Exhibit 99.9
EXCHANGE AGENT AGREEMENT
This Exchange Agent Agreement (the "Agreement") is entered into as of
this ___ day of April, 2000, between General Motors Corporation, a company
organized and existing under the laws of the State of Delaware (the "Company"),
and Fleet National Bank, a national banking association having its principal
offices in Boston, Massachusetts (the "Bank").
WHEREAS, the Company is making an exchange offer (hereinafter referred
to, together with any amendment or extensions thereof, as the "Exchange Offer")
to exchange newly issued shares of its Class H Common Stock, par value $0.10 per
share (the "Class H Common Stock"), having an aggregate market value of up to $9
billion at the time of commencement, for outstanding shares of its Common Stock,
$1-2/3 par value per share (the "$1-2/3 Par Value Common Stock"), upon the terms
and subject to the conditions set forth in the final Offering Circular--
Prospectus, (the "Offering Circular--Prospectus") included in the Registration
Statement on Form S-4 (No. 333-30826), and in the related Letter of Transmittal
including the Instructions to the Letter of Transmittal (the "Letter of
Transmittal");
WHEREAS, the Bank is presently the Stock Transfer Agent and Registrar
for the Company's various classes of stock; and
WHEREAS, the Company desires that the Bank act as Exchange Agent in
connection with the Exchange Offer, and the Bank (hereinafter referred to from
time to time as the "Exchange Agent", the "Transfer Agent" or the "Registrar")
has indicated its willingness to do so.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Exchange Offer, the parties hereto agree as follows:
1. Appointment of Exchange Agent.
The Company hereby appoints the Bank as Exchange Agent for the purpose
of exchanging certificates representing (or other evidence of ownership of)
shares of $1-2/3 Par Value Common Stock for certificates representing (or other
evidence of ownership of) shares of Class H Common Stock in accordance with the
terms and conditions of the Exchange Offer as set forth in the Offering
Circular--Prospectus and the Letter of Transmittal. The Bank hereby agrees to
serve as such, upon the terms and conditions set forth herein. In connection
with such appointment, the Company has delivered to you a copy of the Offering
Circular--Prospectus, dated April , 2000, a copy of the Letter of
Transmittal, a copy of the letter from the Company to holders of $1-2/3 Par
Value Common Stock, a copy of the checklist for participation in the Exchange
Offer, a copy of the
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Notice of Guaranteed Delivery, a copy of the letter to brokers, dealers,
commercial banks, trust companies and other nominees, a copy of the letter to
clients for use by brokers, dealers, commercial banks, trust companies and other
nominees, a copy of the guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9, and certain other documents which the Company has
elected to provide.
2. Notification and Processing.
The Exchange Agent is hereby authorized and directed, and hereby
agrees, to:
A. Provide file containing the name and address of each holder of
record of $1-2/3 Par Value Common Stock. The file for holders in certain foreign
jurisdictions, which the Company will designate for the Exchange Agent shall be
segregated from the file for all other holders. The Exchange Agent shall deliver
such files, upon the Company's demand, to such person or entity as the Company
shall designate.
B. Accept and respond to all telephone requests for information
relating to the exchange of shares pursuant to the Exchange Offer.
C. Receive and examine all certificates representing shares of $1-2/3
Par Value Common Stock (the "Tendered Shares") tendered for exchange and
accompanying Letters of Transmittal for proper execution in accordance with the
terms thereof. Such examination shall include determination that such
certificates representing Tendered Shares are in proper form for transfer on the
share registry books of the Company, verification that no stop order has been
issued against the Tendered Shares by reason of mutilation, loss, theft,
destruction or other invalidity and that the certificates representing (or other
evidence of ownership of) Tendered Shares otherwise comply with the Instructions
to the Letter of Transmittal. In the event that any Letter of Transmittal has
been improperly completed or executed, or the certificates representing (or
other evidence of ownership of) the Tendered Shares are not in proper form for
transfer (as required by the Instructions to the Letter of Transmittal), or if
some other irregularity in connection with the exchange of such Tendered Shares
exists, the Exchange Agent shall notify the stockholder of the deficiency in
order to enable the stockholder to correct such irregularity. Determination of
all questions as to the validity, form, eligibility (including timeliness of
receipt) and acceptance of the Tendered Shares exchanged or tendered shall be
determined by the Exchange Agent on behalf of the Company in the first instance,
but final decisions on all such matters shall be made by the Company in its sole
and absolute discretion. The Company reserves in the Exchange Offer the
absolute right to reject any or all exchanges of any particular Tendered Shares
not in the appropriate form or the acceptance of which would, in the opinion of
the Company's counsel, be unlawful and to waive any of the conditions of the
Exchange Offer or any defect or irregularity in the exchange of the Tendered
Shares, and the Company's interpretation of the terms and conditions of the
Exchange Offer will be final in all cases.
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D. Exchange all Tendered Shares in accordance with the terms and
conditions of the Exchange Offer, as such are set forth in the Offering
Circular--Prospectus and the Letter of Transmittal.
E. Make appropriate arrangements with The Depository Trust Company and
any other "qualified" registered securities depository to allow for the book-
entry movement of the Tendered Shares between depository participants and the
Exchange Agent.
F. An exchanging stockholder may withdraw its tender as set forth in
the Offering Circular--Prospectus and the Letter of Transmittal, in which event,
you shall as promptly as possible after notification of such withdrawal, return
such Tendered Shares in accordance with the terms and conditions of the Exchange
Offer. The Company may ask to review any Tender Share certificates, Letters of
Transmittal, notices of withdrawal or other documents relating to the Exchange
Offer. All questions as to the form and validity of notices of withdrawal,
including timeliness of receipt, shall be determined by the Company in its sole
and absolute discretion, whose determination shall be final and binding in all
cases.
G. On each business day up to and including the expiration date of the
Exchange Offer (including any extensions thereof), you shall advise by facsimile
transmission, not later than 5:00 p.m. Eastern Time, the Company and such other
persons (including, without limitation, the Dealer Manager in the Exchange
Offer) as it may direct, of the number of shares of $1-2/3 Par Value Common
Stock which have been duly delivered on such day, stating separately the number
of such shares delivered by Notices of Guaranteed Delivery, the number of such
shares about which you have questions concerning validity, the number of
Tendered Shares withdrawn and the cumulative number of such shares delivered by
facsimile transmission. You shall also inform the aforementioned persons, and
such other persons as any of them may designate, upon request of such other
information as any of them may request, including, without limitation, the names
and addresses of registered holders of exchanged shares of $1-2/3 Par Value
Common Stock.
H. Retain or return to stockholders (as applicable) those Tendered
Shares and accompanying exchange documents evidencing some deficiency (and make
reasonable attempts to inform such holders of $1-2/3 Par Value Common Stock of
the need to correct such deficiency) and return to stockholders their Tendered
Shares which are rejected by the Company due to proration of the Exchange Offer.
I. Accept exchanges signed by persons acting in a fiduciary or
representative capacity only if such capacity is shown on the Letter of
Transmittal and proper evidence of their authority so to act has been submitted
in accordance with the terms and conditions of the Exchange Offer.
J. Accept exchanges from persons alleging loss, theft or destruction
of their certificates if Box A on the Letter of Transmittal is properly
completed and the appropriate payment for the corporate bond is provided.
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K. Accept exchanges for Class H Common Stock to be issued other than
in the name that appears on the certificates representing (or other evidence of
ownership) Tendered Shares, to the extent such exchanges comply with the terms
and conditions of the Exchange Offer as set forth in the Offering Circular--
Prospectus and the Letter of Transmittal.
L. In accordance with the Exchange Agent's final report, which the
Exchange Agent shall deliver to the Company no later than Eastern Time
on the day which is four NYSE trading days following the expiration (including
any extension thereof) of the Exchange Offer, shall provide to the Company the
final number of shares of $1-2/3 Par Value Common Stock to be accepted and the
final number of shares of Class H Common Stock to be distributed in the Exchange
Offer based on the exchange ratio and proration set forth in the Offering
Circular--Prospectus.
M. Issue or otherwise record, as Stock Transfer Agent and Registrar
for Company Common Stock, upon surrender of certificates representing (or other
evidence of ownership of) Tendered Shares and properly executed Letters of
Transmittal, such number of shares of Class H Common as is indicated by the
exchange ratio (taking into account proration) as set forth in the Offering
Circular--Prospectus, registered in such names as are appropriate pursuant to
properly executed Letters of Transmittal, for every Tendered Share represented
by such Certificate(s); provided that no fractional shares of Class H Common
Stock shall be issued.
N. Cancel, as Exchange Agent, all Tendered Shares accepted for
exchange.
O. Promptly deliver, in accordance with the Letter of Transmittal,
evidence of Class H Common Stock issued as provided in paragraph H above.
P. Pay such cash without earnings or interest (the "Cash Payments") to
holders of Tendered Shares accepted for exchange instead of the issuance of
fractional shares of Class H Common Stock as is provided for in the Exchange
Offer.
Q. Prepare and file with the appropriate governmental agency and
stockholder Form 1099B in connection with the Exchange Offer.
R. Comply with Internal Revenue Service regulations with respect to
due diligence in obtaining a certified Tax Identification Number for each
tendering stockholder.
S. Cooperate in all respects with the Information Agent for the
Exchange Offer, the Dealer Manager for the Exchange Offer, the financial
advisors for the Company, the Company's counsel and any other agents of the
Company in carrying out its duties.
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T. Follow and act upon all instructions in connection with your duties
as Exchange Agent in connection with the Exchange Offer which may be given to
you by the Company or any other person it may authorize in writing.
3. Concerning the Exchange Agent.
The Exchange Agent:
A. shall have no duties or obligations other than those specifically
set forth herein or as may subsequently be requested of the Exchange Agent by
the Company or any other person it may authorize in connection with the Exchange
Offer;
B. may rely on and shall be held harmless by the Company in acting
upon any certificate, instrument, opinion, notice, letter, facsimile
transmission, telegram or other document, or any security delivered to it, and
reasonably believed by it to be genuine and to have been signed by the proper
party or parties;
C. may rely on and shall be held harmless in acting upon written or
oral instructions from the Company or such other persons it may authorize with
respect to any matter relating to its acting as Exchange Agent specifically
covered by this Agreement; and
D. may, at its sole expense, consult with counsel satisfactory to it
and shall be held harmless in relying on the written advice or opinion of such
counsel in respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion of such counsel.
4. Compensation of the Exchange Agent by the Company.
The Company shall pay fees for the services rendered hereunder, as set
forth in the attached Fee Schedule. The Exchange Agent shall also be entitled
to reimbursement from the Company for all reasonable and necessary expenses paid
or incurred by it in connection with the administration by the Exchange Agent of
its duties hereunder.
5. Indemnification.
The Company covenants and agrees to indemnify and to hold the Exchange
Agent harmless against any costs, expenses (including reasonable fees of its
legal counsel), losses or damages, which may be paid, incurred or suffered by or
to which it may become subject, arising from or out of, directly or indirectly,
any claims or liability resulting from its actions as Exchange Agent pursuant
hereto; provided, that such covenant and agreement does not extend to, and the
Exchange Agent shall not be indemnified or held harmless with respect to, such
costs, expenses, losses and damages incurred or suffered by the Exchange Agent
as a result of, or arising out of, its negligence, bad faith, or willful
misconduct or any of its directors, officers, employees, agents or
representatives. In no case will the
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Company be liable under this Section 5 unless, promptly after the receipt by the
Exchange Agent of notice of any demand or claim or the commencement of any
action, suit, proceeding or investigation, the Exchange Agent shall, if a claim
in respect thereof is to be made against the Company, notify the Company thereof
in writing. The Company shall be entitled to participate as its own expense in
the defense of any such claim or proceeding, and, if it so elects at any time
after receipt of such notice, it may assume the defense of any suit brought to
enforce any such claim or of any other legal action or proceeding. In the event
the Company assumes the defense of any such suit, the Company may select counsel
of its own choosing for such purpose and the company shall not be liable for the
fees and expenses of any other additional counsel thereafter retained (or who
continues thereafter to be retained) by the Exchange Agent. The Exchange Agent
shall in no case confess any claim or make any compromise in any case in which
the Company may be required to indemnify it without the Company's prior written
consent.
The Company, its subsidiaries and affiliates, and their respective
directors, officers, employees, agents and representatives, shall be indemnified
and held harmless by the Exchange Agent, from and against any and all reasonable
expenses (including reasonable counsel fees and disbursements), or costs, losses
or damages suffered, which any of them may pay, incur or suffer or to which any
of them may become subject by reason of or arising out of the negligence,
willful misconduct or bad faith of the Exchange Agent or any of its directors,
officers, employees, agents or representatives, or out of any failure by the
Exchange Agent to perform its obligations under this Agreement. The Company
shall in no case confess any claim or make any compromise in any case in which
the Exchange Agent may be required to indemnify it without the Exchange Agent's
prior written consent.
For the purposes of this Section 5, the term "expense or loss" means
any amount paid to satisfy any claim, demand, action, suit or proceeding, and
all reasonable costs and expenses, including, but not limited to, reasonable
counsel fees and disbursements, paid or incurred in investigating or defending
against any such claim, demand, action, suit, proceeding or investigation.
6. Further Assurance.
From time-to-time and after the date hereof, the Company shall deliver
or cause to be delivered to the Exchange Agent such further documents and
instruments and shall do and cause to be done such further acts as the Exchange
Agent shall reasonably request (it being understood that the Exchange Agent
shall have no obligation to make any such request) to carry out more effectively
the provisions and purposes of this Exchange Agent Agreement, to evidence
compliance herewith or to assure itself that it is protected in acting
hereunder.
7. Term.
This Agreement shall remain in effect until such time as the Exchange
Agent has completed all of its duties hereunder, or such earlier time as to
which the parties shall mutually agree.
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8. Notices.
Until further notice in writing by either party hereto to the other
party, all written reports, notices and other communications between the
Exchange Agent and the Company required or permitted hereunder shall be
delivered or mailed by first class mail, postage prepaid, addressed as follows:
If to the Company, to:
General Motors Corporation
300 Renaissance Center
Mail Code 482-C25-C22
Detroit, Michigan 48265-3000
Attention: Xxxxxx X. Xxxxxxxx
If to the Exchange Agent, to:
Fleet National Bank
c/o EquiServe Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Corporate Actions Department
9. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of The State of Delaware and shall inure to the benefit of and the
obligations created hereby shall be binding upon the successors and assigns of
the parties hereto.
10. Assignment
A. Except as provided in Section 10(B) below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
B. The Exchange Agent may, without further consent on the part of the
Company, (i) subcontract for the performance hereof with EquiServe Limited
Partnership or (ii) subcontract with other subcontractors for systems,
processing, and telephone and mailing services as may be required from time to
time; provided, however, that the Exchange Agent provides the Company at least
ten business days' prior written notice thereof and shall be as fully
responsible to the Company for the acts and omissions of any subcontractor as it
is for its own acts and omissions.
C. Except as explicitly stated elsewhere in this Agreement, nothing
under this Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other than the Exchange Agent and the Company and the duties
and responsibilities undertaken pursuant to this Agreement shall be for the sole
and exclusive benefit of the Exchange Agent and the Company. This Agreement
shall inure to the benefit of and be binding upon the parties and their
respective permitted successors and assigns.
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11. Amendment.
Except as otherwise provided in this Agreement (including, without
limitation pursuant to Section 3T hereof), this Agreement may not be changed
orally or modified, amended or supplemented without an express written agreement
executed by each of the parties hereto.
12. Counterparts.
This Agreement may be executed in separate counterparts, each of which
when executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
13. Third Party Beneficiaries.
This Agreement does not constitute an agreement for a partnership or
joint venture between the Exchange Agent and the Company. Neither party shall
make any commitments with third parties that are binding on the other party
without the other party's prior written consent.
15. Consequential Damages.
Neither party to this Agreement shall be liable to the other party for
any consequential, indirect, special or incidental damages under any provision
of this Agreement or for any consequential, indirect, special or incidental
damages arising out of any act or failure to act hereunder even if that party
has been advised of or has foreseen the possibility of such damages.
16. Severability.
If any provision of this Agreement shall be held invalid, unlawful, or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired.
17. Confidentiality.
The Exchange Agent and the Company agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement including the fees for services set forth in the attached schedule
shall remain confidential, and shall not be voluntarily disclosed to any other
person, except as may be required by law.
18. Merger of Agreement.
This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers, hereunto duly authorized, as of the
day and year first above written.
FLEET NATIONAL BANK GENERAL MOTORS CORPORATION
By: ____________________________ By: ___________________________
Title: ____________________________ Title: ___________________________
Date: ____________________________ Date: ___________________________
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