-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RAP634NB2asfMpSlIcSgo0NHQSePkIyTtDr5NXrqqmzLR8IgoWAj+097QhlozSgM h018D30yJ0/panKYwZeNGA== 0000040730-04-000118.txt : 20041217 0000040730-04-000118.hdr.sgml : 20041217 20041217165252 ACCESSION NUMBER: 0000040730-04-000118 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20041217 DATE AS OF CHANGE: 20041217 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: XM SATELLITE RADIO HOLDINGS INC CENTRAL INDEX KEY: 0001091530 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 541878819 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-57011 FILM NUMBER: 041211907 BUSINESS ADDRESS: STREET 1: 1500 ECKINGTON PL NE CITY: WASHINGTON STATE: DC ZIP: 20002 BUSINESS PHONE: 2023804000 MAIL ADDRESS: STREET 1: 1500 ECKINGTON PL NE CITY: WASHINGTON STATE: DC ZIP: 20002 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL MOTORS CORP CENTRAL INDEX KEY: 0000040730 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLES & PASSENGER CAR BODIES [3711] IRS NUMBER: 380572515 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 300 RENAISSANCE CTR STREET 2: MAIL CODE: 482-C34-D71 CITY: DETROIT STATE: MI ZIP: 48265-3000 BUSINESS PHONE: 3135565000 MAIL ADDRESS: STREET 1: 300 RENAISSANCE CTR STREET 2: MAIL CODE: 482-C34-D71 CITY: DETROIT STATE: MI ZIP: 48265-3000 SC 13D/A 1 xmsc13da.txt FORM 13D/A GMC AND XM SATELLITE RADIO HOLDINGS =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 4) XM SATELLITE RADIO HOLDINGS INC. - ------------------------------------------------------------------------------- (Name of Issuer) Class A Common Stock, $.01 par value per share 983759-10-1 - ------------------------------------------------------------------------------- (Title of class of securities) (CUSIP number) Anne T. Larin Legal Staff General Motors Corporation 300 Renaissance Center Detroit, Michigan 48265-3000 (313) 665-4927 - ------------------------------------------------------------------------------- (Name, address and telephone number of person authorized to receive notices and communications) December 15, 2004 - ------------------------------------------------------------------------------- (Date of event which requires filing of this statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [_]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. (Continued on following pages) (Page 1 of 12 Pages) -- =============================================================================== - ------------------------------------- -------------------------------- CUSIP No. 983759-10-1 13D Page 2 of 12 - ------------------------------------- -------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS: General Motors Corporation I.R.S. IDENTIFICATION NOS. 38-0572515 OF ABOVE PERSONS: - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [_] (b) [X] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS: WC - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF Delaware ORGANIZATION: - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER: 5,553,252 SHARES ----------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER: -0- OWNED BY ----------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER: 5,553,252 REPORTING ----------------------------------------------------------- PERSON WITH 10 SHARED DISPOSITIVE POWER: -0- - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 5,553,252 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 3.1% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON: CO - ------------------------------------------------------------------------------- 2 - ------------------------------------- -------------------------------- CUSIP No. 983759-10-1 13D Page 3 of 12 - ------------------------------------- -------------------------------- - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON: OnStar Corporation S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ] (b) [X] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS: WC - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF Delaware ORGANIZATION: - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER: 0 SHARES ----------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER: 0 OWNED BY ----------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER: 0 REPORTING ----------------------------------------------------------- PERSON WITH 10 SHARED DISPOSITIVE POWER: 0 - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY 0 OWNED BY REPORTING PERSON: - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 0% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON: CO - ------------------------------------------------------------------------------- 3 This Amendment No. 4 (this "Amendment"), amends the Schedule 13D filed on October 8, 1999, as amended, and is filed by General Motors Corporation ("GM"), for and on behalf of itself, and OnStar Corporation ("OnStar")(collectively, the "Reporting Persons"), with respect to the class A common stock, par value $0.01 per share ("Common Stock"), of XM Satellite Radio Holdings Inc. (the "Company"). Item 2. Identity and Background. This Amendment is filed by GM and its wholly owned subsidiary, OnStar, a Delaware corporation. The name, business address, present principal occupation or employment, and citizenship of each director and executive officer of GM and OnStar are set forth on Schedules I and II attached hereto, respectively. Except as set forth in Schedules I and II attached hereto, during the last five years none of GM or OnStar, nor, to the best of their knowledge, any of their directors or executive officers has been (i) convicted of any criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. On December 15, 2004, GM contributed 10,980,670 shares (the "Contributed Shares") of Common Stock to 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, pursuant to the Contribution Agreement dated December 15, 2004 between GM and the Sub-Trust. A copy of the Contribution Agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference. The Contributed Shares consisted of (i) 10,000,000 shares acquired by GM upon exercise, in April 2004, of a warrant to purchase Common Stock issued by the Company in January 2003 and (ii) 980,670 shares acquired by GM upon conversion, in February 2004, of a portion of a 10% Senior Secured Convertible Note due December 31, 2009 issued by the Company in January 2003. GM did not receive any consideration from the Sub-Trust in connection with this contribution. Item 4. Purpose of Transaction. GM transferred the Contributed Shares to the Sub-Trust to provide partial funding to the voluntary employees' beneficiary association trust established to pre-fund part of GM's other postretirement benefits liability related primarily to health-care expense for its retirees. 4 Item 5. Interest in Securities of the Issuer. (a) The responses of the Reporting Persons to Rows (11) through (13) of the cover pages of this Amendment No. 4 are incorporated herein by reference. Except as disclosed in this Item 5(a), none of the Reporting Persons, nor, to the best of their knowledge, any of their executive officers and directors, beneficially owns any shares of Common Stock of the Company. (b) The responses of the Reporting Persons to (i) Rows (7) through (10) of the cover pages of this Amendment No. 4 and (ii) Item 5(a) hereof are incorporated herein by reference. (c) The responses of the Reporting Persons to Item 3 are incorporated herein by reference. (d) Not applicable. (e) On December 15, 2004 upon the contribution described in Item 3, the Reporting Persons ceased to be the beneficial owners of more than five percent of the Common Stock. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. In connection with the contribution, GM, the Sub-Trust and the Company entered into an assignment and assumption agreement (the "Assignment Agreement"), pursuant to which GM assigned to the Sub-Trust all of GM's rights with respect to the Contributed Shares under the Second Amended and Restated Registration Rights Agreement, dated as of January 28, 2003, by and among the Company, GM and certain shareholders named therein (the "Registration Rights Agreement"). However, GM assigned to the Sub-Trust the right to initiate only one demand registration, which shall revert back to GM if the Sub-Trust disposes of all of the Contributed Shares without having exercised such right. Copies of the Assignment Agreement and Registration Rights Agreement are attached hereto as Exhibits 99.2 and 99.3, respectively, and are incorporated herein by reference. On November 18, 2004, GM entered into a lock-up agreement (the "Lock-Up Agreement") with Bear, Stearns & Co. Inc. ("Bear Stearns") pursuant to which GM agreed not to offer, sell or otherwise dispose of (except in connection with a contribution to the Sub-Trust) any shares of Common Stock until February 16, 2005 without the consent of Bear Stearns. The Sub-Trust is bound by the Lock-Up Agreement with respect to the Contributed Shares, and GM remains bound by the Lock-Up Agreement with respect to the other shares of Common Stock it continues to own. A copy of the Lock-Up Agreement is attached hereto as Exhibit 99.4 and is incorporated herein by reference. 5 Item 7. Materials To Be Filed As Exhibits. 99.1 Contribution Agreement dated as of December 15, 2004 by and between General Motors Corporation and United States Trust Company of New York, solely in its capacity as trustee of the Sub-Trust of the General Motors Welfare Benefit Trust. 99.2 Assignment and Assumption Agreement dated as of December 15, 2003 by and among General Motors Corporation, the Sub-Trust of the General Motors Welfare Benefit Trust, and XM Satellite Radio Holdings Inc. 99.3 Second Amended and Restated Registration Rights Agreement, dated as of January 28, 2003, by and among the Company and certain shareholders and noteholders named therein (incorporated herein by reference to Exhibit 10.5 to the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on January 29, 2003). 99.4 Lock-Up Agreement dated November 19, 2004 between General Motors Corporation and Bear, Stearns & Co. 6 SIGNATURE --------- After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: December 17, 2004 GENERAL MOTORS CORPORATION By: s/Thomas A. Gottschalk ---------------------- Name: Thomas A. Gottschalk Title: Executive Vice President, Law & Public Policy ONSTAR CORPORATION By: s/Richard M. Lee ---------------- Name: Richard M. Lee Title: Vice President, Satellite Radio Services 7 EXHIBIT INDEX ------------- Exhibit No. Description - ----------- ----------- 99.1 Contribution Agreement dated as of December 15, 2004 by and between General Motors Corporation and United States Trust Company of New York, solely in its capacity as trustee of the Sub-Trust of the General Motors Welfare Benefit Trust. 99.2 Assignment and Assumption Agreement dated as of December 15, 2003 by and among General Motors Corporation, the Sub-Trust of the General Motors Welfare Benefit Trust, and XM Satellite Radio Holdings Inc. 99.3 Second Amended and Restated Registration Rights Agreement, dated as of January 28, 2003, by and among the Company and certain shareholders and noteholders named therein (incorporated herein by reference to Exhibit 10.5 to the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on January 29, 2003). 99.4 Lock-Up Agreement dated November 19, 2004 between General Motors Corporation and Bear, Stearns & Co. 8 SCHEDULE I TO AMENDMENT 4 TO SCHEDULE 13D ----------------------------------------- The name, business address, present principal occupation or employment, and the name, principal business, and address of any corporation or other organization in which such employment is conducted, of each of the directors and executive officers of General Motors is set forth below. Unless otherwise specified, the business address of each person listed below is 300 Renaissance Center, Detroit, Michigan 48243-3000. Each person listed below is a United States citizen, except for Mr. Barnevik, who is a Swedish citizen. NAME, BUSINESS ADDRESS AND PRINCIPAL OCCUPATION, IF NOT EXECUTIVE OFFICER OF GM POSITION WITH GM Percy N. Barnevik Director Chairman, AstraZeneca PLC Sodertalje Sweden 151-85 John H. Bryan Director Retired Chairman and CEO Sara Lee Corporation Three First National Plaza, 46th Floor Chicago, Illinois 60602-4260 John M. Devine Vice Chairman of the Company and Chief Financial Officer Armando Codina Director Chairman and Chief Executive Officer Codina Group, Inc. 355 Alhambra Circle Coral Gables, Florida 33134 Gary L. Cowger Group Vice President, GM, and President, GM North America George M.C. Fisher Director Retired Chairman and CEO Eastman Kodak Company 343 State Street Rochester, New York 14650-0229 Thomas A. Gottschalk Executive Vice President, Law and Public Policy, and General Counsel Frederick A. Henderson Group Vice President, GM, and Chairman, GM Europe 9 Karen Katen Director Executive Vice President, Pfizer Inc. President, Pfizer Global Pharmaceuticals 235 East 42nd Street New York, New York 10017-5755 Kent Kresa Director Chairman Emeritus Northrop Grumman Corporation 1840 Century Park East Los Angeles, California 90067-2199 Ellen Kullman Director Group Vice President - Safety and Protection E.I. duPont de Nemours and Company Barley Mill Plaza 23/2118 P.O. Box 80023 4417 Lancaster Pike Wilmington, Delaware 19880-0023 Alan G. Lafley Director Chairman, President and CEO The Procter & Gamble Company 1 Procter & Gamble Plaza Cincinnati, Ohio 45202 Philip A. Laskawy Director Retired Chairman and CEO Ernst & Young 5 Times Square New York, New York 10036 Robert A. Lutz Vice Chairman of the Company for Product Development, and Chairman, GM North America E. Stanley O'Neal Director Chairman, CEO and President Merrill Lynch & Co., Inc. Four World Financial Center New York, New York 10080 10 Eckhard Pfeiffer Director Retired Chairman and CEO Compaq Computer Corporation 7 Saddlebrook Lane Houston, Texas 77024 G. Richard Wagoner, Jr. Chairman of the Board and Chief Executive Officer 11 SCHEDULE II TO AMENDMENT 4 TO SCHEDULE 13D ------------------------------------------ The name, business address, present principal occupation or employment, and the name, principal business, and address of any corporation or other organization in which such employment is conducted, of each of the directors and executive officers of OnStar is set forth below. Unless otherwise specified, the business address of each person listed below is 1400 Stephenson Highway, Troy, Michigan 48083. Each person listed below is a United States citizen. NAME, BUSINESS ADDRESS AND PRINCIPAL OCCUPATION, IF NOT EXECUTIVE OFFICER OF ONSTAR POSITION WITH ONSTAR Donald Butler Vice President, Business Development Gary L. Cowger Director (See occupation and address in Schedule I above) John M. Devine Director (See occupation and address in Schedule I above) Anthony J. DiSalle Vice President, Sales and Marketing Joanne M. Finnorn Vice President and General Counsel Chester A. Huber, Jr. Director and President Jonathan G. Hyde Vice President and Treasurer Richard M. Lee Vice President, Satellite Radio Services Robert A. Lutz Director (See occupation and address in Schedule I above) Gregory A. Payne Vice President, Core Operations Andrew M. Sills Vice President, Information Technology John F. Smith Director Group Vice President, North American Vehicle Sales, Service and Marketing 300 Renaissance Center Detroit, Michigan 48243-3000 G. Richard Wagoner, Jr. Director (See occupation and address in Schedule I above) 12 EX-99 2 ex991contribution.txt EXHIBIT 99.1 CONTRIBUTION AGREEMENT EXHIBIT 99.1 EXECUTION COPY CONTRIBUTION AGREEMENT THIS CONTRIBUTION AGREEMENT (this "Agreement"), dated as of December 15, 2004, is hereby entered into by and between General Motors Corporation, a Delaware corporation ("GM"), and United States Trust Company of New York, solely in its capacity as trustee (the "Trustee") of 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). 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 XM Satellite Radio Holdings Inc., a Delaware corporation (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, subject to the terms and conditions of this Agreement, to contribute some or all of the XMSR Shares to the VEBA; WHEREAS, the VEBA, subject to the terms and conditions of this Agreement, is prepared to accept all of the XMSR Shares that may be contributed to the VEBA as described in the preceding recital; 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, GM has entered into a Lock-Up Agreement, dated November 19, 2004 (the "Lock-Up Agreement"), with Bear, Stearns & 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 transactions contemplated by this Agreement, 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, pursuant to the Assignment Agreement (as defined below) and effective upon completion of a Contribution, the Sub-Trust will agree to be bound by the provisions of the Lock-Up Agreement as if it 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. CONTRIBUTION OF XMSR SHARES. ---------------------------- (a) Contribution Conditions. GM agrees that any contribution of XMSR Shares made by GM to the VEBA pursuant to this Agreement (such contribution being hereinafter referred to as the "Contribution") shall be made only (1) on such days as the Nasdaq National Market ("Nasdaq") shall be open for trading (a "Business Day"), (2) after each of GM, the Sub-Trust and the Company shall have executed and delivered an Assignment and Assumption Agreement (the "Assignment Agreement") in the form attached hereto as Exhibit B, and (3) if the Assignment Agreement shall then continue to be in full force and effect. (b) Contribution Teleconference. At any time after 4:30 p.m., New York City time, but in any event prior to 6:00 p.m., New York City time, on the Business Day on which GM contemplates making a Contribution to the VEBA, GM will give the Trustee and its valuation adviser notice by teleconference of its possible interest in making a Contribution to the VEBA. In such teleconference, GM will make one or more estimates of the specific number of XMSR Shares which GM may contribute, and the Trustee, together with its valuation adviser, will state the value per share it would assign for the Contribution based on each such estimate, stated as a percentage of the mean between the highest and lowest quoted selling prices of Class A Common Stock from between 9:30 a.m. and 4:00 p.m., New York City time, on such date on the Nasdaq, as reported by Reuters. If GM so decides, it shall irrevocably commit itself in such teleconference to contribute a number of XMSR Shares equal to one of such estimates, and the Trustee's valuation adviser shall be irrevocably committed to opine to the applicable value per share previously stated by it in such teleconference. The Contribution, if any, shall be effective at the end of such teleconference, and the value per share for purposes of such Contribution shall be such stated value. As soon as practicable after the teleconference in which a Contribution is made, (1) the Trustee's valuation adviser will deliver to the Trustee, with a copy to GM, its written valuation opinion, confirming the valuation given in the teleconference and (2) GM shall notify the Company that a Contribution has been made effective. 2 (c) Delivery of Securities. As soon as practicable after the teleconference in which a Contribution is made, but in no event later than 5:00 p.m., New York City time, on the fourth full Business Day after such Contribution, GM shall deliver to the VEBA at the office of the Trustee (or such other place as may be mutually agreed) stock certificates representing (or other evidence of ownership of) all of the XMSR Shares contributed to the VEBA duly endorsed in blank or accompanied by duly-executed stock powers in a form reasonably approved by the Trustee. Such certificates (or other evidence of ownership) shall be in due and proper form for delivery under applicable corporate law and shall be accompanied by such other documents and certificates as may be reasonably requested by the Trustee. (d) VEBA Representations. The VEBA represents and warrants to GM that it, together with its investment managers, has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the XMSR Shares. The VEBA understands and acknowledges that the Contribution has not been and will not be registered under the Securities Act of 1933, as amended (the "Securities Act"), or any state securities law. The VEBA also understands and acknowledges that the XMSR Shares received in the Contribution may not be offered or sold except (i) in a transaction registered under the Securities Act and applicable state securities laws or (ii) pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws. (e) GM Representations. GM represents and warrants to the VEBA that GM is (and at the time of any Contribution will be) the record and beneficial owner of, and has (and at the time of any Contribution will have) good and valid title to, all of the XMSR Shares, free and clear of any and all liens, claims and encumbrances, other than those that may be imposed by applicable securities laws, the Assignment Agreement, the Registration Rights Agreement and the Lock-Up Agreement. GM represents and warrants to the VEBA that, except as may arise under this Agreement, the Assignment Agreement, the Registration Rights Agreement or the Lock-Up Agreement, none of the XMSR Shares is (and at the time of any Contribution none of the XMSR Shares will be) subject to (i) any option, warrant, purchase right or other contract that requires GM to sell, transfer or otherwise dispose of any of the XMSR Shares or (ii) any voting trust, proxy or other contract or understanding with respect to the voting, dividend rights, preferences, sale, acquisition or other disposition of any of the XMSR Shares. (f) Execution of Assignment Agreement. Each of GM and the Sub-Trust shall promptly execute and deliver the Assignment Agreement at such time as the Company executes and delivers the Assignment Agreement. (g) No Changes to Registration Rights Agreement. GM covenants that it will not, without the prior written consent of the Sub-Trust, agree to the amendment or waiver of any provision of the Registration Rights Agreement, or the addition to the Registration Rights Agreement of any new provision, that would become applicable to the Sub-Trust or the XMSR Shares pursuant to the Assignment Agreement upon completion of the Contribution. 3 2. MISCELLANEOUS. -------------- (a) Termination. This Agreement shall terminate and be of no further force and effect if GM shall not have committed itself in the teleconference referred to in Section 1(b) on or prior to December 31, 2004 (or such later date as may be agreed to in writing by the parties hereto) to contribute any XMSR Shares. This Agreement may also be terminated at any time by mutual written agreement of GM and the VEBA. (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 and the Sub-Trust. Any obligation of, or restriction applicable to, the Sub-Trust hereunder may be waived by a writing signed by GM. Any obligation of, or restriction applicable to, GM hereunder may be waived by a writing signed by the Sub-Trust. (c) Notices. Except where notice by teleconference is specifically called for in this Agreement, 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 2(c)): (i) If to the VEBA or to the Sub-Trust: United States Trust Company of New York 600 Fourteenth Street, N.W., Suite 400 Washington, DC 20005-3314 Attention: Norman P. Goldberg Authorized Agent Telephone: (202) 585-4175 Facsimile: (202) 783-7054 4 with copies to: --------------- General Motors Investment Management Corporation 767 Fifth Avenue New York, New York 10153 Attention: Chief Investment Officer, Affiliated Funds Telephone: (212) 418-6400 Facsimile: (212) 418-3654 and Jones Day 2727 North Harwood Street Dallas, Texas 75201-1515 Attention: James F. Carey Telephone: (214) 220-3939 Facsimile: (214) 969-5100 (ii) If to GM: General Motors Corporation 767 Fifth Avenue New York, New York 10153 Attention: Treasurer Telephone: (212) 418-3500 Facsimile: (212) 418-3695 with a copy to: --------------- General Motors Corporation Legal Staff 300 Renaissance Center Mailcode 482-C23-D24 Detroit, Michigan 48265-3000 Attention: Warren G. Andersen, Esq. Telephone: (313) 665-4921 Facsimile: (313) 665-4979 Such notice shall be deemed to have been received: (i) when received telephonically, if notice by teleconference is specifically called for by this Agreement, (ii) three (3) Business Days after the date of mailing if sent by certified or registered mail, (iii) one (1) Business Day after the date of delivery if sent by overnight courier, (iv) the date of delivery if personally delivered, or (v) the next succeeding Business Day after transmission by facsimile. 5 (d) No Third Party Beneficiaries. This Agreement shall be for the sole and exclusive benefit of 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. (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 investment manager or trustee for the VEBA or the Sub-Trust). Except for an assignment to a successor trustee or investment manager of the VEBA or the Sub-Trust as stated herein, none of the rights or obligations under this Agreement shall be assigned by the Sub-Trust without the consent of GM or by GM without the consent of the Sub-Trust. (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. 6 (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 intent of this Agreement. (l) Entire Agreement. This Agreement supersedes all other agreements, written or oral, concerning the subject matter herein. [Signatures begin on next page] 7 IN WITNESS WHEREOF, the parties hereto, being duly authorized, have executed and delivered this Contribution Agreement on the date first above written. GENERAL MOTORS CORPORATION By: /s/ Michael G. Lukas -------------------- Name: Michael G. Lukas Title: Assistant Treasurer SUB-TRUST OF THE GENERAL MOTORS WELFARE BENEFIT TRUST By: United States Trust Company of New York, As Trustee By: /s/ Norman P. Goldberg ---------------------- Name: Norman P. Goldberg Title: Authorized Agent 8 Exhibit A Copy of Lock-Up Agreement Exhibit B Form of Assignment Agreement EX-99 3 ex993assignment.txt EXHIBIT 99.3 ASSIGNMENT & ASSUMPTION AGREEMENT 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, Stearns & 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 600 Fourteenth Street, N.W., Suite 400 Washington, DC 20005-3314 Attention: Norman P. Goldberg Authorized Agent Telephone: (202) 585-4175 Facsimile: (202) 783-7054 with copies to: --------------- General Motors Investment Management Corporation 767 Fifth Avenue New York, New York 10153 Attention: Chief Investment Officer, Affiliated Funds Telephone: (212) 418-6400 Facsimile: (212) 418-3654 and Jones Day 2727 North Harwood Street Dallas, Texas 75201-1515 Attention: James F. Carey Telephone: (214) 220-3939 Facsimile: (214) 969-5100 (ii) If to GM: General Motors Corporation 767 Fifth Avenue New York, New York 10153 Attention: Treasurer Telephone: (212) 418-3500 Facsimile: (212) 418-3695 with a copy to: --------------- General Motors Corporation Legal Staff 300 Renaissance Center Mailcode 482-C23-D24 Detroit, Michigan 48265-3000 Attention: Warren G. Andersen, Esq. Telephone: (313) 665-4921 Facsimile: (313) 665-4979 (iii) If to the Company: XM Satellite Radio Holdings Inc. 1500 Eckington Place NE Washington, D.C. 20002-2194 Attention: Joseph M. Titlebaum, Esq. Telephone: (202) 380-4066 Facsimile: (202) 380-4534 with a copy to: --------------- Hogan & Hartson L.L.P. 555 13th Street NW Washington, D.C. 20004 Attention: Steven M. Kaufman, Esq. Facsimile: (202) 637-5910 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/ Michael G. Lukas -------------------- Name: Michael G. Lukas Title: Assistant Treasurer SUB-TRUST OF THE GENERAL MOTORS WELFARE BENEFIT TRUST By: United States Trust Company of New York, As Trustee By: /s/ Norman P. Goldberg ---------------------- Name: Norman P. Goldberg Title: Authorized Agent XM SATELLITE RADIO HOLDINGS INC. By: /s/ Joseph M. Titlebaum ----------------------- Name: Joseph M. Titlebaum Title: EVP, General Counsel Exhibit A Copy of Lock-Up Agreement EX-99 4 ex994lockup.txt EXHIBIT 99.4 LOCK-UP AGREEMENT EXHIBIT 99.4 Lock-Up Agreement Bear, Stearns & Co. Inc. 383 Madison Avenue New York, New York 10179 Dear Sirs: The undersigned understands that Bear, Stearns & Co. Inc., as representatives of the several initial purchasers (the "Initial Purchasers"), propose to enter into Purchase Agreement with XM Satellite Radio Holdings Inc., a Delaware corporation (the "Company"), providing for a private offering (the "Offering") of an aggregate principal amount of $300,000,000 convertible notes due 2009 of the Company. The undersigned is a holder of securities of the Company and wishes to facilitate the Offering and recognizes that the Offering will be of benefit to the undersigned. In consideration of the foregoing and in order to induce you to act as Initial Purchasers in connection with the Offering, the undersigned hereby agrees, for the benefit of the Company and the Initial Purchaser, that during the period beginning from the date hereof and continuing to and including the date 90 days after the date of the Offering Memorandum, the undersigned will not, directly or indirectly, without the prior written consent of Bear, Stearns & Co. Inc., offer, sell, contract to sell, swap, make any short sale, pledge, establish an open "put equivalent position" within the meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), grant any option to purchase or otherwise dispose (or publicly announce the undersigned's intention to do any of the foregoing) of, directly or indirectly, any shares of Common Stock or other capital stock of the Company, or any securities convertible into, or exercisable or exchangeable for, any shares of Common Stock or other capital stock of the Company that the undersigned currently beneficially owns (within the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, or may beneficially own, directly or indirectly, in the future; provided that the foregoing shall not prohibit any conversion of the Company's Series A convertible preferred stock, Series B convertible redeemable preferred stock, Series C convertible redeemable preferred stock or Class B common stock into Common Stock. Notwithstanding the preceding sentence, during such 90-day period the undersigned may transfer in one or more transactions all or some of its shares of Class A Common Stock to its Voluntary Employees' Beneficiary Association (VEBA) trust, or to a trust or similar entity the direct or indirect beneficiary of which is its VEBA trust, provided that the transferee agrees to be bound by the provisions of this Lock-Up Agreement as if it were a party hereto. 1 The undersigned confirms that the undersigned understands that the Initial Purchasers and the Company will rely upon the representations set forth in this agreement in proceeding with the Offering. The undersigned further confirms that the agreements of the undersigned are irrevocable and shall be binding upon the undersigned's heirs, legal representatives, successors and assigns. The undersigned agrees and consents to the entry of stop transfer instructions with the Company's transfer agent against the transfer of securities of the Company held by the undersigned except in compliance with this agreement. Very truly yours, GENERAL MOTORS CORPORATION By: s/Anne T. Larin ------------------------ Name: Anne T. Larin Title: Assistant Secretary Dated: November 19, 2004 2 -----END PRIVACY-ENHANCED MESSAGE-----