Exhibit 1.1
DEALER MANAGER AGREEMENT
_____ ___, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
1. General. General Motors Corporation, a Delaware corporation (the
"Company"), plans to make a tender offer (such tender offer, as it may be
amended and supplemented, being the "Exchange Offer") for outstanding shares of
the Company's Common Stock, par value $1-2/3 per share (the "Shares"), in
exchange for shares of the Company's Class H Common Stock, par value $0.10 per
share (the "Exchange Shares"), having an aggregate market value of up to about
$9 billion at the time of commencement, on the terms and subject to the
conditions set forth in the Exchange Offer Materials (as defined below). It is
understood that the earnings per share and the amounts available for the payment
of dividends of the Exchange Shares are determined by the financial performance
of Xxxxxx Electronics Corporation, a Delaware corporation and a wholly-owned
subsidiary of the Company ("Xxxxxx").
2. Engagement as Dealer Manager. The Company hereby engages you as Dealer
Manager in connection with the Exchange Offer. As Dealer Manager, you agree, in
accordance with the Exchange Offer Materials and otherwise in accordance with
your customary practice, to perform in connection with the Exchange Offer the
services that are customarily performed by investment banking concerns in
connection with similar tender offers, including, without limitation, soliciting
the tender of Shares pursuant to the Exchange Offer and communicating generally
regarding the Exchange Offer with brokers, dealers, commercial banks and trust
companies and other persons, including the holders of Shares. You understand and
agree that neither the Board of Directors of the Company nor the Board of
Directors of Xxxxxx is making any recommendation to holders of Shares as to
whether to accept or participate in the Exchange Offer and therefore, as Dealer
Manager, you will not be making any such recommendation. You further agree to
be regarded as the broker-dealer that is making the Exchange Offer on behalf of
the Company to holders of Shares in any state of the United States in which it
is required that such offers be made by or through a registered or licensed
broker-dealer, and you represent that you are a registered or licensed broker-
dealer in each of such states. You have been engaged to act as sole Dealer
Manager in connection with Exchange Offer and, in such capacity, you shall act
as
an independent contractor with duties solely to the Company. It is understood
that Xxxxxxx Xxxxx Xxxxxx has been appointed by Xxxxxx as Marketing Manager for
Xxxxxx in the Exchange Offer (the "Marketing Manager") and you agree that you
are not, and shall not be deemed to be, acting as an agent of the Company (other
than in your capacity as Dealer Manager), Xxxxxx or the Marketing Manager in
connection with the Exchange Offer and that none of Xxxxxx, the Marketing
Manager or the Company shall be deemed to be acting as agent for you.
3. Solicitation of Tenders. You shall have no liability (in tort, contract
or otherwise) to the Company or any other person related to the Company for any
act or omission on the part of any securities broker or dealer (other than
yourself), commercial bank or trust company that solicits tenders. In soliciting
tenders, no securities broker or dealer, commercial bank or trust company shall
be deemed to act as your agent of any other securities broker or dealer or of
any commercial bank or trust company.
4. Exchange Offer Materials.
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-4 (File No.
333-30826) under the Securities Act of 1933, as amended (the "Securities
Act"), in respect of the Exchange Shares and such registration statement
and any post-effective amendment thereto has been declared effective by the
Commission. The various parts of such registration statement, including all
exhibits thereto and including the documents incorporated by reference into
the prospectus contained in the registration statement at the time such
part of the registration statement became effective, each as amended at the
time such part of the registration became effective, are hereinafter called
the "Registration Statement"; and the final prospectus, in the form
included in the Registration Statement at the time it became effective, is
hereinafter called the "Prospectus"; any reference herein to the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 15 of Form S-4 under the Securities Act,
as of the date of the Prospectus, as the case may be; and any reference to
any amendment or supplement to the Prospectus shall be deemed to refer to
and include any documents filed after the date of the Prospectus under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as of the
date of such amendment or supplement, as the case may be, and incorporated
by reference into the Prospectus.
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(b) The Company agrees that not later than the Commencement Date (as
defined herein) it will file with the Commission under the Exchange Act and
the rules and regulations promulgated thereunder a Statement on Schedule TO
with respect to the Exchange Offer (including the exhibits thereto and any
documents incorporated by reference therein, and as amended from time to
time, the "Schedule TO").
(c) Subject to the matters discussed in the Company's letter to
the Commission in connection with the Exchange Offer dated ,
2000, with respect to the jurisdictions set forth on Annex A (the "Foreign
Jurisdictions"), the Company either is relying on a private placement or
other similar exemption or exception under the securities laws of the
applicable Foreign Jurisdiction or has filed, or agrees that it will file,
with the applicable regulatory agencies for the Foreign Jurisdictions all
materials and information in connection with the Exchange Offer as required
to be filed by such jurisdictions and, in each case, in a manner consistent
in all material respects with the Company's letter to the Commission in
connection with the Exchange Offer dated , 2000.
(d) The Prospectus and the related letter from the Company to
brokers, securities dealers, commercial banks, trust companies and other
nominees, letter to beneficial owners of the Shares, letter of transmittal
to be used by holders tendering Shares pursuant to the Exchange Offer and
the related instructions to the letter of transmittal (together, the
"Letter of Transmittal"), notice of guaranteed delivery, and any newspaper
announcements, press releases and other offering materials and information
(including the materials and filings used in connection with paragraph (c)
above) as the Company may use or prepare, approve or authorize for use in
connection with the Exchange Offer, including the Schedule TO, each as
amended or supplemented from time to time, are herein collectively referred
to as the "Exchange Offer Materials".
(e) The Company agrees to furnish or cause to be furnished to you as
many copies as you may reasonably request upon reasonable notice to the
Company of the Exchange Offer Materials to be furnished to security
holders. The Company agrees that, a reasonable time prior to using, or
filing with the Commission or with any other governmental or regulatory
agency (each, an "Other Agency"), any of the Exchange Offer Materials, it
will furnish to you copies of such material and will give reasonable
consideration to your and your counsel's comments, if any, thereon.
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5. Exchange Offer.
(a) The Company intends to commence the Exchange Offer as soon as
practicable after the execution and delivery hereof by mailing, or causing
to be mailed on its behalf, copies of the Prospectus, the related Letter of
Transmittal and such of the other Exchange Offer Materials as may be
required or as the Company may elect to furnish to holders of record of the
Shares (the date of the commencement of such distribution being herein
called the "Commencement Date"). You understand and acknowledge that such
mailing process is currently estimated to require four full days to
complete.
(b) The Company has approved the Exchange Offer Materials and
authorizes you and any other securities dealer or any commercial bank or
trust company you authorize to use the Exchange Offer Materials in
connection with the solicitation of tenders in accordance with the terms
and conditions of the Exchange Offer as described in the Exchange Offer
Materials, and in accordance with all applicable legal requirements. Other
than as provided for herein, you shall not have any right or obligation to
cause any Exchange Offer Materials to be transmitted generally to the
holders of the Shares.
6. Withdrawal. In the event that (i) the Company uses or permits the use
of, or files with the Commission or any Other Agency, any Exchange Offer
Materials (A) that have not been timely submitted to you previously for your and
your counsel's comments or (B) that have been so submitted, and you have or your
counsel has made material comments, but the Company has unreasonably failed to
address such comments; (ii) the Company shall have breached, in any material
respect, any of its representations, warranties, agreements or covenants herein;
(iii) the Registration Statement shall not have become effective on or prior to
the Commencement Date, or, at any time during the Exchange Offer prior to the
expiration date thereof, a stop order suspending the effectiveness of the
Registration Statement shall have been issued or a proceeding for that purpose
shall have been instituted or shall be pending or threatened by the Commission,
or a requirement by the Commission that additional information be provided shall
not have been satisfied in all material respects; or there shall have been
issued, at any time during the Exchange Offer, any temporary restraining order
or injunction restraining or enjoining you from acting in your capacities as
Dealer Manager, with respect to the Exchange Offer; (iv) Deloitte & Touche,
independent public accountants to Xxxxxx and to the Company, shall not have
furnished to you on the Commencement Date, a letter dated the date of delivery
thereof, in form and substance reasonably satisfactory to you and to Deloitte &
Touche, containing statements and information of the type customarily included
in accountants'
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"comfort letters" with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement or the Prospectus and confirming that they are independent accountants
within the meaning of the Securities Act and the Exchange Act and the respective
applicable rules and regulations thereunder adopted by the Commission; (v) the
Exchange Shares shall not have received approval for listing on the New York
Stock Exchange, provided, that this clause (v) shall not apply if the Exchange
Shares have received approval for listing on the New York Stock Exchange subject
only to official notice of issuance; (vi) on the Commencement Date you shall not
have received a certificate of an executive officer of the Company dated as of
the date of delivery thereof, to the effect that to the best of his knowledge,
all representations and warranties of the Company contained herein are true and
correct in all material respects as though expressly made at such time and the
Company has performed in all material respects all of its obligations hereunder
theretofore required to be performed as of such date; (vii) the "lock-up"
agreements, each substantially in the form of Exhibit A hereto, between you and
the senior executive officers of each of the Company and Xxxxxx set forth on
Exhibit A-1 relating to sales and certain other dispositions of shares of Class
H Common Stock or certain other securities, shall not have been delivered to you
and be in full force and effect on the Commencement Date; or (viii) a material
adverse change, or any development that is reasonably likely to result in a
material adverse change, has occurred in the condition of either (A) the Company
and its subsidiaries, taken as a whole, or (B) Xxxxxx and its subsidiaries taken
as a whole, in each case, from that set forth in the Prospectus; then you shall
be entitled, upon two business days' notice to the Company, to withdraw as
Dealer Manager in connection with the Exchange Offer without any liability or
penalty to you or any other Indemnified Person (as defined in Section 15 below)
and without loss of any right to indemnification or contribution provided in
Section 15 or to the payment of all fees and expenses payable under Sections 7
and 8 below which have accrued to the date of such withdrawal.
7. Fees. Pursuant to a letter agreement dated March 24, 2000 between the
Company and you (the "Engagement Letter"), the Company has agreed, among other
things, to compensate you for your services as Dealer Manager. You and the
Company agree that $1.5 million of that compensation shall represent your fee
for serving as Dealer Manager.
8. Reimbursement of Expenses, Etc. Whether or not any Shares are acquired
pursuant to the Exchange Offer, the Company agrees (1) to reimburse all dealers
and brokers (including yourselves), commercial banks, trust companies and
nominees for their reasonable customary mailing and handling expenses incurred
in forwarding the Exchange Offer Materials to their customers, in each case upon
request made to the Company within a reasonable period of time after
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the incurrence of such expenses, and (ii) to pay all other reasonable fees and
expenses incurred in connection with the Exchange Offer, including without
limitation, all expenses relating to the preparation, filing, printing, mailing
and publishing of the Exchange Offer Materials, all reasonable fees and expenses
of the Exchange Agent and the Information Agent (as each is defined in Section
9, subject to and in accordance with the Company's agreements with those
parties). The Company agrees to reimburse your expenses as provided in the
expense reimbursement provisions of the Engagement Letter. The foregoing
provisions shall not apply to matters, including expenses, covered by Section 15
hereof.
9. The Exchange Agent and Information Agent. The Company has appointed,
and authorizes you to communicate with, Fleet National Bank, in its capacity as
exchange agent (the "Exchange Agent"), in connection with the Exchange Offer and
Xxxxxx & Co., Inc., in its capacity as information agent (the "Information
Agent"), in connection with the Exchange Offer. The Company will arrange for the
Exchange Agent to advise you daily as to the number of Shares which have been
tendered and, if applicable, thereafter withdrawn pursuant to the Exchange Offer
and, upon request, the names and addresses of the registered holders thereof.
10. Representations, Warranties and Certain Agreements of the Company. The
Company represents and warrants to you, and agrees with you, that (except that
the Company makes no representations or warranties as to you, any of your
affiliates or any persons acting on your behalf):
(a) The Company has the corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to
consummate the Exchange Offer.
(b) The Exchange Offer has been duly authorized by all necessary
corporate action by the Company.
(c) Each of this Agreement, the Engagement Letter and the Indemnity
Letter (as defined herein) has been duly authorized, executed and delivered
by the Company.
(d) (i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to its
knowledge, threatened by the Commission; (ii) each document filed or to be
filed pursuant to the Exchange Act and incorporated by reference into the
Prospectus complied or will comply when so filed in all material respects
with the Exchange Act and the rules and regulations of the
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Commission thereunder, (iii) the Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if applicable,
as of the effective date of any amendment or supplement, will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; (iv) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material
respects with all applicable requirements of the Securities Act and the
rules and regulations of the Commission thereunder; and (v) the Prospectus,
as of the date it bears, does not contain and, as amended or supplemented,
if applicable (as of the date of such amendment or supplement), will not
contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that no representation, warranty or agreement is made as to
information relating to you furnished in writing by you or on your behalf
specifically for inclusion in the Registration Statement or the Prospectus.
(e) The Schedule TO, as originally filed and subsequently amended,
and any amendments or supplements thereto and the information filed
pursuant to Rule 425 of the Securities Act comply, or will comply, in all
material respects with all applicable requirements of the Securities Act
and the Exchange Act and the rules and regulations of the Commission
thereunder; and none of the Schedule TO or any amendment or supplement
thereto and the information filed pursuant to Rule 425 includes (as
supplemented or amended, as applicable, and as of the date of filing or use
of such information), or will include, any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that no representation, warranty
or agreement is made as to information relating to you furnished in writing
by you or on your behalf specifically for inclusion in the Schedule TO or
information filed pursuant to Rule 425.
(f) The Company will accept Shares for exchange in accordance with
and subject to the terms and conditions of the Exchange Offer; and the
Company has caused the Exchange Agent to make appropriate arrangements with
The Depository Trust Company and any other "qualified" registered
securities depository to allow for the book-entry movement of exchanged
Shares between depository participants and the Exchange Agent.
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(g) No consent, approval, authorization or order of, or qualification
with, any government body or agency is required in connection with the
execution, delivery and performance of this Agreement, except such as have
been obtained or as may be required by the securities or Blue Sky laws of
the various states and the securities or other laws of applicable foreign
jurisdictions in connection with the offer and sale of the Exchange Shares,
except where the failure to obtain or make such consent, approval,
authorization, order or qualification would not materially adversely affect
the ability of the Company to execute, deliver and perform this Agreement.
(h) Except as disclosed in the Prospectus, (i) the Exchange Offer and
the execution and delivery of, and the consummation of the transactions
contemplated in, this Agreement will comply in all material respects with
all applicable requirements of law, including the Securities Act, the
Exchange Act, the various state securities or "blue sky" laws and state
"takeover" statutes (collectively, "State Statutes"), all applicable
regulations of the Commission or any other governmental or regulatory
agency and all applicable laws and regulations of all applicable foreign
jurisdictions and (ii) the commencement and consummation by the Company of
the Exchange Offer do not and will not require any consent, approval,
authorization or permit of, filing with or notification to, the Commission
or any other governmental or regulatory agency, except in each case (x)
where the failure to comply with such laws and regulations and to obtain or
make such consent, approval, authorization, or permit or other action or
filing or notification would not materially adversely affect the ability of
the Company to execute and deliver this Agreement or to consummate the
Exchange Offer in accordance with its terms or to consummate the
transactions contemplated by this Agreement or (y) for such consents,
approvals, authorizations, or permits that have been granted and filings,
notifications or any other appropriate action that have been made.
(i) The Exchange Offer and the execution and delivery of, and the
consummation of the transactions contemplated in, this Agreement do not and
will not: (i) violate any provision of the certificate of incorporation or
by-laws of the Company; (ii) result in a breach of any material agreement
or other material instrument binding upon the Company or (iii) conflict
with or violate in any material respect any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company, except in each case for any such conflicts, contraventions,
violations, breaches or defaults which would not materially adversely
affect the ability of the Company to execute and
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deliver this Agreement or to consummate the Exchange Offer in accordance
with its terms or to consummate the transactions contemplated by this
Agreement.
(j) The Exchange Shares to be issued by the Company pursuant to the
terms of the Exchange Offer have been duly authorized and, when issued and
delivered pursuant to the terms of the Exchange Offer, will be validly
issued, fully paid and non-assessable, and the issuance of the Exchange
Shares will not be subject to any preemptive or similar rights of any
security holder of the Company.
(k) The authorized capital stock of the Company, including the Class
H common stock, conforms as to legal matters in all material respects to
the description thereof contained in the Prospectus.
11. Opinions of Counsel. The following opinions have been delivered to you
in a form reasonably satisfactory to you and your counsel:
(a) Xxxxxx X. Xxxxxxxx, Esq., Legal Staff of the Company, as to the
matters set forth in Exhibit B.
(b) Xxxxxxxx & Xxxxx, counsel to the Company, as to the matters set
forth in Exhibit C.
(c) Xxxxxxxx X. Xxxxxxx, Esq., Assistant General Counsel of Xxxxxx,
as to the matters set forth in Exhibit D.
(d) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special counsel to the
Company, as to certain matters relating to the laws of specified foreign
jurisdictions.
(e) Osler, Xxxxxx & Harcourt, Canadian counsel to the Company, as to
certain matters relating to the securities laws of certain provinces of
Canada.
(f) Xxxxx Xxxx & Xxxxxxxx, counsel to the Dealer Manager, as to the
matters agreed upon by you.
12. Covenants of the Company.
(a) Until the consummation of the Exchange Offer, the Company will
notify you, promptly after it receives notice thereof, (i) of the time when
any post-effective amendment to the Registration Statement has
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been filed or becomes effective, or any amendment or supplement to the
Prospectus or any amendment to the Schedule TO or any amended or additional
Exchange Offer Materials shall have been filed, (ii) of the receipt of any
comments from the Commission relating to the Exchange Offer, (iii) of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of the Prospectus or any of the Exchange Offer
Materials, (iv) of the suspension of the qualification of the Exchange
Shares for offering in connection with the Exchange Offer in any
jurisdiction, (v) of any request by the Commission to amend or supplement
the Registration Statement, the Prospectus, the Schedule TO or the other
Exchange Offer Materials or for additional information or (vi) of the
institution or threatening of any proceedings for any such purpose. The
Company will also inform you, promptly after it receives notice thereof
(until the consummation of the Exchange Offer), of any litigation or other
administrative proceeding with respect to the Exchange Offer.
(b) The Company will cause all amendments and supplements of the
Prospectus and the other Exchange Offer Materials filed with the Commission
to be distributed to holders of the Shares as may be required by the
Securities Act and the Exchange Act and the rules and regulations of the
Commission thereunder. During the period referred to in the second sentence
of paragraph (c) below, the Company will deliver to you, without charge,
such number of copies of the Prospectus and the other Exchange Offer
Materials (as supplemented or amended) as you may upon reasonable notice
reasonably request. Before amending or supplementing the Registration
Statement, the Prospectus, the Schedule TO or the other Exchange Offer
Materials, or approving any other material for use in connection with the
Exchange Offer, the Company will furnish you with a copy of each such
proposed amendment or supplement or other material.
(c) The Company will comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act and the
rules and regulations of the Commission thereunder in connection with the
Exchange Offer and the transactions contemplated hereby. If at any time
during the period when, in the opinion of your counsel, a Prospectus is
required to be delivered by the Securities Act or the Exchange Act and the
rules and regulations promulgated thereunder in connection with the
Exchange Offer, any event shall occur as a result of which it is necessary
to amend or supplement the Prospectus or any of the other Exchange Offer
Materials in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus or other
Exchange Offer Materials are delivered, not misleading, or if, in the
opinion of your counsel, it shall be necessary for any other reason during
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such period to amend or supplement the Registration Statement, the Schedule
TO or the Prospectus or any of the other Exchange Offer Materials in order
to comply in all material respects with applicable law, the Company will
notify you and promptly prepare and furnish to you, at the Company's
expense, and file with the Commission, if required, such amendment or
supplement to the Prospectus or other Exchange Offer Materials, as may be
necessary so that the statements in the Prospectus or the Exchange Offer
Materials, as amended or supplemented, will not, in the light of the
circumstances under which they were made when the Prospectus or the other
Exchange Offer Materials are delivered, be misleading or so that the
Registration Statement, the Prospectus, the Schedule TO or such other
Exchange Offer Materials comply in all material respects with applicable
law.
(d) The Company will endeavor to qualify the Exchange Shares for
offering and exchange under the securities or Blue Sky laws of such state
jurisdictions as you shall reasonably request; provided that the Company
will not be required to file a general consent to service of process,
qualify as a foreign corporation or as a dealer in securities or subject
itself to taxation in any such jurisdiction to the extent not otherwise
required; and provided further that the Company will pay all expenses
(including reasonable fees and disbursement of counsel) in connection
therewith.
(e) The Company will make generally available to its security holders
as soon as practicable an earnings statement complying with Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158 under the
Securities Act).
(f) The Company shall promptly give you notice of any change of the
expiration date of the Exchange Offer, or the occurrence of any event which
would cause the Company to withdraw, rescind, modify or amend the Exchange
Offer and of any consummation of the Exchange Offer.
(g) Assuming that no Exchange Offer Materials are forwarded to
beneficial holders located in those jurisdictions in which the Company
conducts the Exchange Offer in reliance on a private placement or other
similar exemption, the Company will comply in all material respects with
all applicable securities rules, laws and regulations of the Foreign
Jurisdictions and will conduct the Exchange Offer in a manner consistent
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in all material respects with the terms of the Company's letter to the
Commission in connection with the Exchange Offer dated , 2000.
13. Information Provided By Dealer Manager. The Company agrees and
acknowledges that the only information relating to you and furnished or to be
furnished by you or on your behalf for inclusion in the Registration Statement,
the Prospectus, the Schedule TO or any of the other Exchange Offer Materials is
the description of yourself and your relationship with the Company and Xxxxxx to
be included therein.
14. Lock-Up Arrangements. Neither the Company nor Xxxxxx shall, without
the prior written consent of the Dealer Manager, which consent shall not be
unreasonably withheld, during the period commencing on the date hereof and
ending 90 days after the date of the expiration of the Exchange Offer (the
"Expiration Date") or such earlier date as the Exchange Offer may be abandoned,
terminated or withdrawn, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, file a registration statement in
respect of, or otherwise transfer or dispose of, directly or indirectly, any
shares of Class H Common Stock or any securities convertible into or exercisable
or exchangeable for Class H Common Stock, provided that this provision shall not
apply to shares of the Company's Common Stock, par value $1-2/3 per share
("$1-2/3 Par Value Common Stock") or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Class H Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Class H Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the issuance of shares of Class H
Common Stock to be exchanged for shares of $1-2/3 Par Value Common Stock
pursuant to the Exchange Offer; (B) the issuance and contribution of the shares
of Class H Common Stock by the Company to its voluntary employees' beneficiary
association trust and its U.S. pension plan for hourly-rate employees; (C) the
grant of options or warrants or restricted stock awards convertible into or
exercisable for shares of Class H Common Stock pursuant to existing employee
benefit plans, provided such options, warrants or awards are not exercisable and
such units do not vest prior to the termination of the lock-up period referred
to herein; (D) the issuance of shares of Class H Common Stock upon the exercise
of an option or warrant or the conversion of a security outstanding on the date
hereof of which the Dealer Manager has been advised in writing; (E) except as
otherwise provided in (C), the issuance or transfer of shares of Class H Common
Stock pursuant to the terms of existing employee benefit plans or dividend
reinvestment plans of the Company or any subsidiary of the Company; (F) the
issuance or transfer of shares of Class H Common Stock pursuant to the terms of
any other agreement to issue shares of Class H Common
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Stock (or any securities convertible into or exchangeable or exercisable for
shares of Class H Common Stock) in effect on the date of the original filing of
the Registration Statement; (G) the issuance of, or transactions involving, any
securities of the Company other than Class H Common Stock, including, but not
limited to, shares of $1-2/3 Par Value Common Stock; (H) the issuance of shares
of Class H Common Stock to persons who become employees of Xxxxxx as senior
executive officers, provided such shares may not be sold or otherwise
transferred by such senior executive officers prior to the termination of the
lock-up period referred to herein; (I) any offer or sale of shares of Class H
Common Stock (or securities convertible or exchangeable for such shares) as
consideration in any merger, strategic alliance, consolidation, business
combination or other similar transaction or in any acquisition by the Company or
any subsidiary of the Company of the capital stock or a substantial portion of
the assets of any other entity in a transaction that would, in each case, not
constitute a "public offering" of such shares (or other such securities) within
the meaning of the Securities Act, provided that the recipient of such shares
(or such other securities) agrees in writing not to offer or sell such shares
prior to the termination of the lock-up period referred to herein or (J) making
any offer or sale of shares of Class H Common Stock (or securities convertible
or exchangeable for such shares) as consideration in any merger, strategic
alliance, consolidation, business combination or other similar transaction or in
any acquisition by the Company or any subsidiary of the Company of the capital
stock or a substantial portion of the assets of any other entity in a
transaction that would, in each case, constitute a "public offering" of such
shares (or other such securities) within the meaning of the Securities Act,
provided that such entity and the officers, directors and affiliates of such
entity that are the recipients of such shares (or such other securities) agree
in writing not to offer or sell such shares prior to the termination of the
lock-up period referred to herein and (K) the issuance of shares of Class H
Common Stock to existing holders of such stock for the purposes of effecting the
possible stock split referred to in the Prospectus.
15. Indemnification and Contribution; Settlement of Litigation; Release.
(a) The provisions of the letter agreement dated , 2000
between the Company and you (the "Indemnity Letter") relating to
indemnification and contribution, and to the settlement of claims and
release of the Indemnified Persons (as defined in the Indemnity Letter)
in the event of such settlement, are in full force and effect, and the
Company agrees to indemnify and hold harmless you and the other Indemnified
Persons, to contribute to amounts paid or payable by you and the other
Indemnified Persons and to comply with such settlement and release
provisions, in each case as provided in the Indemnity Letter.
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(b) The Dealer Manager hereby agrees to indemnify and hold harmless
the Company and Xxxxxx, any director, officer, agent or employee of the
Company or Xxxxxx (the "Indemnitees") to the full extent lawful, from and
against, and that the Indemnitees shall have no liability to you or your
creditors or security holders for, any losses caused by any untrue
statement or alleged untrue statement of any material fact in the
Registration Statement, the Prospectus, the Schedule TO and information
filed pursuant to Rule 425 or omitted statement of material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that this sentence shall
only apply with respect to such statements and omissions that are made in
such documents in reliance upon and in conformity with written information
relating to you prepared by you or on your behalf and furnished by you or
your behalf for inclusion in such document.
16. Full Force and Effect. The indemnification and contribution agreements
contained in Section 15, the fee and expense reimbursement agreements contained
in Sections 7 and 8, the representations, warranties and agreements contained in
this Agreement and the waiver of the right to trial by jury contained in Section
25 shall remain operative and in full force and effect, regardless of (i) any
failure to commence, or the withdrawal, termination, expiration or consummation
of, the Exchange Offer or the termination or assignment of this Agreement, (ii)
any investigation made by or on behalf of any Indemnified Person, (iii) any
withdrawal by you pursuant the Section 6 and (iv) the completion of your
services hereunder.
17. Severability. If any term of other provision of this Agreement is
invalid, illegal or incapable of being enforced by and rule of law, or public
policy, all other provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic and legal substance of the agreements
contained herein is not affected in any manner adverse to any party.
18. Counterparts. This Agreement may be executed by the different parties
hereto in one or more separate counterparts, each of which when executed shall
be deemed an original, but all of which together shall constitute one and the
same agreement.
19. Binding Effect. This Agreement shall be binding upon and inure solely
to the benefit of each party hereto and the Indemnified Persons, and nothing in
this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy.
14
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
executed in and to be performed in that State.
21. Entire Agreement. This Agreement, the Engagement Letter and the
Indemnity Letter constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof.
22. Amendment. This Agreement may not be amended except in writing signed
by each party to be bound thereby.
23. Notices. All notices and other communications required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have
been duly given if delivered in person, by cable, telecopy, telegram or telex or
by registered or certified mail (postage prepaid, return receipt requested) to
the parties hereto as follows (or, as to each party, at such other address as
shall be designated by such party in a written notice complying as to delivery
with the terms of this paragraph):
(a) If to you:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention of Equity Capital Markets
With a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention of Xxxxxxx X. Xxxxxxx, Esq.
15
(b) If to the Company:
General Motors Corporation
300 Renaissance Center
Mailcode 482-C25-C22
X.X. Xxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
Attention of Xxxxxx X. Xxxxxxxx, Esq.
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention of Xxxxxx X. Xxxxxxxx, Esq.
24. Subheadings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
25. Waiver of Jury Trial. The provision of the Engagement Letter relating
to the waiver by you and the Company of any right to trial by jury is
incorporated herein by references as if restated herein in its entirety, and you
and the Company agree to comply with your and its respective obligations under
such provision as provided therein.
16
Please indicate your willingness to act as Dealer Manager on the terms set
forth herein and your acceptance of the foregoing provisions by signing in the
space provided below for that purpose and returning to us a copy of this letter,
whereupon this letter and your acceptance shall constitute a binding agreement
among us.
Very truly yours,
GENERAL MOTORS CORPORATION
by:
---------------------------------------
Name:
Title:
Accepted to and agreed as of
the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
by:
---------------------------------------
Name:
Title:
17
ANNEX A
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Australia
Austria
Belgium
Brazil
Canada
Germany
Ireland
Israel
Italy
Mexico
The Netherlands
New Zealand
Norway
Singapore
Spain
Sweden
Switzerland
United Kingdom
EXHIBIT A
[FORM OF LOCK-UP LETTER]
____________, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx") proposes to enter into a Dealer Manager Agreement (the "Dealer Manager
Agreement") with General Motors Corporation, a Delaware corporation (the
"Company"), in connection with the Company's proposed tender offer (such tender
offer, as it may be amended and supplemented, the "Exchange Offer") for the
outstanding shares of the Company's $1-2/3 Common Stock, par value $1-2/3 per
share (the "$1-2/3 Par Value Common Stock"), in exchange for shares of the
Company's Class H Common Stock, par value $.010 per share (the "Exchange
Shares").
The undersigned hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx, which consent shall not be unreasonably withheld, he, she or it
will not, during the period commencing on the date hereof and ending 90 days
after the date of the expiration of the Exchange Offer (the "Expiration Date")
or such earlier date as the Exchange Offer may be abandoned, terminated or
withdrawn, (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of, directly
or indirectly, any shares of Class H Common Stock or any securities convertible
into or exercisable or exchangeable for Class H Common Stock, provided that this
provision (1) shall not apply to shares of the $1-2/3 Par Value Common Stock or
(2) enter into any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Class H Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Class H Common Stock or such other securities, in cash
or otherwise. The foregoing sentence shall not apply to (a) the transfer of
shares of Class H Common Stock pursuant to the Exchange Offer; (b) transactions
relating
to shares of Class H Common Stock or other securities acquired in open market
transactions after the expiration of the Exchange Offer and (c) transactions
involving any securities of the Company other than Class H Common Stock,
including, but not limited to, shares of $1-2/3 Par Value Common Stock. In
addition, the undersigned agrees that, without the prior written consent of the
Dealer Manager, it will not, during the period commencing on the date hereof and
ending 90 days after the Expiration Date or such earlier date as the Exchange
Offer may be abandoned, terminated or withdrawn, make any demand for or exercise
any right with respect to, the registration of any shares of Class H Common
Stock or any security convertible into or exercisable or exchangeable for Class
H Common Stock.
Whether or not the Exchange Offer actually occurs depends on a number of
factors, including market conditions. Any Exchange Offer will only be made
pursuant to a Dealer Manager Agreement, the terms of which are subject to
negotiation between the Company and the Dealer Manager.
Very truly yours,
(Name)
(Address)
A-2
EXHIBIT A-1
-----------
Executive Officers of General Motors
------------------------------------
J. Xxxxxxx Xxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxx, Xx.
G. Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxxx
Executive Officers of Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx
Xxxx Xxxxxxxxxxx
Xxxx X. Xxxx
Xxxxxxx X. Xxxxx
[ ]
A-3
EXHIBIT B
Opinion of Xxxxxx X. Xxxxxxxx, Esq., Attorney,
Legal Staff of General Motors Corporation (the "Company")
(a) The Company is a corporation validly existing and in good standing
under the laws of the State of Delaware, is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such qualification and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted, except where the
failure to be so qualified or in good standing would not have a material adverse
effect on the financial position of the Company taken as a whole, and has the
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the Exchange Offer.
(b) The authorized capital stock of the Company, including the Class H
Common Stock, conforms as to legal matters in all material respects to the
description thereof contained under the headings "Overview of GM Capital Stock"
and "Description of Class H Common Stock."
(c) Each of this Agreement, the Engagement Letter and the Indemnity Letter
has been duly authorized, executed and delivered by the Company.
(d) The Exchange Shares to be issued by the Company pursuant to the terms
of the Exchange Offer have been duly authorized and, when issued and delivered
pursuant to the terms of the Exchange Offer, will be validly issued, fully paid
and non-assessable, and the issuance of the Exchange Shares will not be subject
to any preemptive or, to such counsel's knowledge, other similar rights under
the Delaware General Corporation Law, the Company's certificate of incorporation
or bylaws or any contractual provision of which such counsel has knowledge.
(e) The Exchange Offer has been duly authorized by all necessary corporate
action by the Company.
(f) The consummation of the Exchange Offer and the execution, delivery and
performance of this Agreement will not contravene any provision of the
certificate of incorporation or by-laws of the Company or any provisions of a
material agreement or other material instrument known to counsel and binding
upon the Company (provided that such counsel need express no opinion as to
compliance with any financial test or cross-default provision in any such
agreement), or conflict with or violate in any material respect any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Company, except, in each case, for any such conflicts, contraventions,
violations, breaches or defaults which would not materially adversely affect the
ability of the Company to execute and deliver this Agreement or to consummate
the Exchange Offer in accordance with its terms or consummate the transactions
contemplated by this Agreement.
(g) After reasonable inquiry, such counsel does not know of any legal or
governmental proceeding or investigation pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the properties
of the Company is subject which is required to be described in the Registration
Statement or the Prospectus and is not so described or of any contract or other
document which is required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement which is
not described or filed as required.
(h) The statements: (i) in Item 20 of the Registration Statement; (ii) in
the Prospectus incorporated by reference to Item 3 of Part I of the Company's
Annual Report of Form 10-K for the year ended December 31, 1999 and (iii) in
the Prospectus under the captions "Overview of GM Capital Stock", "Description
of Class H Common Stock" and "Comparison of Rights of $1-2/3 Par Value
Stockholders and Class H Stockholders," in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings referred to
therein, in all material respects fairly present the information called for with
respect to such legal matters, documents and proceedings and fairly summarize
the matters referred to therein.
Such counsel participated in the preparation of the Registration Statement
and the Prospectus and the Schedule TO. During the course of such preparation,
such counsel examined various documents, including those listed in such
counsel's opinion, and participated in various conferences with representatives
of and counsel for each of the Company and Xxxxxx, and with representatives of
the independent accountants for each of the Company and Xxxxxx and
representatives of and counsel for each of the Dealer Manager and the Marketing
Manager, at which conferences the contents of the Registration Statement and the
Prospectus (and the documents incorporated therein by reference) and the
Schedule TO were reviewed and discussed. In addition, such counsel participated
in discussions with the Staff of the Commission. Except as set forth in the
opinion in paragraph (h) above, such counsel makes no representation that such
counsel has independently verified the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus.
B-2
No fact came to such counsel's attention to cause him to conclude that (i)
the Registration Statement, on its effective date, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) the
Prospectus, the Schedule TO, as of their respective dates, or as of the date of
this letter, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading or (iii) as of the effective date of the Registration Statement,
either the Registration Statement or the Prospectus appeared on its face not to
be responsive in all material respects to the requirements of Form S-4, except
for, in each case, financial statements and schedules and other financial and
statistical data and information included therein or incorporated by reference
or omitted therefrom, as to which such counsel expresses no opinion.
B-3
EXHIBIT C
Opinion of Xxxxxxxx & Xxxxx, Counsel to
General Motors Corporation (the "Company")
(a) The authorized capital stock of the Company, including the Class H
common stock, conforms as to legal matters in all material respects to the
description thereof contained under the headings "Overview of GM Capital Stock"
and "Description of Class H Common Stock."
(b) Each of this Agreement, the Engagement Letter and the Indemnity Letter
has been duly authorized, executed and delivered by the Company.
(c) The Exchange Shares to be issued by the Company pursuant to the terms
of the Exchange Offer have been duly authorized and, when issued and delivered,
pursuant to the terms of the Exchange Offer will be validly issued, fully paid
and non-assessable, and the issuance of the Exchange Shares will not be subject
to any preemptive or, to such counsel's knowledge, other similar rights under
the Delaware General Corporation Law, the Company's certificate of incorporation
or bylaws or any contractual provision of which such counsel has knowledge.
(d) The statements in the Prospectus under the captions "Overview of GM
Capital Stock", "Description of Class H Common Stock" and "Comparison of Rights
of $1-2/3 Par Value Stockholders and Class H Stockholders", in each case insofar
as such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, in all material respects fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein.
(e) The discussion set forth under the caption "Material U.S. Federal
Income Tax Consequences" in the Registration Statement is based upon reasonable
interpretations of existing law and fairly summarizes the U.S. federal income
tax considerations that are likely to be material to a holder of GM Common
Stock, $1-2/3 par value per share.
The purpose of our professional engagement was not to establish factual
matters, and preparation of the Registration Statement and the Prospectus and
the Schedule TO involved many determinations of a wholly or partially nonlegal
character. We make no representation that we have independently verified the
accuracy, completeness or fairness of the Registration Statement or the
Prospectus or the Schedule TO or that the actions taken in connection with the
preparation of
the Registration Statement or the Prospectus (including the actions described in
the next paragraph) or the Schedule TO were sufficient to cause the Registration
Statement or the Prospectus or the Schedule TO to be accurate, complete or fair.
We are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the Registration Statement or the Prospectus or the
Schedule TO except to the extent otherwise explicitly indicated in paragraph (d)
above.
We can however confirm that we have participated in conferences with
representatives of the Company and Xxxxxx, representatives of the independent
accountants for the Company and Xxxxxx, representatives of and counsel for the
Marketing Manager and your representatives and counsel, at which conferences the
contents of the Prospectus and the Registration Statement and related matters
were reviewed and discussed. In addition, we have participated in discussions
with the Staff of the Commission.
Based upon our participation in the conferences and discussions identified
in the preceding paragraph, our understanding of applicable law and the
experience we have gained in our practice thereunder and relying as to factual
matters to the extent deemed appropriate by us upon the representations and
statements of officers and other representatives of the Company and Xxxxxx, we
can, however, advise you that no fact came to our attention to cause us to
conclude that (i) the Registration Statement, on its effective date, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or (ii) the Prospectus and the Schedule TO, as of their respective
dates, or as of the date of this letter, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (iii) as of the effective date of
the Registration Statement, either the Registration Statement or the Prospectus
appeared on its face not to be responsive in all material respects to the
requirements of Form S-4, except for, in each case, financial statements and
schedules and other financial and statistical data and information included
therein or incorporated by reference or omitted therefrom, as to which we
express no opinion.
C-2
EXHIBIT D
Opinion of Xxxxxxxx X. Xxxxxxx, Esq.
Assistant General Counsel of
Xxxxxx Electronics Corporation Inc. ("Xxxxxx")
(a) Each of Xxxxxx, Xxxxxx Network Systems, PanAmSat and DirecTV is a
corporation validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification and has all
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted, except where the failure to
be so qualified or in good standing would not have a material adverse effect on
the financial position of Xxxxxx and its subsidiaries taken as a whole.
(b) After reasonable inquiry, such counsel does not know of any legal or
governmental proceeding or investigation pending or threatened to which Xxxxxx
or any of its subsidiaries is a party or to which any of the properties of
Xxxxxx is subject which is required to be described in the Registration
Statement or the Prospectus and is not so described or of any contract or other
document which is required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement which is
not described or filed as required.
(c) The statements in the Prospectus under the caption "Business of
Xxxxxx--Legal Proceedings", in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to therein, in
all material respects fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the matters
referred to therein.
Such counsel participated in the preparation of the Registration Statement
and the Prospectus. During the course of such preparation, such counsel examined
various documents, including those listed in such counsel's opinion, and
participated in various conferences with representatives of and counsel for the
Company and Xxxxxx, and representatives of the independent accountants for the
Company and Xxxxxx, and representatives of and counsel for each of the Dealer
Manager and the Marketing Manager, at which conferences the contents of the
Registration Statement and the Prospectus (and the documents incorporated
therein by reference) were reviewed and discussed. Except as set forth in the
opinion in paragraph (c) above, such counsel makes no representation that such
counsel has independently verified the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus.
No fact came to such counsel's attention to cause her to conclude that (i)
the Registration Statement, on its effective date, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) the
Prospectus, on the date it bears or as of the date of this letter, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or (iii) as of the
effective date of the Registration Statement, either the Registration Statement
or the Prospectus appeared on its face not to be responsive in all material
respects to the requirements of Form S-4, except for, in each case, financial
statements and schedules and other financial and statistical data and
information included therein or incorporated by reference or omitted therefrom,
as to which such counsel expresses no opinion.
D-2
