{"id":43938,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/stockholder-agreement-daimler-benz-ag-chrysler-corp-and-kirk.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stockholder-agreement-daimler-benz-ag-chrysler-corp-and-kirk","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/stockholder-agreement-daimler-benz-ag-chrysler-corp-and-kirk.html","title":{"rendered":"Stockholder Agreement &#8211; Daimler-Benz AG, Chrysler Corp. and Kirk Kerkorian"},"content":{"rendered":"<pre>\n\n                              STOCKHOLDER AGREEMENT\n\n      STOCKHOLDER AGREEMENT (this 'Agreement'), dated as of May 7, 1998, among\nDaimler-Benz Aktiengesellschaft, an Aktiengesellschaft organized and existing\nunder the laws of the Federal Republic of Germany ('Daimler'), Chrysler\nCorporation, a Delaware corporation ('Chrysler'), Tracinda Corporation, a Nevada\ncorporation ('Tracinda'), and Kirk Kerkorian (together with Tracinda, the\n'Stockholder').\n\n      WHEREAS, Chrysler, Daimler and Oppenheim Aktiengesesllschaft, an\nAktiengesellschaft organized and existing under the laws of the Federal Republic\nof Germany ('Newco'), are entering into a Business Combination Agreement\npursuant to which, among other things, following receipt of the requisite\napproval of the Daimler and Chrysler stockholders and satisfaction of certain\nother conditions (i) Newco will exchange one Newco Ordinary Share (or one Newco\nAmerican Depositary Share) for each outstanding Daimler Ordinary Share (or\nDaimler American Depositary Share) tendered pursuant to an Exchange Offer being\nmade to all holders of Daimler Ordinary Shares (and Daimler American Depositary\nShares) by Newco (the 'Exchange Offer'), (ii) simultaneously with the closing of\nthe Exchange Offer Newco will acquire Chrysler in a merger transaction and the\nChrysler stockholders will receive Newco American Depositary Shares in exchange\nfor their shares of common stock, par value $1.00 per share, of Chrysler (the\n'Chrysler Common Stock'), and (iii) following the Exchange Offer, Daimler will\nmerge into Newco and each remaining outstanding Daimler Ordinary Share and\nDaimler American Depositary Share will be converted into a Newco Ordinary Share\nor Newco American Depositary Share, as the case may be;\n\n      WHEREAS, as a condition to the willingness of Daimler to enter into the\nBusiness Combination Agreement, and as an inducement to it to do so, the\nStockholder has agreed for the benefit of Daimler as set forth in this\nAgreement;\n\n      WHEREAS, the transactions contemplated by the Business Combination\nAgreement are subject to certain conditions, including the approval and adoption\nof the Business Combination Agreement by the holders of a majority of all of the\noutstanding shares of Chrysler Common Stock;\n\n      WHEREAS, the Stockholder is, as of the date hereof, the beneficial owner\nof the number of shares of Chrysler Common Stock set forth opposite the\nStockholder's name on Schedule A hereto.\n\n      NOW, THEREFORE, in consideration of the mutual representations,\nwarranties, covenants and agreements contained in this Agreement, and for other\ngood and valuable consideration, the receipt and sufficiency of which are hereby\nacknowledged, the parties hereto, intending to be legally bound hereby, agree as\nfollows:\n\n                                    ARTICLE I\n\n                          COVENANTS OF THE STOCKHOLDER\n\n            Section 1.1 Agreement to Vote. At the meeting of the stockholders of\nChrysler and at any subsequent stockholder meeting called in connection with the\nBusiness Combination Agreement and the transactions contemplated thereby,\nhowever called, or in connection with any written consent of the stockholders of\nChrysler given with respect to the transactions contemplated by the Business\nCombination Agreement, the Stockholder shall vote all of the shares of Chrysler\nCommon Stock beneficially owned by such Stockholder in favor of the Business\nCombination Agreement and each of the transactions contemplated thereby and any\nactions required in furtherance hereof and thereof, in each case as recommended\nby Chrysler's Board of Directors so long as the Business Combination Agreement\nis not amended in a manner that would adversely affect the form or amount of the\nmerger consideration or otherwise adversely affect the Stockholder.\nNotwithstanding the foregoing, the Stockholder shall remain free to vote the\nshares of Chrysler Common Stock with respect to any matter not covered by the\npreceding sentence in any manner it deems appropriate, subject in all cases to\nits existing contractual arrangements with Chrysler. Prior to the date on which\nthe Business Combination Agreement is terminated in accordance with its terms\nor, if earlier, the date the transactions contemplated by the Business\nCombination Agreement are consummated, the Stockholder agrees not to enter,\ndirectly or indirectly, into any agreement, arrangement or understanding with\nany person to vote, grant any proxy or give instructions with respect to the\nvoting of the shares of Chrysler Common Stock in any manner inconsistent with\nthe first sentence of this Section 1.1.\n\n\n                                        2\n\n                                   ARTICLE II\n\n                         REPRESENTATIONS AND WARRANTIES\n                            OF THE STOCKHOLDER\n\n      The Stockholder represents and warrants to Daimler that:\n\n            Section 2.1 Ownership. Such Stockholder is, as of the date hereof,\nthe beneficial owner of the number of shares of Chrysler Common Stock set forth\nopposite such Stockholder's name on Schedule A hereto; such Stockholder has the\nsole right to vote such shares of Chrysler Common Stock; and there are no\nrestrictions on the right of disposition by the Stockholder of, or other\nencumbrances pertaining to, such shares of Chrysler Common Stock, other than as\nprovided in the Standstill Agreement or as provided in the First Amended and\nRestated Credit Agreement dated October 30, 1996, with Bank of America, National\nTrust and Savings Association, as Agent (the 'Credit Agreement'). None of such\nshares of Chrysler Common Stock beneficially owned by the Stockholder are\nsubject to any voting trust or other agreement, arrangement or restriction with\nrespect to the voting or disposition of such Stockholder's shares of Chrysler\nCommon Stock, other than the Standstill Agreement and the Credit Agreement.\n\n            Section 2.2 Authority and Non-Contravention. Such Stockholder has\nall requisite corporate power and authority to enter into this Agreement and to\nperform its obligations hereunder. The execution, delivery and performance by\nsuch Stockholder of this Agreement and the consummation by such Stockholder of\nthe transactions contemplated hereby have been duly authorized by all necessary\ncorporate action on the part of such Stockholder. Such actions by such\nStockholder (a) require no action by or in respect of, or filing with, any\ngovernmental entity with respect to such Stockholder, other than required\nfilings under the Securities Exchange Act of 1934, if any, and (b) do not and\nwill not violate or contravene any provision of applicable law or any\nregulation, judgment, injunction, order or decree binding on such Stockholder or\nresult in the imposition of any encumbrance on any asset of such Stockholder\n(other than as provided in this Agreement with respect to such shares of\nChrysler Common Stock or as provided in the Credit Agreement).\n\n            Section 2.3 Binding Effect. This Agreement has been duly and validly\nexecuted and delivered by the Stockholder and is a valid and binding agreement\nof the Stockholder in accordance with its terms.\n\n            Section 2.4 Total Shares. The shares of Chrysler Common Stock set\nforth opposite the Stockholder's name on Schedule A hereto are the only shares\nof capital stock of Chrysler beneficially owned, as of the date hereof, by the\nStockholder.\n\n\n                                        3\n\n                                   ARTICLE III\n\n                         REPRESENTATIONS AND WARRANTIES\n                                   OF DAIMLER\n\n      Daimler represents and warrants to the Stockholder that:\n\n            Section 3.1 Corporate Power and Authority. Daimler has the requisite\ncorporate power and authority to enter into this Agreement and to perform its\nobligations hereunder. The execution, delivery and performance by Daimler of\nthis Agreement and the consummation by Daimler of the transactions contemplated\nhereby have been duly authorized by the Management Board (Vorstand) of Daimler.\n\n            Section 3.2 Binding Effect. This Agreement has been duly and validly\nexecuted and delivered by Daimler and is a valid and binding agreement of\nDaimler, enforceable against Daimler in accordance with its terms.\n\n\n                                   ARTICLE IV\n\n                                  MISCELLANEOUS\n\n            Section 4.1 Expenses. All costs and expenses incurred in connection\nwith this Agreement shall be paid by the party incurring such costs or expenses.\n\n            Section 4.2 Amendments. This Agreement may not be modified, amended,\naltered or supplemented, except pursuant to a written agreement executed by each\nof the parties hereto.\n\n            Section 4.3 Entire Agreement. This Agreement, the Standstill\nAgreement and the other agreements executed and delivered by any of the parties\nhereto and the Stockholder in connection herewith constitute the entire\nagreement between the Stockholder and such other parties with respect to the\nsubject matter hereof and supersede all other prior agreements and\nunderstandings, both written and oral, between the Stockholder and such other\nparties with respect to the subject matter hereof.\n\n            Section 4.4 Notices. All notices or other communications required or\npermitted hereunder shall be in writing and shall be deem given if delivered\npersonally, telecopied (if telecopy confirmation is received) or sent by\novernight courier (if proof of delivery is provided) to the parties at the\nfollowing addresses (or at such other address for a party as shall be specified\nby like notice):\n\n\n                                        4\n\n      If to the Stockholder:\n\n            Tracinda Corporation\n            4835 Koval Lane\n            Las Vegas, Nevada  89109\n            Facsimile:        702-737-1177\n            Attention:        Secretary\n\n      If to Daimler:\n\n            Daimler-Benz Aktiengesellschaft\n            70546 Stuttgart, Germany\n            Facsimile:        011-49-711-17-94452\n            Attention:        Dr. Siegfried Schwung,\n                              Associate General Counsel\n\n      If to Chrysler:\n\n            Chrysler Corporation\n            1000 Chrysler Drive\n            Auburn Hills, Michigan  48326-2766\n            Facsimile:        248-512-1772\n            Attention:        General Counsel\n\n            Section 4.5 Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of Delaware without regard to\nthe principles of conflicts of law thereof.\n\n            Section 4.6 Severability. Whenever possible, each provision or\nportion of any provision of this Agreement will be interpreted in such manner as\nto be effective and valid but if any provision or portion of any provision of\nthis Agreement is held to be invalid, illegal or unenforceable in any respect,\nsuch invalidity, illegality or unenforceability will not affect any other\nprovision or portion of any provision, and this Agreement will be reformed,\nconstrued and enforced as if such invalid, illegal or unenforceable provision or\nportion of any provision had never been contained herein. The parties shall\nendeavor in good faith negotiations to replace any invalid, illegal or\nunenforceable provision with a valid provision the effects of which come as\nclose as possible to those of such invalid, illegal or unenforceable provision.\n\n            Section 4.7 Consent to Jurisdiction. Each of the parties hereto (a)\nconsents to submit itself to the personal jurisdiction of any federal court\nlocated in the State of Delaware or any Delaware state court in the event any\ndispute arises out of or relates to this Agreement or any of the transactions\ncontemplated by this Agreement, (b) agrees that it will\n\n\n                                        5\n\nnot attempt to deny or defeat such personal jurisdiction by motion or other\nrequest for leave from any such court, including, without limitation, a motion\nto dismiss on the grounds of forum non conveniens, (c) agrees that it will not\nbring any action arising out of or relating to this Agreement or any of the\ntransactions contemplated by this Agreement in any court other than a federal\ncourt sitting in the State of Delaware or a Delaware state court, and (d) agrees\nto waive any right to a trial by jury with respect to any claim, counterclaim or\naction arising out of or in connection with this Agreement or the transactions\ncontemplated hereby.\n\n            Section 4.8 Enforcement. The parties hereto agree that money damages\nor other remedy at law would not be a sufficient or adequate remedy for any\nbreach or violation of, or default under, this Agreement by them and that in\naddition to all other remedies available to them, each of them shall be entitled\nto the fullest extent permitted by law to an injunction restraining such breach,\nviolation or default or threatened breach, violation or default and to any other\nequitable relief, including, without limitation, specific performance, without\nbond or other security being required.\n\n\n                                        6\n\n            IN WITNESS WHEREOF, Daimler, Chrysler, Tracinda and Kirk Kerkorian\nhave caused this Agreement to be duly executed as of the day and year first\nabove written.\n\n                              DAIMLER-BENZ AKTIENGESELLSCHAFT\n\n\n                              By:_____________________________________\n                                 Name:\n                                 Title:\n\n\n                              By: _____________________________________\n                                  Name:\n                                  Title:\n\n\n                              CHRYSLER CORPORATION\n\n\n                              By: _____________________________________\n                                  Name:\n                                  Title:\n\n\n                              TRACINDA CORPORATION\n\n\n                              By: ______________________________________\n                                  Name:\n                                  Title:\n\n\n                                  ______________________________________\n                                  Kirk Kerkorian\n\n\n                                        7\n\n                                   SCHEDULE A\n\n\n\n         Name                             Number of Shares Beneficially Owned\n-----------------------------------------------------------------------------\n                                       \nTracinda Corporation\n\nKirk Kerkorian\n\n\n\n                                        8\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7265],"corporate_contracts_industries":[9388],"corporate_contracts_types":[9629,9633],"class_list":["post-43938","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-daimler-chrysler-corp","corporate_contracts_industries-autos__autos","corporate_contracts_types-securities","corporate_contracts_types-securities__shareholder"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43938","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43938"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43938"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43938"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43938"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}