Exhibit 99.14
REGISTRATION RIGHTS AGREEMENT
By and Among
GENERAL MOTORS CORPORATION
and
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee of
THE GENERAL MOTORS
HOURLY-RATE
EMPLOYEES PENSION PLAN
and
as a Trustee of a dedicated account within
THE GENERAL MOTORS WELFARE BENEFIT TRUST
TABLE OF CONTENTS
1. Contribution of Registrable Securities.............................. 2
2. Restrictions on Transfer............................................ 4
3. Demand Transfers....................................................12
4. Piggyback Registration..............................................18
5. Holdback Period.....................................................20
6. Other Registration Rights...........................................21
7. Demand, Piggyback and Shelf Registration Procedures.................24
8. Participation in Underwritten Transfers.............................27
9. Registration Expenses and Legal Counsel.............................27
10. Indemnification.....................................................27
11. Definitions.........................................................30
12. Miscellaneous.......................................................36
EXHIBITS
--------
EXHIBIT A .................................... Form of Transfer Agreement
EXHIBIT B ........................................ Interest Rate Schedule
EXHIBIT C .................................. Form of Succession Agreement
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REGISTRATION RIGHTS AGREEMENT
This Agreement is entered into on ________ __, 2000, by and among General
Motors Corporation, a Delaware corporation (sometimes referred to herein as
"Issuer"), and United States Trust Company of New York, as trustee (the "Pension
Plan Trustee") of a trust established under the General Motors Hourly-Rate
Employees Pension Plan (the "Pension Plan") for the account and on behalf of the
Pension Plan (which shall thereby be deemed a party to this Agreement) and
United States Trust Company of New York, as a trustee (the "VEBA Trustee" and,
together with the Pension Plan Trustee, the "Trustees") of a dedicated account
within the General Motors Welfare Benefit Trust, a voluntary employees'
beneficiary association trust established to fund certain hourly retiree health
care and life insurance benefits under the General Motors Health Care Program
for Hourly Employees and other applicable welfare plans (the "VEBA"), for the
account and on behalf of the VEBA (which shall thereby be deemed a party to this
Agreement). Each of the Pension Plan and the VEBA are sometimes referred to
herein as "Donee" or collectively as "Donees." The term "Donees" as used in
Sections 3 through 12 hereof shall mean the Pension Plan and the VEBA jointly
during any time period in which the VEBA continues to hold Registrable
Securities and shall mean the Pension Plan individually during any other period
in which the Pension Plan continues to hold Registrable Securities. Capitalized
terms used and not otherwise defined herein shall have the respective meanings
set forth in Section 11.
WHEREAS, Issuer intends, subject to the satisfaction of certain regulatory
and other conditions, to contribute approximately [___] million shares of Class
H Common Stock to the Pension Plan and the VEBA; and
WHEREAS, each of the Pension Plan and the VEBA is prepared to accept the
Class H Common Stock that may be contributed to it as described herein and to
hold and dispose of any such Class H Common Stock on the terms and conditions
hereinafter stated; and
WHEREAS, General Motors, the Pension Plan and the VEBA have entered into a
Transfer Agreement, dated as of the date hereof, substantially in the form of
Exhibit A attached hereto (as such agreement may be amended or modified from
time to time, the "Transfer Agreement"), pursuant to which each of the Pension
Plan and the VEBA has agreed to hold and dispose of the Class H Common Stock
owned by it on the terms and conditions stated therein; and
WHEREAS, the Trustee has been appointed by the named fiduciary of the
Pension Plan (the "Pension Plan Named Fiduciary") (as determined in accordance
with Section 402(a) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")), to manage any shares of Class H Common Stock contributed to
the Pension Plan as described herein and to exercise all rights, powers and
privileges appurtenant to such shares (subject to the authority of the Pension
Plan Named Fiduciary to terminate such appointment and appoint one or more other
investment managers for any such shares); and
WHEREAS, the Trustee has been appointed by the named fiduciary of the VEBA
(the "VEBA Named Fiduciary") (as determined in accordance with Section 402(a) of
ERISA), to manage any shares of Class H Common Stock contributed to the VEBA as
described herein 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 for
any such shares); and
WHEREAS, the Trustees have full power and authority to execute and deliver
this Agreement for the account and on behalf of each of the Pension Plan and the
VEBA and to so bind the Pension Plan and the VEBA;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Issuer, the Pension Plan and the
VEBA agree as follows:
1. Contribution of Registrable Securities.
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(a) Issuer agrees that any contribution of Registrable Securities made by
Issuer to the Pension Plan or the VEBA (each such contribution being hereinafter
referred to as a "Contribution") shall be made only on such days as the New York
Stock Exchange, Inc. ("NYSE") shall be open for trading (a "Business Day").
(b) The Pension Plan represents that it beneficially owns [__________]
shares of Class H Common Stock as of the date hereof. The VEBA represents that
it does not beneficially own any shares of Class H Common Stock as of the date
hereof.
(c) Issuer agrees that it shall give the Pension Plan Trustee and its
valuation adviser or the VEBA Trustee and its valuation adviser, as applicable,
notice by teleconference after the close of normal trading on the NYSE but no
later than 5:00 p.m., New York time, on the Business Day prior to the Business
Day on which Issuer contemplates making a Contribution to the Pension Plan or
the VEBA, as applicable, that it contemplates making such a Contribution;
provided, however, that such notice shall be revocable by Issuer at any time in
its sole discretion prior to the conclusion of the teleconference referred to in
Section 1(d). In such teleconference, Issuer shall state the date on which
Issuer contemplates making the proposed Contribution and a range for the number
of Registrable Securities which may be contributed, and the Pension Plan Trustee
or the VEBA Trustee, as applicable, each together with its valuation adviser,
will estimate a value per share, based on the closing price on the day of notice
on the NYSE of Class H Common Stock, at various points within such range.
(d) At any time after 4:30 p.m., New York time, but in any event prior to
8:00 p.m., New York time, on the day of the proposed Contribution, Issuer will
give the Pension Plan Trustee and its valuation adviser or the VEBA Trustee and
its valuation adviser, as
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applicable, notice by teleconference of its continued interest, if any, in
making a Contribution to the Pension Plan or the VEBA, as applicable. In such
teleconference, Issuer will make one or more estimates of the specific number of
Registrable Securities which Issuer may contribute, and the Pension Plan Trustee
or the VEBA Trustee, as applicable, each together with its valuation adviser,
will state the value per share it would assign for the Contribution based on
each such estimate and based on the closing price on such date on the NYSE of
Class H Common Stock. If Issuer so decides, it shall irrevocably commit itself
in such teleconference to contribute a number of Registrable Securities equal to
one of such estimates, and, as applicable, the Pension Plan Trustee's or the
VEBA 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, Issuer shall deliver instructions to its transfer agent to issue the
Registrable Securities so contributed (in the form described below) and to
register such Registrable Securities in the name of the Pension Plan or the
VEBA, as applicable, or their nominees, and Issuer shall confirm such
Contribution by delivering copies of such transfer instructions to the Pension
Plan Trustee or the VEBA Trustee, as applicable. As soon as practicable after
the teleconference, the Pension Plan Trustee's or the VEBA Trustee's valuation
adviser will deliver to the Pension Plan Trustee or the VEBA Trustee, as
applicable, with a copy to Issuer, its written valuation opinion, confirming the
valuation given in the teleconference.
(e) Delivery of certificates representing (or other evidence of ownership
of) the duly authorized, validly issued, fully paid and nonassessable shares of
Class H Common Stock contributed in a Contribution shall be made to the Pension
Plan or the VEBA at the offices of the Pension Plan Trustee or the VEBA Trustee,
as applicable (or such other place as may be mutually agreed upon), in such form
as shall permit, subject to the provisions of this Agreement, the Transfer of
the Registrable Securities through normal means of settlement (subject to the
proviso in the next following sentence), not later than 5:00 p.m., New York
time, on the fourth full Business Day after such Contribution. 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 Pension Plan Trustee or
the VEBA Trustee, as applicable, to confirm that the Pension Plan or the VEBA,
upon receipt of such certificates (or other evidence of ownership), may, subject
to the provisions of this Agreement, Transfer record and beneficial ownership of
the shares of Class H Common Stock represented by such certificates (or other
evidence of ownership thereof); provided, however, that, subject to Section 1(f)
below, each certificate representing the Registrable Securities shall
conspicuously bear legends in substantially the following form, and each
uncertificated share of Registrable Securities shall have an appropriate
designation made in the book-entry records relating thereto, to the following
effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
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REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAW AND, UNLESS SO REGISTERED, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A REGISTRATION
RIGHTS AGREEMENT, DATED _________ __, 2000 (THE "REGISTRATION RIGHTS
AGREEMENT"), BY AND AMONG THE ISSUER OF SUCH SECURITIES (THE "COMPANY") AND
UNITED STATES TRUST COMPANY OF NEW YORK, AS TRUSTEE OF THE PENSION TRUST (AS
DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) AND UNITED STATES TRUST COMPANY
OF NEW YORK, AS A TRUSTEE OF THE VEBA (AS DEFINED IN THE REGISTRATION RIGHTS
AGREEMENT), THAT CONTAINS, AMONG OTHER THINGS, CERTAIN RESTRICTIONS ON THE
TRANSFER OF SUCH SECURITIES. A COPY OF SUCH REGISTRATION RIGHTS AGREEMENT
WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST."
(f) Issuer will instruct its transfer agent that, upon Transfer, the
legends or the book-entry designation set forth in Section 1(e) shall be removed
from the certificates representing shares of Class H Common Stock (or the book-
entry records relating to such shares) involved in any Transfer by the Pension
Plan or the VEBA if such Transfer is made in accordance with all applicable
provisions of this Agreement; provided, however, that if such Transfer is a
Negotiated Transfer (as defined below) that is not registered under the
Securities Act, the first legend shall remain on the certificates representing
such shares and a book-entry designation with respect to such shares held in
book-entry form shall remain until such time as the restrictions cease to be
applicable.
(g) Each of the Pension Plan and the VEBA, severally and not jointly,
represents and warrants 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 Registrable Securities.
Each of the Pension Plan and the VEBA understands and acknowledges that the
Contributions have not been and will not be registered under the Securities Act
or any state securities law and that the Registrable Securities may not be the
subject of any Transfer except as expressly permitted by this Agreement.
2. Restrictions on Transfer.
------------------------
(a) Neither the Pension Plan nor the VEBA shall make any Transfer of any
Registrable Securities other than in accordance with the terms and conditions of
this
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Agreement. Without limiting the foregoing, each of the Pension Plan and the
VEBA agree not to make any such Transfer except pursuant to any one or more
of the following transactions:
(i) a Public Transfer (as defined below);
(ii) a Negotiated Transfer (as defined below);
(iii) a Transfer described in and permitted by subsection (d), (e),
(f), (g) or (h) of this Section 2;
(iv) a Transfer described in and permitted by Section 4 or Section 6
below;
(v) from and after such time as the aggregate ownership of Registrable
Securities by both Donees has been reduced to less than 20 million shares
of Class H Common Stock, a Transfer pursuant to any provision of Rule 144
under the Securities Act or any successor rule thereto ("Rule 144");
provided that no Transfer under this clause (v) may be made to any one
Person (or group of related Persons) (whether such Person (or group of
related Persons) is buying for its own account or as a fiduciary on behalf
of one or more accounts) of more than 2% of the Class H Common Stock then
outstanding;
(vi) solely in the case of the VEBA, from and after such time as the
VEBA reduces its ownership of Registrable Securities to less than 2 million
shares of Class H Common Stock, a Transfer by the VEBA pursuant to any
provision of Rule 144; provided that no Transfer under this clause (vi) may
be made to any one Person (or group of related Persons) (whether such
Person (or group of related Persons) is buying for its own account or as a
fiduciary on behalf of one or more accounts) of more than 2% of the Class H
Common Stock then outstanding;
(vii) a Transfer to Issuer or a wholly-owned direct or indirect
subsidiary of Issuer pursuant to a self-tender offer or otherwise; and
(viii) a Transfer pursuant to a merger or consolidation in which
Issuer or a wholly-owned direct or indirect subsidiary of Issuer is a
constituent corporation.
Except as provided in Section 6(b), no Transfer described in clause (iii),
(iv), (v), (vi), (vii) or (viii) above shall be considered a Demand
Transfer (as defined below).
(b) Neither the Pension Plan nor the VEBA shall make any Transfer of
Registrable Securities pursuant to a Demand Registration Statement (as
defined below), a Shelf Registration Statement (as defined below) or a
registration statement pursuant to a Piggyback Registration (as defined
below) or a Strategic Partner Demand Registration (as defined below) other
than in accordance with the plan of distribution described therein.
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(c) Neither the Pension Plan nor the VEBA shall make any Transfer of
securities convertible into or exercisable or exchangeable for the
Registrable Securities or any other securities the value of which is
derived from the Registrable Securities without obtaining the prior written
consent of Issuer to such Transfer.
(d) Notwithstanding the provisions of this Agreement to the contrary,
the Pension Plan or the VEBA may at any time deliver to Issuer a written
notice that it proposes to make a Transfer of Registrable Securities to or
for the benefit of an employee benefit plan maintained or contributed to by
Issuer or any of its affiliates in connection with the satisfaction of
ordinary course funding obligations or investment objectives with respect
to such employee benefit plan. Each notice of a proposed Transfer pursuant
to this Section 2(d) shall be delivered a reasonable period of time before
such proposed Transfer and, in any event, not less than 30 days before such
proposed Transfer.
(e) Notwithstanding the provisions of this Agreement to the contrary,
each of the Pension Plan and the VEBA may at any time effect a Transfer by
tendering any or all of the Registrable Securities into an exchange offer,
a tender offer or a request or invitation for tenders (as such terms are
used in Sections 14(d) or 14(e) of the Exchange Act and the rules and
regulations of the Commission thereunder) (collectively, a "tender offer"))
for Class H Common Stock if (X) such Transfer is effected within the 24-
hour period immediately prior to the then scheduled expiration time for
such tender offer, and (Y) at the time the Pension Plan or the VEBA propose
to effect such Transfer:
(i) Issuer (A) does not have in effect a stockholders rights plan
or (B) has in effect a stockholders rights plan but there has been a
redemption, revocation or similar invalidation of the preferred stock
or other rights issued under such stockholders rights plan (the
"Rights"), in either case as a result of (X) action of the Board of
Directors of Issuer (or any committee thereof) in connection with such
tender offer (including as a result of a finding that such tender
offer was a "permitted offer" under the terms of such stockholders
rights plan) or (Y) a final and non-appealable order of a court of
competent jurisdiction issued in connection with such tender offer in
response to a challenge to the validity and/or effects of such
stockholders rights plan or Rights; or
(ii) Issuer (A) does not have in effect a stockholders rights
plan or (B) has in effect a stockholders rights plan but there has
been a redemption, revocation or similar invalidation of any Rights
issued thereunder, in either case other than as a result of the
matters described in clause (i) above and other than as a result of a
court order of the type described in clause (i) above that has not
become final and non-appealable, and (X) the Board of Directors of
Issuer has not recommended rejection of such tender offer pursuant to
Rule 14e-2(a) under the Exchange Act or any successor thereto ("Rule
14e-2(a)"), or (Y) at least half of the members of the Board of
Directors of Issuer who are not officers or employees of Issuer and
who are not representatives, nominees or affiliates of the bidder (as
defined in Rule 14d-l(e) under the Exchange Act or any
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successor thereto) (the "Bidder") making such tender offer
(collectively, the "Independent Directors") did not recommend
rejection of such tender offer when the Board of Directors of Issuer
determined the position of Issuer with respect to such tender offer as
contemplated by Rule 14e-2(a) or (Z) there are fewer than two members
of the Board of Directors of Issuer that are Independent Directors at
the time the Board of Directors of Issuer considers such tender offer;
or
(iii) Issuer (A) does not have in effect a stockholders rights
plan or (B) has in effect a stockholders rights plan but there has
been a redemption, revocation or similar invalidation of any Rights
issued thereunder, in either case other than as a result of the
matters described in clause (i) above and other than as a result of a
court order of the type described in clause (i) above that has not
become final and non-appealable and other than as a result of a
proposal initiated, recommended, endorsed, supported or encouraged,
directly or indirectly, publicly or privately, by the applicable Donee
(it being understood that, for purposes of this subsection (iii), a
vote by a Donee in favor of any such proposal shall constitute support
of such Donee for such proposal), and both (X) the applicable Donee,
after consultation with its legal counsel and financial advisors, has
concluded in good faith that the Minimum Tender Condition with respect
to such tender offer will likely be satisfied without giving effect to
any shares of Class H Common Stock tendered or to be tendered into
such tender offer by such Donee and (Y) after the date of the
commencement of such tender offer and prior to the 24-hour period
immediately prior to the then scheduled expiration time of such tender
offer, Issuer has not given written notice to such Donee that such
Transfer may not be made under this subsection (iii), which notice
included the good faith determination of the Board of Directors of
Issuer as to the Put Price as contemplated by Section 2(f)(iii) (or,
if given, such notice has been withdrawn in writing).
If, at any time after either Donee has made a Transfer by tendering
Registrable Securities into a tender offer pursuant to this Section 2(e),
the Bidder making such tender offer decreases the percentage or number of
shares of Class H Common Stock being solicited for purchase, decreases the
amount or changes the form of consideration offered to tendering
stockholders or otherwise makes a material change or waives a material
condition in the terms of such tender offer such that the then scheduled
expiration date of such tender offer is extended, then such Donee shall,
upon the request of Issuer, withdraw such Registrable Securities from such
tender offer as promptly as practicable, subject to the such Donee's rights
to tender Registrable Securities again as contemplated by this Agreement.
If either Donee is not permitted to make a Transfer of Registrable
Securities pursuant to Section 2(g), promptly (and in any event within one
Business Day after any public announcement with respect thereto) after the
Board of Directors of Issuer determines the position of Issuer with respect
to any tender offer as contemplated by Rule 14e-2(a), Issuer shall give
such Donee written notice of such position by the Board of Directors of
Issuer and by the Independent Directors as described in subsection (ii)
above. If there are fewer than
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two members of the Board of Directors of Issuer that are Independent
Directors at the time the Board of Directors of Issuer considers such
tender offer, such notice shall so state. If, based on such positions by
the Board of Directors of Issuer and the Independent Directors, a Transfer
to be made by tendering into such tender offer would be permitted only by
subsection (iii) of this Section 2(e) (excluding for purposes of such
determination the conditions set forth in clauses (X) and (Y) of such
subsection (iii)), Issuer shall promptly commence arranging financing so
that it will be able to pay in full all amounts due in connection with any
exercise of the Put Right (as defined below) in connection with such tender
offer and shall use all commercially reasonable efforts to obtain such
financing so as to pay all such amounts as and when due (it being
understood that the obligation of Issuer to make payment at the Put Closing
(as defined below) shall be absolute and that compliance with this sentence
shall not relieve Issuer of its obligations under this Agreement or excuse
performance hereunder).
(f) (i) If either Donee in good faith desires to effect a Transfer of
Registrable Securities by tendering into a tender offer and such Transfer
would be permitted only by subsection (iii) of Section 2(e) (assuming that
Issuer has not and will not give the notice described in such subsection
(iii) that such Transfer may not be made thereunder) then the applicable
Donee shall, no later than 96 hours prior to the then scheduled expiration
time for such tender offer, deliver to Issuer a written notice (the "Tender
Notice") of such proposed tender that specifies the number of shares of
Registrable Securities proposed to be so tendered. If, after the delivery
of such Tender Notice and prior to the then scheduled expiration time for
such tender offer, the Bidder making such tender offer amends the terms
thereof or another Bidder commences a tender offer for shares of Class H
Common Stock, then each Donee may revoke such Tender Notice by delivering
written notice thereof to Issuer at any time prior to the then scheduled
expiration time for the tender offer that was the subject of such Tender
Notice. No such revocation shall limit the Pension Plan's or the VEBA's
rights to deliver a Tender Notice with respect to any tender offer,
including any such amended tender offer or new tender offer.
(ii) If (A) either Donee has delivered, and not revoked, a Tender
Notice with respect to a tender offer, each in accordance with subsection
(i), (B) Issuer has given (and not withdrawn) the notice described in
subsection (iii) of Section 2(e) that such Transfer may not be made under
such subsection (iii), (C) the Minimum Tender Condition with respect to
such tender offer has been satisfied and shares required to satisfy such
Minimum Tender Condition have been accepted for purchase and purchased
pursuant to such tender offer and (D) effecting a Transfer of Registrable
Securities to Issuer pursuant to an exercise of the Put Right would not
violate the Transfer Agreement, then the applicable Donee shall have the
right (the "Put Right") to require Issuer to purchase up to the number of
shares of Registrable Securities specified in the Tender Notice multiplied
by, if applicable, the proration fraction applied to determine the number
of shares of Class H Common Stock purchased from each tendering
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stockholder pursuant to such tender offer (the "Maximum Share Number"). The
purchase price per share at which Issuer shall be required to purchase such
Registrable Securities shall be equal to the price per share of Class H
Common Stock paid in such tender offer (or, to the extent such tender offer
price was paid in consideration other than cash, the cash equivalent of the
fair market value thereof as of the expiration time of such tender offer
determined as described below) (the "Put Price"). The applicable Donee may
exercise the Put Right, in whole or in part, by delivering to Issuer a
written notice (the "Exercise Notice") of such exercise that specifies the
number of Registrable Securities to be purchased pursuant to such exercise
(which number shall not exceed the Maximum Share Number). The delivery of
the Exercise Notice shall constitute an agreement binding upon the Pension
Plan and/or the VEBA, as applicable, to sell, and upon Issuer to purchase,
such Registrable Securities. The term of the Put Right shall commence
immediately after the Bidder making such tender offer accepts for purchase
and purchases shares of Class H Common Stock tendered pursuant to such
tender offer and shall terminate ten days after Issuer gives the applicable
Donee notice that such purchase has occurred.
(iii) If any portion of the tender offer price for any tender offer is
payable in consideration other than cash: (A) any notice given by Issuer to
the applicable Donee under subsection (iii) of Section 2(e) that a Transfer
may not be made under such subsection (iii) shall include a good faith
determination by the Board of Directors of Issuer as to the Put Price; (B)
if the Put Right has become exercisable as described in subsection (ii)
above in connection with such tender offer, within 24 hours after the
expiration time for such tender offer, Issuer shall deliver to the
applicable Donee a notice (the "Put Price Notice") confirming the (or, if
necessary, setting forth a revised) good faith determination of Issuer's
Board of Directors as to the Put Price; and (C) in the Exercise Notice, if
any, the applicable Donee shall either agree to the Put Price as set forth
in the Put Price Notice or set forth its own good faith determination as to
the Put Price. Each such determination shall separately identify the value
attributed to each component of the consideration offered in such tender
offer. If the applicable Donee does not so agree to the Put Price as set
forth in the Put Price Notice and Issuer and the applicable Donee,
negotiating in good faith, are unable to reach an agreement on the Put
Price within 15 days after delivery of an Exercise Notice, an investment
banking firm shall be selected and instructed to determine the Put Price as
contemplated herein and submit to Issuer and the applicable Donee promptly
(and in any event no later than 30 days after the delivery of the Exercise
Notice) a written report setting forth such determination. If Issuer and
the applicable Donee are unable to agree on an investment banking firm
within 15 days after delivery of an Exercise Notice, a firm shall be
selected by lot (until a firm so selected has agreed to accept the
engagement to determine the Put Price as contemplated herein) from the top
eight New York-based investment banking firms, as determined in each case
by dollar volume of equity offerings in which such firms acted as lead
underwriters, on the basis of the most recently available information,
after Issuer and the applicable Donee have each eliminated one such firm
and after the
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elimination of each such firm that represented the Bidder, Issuer, or the
applicable Donee in connection with such tender offer or, within the 365-
day period prior to the delivery of the Put Notice, otherwise performed
substantial services for the Bidder. If, as a result of the selection
process set forth in the preceding sentence, no such firm is eligible to be
so selected or no such firm accepts the engagement, Issuer and the
applicable Donee shall promptly agree on an alternative process to promptly
select an investment banking firm to determine the Put Price as
contemplated herein. In any case, the fees and expenses of such firm shall
be borne by Issuer, and the determination of such firm shall be final and
binding upon all parties; provided, that if such determination results in a
Put Price greater than the Put Price set forth by the applicable Donee in
the Exercise Notice, the Put Price determined by such firm shall be deemed
to equal the Put Price set forth in the Exercise Notice for purposes
hereof. Issuer and the applicable Donee shall cooperate and provide each
other (and any such firm) with the information (in reasonable detail) used
in making its determinations with respect to the Put Price. Issuer shall
cooperate with any investment banking firm engaged to determine the Put
Price hereunder, including providing information as reasonably requested by
such firm in connection with such determination.
(iv) The closing (the "Put Closing") of the purchase and sale of the
Registrable Securities specified in the Exercise Notice shall occur no
later than 90 days after the delivery of the Exercise Notice (or, if such
day is not a Business Day, the immediately following Business Day) (the
"Final Date"), at a time and place mutually agreeable to Issuer and the
applicable Donee. If Issuer and the applicable Donee are unable to agree on
a time and place for the Put Closing, the Put Closing shall be at 10:00
a.m. (local time) at the principal executive offices of Issuer on the Final
Date; provided, that the Issuer may specify that the Put Closing occur on
any Business Day prior to the Final Date by giving written notice to the
applicable Donee, at least two Business Days prior to the date so
specified. At the Put Closing, Issuer shall pay to the applicable Donee by
wire transfer of immediately available funds to the account designated in
writing by the applicable Donee, an amount (the "Base Purchase Price")
equal to (Y) the Put Price, multiplied by (Z) the number of shares of
Registrable Securities to be purchased, together with interest on the Base
Purchase Price at the interest rate determined as set forth in Exhibit B
attached hereto for the period from and including the fifth Business Day
after the delivery of the Exercise Notice through but excluding the day the
Base Purchase Price (and all accrued interest thereon) is paid in full
(calculated on the basis of actual days elapsed and a 365-day year). At the
Put Closing, the applicable Donee shall deliver to Issuer certificates
representing (or other evidence of ownership of) the Registrable Securities
to be sold to Issuer, together with duly executed stock powers endorsed in
blank or other instruments of transfer, and shall execute and deliver such
other certificates, agreements and instruments as Issuer may reasonably
request to effect such sale (which shall include a representation and
warranty of the applicable Donee that all Registrable Securities sold to
Issuer pursuant to the Put Right are owned of record by the applicable
Donee, free and clear of any liens, pledges, security interests,
10
encumbrances, equities, claims, options or limitations of whatever nature
(other than those contemplated by this Agreement) but which shall not
include any further representations and warranties from the applicable
Donee).
(g) Notwithstanding any provisions of this Agreement to the contrary, at
any time that the Donees collectively own Registrable Securities that constitute
7.5% or less of the Class H Common Stock on a fully-diluted basis (calculated
for such purpose without giving effect to options, warrants or other rights
exercisable for the Class H Common Stock issued or issuable pursuant to any
employee stock option or other benefit plan maintained by Issuer), either Donee
may effect a Transfer by tendering any or all of the Registrable Securities into
a tender offer for Class H Common Stock.
(h) Nothing in this Agreement shall prohibit Issuer and the Pension Plan or
the VEBA from at any time agreeing to effect or effecting a Transfer of
Registrable Securities from the Pension Plan or the VEBA to Issuer or any of its
consolidated subsidiaries. If Issuer or any of its consolidated subsidiaries, to
the extent permitted by ERISA and other applicable laws and regulations, intends
to purchase Class H Common Stock on the open market for or on behalf of any
employee benefit plan maintained or contributed to by Issuer, any of its
consolidated subsidiaries or any of their predecessors or successors, it shall
make reasonable efforts to consult in good faith with the Donees with respect to
the possibility of purchasing such shares from the Donees. Any such Transfer
(and any other purchase, sale or exchange pursuant to any other provision of
this Agreement) of Class H Common Stock from the Donees to the Issuer or other
party in interest to such plans shall comply with the requirements of (S)408(e)
of ERISA (or any successor provision thereto) unless it is established to the
satisfaction of the Issuer that the purchase, sale and exchange are exempted
from the prohibited transaction restrictions of (S)406 of ERISA and (S)4975 of
the Internal Revenue Code of 1986, as amended (or any successor provisions
thereto). The Pension Plan or the VEBA, as applicable, shall further establish,
to the satisfaction of Issuer, that such proposed Transfer or any other Transfer
is in compliance with ERISA, federal and state securities laws and regulations
and other applicable laws and regulations.
(i) Prior to making any Transfer of Registrable Securities pursuant to
clause (v) or (vi) of Section 2(a), the applicable Donee shall deliver to Issuer
an opinion of counsel reasonably satisfactory to Issuer to the effect that such
Transfer may be made without registration under the Securities Act in reliance
upon Rule 144.
(j) No Transfer of Registrable Securities in violation of this Agreement
shall be made or recorded on the books of Issuer and any such Transfer shall be
void and of no effect.
11
3. Demand Transfers.
(a) The Donees may from time to time deliver to Issuer a written notice
that they propose to make a Transfer of Registrable Securities either (i)
pursuant to an underwritten public offering reasonably designed to achieve a
broad public distribution of the securities being offered (a "Public Transfer")
or (ii) subject to Section 3(h), pursuant to a negotiated transaction or series
of related transactions effected on the same date and at the same price per
share with one or more transferees (each such transaction or series of related
transactions described in this clause (ii), whether registered or not, being
referred to herein collectively as a "Negotiated Transfer"). Public Transfers
and Negotiated Transfers, whether made pursuant to a Demand Registration
Statement, a Shelf Registration Statement or without a registration statement,
are referred to herein collectively as "Demand Transfers." The Registrable
Securities included by the Donees in any Demand Transfer shall be allocated
between the Registrable Securities held by the Pension Plan and those held by
the VEBA in accordance with the Donee Allocation Basis. Any Demand Transfer made
jointly by both the Pension Plan and the VEBA shall count as a single Demand
Transfer.
Until the fourth anniversary of the initial Contribution pursuant to
Section 1 hereof, the number of Public Transfers (including any Transfer
considered a Public Transfer under Section 6(b)) and Negotiated Transfers that
are registered under the Securities Act that may be effected by the Donees in
any 12-month period shall not exceed two in the aggregate. From and after the
fourth anniversary of the initial Contribution pursuant to Section 1 hereof, the
number of Public Transfers (including any Transfer considered a Public Transfer
under Section 6(b)) and Negotiated Transfers that are registered under the
Securities Act that may be effected by the Donees in any 12-month period shall
not exceed three in the aggregate; provided that two of such Transfers may be
any type of registered Demand Transfer and the third such Transfer may only be a
Negotiated Transfer of Registrable Securities having a fair market value (based
upon the closing price of the Registrable Securities quoted on the securities
exchange on which such Registrable Securities are listed on the trading day
immediately preceding the date upon which the Donees deliver their written
notice of such Negotiated Transfer to Issuer) not greater than $1 billion (it
being agreed that there is no minimum dollar amount for any Negotiated Transfer
made by Donees under this Agreement). Subject to the immediately following
paragraph, there shall be no numerical limit hereunder on the number of
Negotiated Transfers that may be effected by the Donees without registration
under the Securities Act.
From and after the first time at which an issuer other than General Motors
shall become the Issuer pursuant to the succession provisions of Section 12(a),
the Donees shall not (A) until the fourth anniversary of the initial
Contribution pursuant to Section 1 hereof, effect more than two Demand Transfers
(whether registered or unregistered and including any Transfer considered a
Public Transfer under Section 6(b)) in any 12-month period and (B) from and
after the fourth anniversary of the initial Contribution pursuant to Section 1
hereof, effect more than three Demand Transfers (whether registered or
unregistered and
12
including any Transfer considered a Public Transfer under Section 6(b)) in any
12-month period; provided that two of such Transfers may be any type of Demand
Transfer and the third such Demand Transfer may only be a Negotiated Transfer of
Registrable Securities having a fair market value (based upon the closing price
of the Registrable Securities quoted on the securities exchange on which such
Registrable Securities are listed on the trading day immediately preceding the
date upon which the Donees deliver their written notice of such Negotiated
Transfer to Issuer) not greater than $1 billion (it being agreed that there is
no minimum dollar amount for any Negotiated Transfer made by Donees under this
Agreement).
Issuer shall not be required to register under the Securities Act any
Public Transfer (other than any Transfer considered a Public Transfer under
Section 6(b)) unless the Donees have requested to sell at least the lesser of
(A) 5 million shares of the Registrable Securities or (B) shares of Registrable
Securities having a fair market value (based upon the closing price of the
Registrable Securities quoted on the securities exchange on which such
Registrable Securities are listed on the trading day immediately preceding the
date upon which the Donees deliver their written notice of a Public Transfer to
Issuer) of $500 million in such registration.
For purposes of this Agreement, a registered Demand Transfer is deemed to
be effected upon the earliest of (x) the date upon which a public announcement
is made with respect to such Demand Transfer (provided that the Donees consent
to such public announcement, which consent shall not be unreasonably withheld or
delayed), (y) public selling efforts (including road shows) are commenced with
respect to such Demand Transfer and (z) with respect to a registered Demand
Transfer other than one effected pursuant to Shelf Registration Statement, the
effective date of the Demand Registration Statement or, with respect to a Demand
Transfer pursuant to a Shelf Registration Statement, the date a prospectus
supplement is filed with the Securities and Exchange Commission. Notwithstanding
the foregoing, a registered Demand Transfer shall not be deemed to have been
effected if such Demand Transfer is not consummated as a result of (i) a breach
by Issuer of its obligations hereunder, or (ii) Issuer exercising its rights
under Section 3(f) and, in either case, after the Demand Transfer would
otherwise have been deemed to have been effected pursuant to the preceding
sentence. An unregistered Demand Transfer is deemed to be effected on the date
of the consummation of such Demand Transfer.
(b) So long as the Donees own not less than 10 million shares of
Registrable Securities in the aggregate, the Donees may deliver to Issuer a
written request that Issuer prepare and file with the Commission a registration
statement on the appropriate form under the Securities Act (together with any
amendments or supplements thereto, the "Shelf Registration Statement"),
registering under the Securities Act up to the lesser of (i) 20 million shares
of Registrable Securities or (ii) the amount of Registrable Securities that, if
Transferred, would result in the Donees owning 10 million shares of Registrable
Securities in the aggregate, in either case for offering and sale by the Donees
in Public Transfers and
13
Negotiated Transfers from time to time pursuant to Rule 415 under the Securities
Act or any successor thereto ("Rule 415"). Notwithstanding the foregoing, prior
to the fourth anniversary of the date of the initial Contribution pursuant to
Section 1, the Donees may not effect a registered Negotiated Transfer from the
Shelf Registration Statement. Subject to Sections 3(f) and 12(a), as promptly as
reasonably practicable after the receipt of the Donees' request for the filing
of a Shelf Registration Statement, Issuer shall file a Shelf Registration
Statement registering the number of shares of Registrable Securities so
requested.
Subject to Sections 3(f) and 12(a), at any time after Issuer has filed a
Shelf Registration Statement and until such time as the Donees have reduced
their ownership of Registrable Securities to less than 10 million shares of
Class H Common Stock in the aggregate, if fewer than 10 million shares of
Registrable Securities remain subject to the Shelf Registration Statement,
Issuer shall, if and to the extent requested by the Donees, prepare and file
with the Commission an additional Shelf Registration Statement (utilizing a
combined prospectus as provided for by Rule 429 under the Securities Act or any
successor thereto ("Rule 429")) as promptly as reasonably practicable after
receipt of such request, registering under the Securities Act up to the number
of shares of Registrable Securities equal to the lesser of (i) the difference
between 20 million and the number of such shares remaining subject to the Shelf
Registration Statement then in effect and (ii) the amount of such Registrable
Securities that, if Transferred, would result in the Donees owning 10 million
shares of Registrable Securities in the aggregate.
(c) Notwithstanding any other provision of this Agreement, if (A) within
395 days following the delivery of a written request for a Demand Transfer by
the Donees, such Demand Transfer has not been consummated, such request has not
been withdrawn or a Liquidity Event has not occurred and (i) in the case of a
Public Transfer, either Issuer has not filed the related registration statement
or there has not been a period of at least 45 consecutive days following the
date on which the Commission has completed its review, if any, of the related
Demand Registration Statement (or, if a Shelf Registration Statement is then
effective, following the date of such request) without the occurrence of a
Blackout Period, (ii) in the case of a Negotiated Transfer that is to be
registered under the Securities Act pursuant to this Agreement, either Issuer
has not filed the related registration statement or there has not been a period
of at least 20 consecutive days following the date on which the Commission has
completed its review, if any, of the related Demand Registration Statement (or,
if a Shelf Registration Statement is then effective, following the date of such
request) without the occurrence of a Blackout Period, or (iii) in the case of a
Negotiated Transfer that is not to be registered under this Agreement, there has
not been a period of at least 20 consecutive days following the date of such
request without the occurrence of a Blackout Period, then (B) the Donees may, at
the end of such 395-day period, deliver to Issuer a written request for a Demand
Transfer, and Issuer shall take all reasonable actions that are necessary to
permit the Donees to effect such Demand Transfer, including, if such Demand
Transfer is to be registered under the Securities Act pursuant to this
Agreement, and a Shelf Registration Statement is not then effective, (i)
preparing and filing a registration statement
14
for the Transfer of the Registrable Securities requested to be registered in
connection with such Demand Transfer within a period of 30 days following the
delivery of such request and (ii) providing the Donees with a period of at least
45 days following the date on which the Commission has completed its review, if
any, of such registration statement, or, if such Demand Transfer is not to be
registered under the Securities Act pursuant to this Agreement or a Shelf
Registration Statement is then effective, the date of the delivery of such
request, in either case, to allow for the marketing and Transfer of such
Registrable Securities. Without limiting the generality of the foregoing, Issuer
shall, within 60 days following the date of delivery of the request by the
Donees, terminate any proposal or plan or make any public disclosure, that, in
either case, would otherwise give rise to Issuer's right of postponement
pursuant to Section 3(f). All of the Donees' rights and all of Issuer's
obligations under this Section 3(c) shall terminate from and after the time the
Donees have reduced their ownership of Registrable Securities to less than 10
million shares of Class H Common Stock in the aggregate.
(d) Each notice of a proposed Demand Transfer shall be delivered a
reasonable period of time before the proposed Transfer and, in any event, (i) in
connection with a proposed Public Transfer pursuant to a Demand Registration
Statement, not less than 30 days before the anticipated filing date of such
Demand Registration Statement if Issuer is eligible to use Form S-3 or any
successor form ("Form S-3") or 45 days before such date in the event Issuer is
not eligible to use such form, (ii) in connection with a proposed Negotiated
Transfer pursuant to a Demand Registration Statement, not less than 20 days
before the anticipated filing date of such Demand Registration Statement if
Issuer is eligible to use Form S-3 or 45 days before such date in the event
Issuer is not eligible to use such form, (iii) in connection with a proposed
Transfer pursuant to a Shelf Registration Statement, not less than 10 days
before the proposed commencement of such proposed Transfer and (iv) in
connection with a proposed Negotiated Transfer that is not to be registered
under the Securities Act pursuant to this Agreement, not less than five days
before the proposed consummation of such Negotiated Transfer. Each notice of a
proposed Demand Transfer shall specify whether such Transfer will be a Public
Transfer or a Negotiated Transfer, whether a Negotiated Transfer will be
registered or unregistered, the approximate number of Registrable Securities
proposed to be Transferred, the proposed timetable for the transaction and the
anticipated per share price range for such Transfer.
(e) Unless a Shelf Registration Statement is effective with respect to the
full amount of shares proposed to be subject to a Demand Transfer, (i) each
notice of a proposed Public Transfer shall constitute a request that Issuer
register the proposed Transfer of the Registrable Securities under the
Securities Act on the appropriate form and (ii) in connection with any notice of
a proposed Negotiated Transfer, the Donees may request that Issuer register the
proposed Transfer of the Registrable Securities; provided however, that if the
Donees do not request that Issuer register such proposed Transfer of the
Registrable Securities, the Donees shall establish, to the reasonable
satisfaction of Issuer, that such Negotiated Transfer may be made without
registration under applicable securities laws. In
15
the case of each request for registration pursuant to the foregoing sentence (a
"Demand Registration"), Issuer shall file the requested registration statement
(together with any amendments or supplements thereto, a "Demand Registration
Statement") as promptly as reasonably practicable, subject to postponement as
provided in Section 3(f); provided, however, that Issuer shall not be required
to register a proposed Negotiated Transfer of the Registrable Securities if
Issuer's legal counsel advises in writing that (i) such registration would not
be permitted under applicable federal and state securities laws and regulations,
(ii) if such Transfer is not so registered, the shares Transferred in such
Transfer would not constitute "restricted securities" (as defined in Rule 144)
in the hands of the transferee in such proposed Transfer or (iii) such
registration is not required under applicable federal securities laws and Issuer
and the Donees reasonably agree that the shares Transferred in such Transfer
would constitute "restricted securities" in the hands of the transferee in such
proposed transaction regardless of registration.
(f) Subject to Section 3(c), Issuer may postpone the filing or
effectiveness of any Demand Registration Statement, the initial filing or
effectiveness of any Shelf Registration Statement or the making of any Demand
Transfer, whether registered or not, at any time if Issuer determines, in its
reasonable judgment, that (i) such action or proposed action would interfere
with any proposal or plan by Issuer or any of its affiliates to engage in any
material acquisition, merger, consolidation, tender offer, securities offering
(including any proposal or plan to register or offer Class H Common Stock
existing as of the time of the Donees' notice to Issuer of a proposed Demand
Transfer) or other material transaction or (ii) would require Issuer to make a
public disclosure of previously non-public material information and Issuer shall
promptly notify the Donees of any postponement pursuant to this Section 3(f).
Issuer agrees that it will terminate any such postponement as promptly as
reasonably practicable and will promptly notify the Donees of such termination.
In making any such determination to initiate or terminate a postponement, Issuer
shall not be required to consult with or obtain the consent of the Donees or any
investment manager therefor (including the Pension Plan Trustee and the VEBA
Trustee), and any such determination shall be Issuer's responsibility alone, and
neither the Donees nor any investment manager for the Donees (including the
Pension Plan Trustee or the VEBA Trustee) shall be responsible or have any
liability therefor. If any postponement pursuant to this paragraph is made with
respect to a Demand Transfer which would otherwise, pursuant to Section 3(a)
hereof, be deemed to be effected, such Demand Transfer shall not be deemed to
have been effected if such Demand Transfer is not consummated as a result of
Issuer's exercise of its rights under this Section 3(f).
(g) The Donees may select the lead underwriter and, subject to the
following paragraph, co-manager or co-managers to administer any Public Transfer
of Registrable Securities from a list of eligible lead underwriters (the "Lead
Underwriter List") and a list of eligible co-managers (the "Co-Manager List, and
collectively with the Lead Underwriter List, the "Lists"), prepared for such
purpose by Issuer and delivered to the Donees on the date hereof (as the Lists
may be revised by Issuer from time to time).
16
Unless the Donees advise Issuer that the Public Transfer will be solely
managed by the lead underwriter selected pursuant to the preceding paragraph,
within 48 hours from Issuer's receipt from the Donees of a written request for
registration of a Public Transfer, the Issuer may deliver to the Donees in
writing its recommendation, together with a statement setting forth the bases
for such recommendation, of the second most senior underwriter in connection
with the Public Transfer, which may be any Person set forth on either of the
Lists. Issuer agrees that in connection with its right hereunder to recommend
the second most senior underwriter in any Public Transfer, Donees are not
obligated to designate a "joint lead underwriter" or an underwriter who would
serve as a "joint book runner" in connection with any Public Transfer. The
Donees shall deliver to the Issuer in writing a notice, together with a
statement setting forth the bases for their choice, indicating whether they
choose to follow Issuer's recommendation (which choice shall not be unreasonably
made). Within 48 hours of its receipt of any notice that any recommendation has
not been accepted by the Donees, Issuer may deliver to the Donees in writing a
subsequent recommendation, together with a statement setting forth the bases of
its recommendation, which may be any Person set forth on either of the Lists. In
response to any subsequent recommendation, the Donees shall deliver to the
Issuer in writing a notice, together with a statement setting forth the bases
for their choice, indicating whether they chooses to follow Issuer's
recommendation (which choice shall not be unreasonably made). In accordance with
the procedures set forth in this paragraph, Issuer may continue to make
additional recommendations of the second most senior underwriter until the
Donees choose to follow Issuer's recommendation; provided however that the
second most senior underwriter ultimately chosen shall be a Person whose name is
set forth on either of the Lists.
The Lead Underwriter List shall contain the names of no fewer than three
Persons and the Co-Manager List shall contain the name of no fewer than five
Persons, each of which shall be an internationally recognized underwriting firm
that has analyst coverage of Xxxxxx Electronics Corporation (or any successor
corporation thereto). The Donees shall have the right to request that Issuer add
Persons to the Lists, provided that Issuer shall have no obligation to consent
to any such request. No Person may serve as lead underwriter or co-manager
unless such Person shall have agreed to use its reasonable best efforts to
effect a broad public distribution of Registrable Securities to be sold in the
Public Transfer and to use its reasonable best efforts not to sell to any one
Person (or group of related Persons)(whether such Person (or group of related
persons) is buying for its own account or as a fiduciary on behalf of one or
more accounts) Registrable Securities constituting more than 2% of the Class H
Common Stock then outstanding. The selection of counsel to such lead underwriter
and co-manager or co-managers shall be subject to the consent of Issuer, which
consent shall not be unreasonably withheld.
(h) The Donees shall not make a Negotiated Transfer to (i) any one Person
(or group of related Persons) (whether such Person (or group of related Persons)
is buying for its own account or as a fiduciary on behalf of one or more
accounts) of more than 2% of the
17
Class H Common Stock then outstanding or (ii) any one Person (or group of
related Persons) if such Person (or group of related Persons) is then required
to file, or has filed, or as a result of such Negotiated Transfer will be
required to file (to the knowledge of the Donees after reasonable inquiry) a
Schedule 13D under the Exchange Act (or any successor thereto) with respect to
the Class H Common Stock. If the Registrable Securities subject to any
Negotiated Transfer are not to be registered under the Securities Act, the
Donees shall, prior to effecting such Negotiated Transfer, cause each transferee
in such Negotiated Transfer to represent and warrant to, and covenant and agree
with, the Donees and Issuer in writing that (i) such transferee is acquiring
such Registrable Securities for its own account, or for one or more accounts, as
to each of which such transferee exercises sole investment discretion, for
investment purposes only and not with a view to, or for resale in connection
with, any distribution (within the meaning of the Securities Act), and (ii) such
transferee does not constitute an underwriter (within the meaning of the
Securities Act) with respect to the acquisition of such Registrable Securities
from the Pension Plan and/or the VEBA.
(i) Issuer shall make available members of the management of Issuer and its
affiliates for reasonable assistance in the selling efforts relating to any
public offering of the Registrable Securities pursuant to a Public Transfer, to
the extent customary for public offerings (including, without limitation, to the
extent customary, senior management attendance at due diligence meetings with
underwriters and their counsel and road shows), and for such assistance as is
reasonably requested by the Donees and their counsel in the selling efforts
relating to any Negotiated Transfer.
4. Piggyback Registration.
----------------------
(a) In the event that Issuer proposes to register any shares of Class H
Common Stock for its own account or for the account of any holder or holders of
Class H Common Stock (other than a Strategic Partner) pursuant to contractual
rights of such holder or holders or otherwise, in either case under the
Securities Act in an underwritten public offering (other than on a registration
statement on Form S-4 or S-8 under the Securities Act or any successors thereto,
a registration statement for a delayed or continuous offering pursuant to Rule
415, a registration statement covering securities convertible into or
exercisable or exchangeable for Class H Common Stock, an offering of securities
solely to Issuer's existing shareholders or otherwise in connection with any
offer to exchange securities) (together with any underwritten public offering of
Class H Common Stock pursuant to Rule 415 as described in Section 4(b) below, a
"Piggyback Registration"), Issuer shall give the Donees written notice of such
proposed registration no less than 30 days before the date of filing anticipated
by Issuer in connection with such registration. Subject to Section 4(d), Issuer
shall include in such registration all Registrable Securities held by the Donees
with respect to which Issuer has received a written request for inclusion
therein within 15 days after Issuer's notice of such proposed registration.
(b) In the event that Issuer proposes to offer for its own account or for
the
18
account of any holder or holders of Class H Common Stock (other than a Strategic
Partner) pursuant to contractual rights of such holder or holders or otherwise,
in either case any shares of Class H Common Stock in any underwritten public
offering pursuant to Rule 415, Issuer shall give the Donees written notice of
such proposed offering no less than 30 days before the date of commencement of
distribution anticipated by Issuer in connection with such offering. Subject to
Section 4(d), Issuer shall include in such offering all such Registrable
Securities with respect to which Issuer has received a written request for
inclusion therein within 10 days after Issuer's notice of such proposed
offering. Without limiting the generality of the foregoing, in order to so
include such Registrable Securities, Issuer shall, to the extent necessary, file
an amendment to the registration statement then in effect for the Class H Common
Stock or an additional registration statement for the Class H Common Stock that
uses a combined prospectus pursuant to Rule 429.
(c) Issuer may select the lead underwriter and co-manager or co-managers to
administer any offering of Registrable Securities pursuant to a Piggyback
Registration; provided, however, that if Donees' Registrable Securities that are
expected to be included in any such offering constitute, in Issuer's reasonable
judgment, at least 25% of the shares of Class H Common Stock expected to be
Transferred in such offering, the Donees shall have the right to appoint one co-
manager (reasonably acceptable to Issuer) for such offering, who shall
participate in such offering on the same terms as the co-managers appointed by
Issuer. In the event that Issuer gives the Donees notice of its intention to
effect an offering pursuant to a Piggyback Registration and subsequently
declines to proceed with such offering, the Donees shall have no rights in
connection with such offering; provided, however, that, subject to Section 3(f),
at the request of the Donees, Issuer shall proceed with such offering with
respect to the Registrable Securities, which offering shall be deemed to be a
Demand Transfer for all purposes hereunder. The Donees shall participate in any
offering of Registrable Securities pursuant to a Piggyback Registration in
accordance with the same plan of distribution for such Piggyback Registration as
Issuer or the holder or holders of Class H Common Stock that proposed such
Piggyback Registration, as the case may be.
(d) Until such time as the Donees reduce their ownership of Registrable
Securities to less than 2% of the then outstanding shares of Class H Common
Stock in the aggregate (the "Termination Date"), if there is a Share Limitation
in connection with any Piggyback Registration, then Issuer shall include in such
offering:
(i) first, (A) if the Piggyback Registration has been initiated by holders
of Class H Common Stock pursuant to Section 2.1 of the Primestar Registration
Rights Agreement, the "Registrable Securities" as defined in the Primestar
Registration Rights Agreement requested to be included in the Piggyback
Registration or (B) if the Piggyback Registration has been initiated by
holders of Class H Common Stock pursuant to Section 2.1 of the AOL
Registration Rights Agreement, the "Registrable Securities" as defined in the
AOL Registration Rights Agreement requested to be included in the Piggyback
Registration,
19
(ii) second, the Class H Common Stock that Issuer proposes to Transfer,
(iii) third, the Qualifying Securities requested to be included by each
Qualifying Person in accordance with the General Allocation Basis,
(iv) fourth, any additional shares of Qualifying Securities requested to be
included therein by any Qualifying Persons wishing to include shares in
excess of the amount which they are entitled to include pursuant to clause
(iii) above, pro rata based on their holdings, as of the time of the
offering, relative to the holdings of all other Qualifying Persons wishing
to include additional shares of Qualifying Securities, as of the time of the
offering, until all additional shares of Qualifying Securities requested to
be included therein by any Qualifying Persons have been included in such
offering,
(v) fifth, other shares of Class H Common Stock requested to be included
therein pursuant to contractual rights of the holder or holders thereof
(including the holder or holders of Class H Common Stock that proposed such
Piggyback Registration, if any, except as otherwise provided in clause (i)
hereof), and
(vi) sixth, any other shares of Class H Common Stock;
5. Holdback Period.
---------------
(a) Each of the Pension Plan and the VEBA agrees not to make any Transfer
of Registrable Securities during any of the following periods unless the
underwriter or underwriters administering the offering otherwise agree:
(i) except as contemplated by clause (ii) or clause (iii) below, the period
commencing with the effective date of a registration statement for any
underwritten public offering of the Class H Common Stock (or any securities
convertible into or exchangeable or exercisable for the Class H Common Stock)
and ending on the 90th day after such effectiveness;
(ii) in the case of a Rule 415 registration statement, the period
commencing upon Issuer's notice of commencement of distribution in connection
with such offering and ending on the 90th day after such notice; and
(iii) in the case of a registration statement on Form S-4 (or any
successor form) in connection with a transaction involving the Issuer, upon
the date of consummation of such transaction and terminating on the 90th day
after the consummation of such transaction;
provided, that any applicable period shall terminate on such earlier date as
Issuer gives notice to the Donees that Issuer declines to proceed with any such
offering; and provided further
20
that this Section 5(a) shall apply to the effectiveness of any registration
statement, commencement of distribution or consummation of transaction that has
occurred on or after January 1, 2000, including any such events that shall have
occurred prior to the date of this Agreement.
(b) Issuer agrees not to make any Transfer of any Class H Common Stock (or
any securities convertible into or exchangeable or exercisable for the Class H
Common Stock) during the period commencing with the date of any notice of a
proposed Public Transfer and terminating on the 90th day after the effectiveness
of the registration statement for such Public Transfer pursuant to the
Securities Act or, in the case of a Shelf Registration Statement, the
commencement of distribution in connection with such Public Transfer, or, in
either case, on such earlier date as the Donees give notice to Issuer that they
decline to proceed with such Public Transfer, except (i) for the issuance of
shares of Class H Common Stock upon the conversion, exercise or exchange, by the
holder thereof, of options, warrants or other securities convertible into or
exercisable or exchangeable for the Class H Common Stock pursuant to the terms
of such options, warrants or other securities (which, in the case of any
conversion, exercise or exchange which is at Issuer's option, Issuer shall not
call for conversion, exercise or exchange during such period (it being
understood that nothing herein shall limit the right of Issuer to call for
redemption any security convertible, exercisable or exchangeable for Class H
Common Stock or to issue shares of Class H Common Stock to the extent a holder
of any such security elects to convert, exercise or exchange such security in
lieu of accepting any redemption payments)), (ii) pursuant to the terms of any
other agreement to issue shares of Class H Common Stock (or any securities
convertible into or exchangeable or exercisable for the Class H Common Stock) in
effect on the date of the notice of a proposed Transfer, including any such
agreement in connection with any previously disclosed acquisition, merger,
consolidation or other business combination, and (iii) in connection with
Transfers to dividend reinvestment plans or to employee benefit plans in order
to enable any such employee benefit plan to fulfill its funding obligations in
the ordinary course, unless the underwriter or underwriters administering the
offering in connection with such Public Transfer otherwise agree.
Notwithstanding the foregoing, the provisions of this Section 5(b) shall be
subject to the provisions of Section 3(f), and if Issuer exercises its rights of
postponement pursuant to Section 3(f) with respect to any proposed Public
Transfer, the provisions of this Section 5(b) shall not apply unless and until
such time as Issuer notifies the Donees of the termination of such postponement
and the Donees notify Issuer of their intention to continue with such proposed
Public Transfer.
6. Other Registration Rights.
-------------------------
(a) Nothing herein shall restrict the authority of Issuer to grant to any
Person, including a Strategic Partner, if any, the right to obtain registration
under the Securities Act of any equity securities of Issuer, or any securities
convertible into or exchangeable or exercisable for such securities; provided,
however, that Issuer shall not grant any such right with respect to the Class H
Common Stock or securities convertible into or exchangeable or
21
exercisable for the Class H Common Stock that conflicts with the rights of the
Donees under this Agreement or otherwise limits or reduces such rights. Issuer
shall cause each Strategic Partner and each other holder of Class H Common Stock
who obtains the right, after the date hereof, to propose a registration giving
rise to a Piggyback Registration, if any, to agree not to Transfer any shares of
Class H Common Stock or securities convertible into or exchangeable or
exercisable for the Class H Common Stock, for the applicable period set forth in
Section 5(a) hereof.
(b) If at any time a Strategic Partner has been designated by Issuer, the
relative rights of the Donees and any Strategic Partners shall be as follows:
(i) If at any time a Strategic Partner elects to exercise any rights for a
demand registration of shares of Class H Common Stock pursuant to an
underwritten public offering (a "Strategic Partner Demand Registration"),
Issuer shall give the Donees written notice of such proposed Strategic
Partner Demand Registration within five days of receipt of notice thereof
from the Strategic Partner.
(ii) The Donees may at any time elect to participate in any Strategic
Partner Demand Registration by giving Issuer notice thereof within 15 days of
Issuer's notice to the Donees of such Strategic Partner Demand Registration.
In such case, subject to Section 6(b)(iii), Issuer shall include in such
registration the number of Registrable Securities requested by the Donees to
be included therein (which number shall be set forth in the Donees' notice to
Issuer of their election to participate therein). The Donees' participation
in such registration shall be considered a Public Transfer and shall be
deemed to be effected as set forth in Section 3(a). The Donees shall
participate in any offering of Class H Common Stock in connection with such
registration in accordance with the same plan of distribution as the
Strategic Partner requesting registration.
(iii) Until the Termination Date, if there is a Share Limitation in
connection with any Strategic Partner Demand Registration in which the Donees
have elected to participate, Issuer shall include in such registration:
(A) first, the Qualifying Securities requested to be included by each
Qualifying Person in accordance with the General Allocation Basis,
(B) second, any additional shares of Qualifying Securities requested to be
included therein by any Qualifying Persons wishing to include shares
in excess of the amount which they are entitled to include pursuant to
clause (A) above, pro rata based on their holdings, as of the time of
the offering, relative to the holdings all other Qualifying Persons
wishing to include additional shares of Qualifying Securities, as of
the time of the offering, until all additional shares of Qualifying
Securities requested to be included therein by any Qualifying Persons
have been included in such offering,
22
(C) third, other shares of Class H Common Stock requested to be included
therein by the holder or holders thereof pursuant to contractual
rights of such holder or holders, and
(D) fourth, any other shares of Class H Common Stock.
(iv) Any Strategic Partner, may at any time elect to participate in any
Public Transfer requested by the Donees by giving Issuer notice thereof
within 15 days (or, in the case of a Shelf Registration Statement, 5 days) of
the notice by the Donees to Issuer of such Public Transfer. In such case,
subject to Section 6(b)(v), Issuer may include in the registration in
connection with such Public Transfer the number of shares of Class H Common
Stock requested by any Strategic Partner to be included therein. Strategic
Partners shall participate in any offering of Class H Common Stock in
connection with such Public Transfer in accordance with the same plan of
distribution for such Public Transfer as the Donees.
(v) Until the Termination Date, if there is a Share Limitation in
connection with a Public Transfer requested by the Donees in which any
Strategic Partner has elected to participate, Issuer shall include in the
registration in connection with such Public Transfer:
(A) first, the Qualifying Securities requested to be included by each
Qualifying Person in accordance with the General Allocation Basis,
(B) second, any additional shares of Qualifying Securities requested to be
included therein by any Qualifying Persons wishing to include shares
in excess of the amount which they are entitled to include pursuant to
clause (A) above, pro rata based on their holdings, as of the time of
the offering, relative to the holdings of all other Qualifying Persons
wishing to include additional shares of Qualifying Securities, as of
the time of the offering, until all additional shares of Qualifying
Securities requested to be included therein by any Qualifying Persons
have been included in such offering,
(C) third, other shares of Class H Common Stock requested to be included
therein by the holder or holders thereof pursuant to contractual
rights of such holder or holders, and
(D) fourth, any other shares of Class H Common Stock.
(vi) Nothing herein shall obligate Issuer to grant to any Person,
including a Strategic Partner, if any, the right to obtain registration under
the Securities Act of any equity securities of Issuer, or any securities
convertible into or exercisable or exchangeable for such securities. If and
to the extent Issuer grants any such rights to any
23
Person, the terms thereof shall be as set forth in the related agreement
between such Person and Issuer and may include restrictions on and
obligations of such Person greater than or in addition to those contemplated
herein, subject to Section 6(a).
(c) If, in connection with any Strategic Partner Demand Registration or
Public Transfer to which Section 6(b) is applicable, the lead underwriter
notifies Issuer and/or any other party participating in such proposed offering
that, in its opinion, due to market conditions or otherwise, the number of
shares of Class H Common Stock that may be included in the offering is greater
than or less than anticipated when the notice referred to in Section 6(b)(i) or
6(b)(iv) was given, then only those parties who have elected to participate in
such Strategic Partner Demand Registration or Public Transfer will be notified
of such increase or decrease, as applicable, and such additional shares or such
reduction in shares, as applicable, shall be allocated among such participants
as contemplated by Section 6(b)(iii) or 6(b)(v), as applicable. In no event
shall any party that had previously declined to participate, or did not have the
right to participate, in such Strategic Partner Demand Registration or Public
Transfer be entitled to receive notice of or participate therein as a result of
a revised notice of such increase or decrease, as applicable.
(d) Each of the Pension Plan and the VEBA acknowledges that, prior to the
date of this Agreement, Issuer has entered into the Primestar Registration
Rights Agreement and the AOL Registration Rights Agreement. Each of the Pension
Plan and the VEBA is familiar with the rights granted thereunder and agrees
that, notwithstanding anything to the contrary in this Agreement, the
registration rights granted to the Pension Plan and the VEBA hereunder are
subordinate to such registration rights provided under the Primestar
Registration Rights Agreement and the AOL Registration Rights Agreement. Each
of the Pension Plan and the VEBA agrees that it shall cooperate in all
reasonable respects with the Issuer in coordinating the exercise of its rights
hereunder with the rights granted under the Primestar Registration Rights
Agreement and the AOL Registration Rights Agreement.
7. Demand, Piggyback and Shelf Registration Procedures. Whenever
Registrable Securities are to be registered pursuant to this Agreement, Issuer
shall, to the extent applicable for each type of registration statement:
(a) subject to Sections 3(f) and 12(a), prepare and file with the
Commission a registration statement with respect to such Registrable Securities
and use reasonable efforts to cause such registration statement to be declared
effective as promptly after the initial filing thereof as reasonably
practicable;
(b) furnish to any investment manager acting on behalf of the Donees
with respect to the Registrable Securities and to one law firm representing each
such investment manager, copies of such registration statement, the prospectus
contained therein and any amendments or supplements thereto prior to filing such
documents with the Commission, but only to the extent such documents contain
information regarding such investment
24
manager, with such documentation, and any other documentation provided by this
Agreement to be delivered to the investment manager acting on behalf of the
Donees and counsel to the Donees, to be delivered as provided in Section 12(d)
unless otherwise directed by the Pension Plan Named Fiduciary, the VEBA Named
Fiduciary or either of their delegates;
(c) subject to Sections 3(f) and 12(a), prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than nine months (or
such shorter period as may be necessary to effect the Transfer of all shares of
Registrable Securities covered by such registration statement as described
therein);
(d) furnish to the Donees and the underwriters such number of copies of
such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as the Donees and their counsel may
reasonably request in order to facilitate the disposition of the Registrable
Securities;
(e) so long as Class H Common Stock is listed on any United States
securities exchange or a quotation system, use its best efforts to cause all of
the Registrable Securities to be listed on such exchange or a quotation system;
(f) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
the Donees reasonably request and do any and all other acts and things which may
be reasonably necessary or advisable to enable the Donees to consummate the
disposition in such jurisdictions of the Registrable Securities (provided that
Issuer will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subsection, (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction);
(g) notify the Donees at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
as a result of which the prospectus included in such registration statement
contains an untrue statement of a material fact or omits any material fact
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, and, at the request of the Donees, Issuer will
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading;
25
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the Donees or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of the Registrable Securities; and
(i) make available (and cause all the officers, directors, employees and
independent accountants of Issuer and its subsidiaries to make available), to
the extent reasonably requested by the Donees or any underwriter, attorney,
accountant or agent retained by the Donees in connection with such registration
statement, all financial and other records and pertinent corporate documents and
properties of Issuer and its subsidiaries for inspection by the Donees or any
underwriter, attorney, accountant or other agent retained by the Donees in
connection with such registration.
Each of the parties will treat all notices of proposed Transfers and
registrations, all notices pursuant to Section 7(g) and all information relating
to any Blackout Periods under Section 3(f) received from the other party with
the strictest confidence and will not disseminate such information. Subject to
Section 3(c), nothing herein shall be construed to require Issuer or any of its
affiliates to make any public disclosure of information at any time. In the
event Issuer has notified the Donees that (i) the prospectus included in a
registration statement contains an untrue statement of a material fact or omits
any fact necessary to make the statements therein not misleading, (ii) the
Commission has issued or threatened to issue any stop order suspending the
effectiveness of a registration statement or has initiated proceedings for such
purpose or (iii) Issuer has received any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, then the Donees shall not deliver such prospectus to any purchaser
unless and until a supplement or amendment to such prospectus has been prepared
as set forth in Section 7(g) or until Issuer advises the Donees in writing that
the use of such prospectus may be resumed.
The Donees shall cooperate with Issuer in the preparation and filing of any
registration statement under the Securities Act pursuant to this Agreement and
provide Issuer with all information necessary to complete such preparation
within a reasonable period of time prior to the proposed filing of such
registration statement, and in the case of any Demand Registration Statement or
Shelf Registration Statement to be filed pursuant to Section 3(c), within such
period as is necessary to enable Issuer to file such registration statement
within 30 days of the Donees' request therefor.
From and after such time as the Donees reduce their ownership of the
Registrable Securities to less than 20 million shares of Class H Common Stock in
the aggregate, or the VEBA reduces its ownership to less than 2 million shares
of Class H Common Stock, Issuer shall file the reports required to be filed by
it under Section 13 of the Exchange Act or any successor thereto (or, if Issuer
is not required to file such reports, make publicly available such information
upon the request of Pension Plan or the VEBA), and take such further
26
action as the Pension Plan or the VEBA may reasonably request, all to the extent
required to enable the Donees to Transfer the Registrable Securities pursuant to
Rule 144.
8. Participation in Underwritten Transfers. The Donees may not
participate in any underwritten Transfers hereunder unless they (a) agree to
sell their securities on the basis provided in any underwriting arrangements
approved by the Person or Persons entitled hereunder to approve such
arrangements and (b) complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements, custodian agreements and other
documents required under the terms of such underwriting arrangements.
9. Registration Expenses and Legal Counsel. Issuer shall be
responsible for all federal and state filing fees (including all blue sky
registration or qualification fees), all fees and expenses of its counsel and
all independent certified public accountants, underwriters (excluding discounts
and commissions and fees and expenses of counsel to the underwriters) and other
Persons retained by Issuer and all other costs or expenses incurred by Issuer in
the performance of its obligations hereunder and the reasonable fees and
expenses of one outside law firm jointly representing the Donees and other out-
of-pocket expenses of the Donees in connection with any registration statement
under the Securities Act pursuant to this Agreement or any amendment thereto;
provided, however, that the selection of the law firm representing the Donees
shall be subject to the consent of Issuer, which consent shall not be
unreasonably withheld. Issuer shall have the right to select the financial
printer to be used in connection with any registration of Registrable Securities
under the Securities Act pursuant to this Agreement.
10. Indemnification.
---------------
(a) Issuer agrees to indemnify and hold harmless each of the Pension
Plan, the VEBA, the Pension Plan Trustee and any successor thereto, the VEBA
Trustee and any successor thereto, the investment manager or managers acting on
behalf of the Pension Plan and the VEBA with respect to the Registrable
Securities and Persons, if any, who control any of them within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act (each
an "Indemnitee"), from and against any and all costs and expenses reasonably
incurred and losses, damages and other liabilities sustained by such Indemnitee
and arising out of or caused by any untrue statement or alleged untrue statement
of a material fact contained in any registration statement described herein or
any related prospectus relating to the Registrable Securities (as amended or
supplemented if Issuer shall have furnished any amendments or supplements
thereto), or arising out of or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, except insofar as such costs, expenses, losses, damages or other
liabilities arise out of or are caused by any such untrue statement or omission
included or omitted in conformity with information furnished to Issuer in
writing by such Indemnitee or any Person acting on behalf of such Indemnitee
expressly for use therein; provided, however,
27
the foregoing indemnity agreement with respect to any preliminary prospectuses
shall not inure to the benefit of such Indemnitee, if the Person asserting any
claims, losses, damages or other liabilities against such Indemnitee purchased
Registrable Securities and a copy of the prospectus (as then amended or
supplemented if Issuer shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Indemnitee to such
Person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Registrable Securities to such Person, and if
the prospectus (as so amended or supplemented) would have cured the defect
giving rise to such asserted claim, loss, damage or other liability; provided,
further, that the foregoing proviso shall not apply in the case of a Piggyback
Registration if the Indemnitee is the Pension Plan, the VEBA, the Pension Plan
Trustee or the VEBA Trustee.
(b) Each of the Pension Plan and the VEBA, severally and not jointly,
agrees, to the extent permitted under applicable law, and each underwriter
selected shall agree, to indemnify and hold harmless each of Issuer, its
directors, officers, employees and agents, and each person, if any, who controls
Issuer within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, to the same extent as the foregoing indemnity from
Issuer, but only with respect to costs, expenses, losses, damages or other
liabilities arising out of or caused by an untrue statement or omission included
or omitted in conformity with information furnished in writing by or on behalf
of the Pension Plan, the VEBA or such underwriter, as the case may be, expressly
for use in any registration statement described herein or any related prospectus
relating to the Registrable Securities (as amended or supplemented if Issuer
shall have furnished or any amendments or supplements thereto). No claim
against the assets of the Pension Plan or the VEBA shall be created by this
Section 10(b), except as and to the extent permitted by applicable law.
(c) In case any claim is asserted or any proceeding (including any
governmental investigation) shall be instituted where indemnity may be sought by
an Indemnitee pursuant to any of the preceding paragraphs of this Section 10,
such Indemnitee shall promptly notify in writing the Person against whom such
indemnity may be sought (the "Indemnitor"); provided, however, that the omission
so to notify the Indemnitor shall not relieve the Indemnitor of any liability
which it may have to such Indemnitee except to the extent that the Indemnitor
was prejudiced by such failure to notify. The Indemnitor, upon request of the
Indemnitee, shall retain counsel reasonably satisfactory to the Indemnitee to
represent (subject to the following sentences of this section) the Indemnitee
and any others the Indemnitor may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnitee shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such Indemnitee
unless (i) the Indemnitor and the Indemnitee shall have mutually agreed to the
retention of such counsel, (ii) the Indemnitor fails to take reasonable steps
necessary to defend diligently any claim within ten calendar days after
receiving written notice from the Indemnitee that the Indemnitee believes the
Indemnitor has failed to take such steps, or (iii) the named parties to any such
proceeding (including any impleaded
28
parties) include both the Indemnitor and the Indemnitee and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests or legal defenses between them and, in all such
cases, the Indemnitor shall only be responsible for the reasonable fees and
expenses of such counsel. It is understood that the Indemnitor shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate law
firm (in addition to any local counsel) for all such Indemnitees not having
actual or potential differing interests or legal defenses among them, and that
all such fees and expenses shall be reimbursed as they are incurred. In the case
of any such separate firm for the Pension Plan or the VEBA or any control Person
of the Pension Plan or the VEBA, such firm shall be designated in writing by the
Pension Plan Named Fiduciary or the VEBA Named Fiduciary. The Indemnitor shall
not be liable for any settlement of any proceeding effected without its written
consent.
(d) If the indemnification provided for in this Section 10 is unavailable
to an Indemnitee in respect of any costs, expenses, losses, damages or other
liabilities referred to herein, then the Indemnitor, in lieu of indemnifying
such Indemnitee hereunder, shall contribute to the amount paid or payable by
such Indemnitee as a result of such costs, expenses, losses, damages or other
liabilities in such proportion as is appropriate to reflect the relative fault
of the Indemnitor and the Indemnitee and Persons acting on behalf of or
controlling the Indemnitee in connection with the statements or omissions or
violations which resulted in such costs, expenses, losses, damages or other
liabilities, as well as any other relevant equitable considerations. If the
indemnification described in Section 10(a) or 10(b) is unavailable to an
Indemnitee, the relative fault of Issuer, the Pension Plan, the VEBA and Persons
acting on behalf of or controlling the Pension Plan and the VEBA shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by Issuer or by Persons acting
on behalf of the Pension Plan and the VEBA and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Indemnitor shall not be required to contribute
pursuant to this Section 10(d) if there has been a settlement of any proceeding
effected without its written consent. No claim against the assets of the
Pension Plan or the VEBA shall be created by this Section 10(d), except as and
to the extent permitted by applicable law.
(e) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 10 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding section.
Notwithstanding the provisions of this Section 10, the aggregate contribution of
the Pension Plan or the VEBA under this Section 10 will not exceed the proceeds
received by it from the Registrable Securities sold by it and neither the
Pension Plan nor the VEBA shall be required to contribute under this Section 10
in respect of any costs, expenses, losses, damages or other liabilities unless
the same arise with
29
reference to any information furnished to Issuer in writing by Persons acting on
behalf of the Pension Plan or the VEBA, respectively, expressly for use in any
registration statement pursuant to this Agreement or the prospectus or any
amendment or supplement thereto. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnification and contribution agreements contained in this
Section 10 and the representations and warranties of Issuer contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement and (ii) acceptance of and the payment by the
buyer for any Registrable Securities.
11. Definitions.
-----------
"AOL Registration Rights Agreement" means the Registration Rights
Agreement, dated June 21, 1999, by and between General Motors and America
Online, Inc., as in effect on the date of this Agreement.
"Base Purchase Price" shall have the meaning set forth in Section 2(f)(iv).
"Bidder" shall have the meaning set forth in Section 2(e)(ii).
"Blackout Period" means (i) any period of time during which a requested
Demand Transfer has been postponed pursuant to Section 3(f), which period shall
continue until notice of the termination of such postponement has been delivered
to the Donees, and (ii) any holdback period during which Transfers were not
permitted by operation of Section 5(a), unless in any offering referred to in
Section 5(a), the Donees Transferred or had the opportunity to Transfer shares
of Registrable Securities that constituted the lesser of (a) the aggregate
number of shares of Class H Common Stock that the Donees requested to be
included in such offering or (b) 10 million shares.
"Business Day" shall have the meaning set forth in Section 1(a).
"Class H Common Stock" means Class H Common Stock, par value $0.10 per
share, of General Motors and any securities issued or issuable with respect to
the Class H Common Stock in connection with any stock dividend, stock split
(forward or reverse), combination of shares, recapitalization, merger,
consolidation, redemption, exchange of securities or other reorganization or
reclassification after the date hereof. In the event of any of the foregoing
with respect to the Class H Common Stock or similar transactions affecting the
Class H Common Stock, all references herein to the designation "Class H Common
Stock" and to any specific number of shares of Class H Common Stock shall be
adjusted in accordance with Section 12(h) hereof, and shall include reference to
all securities of the same class regardless of whether any such securities were
issued or issuable with respect to the securities that
30
previously constituted the Class H Common Stock.
"Co-Manager List" shall have the meaning set forth in Section 3(g).
"Commission" means the United States Securities and Exchange Commission.
"Contribution" shall have the meaning set forth in Section 1(a).
"Demand Registration" shall have the meaning set forth in Section 3(e).
"Demand Registration Statement" shall have the meaning set forth in Section
3(e).
"Demand Transfers" shall have the meaning set forth in Section 3(a).
"Donee" shall have the meaning set forth in the Recitals.
"Donee Allocation Basis" means (A) at any time that an acquisition of Class
H Common Stock by the Donees has caused the 10% threshold set forth in
(S)407(a)(2) of ERISA (or any threshold set forth in any successor to such
provision) to be exceeded, 75% with respect to the VEBA (or such lesser
percentage as shall constitute all of the Registrable Securities then held by
the VEBA) and the remaining percentage with respect to the Pension Plan and (B)
at all other times, 50% with respect to the VEBA (or such lesser percentage as
shall constitute all of the Registrable Securities then held by the VEBA) and
the remaining percentage with respect to the Pension Plan. All numbers of shares
determined pursuant to the Donee Allocation Basis shall be rounded to the
nearest whole share.
"ERISA" shall have the meaning set forth in the Recitals.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"Exercise Notice" shall have the meaning set forth in Section 2(f)(ii).
"Final Date" shall have the meaning set forth in Section 2(f)(iv).
"Form S-3" shall have the meaning set forth in Section 3(d).
"General Allocation Basis" means, at the time of determination, with
respect to each Qualifying Person, such Qualifying Person's pro rata share of
the Registrable Securities or shares of Class H Common Stock entitled to be
included in the proposed registration based on such Person's holdings of
Qualifying Securities as of the time of such proposed registration relative to
the holdings, as of such time, of all Qualifying Persons who have the right to
request and have requested the inclusion of all or a portion of their shares of
31
Qualifying Securities in such registration, which shall be determined as
follows:
(A) the number of shares of Qualifying Securities then held by such person
at the time of the determination, divided by
(B) the total number of shares of Qualifying Securities then held by all
Qualifying Persons;
Notwithstanding the foregoing, the Registrable Securities included by the
Donees in any registration shall be allocated between the Registrable Securities
held by the Pension Plan and those held by the VEBA in accordance with the Donee
Allocation Basis.
"General Motors" means General Motors Corporation, a Delaware corporation.
"Indemnitee" shall have the meaning set forth in Section 10(a).
"Indemnitor" shall have the meaning set forth in Section 10(c).
"Independent Directors" shall have the meaning set forth in Section
2(e)(ii).
"Issuer" means, initially, General Motors, and thereafter, each successor
issuer as described in Section 12(a).
"Lead Underwriter List" shall have the meaning set forth in Section 3(g).
"Liquidity Event" means that either:
(A) the Donees have Transferred an aggregate of at least the greater of
(x) 10 million shares of Registrable Securities and (y) shares of
Registrable Securities having a fair market value (based upon the
closing price of the Registrable Securities quoted on the securities
exchange on which such Registrable Securities are listed on the
trading day immediately preceding the date of determination) of $1
billion; or
(B) the Donees have been given an opportunity to include at least the
greater of (x) 10 million shares and (y) shares of Registrable
Securities having a fair market value (based upon the closing price of
the Registrable Securities quoted on the securities exchange on which
such Registrable Securities are listed on the trading day immediately
preceding the date of determination) of $1 billion of Registrable
Securities in the aggregate in a Piggyback Registration or a Strategic
Partner Demand Registration and have declined to do so.
32
"Lists" shall have the meaning set forth in Section 3(g).
"Maximum Share Number" shall have the meaning set forth in Section
2(f)(ii).
"Minimum Tender Condition" means, with respect to any tender offer, that
there have been validly tendered and not withdrawn pursuant to such tender offer
a number of shares of Class H Common Stock which, when taken together with the
number of shares of Class H Common Stock that the Bidder making such tender
offer otherwise beneficially owns as of immediately after the acceptance for
purchase and purchase of such tendered shares, represent more than 50% of the
voting power of all securities of Issuer outstanding as of such expiration date
and generally entitled to vote in the election of directors.
"Negotiated Transfer" shall have the meaning set forth in Section 3(a).
"NYSE" shall have the meaning set forth in Section 1(a).
"Pension Plan" shall have the meaning set forth in the Recitals.
"Pension Plan Named Fiduciary" shall have the meaning set forth in the
Recitals.
"Pension Plan Trustee" shall have the meaning set forth in the Recitals.
"Person" means an individual, a partnership, a corporation, an association,
a joint stock company, a trust, a joint venture, an unincorporated organization
or a governmental entity or any department, agency or political subdivision
thereof.
"Piggyback Registration" shall have the meaning set forth in Section 4(a).
"Primestar Registration Rights Agreement" means the Registration Rights
Agreement, dated April 28, 1999, by and between General Motors and Primestar,
Inc., as in effect on the date of this Agreement.
"Public Transfer" shall have the meaning set forth in Section 3(a).
"Put Closing" shall have the meaning set forth in Section 2(f)(iv).
"Put Price" shall have the meaning set forth in Section 2(f)(ii).
"Put Price Notice" shall have the meaning set forth in Section 2(f)(iii).
"Put Right" shall have the meaning set forth in Section 2(f)(ii)
33
"Qualifying Person" means, with respect to any registration hereunder:
(i) any Strategic Partner, and
(ii) the Donees,
in each case, if such Person has the right to request and has requested the
inclusion of all or a portion of its shares of Qualifying Securities in such
registration and if each such Person (with the Donees being considered
collectively for this purpose) beneficially owns or has the right to acquire
Qualifying Securities in an amount equal to 2% or more of the outstanding Class
H Common Stock at the time of determination.
"Qualifying Securities" means (A) with respect to Strategic Partners,
shares of Class H Common Stock (or securities which are then immediately
convertible into or exchangeable or exercisable for Class H Common Stock) which
have been acquired by such Strategic Partner in connection with the Strategic
Partner Transactions (as defined below) and (B) with respect to the Donees, the
Registrable Securities.
"Registrable Securities" means (i) the Class H Common Stock contributed
pursuant to this Agreement from time to time, and (ii) the securities issued or
issuable with respect to the securities referred to in clause (i) in connection
with any stock dividend, stock split (forward or reverse), combination of
shares, recapitalization, merger, consolidation, redemption, exchange of
securities or other reorganization or reclassification after the date hereof. As
to any particular Registrable Securities, such securities will cease to be
Registrable Securities when they have been Transferred by the Pension Plan or
the VEBA in accordance with all applicable provisions of this Agreement.
"Rights" shall have the meaning set forth in Section 2(e)(i).
"Rule 144" shall have the meaning set forth in Section 2(a)(v).
"Rule 14e-2(a)" shall have the meaning set forth in Section 2(e)(ii).
"Rule 415" shall have the meaning set forth in Section 3(b).
"Rule 429" shall have the meaning set forth in Section 3(b).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Share Limitation" means that the lead underwriter or co-managers of any
offering in connection with a Piggyback Registration, a Demand Registration or a
34
Strategic Partner Demand Registration advise Issuer in writing that in their
opinion the number of Registrable Securities requested to be included in such
offering exceeds, together with other shares of Class H Common Stock to be
included therein, the number of shares of Class H Common Stock which can be sold
in such offering without adversely affecting the marketability of the offering.
"Shelf Registration Statement" shall have the meaning set forth in Section
3(b).
"Strategic Partner" means any one or more Person(s) (or group of Persons
acting in concert) who (i) beneficially owns or has committed to acquire at the
time of determination shares of Class H Common Stock (or securities convertible
into or exchangeable or exercisable for the Class H Common Stock) that
constitute not less than 2% of the Class H Common Stock then outstanding
(determined after giving effect to such commitment (and assuming that all such
shares or securities subject to such commitment are acquired) and the
conversion, exchange or exercise of all such securities subject to such
commitment) acquired in a single transaction or series of related transactions
(including, without limitation, acquisitions and business combinations) entered
into as part of a single business venture (the "Strategic Partner
Transactions"), (ii) is granted the right to demand registration under the
Securities Act of the Class H Common Stock (or securities convertible into or
exchangeable or exercisable for the Class H Common Stock) that it beneficially
owns or has committed to acquire and (iii) is designated as such by the Board of
Directors of Xxxxxx Electronics Corporation (or any successor thereto) at any
time that the Class H Common Stock tracks the financial performance of such
entity or the Board of Directors of Issuer, which designation shall be made at
the time such Person(s) first acquired or committed to acquire shares of Class H
Common Stock (or securities convertible into or exchangeable or exercisable for
the Class H Common Stock). Issuer shall give the Donees prompt notice of any
such acquisition, commitment and designation, of the nature and proposed
timetable for any acquisitions and of the nature of any rights granted to the
Person so designated to register under the Securities Act shares of the Class H
Common Stock. If more than one Person is designated as a Strategic Partner as
described above, except as otherwise set forth in this Agreement, all rights of
the Strategic Partners with respect to one another shall be determined as such
Persons and Issuer may agree. All references herein to the shares of Class H
Common Stock beneficially owned by a Strategic Partner shall include all shares
of Class H Common Stock (or securities convertible into or exchangeable or
exercisable for the Class H Common Stock) acquired by a Strategic Partner
pursuant to the Strategic Partner Transactions and all additional shares of
Class H Common Stock (or securities convertible into or exchangeable or
exercisable for the Class H Common Stock) that a Strategic Partner has a right,
commitment or obligation to acquire pursuant to the Strategic Partner
Transactions.
"Strategic Partner Demand Registration" shall have the meaning set forth in
Section 6(b)(i).
35
"Tender Notice" shall have the meaning set forth in Section 2(f)(i).
"tender offer" shall have the meaning set forth in Section 2(e).
"Termination Date" shall have the meaning set forth in Section 4(d).
"Transfer" means any sale, transfer or other disposition (including any
pledge and any disposition upon the foreclosure of any pledge or any agreement
to do any of the foregoing).
"Transfer Agreement" shall have the meaning set forth in the Recitals.
"Trustees" shall have the meaning set forth in the Recitals.
"VEBA" shall have the meaning set forth in the Recitals.
"VEBA Named Fiduciary" shall have the meaning set forth in the Recitals.
"VEBA Trustee" shall have the meaning set forth in the Recitals.
12. Miscellaneous.
-------------
(a) Succession. In the event that the Registrable Securities are to be
converted or exchanged into (or become the right to receive) securities of any
issuer other than the Person who is then Issuer hereunder in connection with any
transaction to which such Issuer is a party, such Issuer shall cause the issuer
of such securities to agree, effective as of such conversion or exchange, that
all rights, obligations and restrictions of Issuer set forth in this Agreement,
except for the rights, obligations and restrictions set forth in subsections (a)
through (e) of Section 1 (which shall only be obligations of General Motors),
shall continue to apply to such securities. As of the time of such conversion
or exchange, subject to the exception set forth in the preceding sentence, such
issuer shall be bound by this Agreement and shall succeed to all rights,
restrictions and obligations of Issuer set forth in this Agreement, all
references to Issuer herein shall thereafter be deemed to be references to such
issuer, and the predecessor Issuer shall be released from all obligations under
this Agreement (except with respect to any obligations under Section 10 with
respect to any registration of securities issued by such Issuer). To evidence
the foregoing, prior to the time of such conversion or exchange, Issuer may
execute, and cause such issuer to execute, a Succession Agreement substantially
in the form of Exhibit C attached hereto. Upon request, the Donees shall
acknowledge and agree to any such Succession Agreement as set forth therein. To
the extent required and permissible under applicable law, as soon as reasonably
practicable after such conversion or exchange, such issuer shall file with the
Commission an amendment to the Shelf
36
Registration Statement, if any, then in effect to ensure that such Shelf
Registration shall continue to apply to such securities. In the event such
issuer is not eligible to register such securities on Form S-3, all references
to Form S-3 herein shall thereafter be deemed to be references to Form S-l or
any other available form, except that such issuer shall have no obligations
hereunder to file a Shelf Registration Statement (and shall have no obligation
with respect to any Shelf Registration Statement that is then in effect) unless
and until such time as such issuer becomes eligible to register such securities
on Form S-3 or any successor short form registration statement.
(b) Termination. All rights, restrictions and obligations of Issuer, the
Pension Plan and the VEBA, except with respect to any rights and obligations
under Section 10, shall terminate and this Agreement shall have no further force
and effect at such time as the Donees reduce their aggregate ownership of the
Registrable Securities to less than 2% of the aggregate number of shares of
Class H Common Stock then outstanding.
(c) 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 Issuer, the Pension Plan and the VEBA. Any obligation
of, or restriction applicable to, the Donees hereunder may be waived by a
writing signed by the Issuer. Any obligation of, or restriction applicable to,
the Issuer hereunder may be waived by a writing signed by the Donees.
(d) Notices. Except where notice by teleconference is specifically called
for in this Agreement, all notices and other communications provided for or
permitted hereunder shall be in writing and, except as specified herein, shall
be made by hand delivery, by registered or certified first-class mail, return
receipt requested, overnight courier or facsimile transmission:
(i) If to the Pension Plan:
United States Trust Company of New York
000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Authorized Agent
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
--------------
General Motors Investment Management Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
37
Attention: Managing Director, North American Equities
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
---
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to the VEBA:
United States Trust Company of New York
000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Authorized Agent
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
--------------
General Motors Investment Management Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Investment Officer, GM Subsidiaries
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
---
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) If to Issuer:
38
General Motors Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
--------------
General Motors Corporation
Legal Staff
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxx 000-X00-X00
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices and communications shall be deemed to have been duly given
and received: when received telephonically, if notice by teleconference is
specifically called for by this Agreement; when delivered by hand, if hand
delivered; the fifth Business Day after being deposited in the mail, registered
or certified, return receipt requested, first class postage prepaid, or earlier
Business Day actually received, if mailed; the first Business Day after being
deposited with an overnight courier, postage prepaid, if by overnight courier;
upon oral confirmation of receipt, if by facsimile transmission. Each party
agrees promptly to confirm receipt of all notices.
Whenever notices are required to be given by Issuer, such notices may
only be given by the Treasurer of Issuer or another officer or employee of
Issuer designated by the Treasurer in advance in writing to the recipient of
such notice. Whenever notices are required to be given by any investment manager
(including the Trustee) with respect to the Registrable Securities, such notices
may only be given by an officer or employee of such investment manager
designated in advance in writing to the recipient of such notice.
(e) No Third Party Beneficiaries. This Agreement shall be for the
sole and exclusive benefit of Issuer, the Pension Plan, the VEBA, the Pension
Plan Trustee, the VEBA Trustee and any other investment manager or managers
acting on behalf of the Pension Plan and the VEBA with respect to the
Registrable Securities, and their respective successors, and directors,
trustees, officers, employees, agents and controlling Persons indemnified
hereunder. Nothing in this Agreement shall be construed to give any other
Person any legal or equitable right, remedy or claim under this Agreement.
39
(f) Descriptive Headings. The headings of the sections of this
Agreement are inserted for convenience only and shall not constitute a part
hereof.
(g) Cooperation. Each party hereto shall take such further action,
and execute such additional documents, as may be reasonably requested by any
other party hereto in order to carry out the purposes of this Agreement.
(h) Adjustments; Restatement of Agreement. 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 Registrable Securities or similar transactions affecting the
Registrable Securities, all references herein to any designation of securities
and to any specific number of shares or Registrable Securities shall be
appropriately adjusted to give full effect thereto. Further, in the event of any
of the foregoing transactions, Issuer shall be entitled, without the consent of
any other party hereto, to restate this Agreement in its entirety to reflect
such adjustments, and the Donees and the Issuer hereby agree to execute any such
restatement of this Agreement.
(i) 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 and the directors, trustees (including, without limitation, any
successor trustee for the Pension Plan and the VEBA), officers, employees,
agents and controlling Persons of the parties. Except for an assignment to a
successor trustee or to an investment manager as stated herein, and except as
contemplated in Section 12(a), none of the rights or obligations under this
Agreement shall be assigned by the Pension Plan or the VEBA without the consent
of Issuer or by Issuer without the consent of the Pension Plan and the VEBA.
(j) Counterparts. This Agreement may be executed in counterparts, and
shall be deemed to have been duly executed and delivered by all parties when
each party has executed a counterpart hereof and delivered an original or
facsimile copy thereof to the other party. Each such counterpart hereof shall be
deemed to be an original, and all of such counterparts together shall constitute
one and the same instrument.
(k) Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement shall be governed by the internal
laws (and not the laws of conflict) of the State of Delaware, except to the
extent that the laws of the state or jurisdiction of incorporation or
organization of the issuer of the Registrable Securities from time to time
specifically apply to questions concerning the relative rights of the issuer of
the Registrable Securities and the stockholders of such issuer in their
capacities as such.
40
(l) Acknowledgments. Each of the Pension Plan and the VEBA agrees
that it will obtain written acknowledgments, and provide a copy of such
acknowledgments to Issuer, from each of its investment managers with respect to
the Registrable Securities (other than the Pension Plan Trustee and the VEBA
Trustee) and from the valuation advisers of the Pension Plan Trustee and the
VEBA Trustee, confirming that such entity has received and reviewed this
Agreement and will comply with the terms of this Agreement applicable to it.
* * * *
41
IN WITNESS WHEREOF, the parties hereto, being duly authorized, have
executed and delivered this Registration Agreement on the date first above
written.
GENERAL MOTORS CORPORATION
By: ________________________________
Name: ________________________________
Title: ________________________________
GENERAL MOTORS HOURLY-RATE
EMPLOYEES PENSION PLAN
By: United States Trust Company of New York,
As Trustee
By: ________________________________
Name: ________________________________
Title: ________________________________
GENERAL MOTORS WELFARE BENEFIT TRUST
By: United States Trust Company of New York,
As Trustee
By: ________________________________
Name: ________________________________
Title: ________________________________
42
EXHIBIT A
---------
TRANSFER AGREEMENT
This Agreement is entered into on _______ __, ____, by and among
General Motors Corporation, a Delaware corporation ("General Motors"), United
States Trust Company of New York (the "Pension Plan Trustee") as trustee of a
trust established under the General Motors Hourly-Rate Employees Pension Plan
(the "Pension Plan"), for the account and on behalf of the Pension Plan (which
shall thereby be deemed a party to this Agreement) and United States Trust
Company of New York (the "VEBA Trustee" and together with the Pension Plan
Trustee, the "Trustees") as a trustee of a dedicated account within the General
Motors Welfare Benefit Trust, a voluntary employees' beneficiary association
trust established to fund certain hourly retiree health care and life insurance
benefits under the General Motors Health Care Program for Hourly Employees and
other applicable welfare plans (the "VEBA"), for the account and on behalf of
the VEBA (which shall thereby be deemed a party to this Agreement). Each of the
Pension Plan and the VEBA are referred to herein as a "Donee" and they are
sometimes referred to collectively as "Donees." Capitalized terms used and not
otherwise defined herein shall have the respective meanings set forth in Section
5.
WHEREAS, General Motors intends, subject to the satisfaction of
certain regulatory and other conditions, to contribute approximately ___________
shares of Class H Common Stock to the Pension Plan and the VEBA, pursuant to the
terms of a Registration Rights Agreement, dated as of the date hereof (the
"Registration Rights Agreement"), by and among General Motors, the Pension Plan
and the VEBA; and
WHEREAS, General Motors wishes to preserve its ability to consummate
at a later date a tax-free reorganization (or series of reorganizations) under
the Internal Revenue Code of 1986, as amended, and the rules, regulations and
rulings thereunder (the "Code"), including, without limitation, a split-off or
spin-off pursuant to which holders of outstanding shares of General Motors' $1
2/3 par value common stock or Class H Common Stock would become holders of the
capital stock of Xxxxxx Electronics Corporation, a Delaware corporation
("Xxxxxx") (or a successor to or subsidiary of Xxxxxx or any other subsidiary of
General Motors owning an interest in Xxxxxx) (Xxxxxx and any such subsidiary
being collectively referred to herein as "Xxxxxx") such that Xxxxxx is no longer
controlled by General Motors (any such transaction or series of transactions
being referred to herein as a "Spin-Off"); and
WHEREAS, each of the Donees is prepared to accept the shares of Class
H Common Stock that may be contributed to it as described in the Registration
Rights Agreement and to hold and Transfer any such shares and other shares of
Class H Common Stock owned by it on the terms and conditions stated herein; and
WHEREAS, the Pension Plan Trustee has been appointed by the named
fiduciary of the Pension Plan (the "Pension Plan Named Fiduciary") (as
determined in
accordance with Section 402(a) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), to manage any shares of Class H Common Stock held
by the Pension Plan as described in the Registration Rights Agreement and this
Agreement and to exercise all rights, powers and privileges appurtenant to such
shares (subject to the authority of the Pension Plan Named Fiduciary to
terminate such appointment and appoint one or more other investment managers for
any such shares); and
WHEREAS, the VEBA Trustee has been appointed by the named fiduciary of
the VEBA (the "VEBA Named Fiduciary") (as determined in accordance with Section
402(a) of ERISA), to manage any shares of Class H Common Stock held by the VEBA
as described in the Registration Rights Agreement and this Agreement 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 for any such shares); and
WHEREAS, the Pension Plan Trustee has full power and authority to
execute and deliver this Agreement for the account and on behalf of the Pension
Plan and to so bind the Pension Plan and the VEBA Trustee has full power and
authority to execute and deliver this Agreement for the account and on behalf of
the VEBA and to so bind the VEBA;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, General Motors, the
Pension Plan and the VEBA hereby agree as follows:
1. Restrictions on Transfer.
------------------------
(a) From and after such date as the first shares of Class H Common
Stock are contributed to the Donees pursuant to the Registration Rights
Agreement (the "Initial Contribution Date"), the Donees shall not make any
Transfer of the Transferable Securities to any Person (or group of related
Persons acting pursuant to a plan or arrangement) if such Person (or group of
related Persons acting pursuant to a plan or arrangement) is then, or as a
result of such Transfer and related transactions will become, to the knowledge
of either Donee after reasonable inquiry, a 5% Person.
(b) The restriction set forth in Section 1(a) above shall terminate
two years after the date on which a Spin-Off is effected (the "Spin-Off Date"),
unless there was an agreement, understanding, arrangement or substantial
negotiation (collectively, an "Agreement") with respect to such Transfer within
such two-year period, in which case the foregoing restriction will terminate on
the later to occur of (i) the date two years after the Spin-Off Date, and (ii)
the date which is six months after the date such Agreement is consummated or
terminated, as the case may be.
(c) From and after any such time as the Donees receive notice from
General Motors or otherwise become aware by public announcement that General
Motors intends to effect a Spin-Off (the "Spin-Off Notice Date"), the Donees
shall not make any Transfer of
2
the Transferable Securities if, after giving effect to such Transfer, the number
of shares of Transferable Securities that would be owned directly by the Donees
(which shall include all shares in which either of the Donees has a beneficial
interest (whether or not registered in the name of either Donee) and which shall
not include shares owned by any Affiliate of the Donees) would constitute less
than 50% of the number of Transferable Securities owned directly by the Donees
as of the Spin-Off Notice Date. The restrictions set forth in this Section 1(c)
shall terminate (i) in the event any such Spin-Off is abandoned, on such date as
the Donees receive notice from General Motors or otherwise become aware of such
abandonment (subject to such restrictions again becoming applicable as described
in the first sentence of this Section 1(c)) or (ii) in the event any such Spin-
Off is effected, on the second anniversary of the Spin-Off Date.
(d) Section 1(a) shall not apply to any Transfer of Transferable
Securities by the Donees if such Transfer is pursuant to an underwritten public
offering reasonably designed to achieve a broad public distribution of the
securities being offered; provided, that the Donees shall have caused the lead
underwriter and any co-manager of such offering to have agreed (and the Donees
shall have delivered evidence of such agreement to General Motors promptly after
the execution thereof) to use their reasonable best efforts (i) to effect a
broad public distribution of such securities and (ii) not to make any Transfer
to any one Person (or group of related Persons acting pursuant to a plan or
arrangement) (whether such Person (or group of related Persons acting pursuant
to a plan or arrangement) is buying for its own account or as a fiduciary on
behalf of one or more accounts) if such Person (or group of related Persons
acting pursuant to a plan or arrangement) (A) is then a 5% Person, or (B) at any
time prior to the time of such Transfer, has been designated in a written list
provided by General Motors to the Donees as, to the reasonable belief of General
Motors, beneficially owning (or as a result of such Transfer and related
transactions would become the beneficial owner of) (in each case as defined in
Rule 13d-3) 5% or more of the total voting power or total value of the Class H
Common Stock then outstanding.
(e) Nothing in this Agreement shall prohibit the Donees from making
any Transfer of Transferable Securities if and to the extent such Transfer is
made pursuant to a Spin-Off or a Merger; provided that this Agreement shall
continue to apply to any Transferable Securities received by the Donees pursuant
to such Spin-Off or Merger, as the case may be, as provided in this Agreement.
(f) From and after the Initial Contribution Date, in the event that
General Motors waives the restrictions under Section 1(a) hereof so as to permit
the Donees to make a Transfer of Transferable Securities to any Person (or group
of related Persons acting pursuant to a plan or arrangement) which would
otherwise have been prohibited by Section 1(a) hereof, such Transfer shall not
be made unless prior to such Transfer such Person (and all related Persons
acting pursuant to a plan or arrangement) agrees to be bound by the provisions
of this Agreement and executes and delivers to General Motors and the applicable
Donee a transferee agreement reasonably satisfactory to General Motors and the
applicable Donee to effectuate the purposes hereof.
3
(g) Until all restrictions set forth in Sections 1(a) through 1(f)
have terminated pursuant to the terms set forth therein, the Donees shall not
make any Transfer of securities convertible into or exercisable or exchangeable
for the Transferable Securities or any other securities the value of which is
derived from the Transferable Securities.
(h) Until all restrictions set forth in Sections 1(a) through 1(f)
have terminated pursuant to the terms set forth therein, the Donees (or the
Trustees on behalf of the Pension Plan and the VEBA) will vote against any
proposed Merger or similar transaction for which it is entitled or permitted to
cast a vote if General Motors delivers to the Trustees, no later than three
Business Days prior to the scheduled date for the stockholders meeting at which
such Merger or similar transaction is to be voted on or the expiration date for
the consent solicitation with respect thereto, as the case may be, an opinion of
tax counsel reasonably satisfactory to the Trustees (which tax counsel may have
been and be retained, employed or consulted from time to time by General Motors)
that there is a material risk that such Merger or similar transaction would have
an adverse impact on the tax-free status of a Spin-Off.
(i) No Transfer or attempted Transfer of Transferable Securities in
violation of this Agreement shall be made or recorded on the books of General
Motors (or any other issuer of the Transferable Securities) and any such
Transfer shall be void and of no effect.
(j) Each certificate representing the shares of Class H Common Stock
(or other evidence thereof) contributed to the Donees pursuant to the
Registration Rights Agreement shall conspicuously bear a legend in substantially
the following form and each uncertificated share of Class H Common Stock shall
have an appropriate designation made in the book-entry records relating thereto
to the following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
TRANSFER AGREEMENT, DATED AS OF __________ ___, _____, BY AND BETWEEN
GENERAL MOTORS CORPORATION ("GENERAL MOTORS") AND THE INITIAL HOLDER
HEREOF THAT CONTAINS, AMONG OTHER THINGS, CERTAIN RESTRICTIONS ON THE
TRANSFER OF SUCH SECURITIES. A COPY OF SUCH TRANSFER AGREEMENT WILL BE
FURNISHED WITHOUT CHARGE BY GENERAL MOTORS TO THE HOLDER HEREOF UPON
WRITTEN REQUEST."
The certificates representing shares of Class H Common Stock (or other evidence
thereof) held by the Donees and acquired other than pursuant to the Registration
Rights Agreement shall be promptly surrendered to General Motors in order that
General Motors' transfer agent may place such legend upon them. General Motors
(or any other issuer of the Transferable Securities) shall instruct its transfer
agent that such legend or the book-entry designation shall be removed from the
certificates representing any Transferable Securities upon the earlier of (i)
the Transfer of such shares of Transferable Securities if such Transfer is made
in accordance with all applicable provisions of this Agreement and to a Person
(or group of
4
related Persons acting pursuant to a plan or arrangement) who is not required to
execute a transferee agreement under Section 1(f) and (ii) the termination of
all restrictions set forth in Sections 1(a) through 1(f) pursuant to the terms
set forth therein.
(k) Nothing herein shall be construed as a waiver or modification of
any of the restrictions on Transfer of the Registrable Securities (as defined in
the Registration Rights Agreement) set forth in the Registration Rights
Agreement, in no event shall any Transfer of the Transferable Securities be
deemed to be a permitted Transfer of the Registrable Securities under the
Registration Rights Agreement solely because such Transfer is permitted under
this Agreement and in no event shall any Transfer of the Registrable Securities
be deemed to be a permitted Transfer of the Transferable Securities under this
Agreement solely because such Transfer is permitted under the Registration
Rights Agreement.
2. Representations, Warranties and Covenants.
-----------------------------------------
(a) The Pension Plan represents that it owns __________ shares of
Class H Common Stock as of the date hereof. The VEBA represents that it owns
__________ shares of Class H Common Stock as of the date hereof.
(b) Each of the Donees agrees that from and after the date hereof it
shall not purchase or acquire, in open market transactions or otherwise, any
additional shares of Class H Common Stock or any securities convertible into or
exercisable or exchangeable for the Class H Common Stock or any other interest
in the Class H Common Stock; provided, that (i) any securities received by
either Donee as consideration for any exchange or conversion of Class H Common
Stock pursuant to the terms of a Spin-Off or a Merger, (ii) any securities
acquired by either Donee as a dividend or other distribution on the Class H
Common Stock and (iii) any shares of Class H Common Stock contributed to the
Donees pursuant to the Registration Rights Agreement, shall not violate this
Section 2(b). The foregoing covenant shall terminate following the consummation
of a Spin-Off on the second anniversary of the Spin-Off Date.
3. Cooperation and Other Covenants.
-------------------------------
(a) The Donees shall take (or refrain from taking) all such actions
as General Motors may reasonably request as necessary to ensure that General
Motors obtains and maintains a private letter ruling from the IRS or an opinion
of counsel selected by General Motors (the "Spin-Off Ruling") confirming, in
form and substance reasonably satisfactory to General Motors, that no income,
gain or loss will be recognized by General Motors, its stockholders or
Affiliates on account of a Spin-Off (except to the extent of any additional
consideration described in Section 356 of the Code). Without limiting the
generality of the foregoing, the Donees shall agree to be bound by such further
restrictions on their ability to Transfer the Transferable Securities and to
make such further representations and covenants and execute such additional
documents, in each case as General Motors may reasonably request as necessary in
connection with obtaining the Spin-Off Ruling.
5
(b) If so requested by the Donees, General Motors shall waive or
modify any restriction set forth in Section 1 if and to the extent that General
Motors obtains a private letter ruling from the IRS or opinion of counsel
selected by General Motors (the "Modification Ruling") confirming, in form and
substance reasonably satisfactory to General Motors, that such proposed waiver
or modification shall not adversely affect General Motors' ability to obtain and
maintain a Spin-Off Ruling. General Motors and the Pension Plan shall cooperate
with each other (and any such tax counsel) and shall take (or refrain from
taking) such actions as either party hereto may reasonably request as necessary
to obtain any requested Modification Ruling.
(c) General Motors shall promptly notify the Donees of any intention
of General Motors to effect or abandon a Spin-Off.
(d) Until all restrictions set forth in Section 1 have terminated,
each Donee shall give General Motors written notice of any proposed Transfer of
the Transferable Securities within a reasonable period of time prior to such
proposed Transfer, and in any event no later than such date as any notice with
respect to such proposed Transfer is required to be given by such Donee pursuant
to the Registration Rights Agreement (including any notice of election to
participate in any Piggyback Registration) or, if no such date is provided for
in the Registration Rights Agreement, 10 days prior to the proposed consummation
of such Transfer. Each notice hereunder of a proposed Transfer shall set forth
the number of shares of Transferable Securities then owned by the applicable
Donee and the terms and conditions of such proposed Transfer, including, without
limitation, the approximate number of Transferable Securities proposed to be
Transferred, the proposed timetable for such Transfer, whether such Transfer is
to be made pursuant to an underwritten public offering in accordance with
Section 1(f) and, if such Transfer is to be made otherwise, the identity of any
proposed transferee and the number of shares of Class H Common Stock otherwise
then owned by such proposed transferee, all with sufficient particularity to
enable General Motors to determine whether such proposed Transfer would comply
with the provisions of this Agreement. If, in connection with any such proposed
Transfer, the applicable Donee receives from any proposed underwriter, co-
manager or transferee any certificate, representation, undertaking or other
documentation intended to establish compliance with the provisions of this
Agreement, then such Donee shall deliver to General Motors a copy thereof prior
to the consummation of such proposed Transfer. Such Donee shall give General
Motors written notice of any material change in the terms and conditions of a
proposed Transfer from those described in any previous notice thereof to General
Motors from such Donee as promptly as practicable, and in no event later than
two Business Days prior to such time as such Transfer is then proposed to be
consummated, and such Donee shall not make any proposed Transfer other than in
accordance with such terms and conditions as so described to General Motors. If
at any time prior to the consummation of any proposed Transfer, General Motors
determines, based on the advice of its legal counsel, that such proposed
Transfer would violate any of the restrictions or be inconsistent with any of
the provisions of this Agreement, then General Motors shall give notice to the
applicable Donee of such determination and, unless and until tax counsel (which
shall not be tax counsel regularly employed by General Motors or the applicable
Donee unless otherwise agreed) mutually agreeable to General Motors and the
applicable Donee (the fees and
6
expenses of which shall be borne equally by General Motors and the applicable
Donee) delivers an opinion to General Motors and the applicable Donee that such
proposed Transfer would not so violate or be inconsistent with this Agreement,
such Donee shall not make such proposed Transfer. General Motors and the Donees
shall cooperate with each other (and any such tax counsel) and shall provide
each other with such information as may reasonably be requested in order to
enable any party (or such tax counsel) to make any determination with respect to
this Agreement.
(e) Each of the parties shall treat all notices of and information
relating to proposed Transfers, Spin-Offs and Mergers, including, without
limitation, all notices pursuant to Sections 3(c) and 3(d), that are received
from the other party with the strictest confidence and shall not disseminate
such information; provided, that nothing herein shall prohibit disclosure of any
such notice or information to the then issuer of the Transferable Securities.
Nothing herein shall be construed to require General Motors or any of its
Affiliates to make any public disclosure of information at any time.
4. Remedies. Each of the parties to this Agreement shall be
entitled to enforce its rights under this Agreement specifically, to recover
damages and costs (including reasonable attorneys fees) caused by any breach of
any provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that either Donee's breach of
any term or provision of this Agreement will materially and irreparably harm
General Motors, that money damages will accordingly not be an adequate remedy
for any breach of the provisions of this Agreement by the Donees and that
General Motors, in its sole discretion and in addition to any other remedies it
may have at law or in equity, may apply to any court of law or equity of
competent jurisdiction (without posting any bond or deposit) for specific
performance and/or other injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement.
5. Definitions and Interpretations.
-------------------------------
(a) Definitions.
"Affiliate" has the meaning set forth in Rule 12b-2 under the Exchange
Act (or any successor thereto).
"Business Day" means such days as the New York Stock Exchange, Inc.
shall be open for trading.
"Class H Common Stock" means Class H Common Stock, par value $0.10 per
share, of General Motors and any securities issued or issuable with respect to
the Class H Common Stock in connection with any stock dividend, stock split
(forward or reverse), combination of shares, recapitalization, merger,
consolidation, redemption, exchange of securities or other reorganization or
reclassification after the date hereof, including, without limitation, shares of
capital stock of Xxxxxx issued or issuable with respect to the Class H Common
Stock in connection with a Spin-Off and shares of capital stock issued or
issuable with respect to such shares of capital stock of Xxxxxx in connection
with a Merger. In the
7
event of any of the foregoing with respect to the Class H Common Stock or
similar transactions affecting the Class H Common Stock, all references herein
to the designation "Class H Common Stock" and to any specific number of shares
of Class H Common Stock shall be appropriately adjusted to give effect thereto,
and shall include reference to all securities of the same class regardless of
whether any such securities were issued or issuable with respect to the
securities that previously constituted the Class H Common Stock.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"5% Person" means any Person (or group of related Persons acting
pursuant to a plan or arrangement) that, directly or indirectly, beneficially
owns (as defined in Rule 13d-3) shares of Class H Common Stock or shares of any
class of capital stock of Xxxxxx that constitute 5% or more of the total voting
power or total value of the Class H Common Stock or such class of capital stock
of Xxxxxx, as applicable, then outstanding (computed for this purpose as if any
option, warrant, or other security that permits such Person (or group of related
Persons acting pursuant to a plan or arrangement) to acquire additional shares
of Class H Common Stock or such class of capital stock of Xxxxxx (or any
securities convertible into or exchangeable or exercisable for the Class H
Common Stock or such class of capital stock of Xxxxxx) had been fully converted,
exchanged or exercised); provided that no Person (or group of related Persons
acting pursuant to a plan or arrangement) shall be deemed a 5% Person for
purposes of Section 1(c) if such Person (or group of related Persons acting
pursuant to a plan or arrangement) acquired such shares directly from General
Motors.
"IRS" means the Internal Revenue Service.
"Merger" means any business combination involving two or more
corporations, or any other transaction (or series of related transactions)
involving the issuance, exchange, conversion, recapitalization or redemption of
Class H Common Stock.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization or a governmental entity or any department, agency or political
subdivision thereof.
"Transfer" means any sale, transfer or other disposition (including
any pledge and any disposition upon the foreclosure of any pledge) or any
agreement to do any of the foregoing.
"Transferable Securities" means (i) the Class H Common Stock
contributed to the Donees pursuant to the Registration Rights Agreement from
time to time, and (ii) the securities issued or issuable with respect to the
securities referred to in clause (i) in connection with any stock dividend,
stock split (forward or reverse), combination of shares, recapitalization,
merger, consolidation, redemption, exchange of securities or other
reorganization or reclassification after the date hereof, including, without
limitation, shares of capital stock of Xxxxxx issued or issuable with respect to
the Class H Common Stock in connection with a Spin-Off and shares of capital
stock issued or issuable with respect to the
8
Class H Common Stock in connection with a Merger. In the event of any of
the foregoing with respect to the Transferable Securities or similar
transactions affecting the Transferable Securities, all references herein to the
designation "Transferable Securities" and to any specific number of shares of
Transferable Securities shall be appropriately adjusted to give effect thereto.
(b) Interpretations.
For purposes of this Agreement, "knowledge of either Donee after
reasonable inquiry" shall mean actual knowledge of such Donee after such
inquiry, provided that, for purposes of determining compliance of any proposed
Transfer of Transferable Securities with the provisions of this Agreement, (i)
both Donees shall be deemed to have actual knowledge of the information
contained in any Schedule 13D or 13G (or any successor thereto) filed under the
Exchange Act or any amendment thereto with respect to the Class H Common Stock
more than two Business Days prior to such proposed Transfer and (ii) if such
Transfer is made pursuant to an underwritten public offering as described in
Section 1(d), both Donees shall be deemed to have made a reasonable inquiry if
they shall have conducted a search of the filings of Schedules 13D and 13G (and
any successors thereto) under the Exchange Act and any amendments thereto within
two Business Days of such proposed Transfer.
6. Miscellaneous.
-------------
(a) Successor Issuers. In the event that, at any time after the time a
which the Class H Common Stock is converted into, exchanged for or otherwise
becomes a security of Xxxxxx, Xxxxxx enters into any transaction pursuant to
which the capital stock of Xxxxxx is to be converted into, exchanged for or
otherwise become the right to receive securities of any issuer other than
Xxxxxx, then all references herein to Xxxxxx (including this Section 6(a)) shall
be deemed as of the time of consummation of such transaction to be references to
both Xxxxxx and such successor issuer.
(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 General Motors, the Pension Plan and the VEBA.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be made by hand delivery, by
registered or certified first-class mail, return receipt requested, overnight
courier or facsimile transmission:
9
(i) If to the Pension Plan:
United States Trust Company of New York
000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Authorized Agent
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
--------------
General Motors Investment Management Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Managing Director, North American Equities
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
---
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to the VEBA:
United States Trust Company of New York
000 Xxxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Authorized Agent
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
--------------
General Motors Investment Management Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Investment Officer, GM Subsidiaries
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
---
10
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) If to General Motors:
General Motors Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
---------------
General Motors Corporation
Legal Staff
000 Xxxxxxxxxxx Xxxxxx
Xxxx Xxxx 000-X00-X00
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices and communications shall be deemed to have been duly given
and received: when delivered by hand, if hand delivered; the fifth Business Day
after being deposited in the mail, registered or certified, return receipt
requested, first class postage prepaid, or earlier Business Day actually
received, if mailed; the first Business Day after being deposited with an
overnight courier, postage prepaid, if by overnight courier; upon oral
confirmation of receipt, if by facsimile transmission. Each party agrees
promptly to confirm receipt of all notices.
Whenever notices are required to be given by General Motors, such
notices may only be given by the Treasurer of General Motors or another officer
or employee of General Motors designated by the Treasurer in advance in writing
to the recipient of such notice. Whenever notices are required to be given by
any investment manager (including the Trustees) with respect to the Transferable
Securities, such notices may only be given by an officer or employee of such
investment manager designated in advance in writing to the recipient of such
notice.
(d) No Third Party Beneficiaries. This Agreement shall be for the
sole and exclusive benefit of General Motors, the Pension Plan, the VEBA, the
Pension Plan Trustee, the VEBA Trustee and any other investment manager or
managers acting on behalf of the Pension Plan or the VEBA with respect to the
Transferable Securities, and their respective
11
successors, and directors, trustees, officers, employees, agents and controlling
Persons indemnified hereunder. Nothing in this Agreement shall be construed to
give any other Person any legal or equitable right, remedy or claim under this
Agreement.
(e) Descriptive Headings. The headings of the sections of this
Agreement are inserted for convenience only and shall not constitute a part
hereof.
(f) Cooperation. Each party hereto shall take such further action,
and execute such additional documents, as may be reasonably requested by any
other party hereto in order to carry out the purposes of this Agreement.
(g) 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. Except for an assignment to a successor trustee or to an
investment manager as stated herein and except as provided in Section 1(f), none
of the rights or obligations under this Agreement shall be assigned by either
Donee without the consent of General Motors or by General Motors without the
consent of the Donees.
(h) Counterparts. This Agreement may be executed in counterparts, and
shall be deemed to have been duly executed arid delivered by all parties when
each party has executed a counterpart hereof and delivered an original or
facsimile copy thereof to the other party. Each such counterpart hereof shall be
deemed to be an original, and all of such counterparts together shall constitute
one and the same instrument.
(i) Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement shall be governed by the internal
laws (and not the laws of conflict) of the State of Delaware, except to the
extent that the laws of the state or jurisdiction of incorporation or
organization of the issuer of the Transferable Securities from time to time
specifically govern questions concerning the relative rights of the issuer of
the Transferable Securities and the stockholders of such issuer in their
capacities as such.
(j) Acknowledgments. Each of the Donees agrees that it will (i)
obtain written acknowledgments, and provide a copy of such acknowledgments to
General Motors from each of its investment managers with respect to the
Transferable Securities (other than the Trustees), confirming that such entity
has received and reviewed this Agreement and will comply with the terms of this
Agreement applicable to it and (ii) inform each of the investment managers
working with or for the Donees in any capacity of the existence and terms of the
covenant made by the Pension Plan in Section 2(b) and instruct each such
investment manager to comply with such covenant at all times until such covenant
terminates as provided in Section 2(b).
* * * * *
12
IN WITNESS WHEREOF, the parties hereto, being duly authorized have
executed and delivered this Transfer Agreement on the date first above written.
GENERAL MOTORS CORPORATION
By:____________________________________
Name:
Title:
GENERAL MOTORS HOURLY-RATE
EMPLOYEES PENSION PLAN
By: The United States Trust Company of
New York, As Trustee
By:__________________________________
Name:
Title:
GENERAL MOTORS WELFARE BENEFIT
TRUST
By: The United States Trust Company of
New York, As Trustee
By:__________________________________
Name:
Title:
13
EXHIBIT B
---------
INTEREST RATE SCHEDULE
The interest rate referred to in Section 2(f) (iv) shall be a per
annum rate equal to the sum of (i) the rate quoted on the date of delivery of
the Exercise Notice for United States Treasury bills with a maturity of 90 days
and (ii) the amount set forth below under the column "Spread" corresponding to
the rating (the "Rating") assigned by Standard & Poor's Ratings Group ("S&P") to
the short term unsecured debt obligations of Issuer on the date of delivery of
the Exercise Notice (it being understood that, for purposes of the foregoing,
(i) the rating assigned to such debt obligations by any other rating agency
shall be disregarded, (ii) any plus attached to a rating assigned by S&P shall
be disregarded, (iii) any minus attached to a rating assigned by S&P shall be
considered a downgrade to the next lowest rating and (iv) if S&P changes its
rating system after the date hereof, the Ratings as set forth below shall be
adjusted to the comparable ratings under such new rating system).
Rating Spread (in basis points)
-------------------------------
X-0 00
X-0 00
X-0 or below 100
56
EXHIBIT C
---------
SUCCESSION AGREEMENT
This Agreement is entered into as of _____________, ____, by and
between ______________________, a ________ corporation ("Predecessor"), and
_______________________, a ________ corporation ("Successor"). Capitalized
terms used and not otherwise defined herein shall have the meanings set forth in
the Registration Rights Agreement, dated as of __________ __, ____ (the
"Registration Agreement") by and among General Motors Corporation, a Delaware
corporation ("General Motors"), and United States Trust Company of New York, as
trustee (the "Pension Plan Trustee") of a trust established under the General
Motors Hourly-Rate Employees Pension Plan (the "Pension Plan"), for the account
of and on behalf of the Pension Plan and United States Trust Company of New
York, as a trustee (the "VEBA Trustee") of a dedicated account within the
General Motors Welfare Benefit Trust, a voluntary employees' beneficiary
association trust established to fund certain hourly retiree health care and
life insurance benefits under the General Motors Health Care Program for Hourly
Employees and other applicable welfare plans (the "VEBA"), for the account of
and on behalf of the VEBA.
WHEREAS, Predecessor is currently the issuer of the securities
referred to as the "Registrable Securities" and "Class H Common Stock" in the
Registration Agreement and generally has the rights and the obligations of
Issuer under the Registration Agreement; and
WHEREAS, pursuant to ____________________ (the "Transaction"), shares
of Class H Common Stock shall be [converted into] [exchanged for] securities of
Successor (the "Successor Securities"), effective as of ___________ (the
"[Conversion] [Exchange] Date"); and
WHEREAS, the Registration Agreement contemplates that in the event of
a transaction such as the Transaction, Successor shall generally succeed to the
rights and obligations of Issuer under the Registration Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Predecessor and
Successor hereby agree as follows:
1. Succession.
----------
(a) Effective as of the [Conversion] [Exchange] Date, all rights,
obligations and restrictions with respect to shares of Class H Common Stock
(including Registrable Securities) set forth in the Registration Agreement shall
apply to the Successor Securities.
(b) Effective as of the [Conversion] [Exchange] Date, Successor shall
be bound by the Registration Agreement and shall succeed to all rights,
restrictions and obligations of Issuer set forth in the Registration Agreement,
all references to Issuer therein shall thereafter be deemed to be references to
Successor, and Predecessor shall be released from all obligations under the
Registration Agreement.
(c) Notwithstanding subsections (a) and (b) above, (i) all rights and
obligations in Sections 1(a) through 1(e) of the Registration Agreement shall
remain rights and obligations of General Motors and (ii) Predecessor shall not
be released from any obligations under Section 10 of the Registration Agreement
with respect to any registration of securities issued by Predecessor.
2. Cooperation. Predecessor and Successor shall take such further
action, and execute such additional documents, as may be reasonably requested by
either party in order to carry out the purposes of this Agreement.
3. Counterparts. This Agreement may be executed in counterparts, and
shall be deemed to have been duly executed and delivered by all parties when
each party has executed a counterpart hereof and delivered an original or
facsimile copy thereof to the other party. Each such counterpart hereof shall be
deemed to be an original, and all such counterparts together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, being duly authorized, have
executed and delivered this Succession Agreement on the date first above
written.
PREDECESSOR:
By:
Name:
SUCCESSOR:
By:
Name:
2
This Succession Agreement (including, without limitation, the release
of the Predecessor from obligations under the Registration Agreement as set
forth herein (except as provided in Section 1(c) above)), is acknowledged and
agreed to as of this ____ day of _________, ____.
GENERAL MOTORS HOURLY-RATE
EMPLOYEES PENSION PLAN
By: United States Trust Company
of New York, as Trustee
By:
Its:
GENERAL MOTORS WELFARE BENEFIT TRUST
By: United States Trust Company
of New York, as Trustee
By:
Its:
3