Exhibit 99.12
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 28, 1999, between
General Motors Corporation, a Delaware corporation (the "Company"), and
PRIMESTAR, Inc., a Delaware corporation ("Primestar").
1. Introduction. Xxxxxx Electronics Corporation, a Delaware
corporation and wholly-owned subsidiary of the Company ("Xxxxxx"), is a party to
the Asset Purchase Agreement, dated as of January 22, 1999 (the "Medium Power
Agreement"), with Primestar, PRIMESTAR MDU, Inc., PRIMESTAR Partners L.P. and
the stockholders of PRIMESTAR, Inc. signatory thereto, pursuant to which Xxxxxx
has agreed, among other things, to cause to be delivered to Primestar 4,871,448
shares of Class H Common Stock of the Company ("H Stock"). The Company, Xxxxxx,
Primestar and TCI Satellite Entertainment, Inc. ("TSAT") are parties to the
Stock Transfer Agreement, dated the date hereof (the "Stock Transfer Agreement")
which sets forth, among other things, restrictions upon the transfer of the H
Stock. In addition, at Primestar's request, the Stock Transfer Agreement
provides for Xxxxxx to transfer 1,407,307 shares of H Stock to TSAT. Certain
capitalized terms used in this Agreement are defined in Section 3 hereof;
references to sections shall be to sections of this Agreement.
2. Registration under Securities Act, etc.
2.1. Registration on Request.
(a) Request. At any time or from time to time after the date that
is ten (10) months from the Closing Date, subject to Section 2.6, Section 4 and
the terms of the Stock Transfer Agreement, upon the written request of one or
more Initiating Holders requesting that the Company effect the registration
under the Securities Act of all or part of such Initiating Holders' Registrable
Securities and specifying the intended method of disposition thereof and the
delivery by such Initiating Holders of an opinion of counsel that registration
under the Securities Act is required to effectuate the disposition of such
securities (provided that no such opinion will be required in the case of a
written request delivered prior to the first anniversary of the Closing Date),
the Company will promptly give written notice of such requested registration to
all registered holders of Registrable Securities. After delivery of such notice,
the Company will, subject to the terms of this Agreement, use its commercially
reasonable best efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by such Initiating Holders for disposition in
accordance with the intended method of disposition stated in such
request;
(ii) all other Registrable Securities the holders of which
shall have made a written request to the Company for registration
thereof within 15 days after the giving of such written notice by the
Company (which
request shall specify the intended method of disposition of such
Registrable Securities); and
(iii) all other securities of the Company which the Company or
other holders of the Company's securities having registration rights
may elect to register in connection with the offering of Registrable
Securities pursuant to this Section 2.1 (provided that the Company
shall send reasonably prompt notice to the Initiating Holders
identifying such other holders having registration rights and the
amount of securities that such other holders intend to register in
connection with the offering of Registrable Securities), all to the
extent required to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities
and the additional securities of the Company, if any so to be
registered; provided that the Company shall not be required to effect
any registration pursuant to this Section 2.1 (x) on more than two
separate occasions and (y) unless the holders have requested to sell
at least 500,000 shares of Registrable Securities or shares of
Registrable Securities to be sold have a fair market value (based upon
the closing price of such Registrable Securities quoted on the
securities exchange on which such Registrable Securities are listed on
the trading day immediately preceding any request pursuant to this
Section 2.1) of at least $50 million.
(b) Registration Statement Form. Registrations under this Section
2.1 shall be on such appropriate registration form of the Commission as shall
permit the disposition of such Registrable Securities in accordance with the
intended method or methods of disposition specified in their request for such
registration and as shall be permitted under the Securities Act; provided that
such form shall not indicate that the securities to be registered thereunder are
to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act.
(c) Expenses. The Company will pay all of the Company's
Registration Expenses in connection with any registration requested pursuant to
this Section 2.1 by any Initiating Holders. Each Initiating Holder shall be
responsible for its own expenses in connection with the registration requested
pursuant to Section 2.1, including without limitation, the expenses of its
counsel, except as set forth in the definition of Registration Expenses in
Section 3.
(d) Effective Registration Statement. A registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected (i)
unless a registration statement with respect thereto has become effective;
provided that a registration which does not become effective after the Company
has filed a registration statement with respect thereto solely by reason of the
refusal to proceed of the Initiating Holders (other than a refusal to proceed
based upon the written advice of counsel relating to a matter with respect to
the Company) shall be deemed to have been effected by the Company at the request
of such Initiating Holders unless the Initiating Holders shall have elected to
pay all Registration Expenses in connection with such registration, (ii) if,
after it has become effective, such registration becomes subject to any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason, other than by reason of some act or
omission by such Initiating Holders with
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respect thereto, (iii) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration are not satisfied, other than by reason of some act or omission by
such Initiating Holders or (iv) in connection with an underwritten offering, if
the sale of the securities is not consummated due to the lack of agreement
between the Initiating Holders and the underwriters with respect to the
underwriting discount on the securities to be sold; provided that if fewer than
all of the Registrable Shares requested to be included in such registration are
included as a result of underwriter cutbacks pursuant to Section 2.1(f), the
registration shall not be deemed to have been effected with respect to the
Registrable Shares so omitted and such registration shall not constitute one of
the two registrations provided for in Section 2.1(a).
(e) Selection of Underwriters. If a requested registration
pursuant to this Section 2.1 involves an underwritten offering, the managing or
lead underwriter shall be selected by the Company and shall be reasonably
acceptable to the holders of at least a majority (by number of shares) of the
Registrable Securities as to which registration has been requested, which
holders shall not unreasonably withhold their acceptance of any such
underwriters, and any co-managing and co-lead underwriters shall be selected by
the Company.
(f) Priority in Requested Registrations. If a requested
registration pursuant to this Section 2.1 involves an underwritten offering, and
the managing underwriter shall advise the Company in writing (with a copy to
each holder of Registrable Securities requesting registration) that, in its
opinion, the number of securities requested to be included in such registration
(including securities of the Company or other Persons which are not Registrable
Securities) exceeds the number which can be sold in such offering within a price
range acceptable to the holders of a majority of the Registrable Securities
requested to be included in such registration, the Company will include in such
registration, to the extent of the number which the Company is so advised can be
sold in such offering, (i) first, Registrable Securities requested to be
included in such registration by the holder or holders of Registrable
Securities, pro rata among such holders requesting such registration on the
basis of the number of such securities requested to be included by such holders,
(ii) second, securities of the Company that the Company proposes to sell and
(iii) third, securities of the Company held by other Persons having registration
rights proposed to be included in such registration by the holders thereof.
2.2. Registration Procedures. If and whenever the Company is
required to use its commercially reasonable best efforts to effect the
registration of any Registrable Securities under the Securities Act as provided
in Section 2.1, the Company shall, as expeditiously as possible, subject to the
provisions of Section 2.6:
(i) prepare and file with the Commission (such filing to be
made within 45 days after the initial request of one or more
Initiating Holders of Registrable Securities and in any event as soon
after receipt of such request as practicable) the requisite
registration statement to effect such registration (including such
audited financial statements as may be
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required by the Securities Act or the rules and regulations
promulgated thereunder) and thereafter use its commercially reasonable
best efforts to cause such registration statement to become effective
as promptly as practicable under the circumstances; provided that with
respect to a request pursuant to Section 2.1 made prior to the first
anniversary of the Closing Date, the Company shall not be required to
seek to cause the registration statement to become effective prior to
the first anniversary of the Closing Date; and provided, further, that
before filing such registration statement or any amendments thereto,
the Company will furnish to the counsel selected by the holders of
Registrable Securities which are to be included in such registration
copies of all such documents proposed to be filed, which documents
will be subject to the review, but not the prior approval, of such
counsel;
(ii) 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 and to comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such registration statement until the earlier of such time
as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set
forth in such registration statement or the expiration of 90 days
after such registration statement becomes effective;
(iii) furnish to each seller of Registrable Securities covered
by such registration statement and each underwriter, if any, of the
securities being sold by such seller such number of conformed copies
of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number
of copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as such seller and underwriter, if any, may reasonably
request;
(iv) use its commercially reasonable best efforts to register
or qualify all Registrable Securities and other securities covered by
such registration statement under such other securities laws or blue
sky laws of such jurisdictions as any seller thereof and any
underwriter of the securities being sold by such seller shall
reasonably request, to keep such registrations or qualifications in
effect for so long as such registration statement remains in effect,
and take any other action which may be reasonably necessary or
advisable to enable such seller and underwriter to consummate the
disposition in such jurisdictions of the securities owned by such
seller, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements of
this subdivision (iv) be obligated to be so qualified, to subject
itself to taxation
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in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(v) use its commercially reasonable best efforts to cause
all Registrable Securities covered by such registration statement
to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the seller
or sellers thereof to consummate the disposition of such
Registrable Securities;
(vi) furnish to each seller of Registrable Securities a
signed counterpart, addressed to such seller and the
underwriters, if any, of:
(1) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such
registration includes an underwritten public offering, an opinion
dated the date of the closing under the underwriting agreement)
covering such matters as are customary in connection with such
registration, reasonably satisfactory in form and substance to
such seller, and
(2) a "comfort" letter (or, in the case of any such
Person which does not satisfy the conditions for receipt of a
"comfort" letter specified in Statement on Auditing Standards No.
72, an "agreed upon procedures" letter), dated the effective date
of such registration statement (and, if such registration
includes an underwritten public offering, a letter of like kind
dated the date of the closing under the underwriting agreement),
signed by the independent public accountants who have certified
the Company's financial statements included in such registration
statement, covering substantially the same matters with respect
to such registration statement (and the prospectus included
therein) and, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters delivered to the
underwriters in underwritten public offerings of securities
(with, in the case of an "agreed upon procedures" letter, such
modifications or deletions as may be required under Statement on
Auditing Standards No. 35) and, in the case of the accountants'
letter, such other financial matters, and, in the case of the
legal opinion, such other legal matters, as such seller (or the
underwriters, if any) may reasonably request;
(vii) notify the holders of Registrable Securities and the
managing underwriter or underwriters, if any, promptly and
confirm such advice in writing promptly thereafter:
(1) when the registration statement, the prospectus or
any prospectus supplement related thereto or post-effective
amendment to the registration statement has been filed, and, with
respect to the registration statement or any post-effective
amendment thereto, when the same has become effective;
(2) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus or
for additional information;
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(3) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement
or the initiation of any proceedings by any Person for that
purpose (in which case the period mentioned in paragraph (ii) of
this Section 2.2 shall be extended by the length of the period
during which such stop order is in effect);
(4) if at any time the representations and warranties
of the Company made as contemplated by Section 2.3 below cease to
be true and correct; or
(5) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky
laws of any jurisdiction or the initiation or threat of any
proceeding for such purpose;
(viii) notify each seller of Registrable Securities covered
by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities
Act, upon the discovery that, or upon the happening of any event
as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under
which they were made, and at the request of any such seller
promptly prepare and furnish to such seller and each underwriter,
if any, a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they
were made;
(ix) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the registration
statement at the earliest possible moment; (x) use its
commercially reasonable best efforts to list all Registrable
Securities covered by such registration statement on any
securities exchange on which any of the securities of the same
class as the Registrable Securities are then listed; and
(x) use its commercially reasonable best efforts to list
all Registrable Securities covered by such registration statement
on any securities exchange on which any of the securities of the
same class as the Registrable Securities are then listed; and
(xi) use its commercially reasonable best efforts to
provide a CUSIP number for the Registrable Securities, not later
than the effective date of the registration statement.
The Company may require each seller of Registrable Securities as
to which any registration is being effected to furnish the Company such
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request in writing.
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Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the occurrence of any event of the kind described in subdivision (viii) of this
Section 2.2, such holder will forthwith discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (viii) of this
Section 2.2 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such holder's possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in paragraph (ii) of
this Section 2.2 shall be extended by the length of the period from and
including the date when each seller of any Registrable Securities covered by
such registration statement shall have received such notice to the date on which
each such seller has received the copies of the supplemented or amended
prospectus contemplated by paragraph (viii) of this Section 2.2.
If any such registration statement refers to any holder of
Registrable Securities by name or otherwise as the holder of any securities of
the Company, then such holder shall have the right to require (i) the insertion
therein of language, in form and substance satisfactory to such holder, to the
effect that the holding by such holder of such securities is not to be construed
as a recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force and
a written opinion from counsel to the holder to such effect is delivered to the
Company, the deletion of the reference to such holder.
2.3. Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a registration requested under Section 2.1, the Company will enter
into an underwriting agreement with such underwriters for such offering, such
agreement to be satisfactory in substance and form to the Company, each such
holder and the underwriters, and to contain such representations and warranties
by the Company and such other terms as are generally prevailing in agreements of
this type, including, without limitation, indemnities at least as broad as those
provided in Section 2.5. The holders of the Registrable Securities will
cooperate with the Company in the negotiation of the underwriting agreement and
will give consideration to the reasonable suggestions of the Company regarding
the form thereof; provided that nothing herein contained shall diminish the
foregoing obligations of the Company. The holders of Registrable Securities to
be distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such
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underwriters under such underwriting agreement be conditions precedent to the
obligations of such holders of Registrable Securities. Any such holder of
Registrable Securities shall not be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations and warranties or agreements regarding such holder, such
holder's Registrable Securities and such holder's intended method of
distribution and any other representation required by law.
(b) Holdback Agreements. Each holder of Registrable Securities
agrees, by acquisition of such Registrable Securities, (x) if so required by the
managing underwriter, not to sell, make any short sale of, loan, grant any
option for the purchase of, effect any public sale or distribution of or
otherwise dispose of any Registrable Securities not to be sold in an
underwritten offering pursuant to Section 2.1, during the 30 days prior to the
anticipated consummation of such underwritten offering and 90 days after the
applicable underwritten registration pursuant to Section 2.1 has become
effective, except as part of such underwritten registration and (y) in
connection with any acquisition by or merger with the Company which is accounted
for under generally accepted accounting principles as a pooling of interests,
upon the request of the Company, not to sell, make any short sale of, loan,
grant any option for the purchase of, effect any public sale or distribution of
or otherwise dispose of any Registrable Securities, for such period of time that
is consistent with the requirements for pooling of interests accounting
treatment. Notwithstanding clause (x) of the foregoing sentence and subject to
clause (y), during any period described above, each holder of Registrable
Securities subject to the foregoing sentence shall be entitled to sell
securities in a private sale so long as the purchaser of such securities agrees
to be bound by the restrictions set forth above to the same extent as the seller
for the remainder of the applicable period.
(c) Participation in Underwritten Offerings. No Person (other than
the Company, which will be subject to and governed by the other terms and
provisions of this Agreement) may participate in any underwritten offering
hereunder unless such Person (i) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved, subject to the terms
and conditions hereof, by the holders of a majority of Registrable Securities to
be included in such underwritten offering and (ii) completes and executes all
questionnaires, indemnities, underwriting agreements and other documents (other
than powers of attorney) required under the terms of such underwriting
arrangements. Notwithstanding the foregoing, no underwriting agreement (or
other agreement in connection with such offering) shall require any holder of
Registrable Securities to make any representations or warranties to or
agreements with the Company or the underwriters other than representations and
warranties or agreements regarding such holder, such holder's Registrable
Securities and such holder's intended method of distribution and any other
representation required by law.
2.4. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered
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under such registration statement, their underwriters, if any, and their
respective counsel and accountants, the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Commission, and each amendment thereof or supplement thereto, and
will give each of them such access to its books and records (collectively, the
"Records") and such opportunities to discuss the business of the Company with
its officers and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinion of such holders' and
such underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act; provided, that Records which the
Company determines, in good faith, to be confidential and which it notifies such
holder, underwriter, counsel or accountant are confidential shall not be
disclosed by such Person (other than to any holder of Registrable Securities)
unless (a) such Records have become generally available to the public or (b) the
disclosure of such Records may be necessary or, in the case of clause (z) below,
appropriate (x) in compliance with any law, rule, regulation or order applicable
to any such holder, underwriter, counsel or accountant, (y) in response to any
subpoena or other legal process or (z) in connection with any litigation to
which such holder, underwriter, counsel or accountant is a party, and such
Person shall sign an agreement to such effect that shall be customary in form
and reasonably acceptable to the Company.
2.5. Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act pursuant
to this Agreement, the Company will, and hereby does agree to, indemnify and
hold harmless in the case of any registration statement filed pursuant to
Section 2.1, the holder of any Registrable Securities covered by such
registration statement, its directors and officers, each Person, if any, who
controls such holder within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such holder
or any such director or officer or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the case of any preliminary
prospectus, final prospectus or summary prospectus, in light of the
circumstances under which they were made, not misleading, and the Company will
reimburse such holder and each such director, officer, and controlling person
for any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, liability, action or
proceeding, provided that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance
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upon and in conformity with written information furnished to the Company by or
on behalf of such holder specifically for use therein. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such holder or any such director, officer, underwriter or controlling
person and shall survive the transfer of such securities by such holder.
(b) Indemnification by the Sellers. As a condition to including any
Registrable Securities in any registration statement filed pursuant to Section
2.1, the Company shall have received from each seller of Registrable Securities
a written undertaking satisfactory to it from the prospective seller of such
Registrable Securities, to indemnify and hold harmless (in the same manner and
to the same extent as set forth in subdivision (a) of this Section 2.5) the
Company, each director of the Company, each officer of the Company and each
other person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such seller
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. Any such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of the Company or
any such director, officer or controlling person and shall survive the transfer
of such securities by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 2.5,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action, provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 2.5, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice.
In case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to the
extent that the indemnifying party may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement of any such action which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation. No
indemnified party shall consent to entry of any judgment or enter into any
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settlement of any such action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 2.5 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
securities under any Federal or state law or regulation of any governmental
authority, other than the Securities Act.
(e) Contribution. If the indemnification provided for in the
preceding subdivisions of this Section 2.5 is unavailable to an indemnified
party in respect of any expense, loss, claim, damage or liability referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such expense, loss, claim, damage or liability. As between the
Company, on the one hand, and the selling holder on the other, the amount of
contribution shall be in such proportions as appropriate to reflect the relative
fault of the Company and of each selling holder. The relative fault of the
Company on the one hand and of the holder or other Person, as the case may be,
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission to state a
material fact relates to information supplied by the Company, by the holder or
by the other Person and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
provided that the foregoing contribution agreement shall not inure to the
benefit of any indemnified party if indemnification would be unavailable to such
indemnified party by reason of the provisions contained in the first sentence of
subdivision (a) of this Section 2.5, and in no event shall the obligation of any
indemnifying party to contribute under this subdivision (e) exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under subdivisions (a) or
(b) of this Section 2.5 had been available under the circumstances.
The Company and the holders of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this subdivision (e)
were determined by pro rata allocation (even if the holders and any underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth in the preceding sentence and subdivision
(c) of this Section 2.5, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.
Notwithstanding the provisions of this subdivision (e), no holder of
Registrable Securities or underwriter shall be required to contribute any amount
in excess of the amount by which (i) in the case of any such holder, the net
proceeds received by such holder from the sale of Registrable Securities or (ii)
in the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the
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public were offered to the public exceeds, in any such case, the amount of any
damages that such holder or underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission. 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.
2.6. Suspension of Registration. Notwithstanding anything to the
contrary contained herein, the Company will not be required to file any
registration statement pursuant to Section 2.1(a) or furnish any supplement to a
prospectus pursuant to Section 2.2(viii) during any of the following periods:
(i) 30 days prior to the anticipated consummation of a public offering by the
Company of its securities and 90 days subsequent to the consummation of such
public offering where, in the good faith judgment of the managing underwriter or
underwriters thereof, such filing or furnishing of such supplement would have an
adverse effect on such offering, (ii) if such filing or furnishing of such
supplement is prohibited by applicable law or (iii) if the Company promptly
certifies to any Initiating Holder that the filing of such registration
statement or furnishing of such supplement could materially interfere with
business activities or plans of Xxxxxx or the Company; provided that the Company
may not delay the filing of any registration statement or furnishing of such
supplement pursuant to clause (iii) of the first sentence of this Section 2.6
for more than an aggregate of 90 days in any twelve-month period. Upon the
expiration of the period described in clause (iii) of the first sentence of this
Section 2.6, the Company shall give prompt notice to all holders of Registrable
Securities and shall promptly file any registration statement requested to be
filed pursuant to 2.1(a) and furnish any prospectus supplement required to be
furnished pursuant to Section 2.2(viii).
2.7. Other Agreements. The Company shall not enter into any
agreement or instrument which would conflict with or result in a breach or
violation of any of the terms or provisions of this Agreement.
3. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
Commission: The Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
Company: As defined in the introductory paragraph of this Agreement.
Exchange Act: The Securities Exchange Act of 1934, or any similar Federal
statute, and the rules and regulations of the Commission thereunder, all as
the same shall be in effect at the time. Reference to a particular Section
of the Securities Exchange Act of 1934 shall include a reference to the
comparable section, if any, of any such similar Federal statute.
H Stock: As defined in Section 1.
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Initiating Holders: Any holder or holders of Registrable Securities
holding at least 50% of the Registrable Securities (in each case by number
of shares at the time issued and outstanding), and initiating a request
pursuant to Section 2.1 for the registration of all or part of such
holder's or holders' Registrable Securities.
Medium Power Agreement: As defined in Section 1.
Person: A corporation, an association, a partnership, an organization,
business, an individual, a governmental or political subdivision thereof or
a governmental agency.
Registrable Securities: The H Stock issued to Primestar and TSAT upon the
closing of the Medium Power Agreement and any securities issued or issuable
with respect to any such H Stock by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise (including without
limitation any exchange offers by the Company, Xxxxxx or any successor to
either of them) which the holders thereof are entitled to receive. As to
any particular Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (a) a registration statement with
respect to the sale of such securities shall have become effective under
the Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (b) they shall have been
distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act, (c) they shall have been otherwise transferred,
new certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent disposition of them
shall not require registration or qualification of them under the
Securities Act or any similar state law then in force, or (d) they shall
have ceased to be outstanding.
Registration Expenses: All expenses incident to the Company's performance
of or compliance with Section 2, including, without limitation, (a) all
Commission and any NASD registration and filing fees and expenses, (b) all
fees and expenses in connection with the registration or qualification of
the Registrable Securities for offering and sale under the State securities
and blue sky laws and, in the case of an underwritten offering,
determination of their eligibility for investment under the laws of such
jurisdictions as the managing underwriter or underwriters may designate,
including reasonable fees and disbursements, if any, of counsel for the
underwriters in connection with such registrations or qualifications and
determination, (c) all expenses relating to the preparation, printing,
distribution and reproduction of the registration statement required to be
filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the
foregoing, the expenses of preparing the Registrable Securities for
delivery and the expenses of printing or producing any underwriting
agreement(s) among underwriters and "Blue Sky" or legal investment
memoranda, any selling agreements and all other documents in connection
with the offering, sale or delivery of Registrable Securities to be
disposed of, (d) messenger, telephone and delivery expenses of the Company,
(e)
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fees and expenses of any transfer agent and registrar with respect to the
Registrable Securities and any escrow agent or custodian, (f) internal
expenses of the Company (including, without limitation, all salaries and
expenses of the Company's officers and employees performing legal or
accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the
expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance), (h) fees, expenses and disbursements
of any other persons retained by the Company, including special experts
retained by the Company in connection with such registration and (i) all
fees and expenses incurred in connection with the qualification of the
shares of Common Stock constituting Registrable Securities for the listing
of such shares on any securities exchange. Registration Expenses shall
exclude any underwriting discounts and commissions attributable to the sale
of Registrable Securities by such holders.
Securities Act: The Securities Act of 1933, or any similar Federal
statute, and the rules and regulations of the Commission thereunder, all as
of the same shall be in effect at the time. References to a particular
section of the Securities Act of 1933 shall include a reference to the
comparable section, if any, of any such similar Federal statute.
4. Rule 144. The Company shall timely file the reports required to
be filed by it under the Securities Act and the Exchange Act (including but not
limited to the reports under sections 13 and 15(d) of the Exchange Act referred
to in subparagraph (c) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder (or, if the Company is not required to file such reports, will, upon
the request of any holder of Registrable Securities, make publicly available
other information) and will take such further action as any holder of
Registrable Securities or any broker facilitating such sale may reasonably
request, all to the extent (i) required from time to time to enable such holder
to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the Commission. Notwithstanding
anything in this Agreement to the contrary, without the consent of the Company
(which consent will not be unreasonably withheld in the case of a proposed sale
by the Initiating Holders of more than 1 million shares of H Stock), the
Initiating Holders shall not have the right to request registration under the
Securities Act with respect to any Registrable Securities if the amount of
Registrable Securities such holders expect to sell can otherwise be disposed of
in accordance with Rule 144. The Company shall also provide such information
and otherwise use all reasonable commercial efforts to cooperate with any holder
of Registrable Securities in connection with any other sale by such holder
pursuant to another exemption under the Securities Act, in each case to the
extent such information or other action by the Company may be necessary to
effect such sale pursuant to the applicable exemption. Upon the request of any
holder of Registrable Securities, the Company will deliver to such holder any
information to be delivered or filed in connection with the requirements of this
Section 4.
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5. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the holder or
holders of 50% or more of the shares of Registrable Securities and, in the case
of any such amendment, action or omission to act in respect of the first
sentence of Section 4, the written consent of each holder affected thereby.
Each holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this Section 5, whether or not such
Registrable Securities shall have been marked to indicate such consent.
6. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election, be treated as the holder of
such Registrable Securities for purposes of any request or other action by any
holder or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Securities.
7. Notices. Except as otherwise provided in this Agreement, all
notices, requests and other communications to any Person provided for hereunder
shall be in writing and shall be given to such Person (a) in the case of the
Initial Holder, addressed to the Initial Holder in the manner set forth in the
Medium Power Agreement or at such other address as such party shall have
furnished to the Company in writing, or (b) in the case of any other holder of
Registrable Securities, at the address that such holder shall have furnished to
the Company in writing, or, until any such other holder so furnishes to the
Company an address, then to and at the address of the last holder of such
Registrable Securities who has furnished an address to the Company, or (c) in
the case of the Company, at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-
1000, to the attention of Xxxxxx X. Xxxxxxxx, Esq., with a copy to Weil, Gotshal
& Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, to the attention of
Xxxxxxxxx X. Xxxxx, Esq., or at such other address, or to the attention of such
other officer, as the Company shall have furnished to each Holder of Registrable
Securities at the time outstanding. Each such notice, request or other
communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (ii) if given by any other means (including, without
limitation, by air courier), when delivered at the address specified above,
provided that any such notice, request or communication to any holder of
Registrable Securities shall not be effective until received.
8. Assignment. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, the provisions of this Agreement which are
for the benefit of the parties hereto other than the Company shall also be for
the benefit of and enforceable by
15
any subsequent holder of any Registrable Securities that acknowledges such
assignment in writing and agrees to the terms hereof.
9. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS
OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF
LAWS.
11. Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute one and the same instrument.
12. Entire Agreement. This Agreement, the Stock Transfer Agreement
and the Medium Power Agreement embody the entire agreement and understanding
between the Company and each other party hereto relating to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter. In the event that any provision of this Agreement is found to
be inconsistent with the provisions of the Stock Transfer Agreement or the
Medium Power Agreement, the provisions of this Agreement shall control.
13. Submission to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND,
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY AND PRIMESTAR, INC.
HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS
FROM ANY THEREOF. EACH OF THE COMPANY AND PRIMESTAR, INC. HEREBY IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO THE COMPANY BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO THE
COMPANY AT ITS ADDRESS SPECIFIED IN SECTION 7. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE TRIAL BY JURY, AND SUCH PARTIES HEREBY IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
14. Severability. If any provision of this Agreement, or the
application of such provisions to any Person or circumstance, shall be held
invalid, the remainder of
16
this Agreement, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
GENERAL MOTORS CORPORATION
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President and Treasurer
PRIMESTAR, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: SVP & CFO
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