of the Permitted
Transferees, such Permitted Transferee shall be bound and obligated by, and
shall be entitled to the rights and benefits afforded to Purchaser under the
terms and provisions of, this Agreement. As a condition precedent to any such
permitted Transfer, such Permitted Transferee shall agree in writing in a form
acceptable to Issuer to be bound by all of the provisions and conditions of this
Agreement, and no such Permitted Transferee shall be permitted to effect any
Transfer of Shares which the Purchaser is not permitted to make under this
Agreement. Notwithstanding the foregoing provisions of this Section 5(a)(2), a
Transfer pursuant to Section 5(a)(1)(v) to a Permitted Transferee which is a
security or collateral agent may be effected without the need for the writing
referred to in the preceding sentence, but the absence of such writing shall not
entitle such Permitted Transferee to effect a Transfer not expressly permitted
hereunder. In addition, no Permitted Transferee may Transfer the Shares owned
by such Permitted Transferee (except as provided herein to Primestar, TSAT or
another Permitted Transferee) prior to the first anniversary of the Closing
Date.
(b) Notice of Proposed Transfer; Opinions of Counsel. Prior to any
Transfer of any Shares to a Permitted Transferee as contemplated in Section
5(a), which Shares are not registered under an effective registration statement
under the Securities Act of 1933, the holder thereof will give written notice to
Issuer of such holder's intention to effect such Transfer and to comply in all
other respects with this Section 5(b). Each such notice shall describe the
manner and circumstances of the proposed Transfer and, if requested by Issuer,
shall be accompanied by an opinion of counsel for such holder, which counsel and
opinion shall each be reasonably satisfactory to Issuer, that the proposed
transfer may be effected without registration of such Shares under the
Securities Act. Such holder shall thereupon be entitled to Transfer such Shares
in accordance with the terms of the notice delivered by such holder to Issuer.
Each certificate representing such Shares issued upon or in connection with such
Transfer shall bear the restrictive
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legend required by Section 4, unless the related restrictions on Transfer shall
have ceased and terminated pursuant to Section 5(c) hereof.
(c) Termination of Restrictions. After the first anniversary of the
Closing Date, Purchaser, TSAT or a Permitted Transferee can Transfer any or all
of the Shares to any person or entity in accordance with applicable law. The
restrictive legend set forth above will remain on any Shares Transferred unless
Issuer receives an opinion of counsel reasonably satisfactory to Issuer that the
proposed Transfer may be effected without registration of such Shares under the
Securities Act of 1933 and that the legend may be removed. If such an opinion
is delivered to Issuer, the legend may be removed.
Section 6. Relationship to the Purchase Agreement. The principal
purpose of this Agreement is to aid in the implementation of the Purchase
Agreement and, therefore, this Agreement incorporates and is subject to the
provision of the Purchase Agreement. Notwithstanding the foregoing, in the
event that any provision of this Agreement is found to be inconsistent with the
provisions of the Purchase Agreement, the provisions of the Purchase Agreement
shall control.
Section 7. Notices. Any notice sent by any party under this
Agreement to another shall be in writing and shall be delivered in accordance
with Section 14.7 of the Purchase Agreement, except, in the case of TSAT,
notices shall be given in accordance with such Section to TSAT at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telephone number (▇▇▇) ▇▇▇-▇▇▇▇,
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, to the attention of: Chief Financial Officer,
with a copy to ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, telephone number (▇▇▇) ▇▇▇-▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, to the
attention of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Section 8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York regardless of the
laws that might otherwise govern under principles of conflicts of laws
applicable thereto.
Section 9. Amendment; Waiver. This Agreement may be amended,
supplemented, modified or changed only by a written agreement making specific
reference to this Agreement executed by the parties hereto; and any provision
hereof may be waived, in whole or in part, only by a written agreement making
specific reference to this Agreement executed by the party making such waiver.
Section 10. Entire Agreement. This Agreement, the Purchase Agreement
and the Registration Rights Agreement dated as of the date hereof contain the
entire agreement between Issuer and ▇▇▇▇▇▇, on the one hand, and Purchaser and
TSAT, on the other hand, relating to the subject matter hereof and supersede all
oral statements and other writings with respect to the subject matter hereof.
Section 11. Counterparts. This Agreement may be executed in
counterparts, all of which, taken together, shall constitute one and the same
instrument.
Section 12. Severability. In the event any one or more of the
provisions of this Agreement should be held invalid, illegal or unenforceable in
any
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respect in any jurisdiction, such provision or provisions shall be automatically
deemed amended to the minimum extent necessary to render such provision or
provisions valid, legal and enforceable in such jurisdiction, and the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be duly executed by their authorized representatives as of the day and year
first written above.
PRIMESTAR, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP & CFO
▇▇▇▇▇▇ ELECTRONICS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
GENERAL MOTORS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
TCI SATELLITE ENTERTAINMENT, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CEO
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