EXHIBIT 99.1
FIRST AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
By and Among
GENERAL MOTORS CORPORATION
and
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee of
THE GENERAL MOTORS
SPECIAL HOURLY EMPLOYEES
PENSION TRUST,
as Trustee of
THE GENERAL MOTORS
SPECIAL SALARIED EMPLOYEES
PENSION TRUST
and
as Trustee of
THE SUB-TRUST OF
THE GENERAL MOTORS
WELFARE BENEFIT TRUST
TABLE OF CONTENTS
1. Contribution of Registrable Securities.................................3
2. Restrictions on Transfer...............................................6
3. Demand Transfers......................................................13
4. Piggyback Registration................................................21
5. Holdback Period.......................................................23
6. Other Registration Rights.............................................24
7. Demand, Piggyback and Shelf Registration Procedures...................27
8. Participation in Underwritten Transfers...............................29
9. Registration Expenses and Legal Counsel...............................30
10. Indemnification.......................................................30
11. Definitions...........................................................33
12. Miscellaneous.........................................................39
EXHIBITS
EXHIBIT A Form of Amended Transfer Agreement
EXHIBIT B Interest Rate Schedule
EXHIBIT C Form of Succession Agreement
FIRST AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Agreement is entered into on March 12, 2003, 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 "Hourly
Pension Plan Trustee") of the General Motors Special Hourly Employees Pension
Trust established under the General Motors Hourly-Rate Employees Pension Plan
(the "Hourly Pension Plan") for the account and on behalf of the Hourly Pension
Plan (which shall thereby be deemed a party to this Agreement), United States
Trust Company of New York, as trustee (the "Salaried Pension Plan Trustee") of
the General Motors Special Salaried Employees Pension Trust established under
the General Motors Retirement Program for Salaried Employees (the "Salaried
Pension Plan") for the account and on behalf of the Salaried Pension Plan (which
shall thereby be deemed a party to this Agreement) and United States Trust
Company of New York, as trustee (the "VEBA Trustee" and, together with the
Hourly Pension Plan Trustee and the Salaried Pension Plan Trustee, the
"Trustees") of the Sub-Trust of the General Motors Welfare Benefit Trust
established under the General Motors Welfare Benefit Trust, a voluntary
employees' beneficiary association trust established to fund certain
collectively bargained hourly retiree health care benefits under the General
Motors Health Care Program for Hourly Employees and certain collectively
bargained hourly retiree life insurance benefits under the General Motors Life
and Disability Benefits Program for Hourly Employees and such benefits under
other applicable collectively bargained 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 Hourly Pension Plan, the Salaried Pension Plan and the
VEBA are sometimes referred to herein as a "Donee" or collectively as the
"Donees." The term "Donees" as used in Sections 3 through 12 hereof shall mean
the Hourly Pension Plan, the Salaried Pension Plan and the VEBA jointly during
any time period in which any such Person or Persons continues to hold
Registrable Securities. Capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in Section 11.
WHEREAS, General Motors, the Hourly Pension Plan and the VEBA entered into
a Registration Rights Agreement, dated as of June 12, 2000 (the "Registration
Rights Agreement"), in connection with the General Motors contribution of
60,500,000 shares of Class H Common Stock (without giving effect to the Stock
Split) in the aggregate (the "Initial Contributions") to the Hourly Pension Plan
and the VEBA; and
WHEREAS, the Hourly Pension Plan and the VEBA collectively became holders
of record of 60,500,000 shares of Class H Common Stock (without giving effect to
the Stock Split) as of June 12, 2000;
WHEREAS, the General Motors Board of Directors declared a three-for-one
stock split in respect of Class H Common Stock in the form of a 200 percent
stock dividend, payable on June 30, 2000, to holders of record as of June 13,
2000 (the "Stock Split"); and
WHEREAS, pursuant to Section 12(h) of the Registration Rights Agreement,
General Motors, the Hourly Pension Plan and the VEBA entered into the Restated
Registration Rights Agreement, dated July 1, 2000 (the "Restated Registration
Rights Agreement"), to restate the Registration Rights Agreement in its entirety
to reflect the Stock Split; and
WHEREAS, General Motors intends, subject to the satisfaction of certain
regulatory and other conditions, to contribute 11,000,000 additional shares of
Class H Common Stock to the Hourly Pension Plan, 97,200,000 shares of Class H
Common Stock to the Salaried Pension Plan, and 41,000,000 additional shares of
Class H Common Stock to the VEBA; and
WHEREAS, the Hourly Pension Plan, the Salaried Pension Plan and the VEBA
are prepared to accept the shares of Class H Common Stock that may be
contributed to them as described in the preceding recital and to hold and
dispose of any such shares and other shares of Class H Common Stock owned by
them on the terms and conditions stated herein; and
WHEREAS, Issuer, the Hourly Pension Plan and the VEBA have agreed to amend
and restate the Restated Registration Rights Agreement as set forth herein and
to add the Salaried Pension Plan as a party hereto; and
WHEREAS, General Motors, the Hourly Pension Plan and the VEBA have entered
into a Transfer Agreement, dated as of June 12, 2000, 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 Hourly
Pension Plan and the VEBA agreed to hold and dispose of the Class H Common Stock
owned by it on the terms and conditions stated therein; and
WHEREAS, Issuer, the Hourly Pension Plan and the VEBA have agreed to amend
and restate the Transfer Agreement as set forth in Exhibit A hereto and to add
the Salaried Pension Plan as a party thereto (the "Amended Transfer Agreement");
and
WHEREAS, the Trustee has been appointed by the named fiduciary of the
Hourly Pension Plan (the "Hourly 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 the shares of Class H Common Stock
contributed to the Hourly Pension Plan as described herein and to exercise all
rights, powers and privileges appurtenant to such shares (subject to the
authority of the Hourly 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
Salaried Pension Plan (the "Salaried Pension Plan Named Fiduciary") (as
determined in accordance with Section 402(a) of ERISA), to manage the shares of
Class H Common Stock contributed to the Salaried Pension Plan as described
herein and to exercise all rights, powers and privileges appurtenant to such
shares (subject to the authority of the
Salaried 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 the 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 Hourly Pension Plan,
the Salaried Pension Plan and the VEBA and to so bind the Hourly Pension Plan,
the Salaried 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, General Motors, the
Hourly Pension Plan, the Salaried Pension Plan and the VEBA agree to amend and
restate the Restated Registration Rights Agreement in its entirety as follows:
1. Contribution of Registrable Securities.
(a) Issuer agrees that any contribution of Registrable Securities made by Issuer
to the Hourly Pension Plan, the Salaried 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 Hourly Pension Plan represents that it beneficially owned 161,774,552
shares of Class H Common Stock as of March 11, 2003. The VEBA represents that it
beneficially owned 20,807,050 shares of Class H Common Stock as of March 11,
2003. The Salaried Pension Plan represents that it beneficially owned 671,623
shares of Class H Common Stock as of March 11, 2003.
(c) Issuer agrees that it shall give the Hourly Pension Plan Trustee and its
valuation adviser, the Salaried 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 Hourly Pension Plan, the
Salaried 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 Hourly Pension Plan Trustee, the Salaried Pension Plan Trustee or
the VEBA Trustee, as applicable, each together with its valuation adviser,
will estimate a value per share, based on the mean between the highest and
lowest quoted selling prices on the date 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 11:00
p.m., New York time, on the day of the proposed Contribution, Issuer will give
the Hourly Pension Plan Trustee and its valuation adviser, the Salaried Pension
Plan Trustee and its valuation adviser or the VEBA Trustee and its valuation
adviser, as applicable, notice by teleconference of its continued interest, if
any, in making a Contribution to the Hourly Pension Plan, the Salaried 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 Hourly Pension Plan Trustee, the Salaried 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 mean between the highest and lowest
quoted selling prices 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 Hourly Pension Plan Trustee's, the Salaried 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 Hourly Pension
Plan, the Salaried 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 Hourly Pension Plan Trustee, the Salaried Pension Plan
Trustee or the VEBA Trustee, as applicable. As soon as practicable after the
teleconference, the Hourly Pension Plan Trustee's, the Salaried Pension Plan
Trustee's or the VEBA Trustee's valuation adviser will deliver to the Hourly
Pension Plan Trustee, the Salaried 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 Hourly
Pension Plan, the Salaried Pension Plan or the VEBA at the offices of the Hourly
Pension Plan Trustee, the Salaried 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 Hourly Pension Plan
Trustee, the Salaried Pension Plan Trustee or the VEBA Trustee, as applicable,
to confirm that the Hourly Pension Plan, the Salaried 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 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 FIRST
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, DATED MARCH 12, 2003
(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 HOURLY PENSION PLAN (AS DEFINED IN THE REGISTRATION RIGHTS
AGREEMENT), UNITED STATES TRUST COMPANY OF NEW YORK, AS A TRUSTEE OF THE
SALARIED PENSION PLAN (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
Hourly Pension Plan, the Salaried 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 Hourly Pension Plan, the Salaried 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 Hourly Pension Plan, the
Salaried 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) None of the Hourly Pension Plan, the Salaried Pension Plan or the VEBA
shall make any Transfer of any Registrable Securities other than in accordance
with the terms and conditions of this Agreement. Without limiting the foregoing,
each of the Hourly Pension Plan, the Salaried 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), (h) or (i) of this Section 2;
(iv) a Transfer described in and permitted by Section 4 or Section 6
below;
(v) a Transfer that complies with the provisions of Rule 144
(including the volume of sale and manner of sale limitations and
requirements of subsections (e) and (f) of Rule 144) disregarding
for this purpose the application of subsection (k) of 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) from and after such time as the aggregate ownership of Registrable
Securities by the Donees has been reduced to less than 100 million
shares of Class H Common Stock, a Transfer pursuant to subsection
(k) 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) solely in the case of the VEBA, from and after such time as the VEBA
reduces its ownership of Registrable Securities to less than 6
million shares of Class H Common Stock, a Transfer by the VEBA
pursuant to subsection (k) of Rule 144; provided that no Transfer
under this clause (vii) 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;
(viii) a Transfer to Issuer or a wholly-owned direct or indirect subsidiary
of Issuer pursuant to a self-tender offer or otherwise; and
(ix) 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) with respect to a Transfer contemplated by
clause (iv) above, no Transfer described in clause (iii), (iv), (v), (vi),
(vii), (viii) or (ix) above shall be considered a Demand Transfer (as defined
below).
(b) None of the Hourly Pension Plan, the Salaried Pension Plan or 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.
(c) None of the Hourly Pension Plan, the Salaried Pension Plan or 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
Hourly Pension Plan, the Salaried 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 Hourly Pension Plan, the Salaried 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 Hourly Pension Plan, the Salaried 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 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 any 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 any 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 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 any 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 Hourly Pension Plan's, the Salaried 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) any 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 Amended 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 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 Hourly Pension Plan, the Salaried
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 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, 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
11% 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), any Donee may
effect a Transfer by tendering any or all of the Registrable Securities into a
tender offer for Class H Common Stock.
(h) The provisions of Sections 2(e), 2(f) and 2(g) shall not apply after
General Motors ceases to be the Issuer under this Agreement.
(i) Nothing in this Agreement shall prohibit Issuer and the Hourly Pension
Plan, the Salaried Pension Plan or the VEBA from at any time agreeing to effect
or effecting a Transfer of Registrable Securities from the Hourly Pension Plan,
the Salaried 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 ss.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 ss.406 of ERISA and ss.4975 of
the Internal Revenue Code of 1986, as amended (or any successor provisions
thereto). The Hourly Pension Plan, the Salaried 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.
(j) Prior to making any Transfer of Registrable Securities pursuant to
clause (v), (vi) or (vii) 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.
(k) 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.
(l) Other than a Transfer pursuant to Section 2(a)(vii), the Registrable
Securities Transferred by the Donees pursuant to any provision of this Section 2
shall be allocated among the Registrable Securities held by the Hourly Pension
Plan, those held by the Salaried Pension Plan and those held by the VEBA in
accordance with the Donee Allocation Basis; provided, however, that in
connection with any Transfer pursuant to clause (v), (vi) or (vii) of Section
2(a), only the shares held by the Hourly Pension Plan, the Salaried Pension Plan
and the VEBA that are then eligible to be sold pursuant to the applicable
section or sections of Rule 144 shall be taken into account in determining such
allocation.
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 among the Registrable
Securities held by the Hourly Pension Plan, those held by the Salaried Pension
Plan and those held by the VEBA in accordance with the Donee Allocation Basis.
Any Demand Transfer made jointly by the Donees shall count as a single Demand
Transfer.
Until June 12, 2004, 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 June 12, 2004, 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 June 12, 2004, 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 June 12, 2004, effect more than three Demand Transfers (whether
registered or unregistered and 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) 50 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 50 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 (x) 100 million shares
of Registrable Securities or (y) the amount of Registrable Securities that, if
Transferred, would result in the Donees owning 50 million shares of Registrable
Securities in the aggregate, in either case for offering and sale by the Donees
in Public Transfers and 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 June 12, 2004, the Donees may not effect
a registered Negotiated Transfer from the Shelf Registration Statement unless
the mean between the highest and lowest quoted selling prices on such date on
the NYSE of Class H Common Stock at the time of such Negotiated Transfer is at
least $12 per share and has been at least $12 per share for at least 90
consecutive days prior to such date, in which event, the applicable limitation
set forth below shall apply:
(i) on any date that the mean between the highest and lowest quoted
selling prices on such date on the NYSE of Class H Common Stock
is at least $12 per share but less than $17 per share and has
been at least $12 per share for at least 90 consecutive days
prior to such date, the Donees will be permitted to effect
Negotiated Transfers from the Shelf
Registration Statement involving an aggregate number of shares
of Class H Common Stock (including any prior Negotiated
Transfers from a Shelf Registration Statement) of not more than 10%
of the aggregate number of shares of Class H Common Stock held by
the Donees as of immediately prior to the completion of the
Negotiated Transfer;
(ii) on any date that the mean between the highest and lowest quoted
selling prices on such date on the NYSE of Class H Common Stock at
the time of any Negotiated Transfer is at least $17 per share but
less than $22 per share and has been at least $17 per share for at
least 90 consecutive days prior to such date, the Donees will be
permitted to effect Negotiated Transfers from the Shelf Registration
Statement involving an aggregate number of shares of Class H Common
Stock (including any prior Negotiated Transfers from a Shelf
Registration Statement) of not more than 15% of the aggregate number
of shares of Class H Common Stock held by the Donees as of
immediately prior to the completion of the Negotiated Transfer; or
(iii) on any date that the mean between the highest and lowest quoted
selling prices on such date on the NYSE of Class H Common Stock at
the time of any Negotiated Transfer is at least $22 per share and
has been at least $22 per share for at least 90 consecutive days
prior to such date, the Donees will be permitted to effect
Negotiated Transfers from the Shelf Registration Statement involving
an aggregate number of shares of Class H Common Stock (including any
prior Negotiated Transfers from a Shelf Registration Statement) of
not more than 25% of the aggregate number of shares of Class H
Common Stock held by the Donees as of immediately prior to the
completion of the Negotiated Transfer.
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 50 million shares of
Class H Common Stock in the aggregate, if fewer than 50 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 100 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 50 million
shares of Registrable Securities in the aggregate.
(c) Notwithstanding any other provision of this Agreement and subject to the
last two sentences of this Section 3(c), if (A) within 180 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
180-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 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 50 million shares of Class H Common Stock in the aggregate. If General
Motors initiates the exploration of any transaction involving or relating to a
separation of Xxxxxx from General Motors, then General Motors may, in its sole
and absolute discretion, provide notice in writing (the "Initiation Notice") of
such initiation to the Donees. Upon delivery of the Initiation Notice by General
Motors to the Donees, the time period set forth in this Section 3(c) shall be
automatically increased, without further action on the part of any of the
parties hereto, from 180 days to 395 days and shall remain 395 days until
General Motors has delivered to the Donees the Termination Notice (as defined
below). General Motors agrees to provide notice in writing to the Donees after
the completion or termination, as determined by General Motors, of any
separation of Xxxxxx from General Motors (the "Termination Notice").
(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 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; provided, however, that Issuer will
not exercise its rights of postponement pursuant to this Section 3(f) for more
than 180 days (which need not be consecutive and shall not be in addition to the
180-day period referred to in Section 3(c)) in any consecutive 12-month period.
Notwithstanding the foregoing, the proviso in the immediately preceding sentence
shall not apply during any period commencing with the time that General Motors
has delivered the Initiation Notice to the Donees pursuant to Section 3(c) until
such time as General Motors has delivered the Termination Notice to the Donees.
Issuer shall promptly notify the Donees of any postponement pursuant to this
Section 3(f) and 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 Hourly Pension
Plan Trustee, the Salaried 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 Hourly Pension
Plan Trustee, the Salaried 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 of the Registration
Rights Agreement (as the Lists may be revised by Issuer from time to time).
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 (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 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 Hourly Pension Plan, the Salaried Pension
Plan and/or the
VEBA. The parties hereto agree that the representations and
covenants referred to in the immediately preceding sentence shall not be
required from any transferee who receives Registrable Securities pursuant to a
sale in compliance with Rule 144.
(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 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 4% 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, 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,
(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 Hourly Pension Plan, the Salaried Pension Plan and the VEBA
agrees not to make any Transfer of Registrable Securities during any of the
following periods:
(i) except as contemplated by clause (ii) or clause (iii) below, unless
the lead underwriter administering the offering otherwise agrees,
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, unless the lead
underwriter administering the offering otherwise agrees, 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, commencing upon the effective date of the registration
statement relating to such transaction and terminating on the 90th
day after the consummation of such transaction, or such shorter time
period (if any) as the Issuer shall be restricted from making
transfers of Class H Common Stock (or any securities convertible
into or exercisable for the Class H Common Stock) pursuant to a
customary written lock-up agreement with an unaffiliated third
party;
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 that, with respect to the first offering by
Issuer for its own account which is commenced at any time after the Initiation
Notice has been provided by General Motors to the Donees and before the
Termination Notice has been provided by General Motors to the Donees or is
otherwise effected in connection with a separation of Xxxxxx from General
Motors, the reference to "the 90th day" in each of clauses (i), (ii) and (iii)
above shall be automatically increased, without further action on the part of
any of the parties hereto, to "the 180th day" and with respect to the second
offering by Issuer for its own account which is commenced at any time after the
Initiation Notice has been provided by General Motors to the Donees and before
the Termination Notice has been provided by General Motors to the Donees or is
otherwise effected in connection with a separation of Xxxxxx from General
Motors, the reference to "the 90th day" in each of clauses (i), (ii) and (iii)
above shall be automatically increased. subject to any limitations that are
imposed by the lead underwriter on the Issuer on such Strategic Partner, without
further action on the part of any of the parties hereto, to "the 135th day."
Notwithstanding the foregoing, in the event that the lead underwriter
administering an offering described in clauses (i) or (ii) above permits Issuer
or any Strategic Partner to make transfers (other than as part of such offering)
prior to the end of the contractual holdback period applicable to such Person,
then at such time as Issuer or such Strategic Partner is permitted to make
transfers, the Donees shall also be permitted to make Transfers of the
Registrable Securities, subject to any limitations that are imposed by the lead
underwriter on the Issuer or such Strategic Partner.
(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 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 of the Registration Rights Agreement, 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,
(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 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 Hourly Pension Plan, the Salaried Pension Plan and the VEBA
acknowledges that, prior to the date of the Registration Rights Agreement,
Issuer has entered into the Primestar Registration Rights Agreement. Each of the
Hourly Pension Plan, the Salaried 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 Hourly
Pension Plan, the Salaried Pension Plan and the VEBA hereunder are subordinate
to such registration rights provided under the Primestar Registration Rights
Agreement. Each of the Hourly Pension Plan, the Salaried 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.
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 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 Hourly
Pension Plan Named Fiduciary, the Salaried Pension Plan Named Fiduciary, the
VEBA Named Fiduciary or any 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;
(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, the Initiation Notice, the Termination Notice, 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 in accordance with the terms of any applicable confidentiality agreement
among Issuer and the Donees) 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.
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
the Hourly Pension Plan, the Salaried Pension Plan or the VEBA), and take such
further action as the Hourly Pension Plan, the Salaried 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 Hourly Pension
Plan, the Salaried Pension Plan, the VEBA, the Hourly Pension Plan Trustee and
any successor thereto, the Salaried Pension Plan Trustee and any successor
thereto, the VEBA Trustee and any successor thereto, the investment manager or
managers acting on behalf of the Hourly Pension Plan, the Salaried 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, 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 Hourly Pension Plan, the Salaried Pension Plan, the VEBA, the
Hourly Pension Plan Trustee, the Salaried Pension Plan Trustee or the VEBA
Trustee.
(b) Each of the Hourly Pension Plan, the Salaried 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 Hourly Pension Plan, the Salaried
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 Hourly Pension Plan, the Salaried 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 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 Hourly Pension Plan, the
Salaried Pension Plan or the VEBA or any control Person of the Hourly
Pension Plan, the Salaried Pension Plan or the VEBA, such firm shall be
designated in writing by the Hourly Pension Plan Named Fiduciary, the Salaried
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 Hourly Pension Plan, the Salaried
Pension Plan, the VEBA and Persons acting on behalf of or controlling the Hourly
Pension Plan, the Salaried 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
Hourly Pension Plan, the Salaried 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 Hourly Pension Plan, the Salaried 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 Hourly Pension Plan, the Salaried 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 none of the Hourly Pension Plan, the Salaried Pension
Plan or 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 reference to any information furnished to Issuer in writing by
Persons acting on behalf of the Hourly Pension Plan, the Salaried 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.
"Amended Transfer Agreement" shall have the meaning set forth in the
Recitals.
"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) 50 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 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).
"Donees" shall have the meaning set forth in the Recitals.
"Donee Allocation Basis" means, except as may be permitted pursuant to a
waiver of any of the provisions of the Amended Transfer Agreement, (A) as
between the Hourly Pension Plan and the VEBA (1) at any time that an acquisition
of Class H Common Stock by the Donees has caused the 10% threshold set forth in
ss.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 Hourly Pension Plan
and (2) 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 Hourly Pension Plan
and (B) as between the Hourly Pension Plan and the VEBA, on the one hand, and
the Salaried Pension Plan, on the other hand, pro rata based on the number of
shares of Registrable Securities then owned by such Persons. 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
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 among the Registrable Securities
held by the Hourly Pension Plan, those held by the Salaried Pension Plan and
those held by the VEBA in accordance with the Donee Allocation Basis.
"General Motors" means General Motors Corporation, a Delaware corporation.
"Hourly Pension Plan" shall have the meaning set forth in the Recitals.
"Hourly Pension Plan Named Fiduciary" shall have the meaning set forth in
the Recitals.
"Hourly Pension Plan Trustee" shall have the meaning set forth in the
Recitals.
"Xxxxxx" means Xxxxxx Electronics Corporation, a Delaware corporation and,
as of the date hereof, a wholly owned subsidiary of Issuer.
"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).
"Initial Contribution" shall have the meaning set forth in the Recitals.
"Initiation Notice" shall have the meaning set forth in Section 3(c).
"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) 50 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) 50 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.
"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).
"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 the Registration Rights 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)
"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 as
part of the Initial Contributions and 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 Hourly Pension Plan, the Salaried Pension Plan or
the VEBA in accordance with all applicable provisions of this Agreement.
"Registration Rights Agreement" shall have the meaning set forth in the
Recitals.
"Restated Registration Rights Agreement" shall have the meaning set forth
in the Recitals.
"Rights" shall have the meaning set forth in Section 2(e) (i).
"Rule 144" means Rule 144 under the Securities Act or any successor rule
thereto.
"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).
"Salaried Pension Plan" shall have the meaning set forth in the Recitals.
"Salaried Pension Plan Named Fiduciary" shall have the meaning set forth
in the Recitals.
"Salaried Pension Plan Trustee" shall have the meaning set forth in the
Recitals.
"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
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).
"Stock Split" shall have the meaning set forth in the Recitals.
"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 (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).
"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).
"Termination Notice" shall have the meaning set forth in Section 3(c).
"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 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 Hourly
Pension Plan, the Salaried 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 4% 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 Hourly Pension Plan, the Salaried 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 Hourly 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
Attention: Managing Director,
North American Equities
Facsimile: (000) 000-0000
and
Xxxxx Day
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to the Salaried 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
Attention: Managing Director,
North American Equities
Facsimile: (000) 000-0000
and
Xxxxx Day
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) 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
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iv) If to Issuer:
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 Hourly Pension Plan, the Salaried Pension Plan,
the VEBA, the Hourly Pension Plan Trustee, the Salaried Pension Plan Trustee,
the VEBA Trustee and any other investment manager or managers acting on behalf
of the Hourly Pension Plan, the Salaried 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.
(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 Hourly Pension Plan, the Salaried 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 Hourly Pension
Plan, the Salaried Pension Plan or the VEBA
without the consent of Issuer or by Issuer without the consent of the Hourly
Pension Plan, the Salaried 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.
(l) Acknowledgments. Each of the Hourly Pension Plan, the Salaried 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 Hourly Pension Plan
Trustee, the Salaried Pension Plan Trustee and the VEBA Trustee) and from the
valuation advisers of the Hourly Pension Plan Trustee, the Salaried 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.
(m) Amendment of Restated Registration Rights Agreement. By their execution of
this Agreement, General Motors, the Hourly Pension Plan and the VEBA, who were
each parties to the Restated Registration Rights Agreement, acknowledge that the
Restated Registration Rights Agreement is hereby amended and restated and
superceded by the terms of this First Amended and Restated Registration Rights
Agreement.
* * * *
IN WITNESS WHEREOF, the parties hereto, being duly authorized, have
executed and delivered this First Amended and Restated Registration Rights
Agreement on the date first above written.
GENERAL MOTORS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
GENERAL MOTORS SPECIAL HOURLY
EMPLOYEES PENSION TRUST
By: United States Trust Company of
New York, As Trustee
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
GENERAL MOTORS SPECIAL SALARIED EMPLOYEES
PENSION TRUST
By: United States Trust Company of
New York, As Trustee
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------- ---------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
SUB-TRUST OF THE GENERAL MOTORS WELFARE
BENEFIT TRUST
By: United States Trust Company of
New York, As Trustee
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
EXHIBIT A
FIRST AMENDED AND RESTATED TRANSFER AGREEMENT
This First Amended and Restated Transfer Agreement (this
"Agreement") is entered into on March 12, 2003, by and among General Motors
Corporation, a Delaware corporation ("General Motors"), United States Trust
Company of New York (the "Hourly Pension Plan Trustee") as trustee of the
General Motors Special Hourly Employees Pension Trust established under the
General Motors Hourly-Rate Employees Pension Plan (the "Hourly Pension Plan"),
for the account and on behalf of the Hourly Pension Plan (which shall thereby be
deemed a party to this Agreement), United States Trust Company of New York (the
"Salaried Pension Plan Trustee") as trustee of the General Motors Special
Salaried Employees Pension Trust established under the General Motors Retirement
Program for Salaried Employees (the "Salaried Pension Plan"), for the account
and on behalf of the Salaried 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 Hourly Pension Plan Trustee and the Salaried
Pension Plan Trustee, the "Trustees") as a trustee of the Sub-Trust of the
General Motors Welfare Benefit Trust established under the General Motors
Welfare Benefit Trust, a voluntary employees' beneficiary association trust
established to fund certain collectively bargained hourly retiree health care
benefits under the General Motors Health Care Program for Hourly Employees and
certain collectively bargained hourly retiree life insurance benefits under the
General Motors Life and Disability Benefits Program for Hourly Employees and
such benefits under other applicable collectively bargained 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 Hourly Pension Plan, the Salaried
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, the Hourly Pension Plan and the VEBA
entered into a Registration Rights Agreement, dated as of June 12, 2000 (the
"Registration Rights Agreement"), in connection with the General Motors
contribution of 60,500,000 shares of Class H Common Stock (without giving effect
to the Stock Split) in the aggregate to the Hourly Pension Plan and the VEBA;
and
WHEREAS, General Motors, the Hourly Pension Plan and the VEBA
entered into a Transfer Agreement, dated as of June 12, 2000 (the "Transfer
Agreement") pursuant to which each of the Hourly Pension Plan and the VEBA
agreed to hold and dispose of the Class H Common Stock owned by it on the terms
and conditions stated therein; and
WHEREAS, the Hourly Pension Plan and the VEBA collectively became
holders of record of 60,500,000 shares of Class H Common Stock (without giving
effect to the Stock Split) as of June 12, 2000; and
WHEREAS, the General Motors Board of Directors declared a
three-for-one stock split in respect of Class H Common Stock in the form of a
200 percent stock dividend, payable on June 30, 2002, to holders of record as of
June 13, 2000 (the "Stock Split"); and
WHEREAS, pursuant to Section 12(h) of the Registration Rights
Agreement, General Motors, the Hourly Pension Plan and the VEBA entered into a
Restated Registration Rights Agreement, dated July 1, 2000 (the "Restated
Registration Rights Agreement"), to restate the Registration Rights Agreement in
its entirety to reflect the Stock Split; and
WHEREAS, Issuer intends, subject to the satisfaction of certain
regulatory and other conditions, to contribute 11,000,000 additional shares of
Class H Common Stock to the Hourly Pension Plan to be held in a separate account
solely covering such shares, 97,200,000 shares of Class H Common Stock to the
Salaried Pension Plan, and 41,000,000 additional shares of Class H Common Stock
to the VEBA to be held in a separate account solely covering such shares,
pursuant to the terms of a First Amended and Restated Registration Rights
Agreement, dated as of the date hereof (the "Amended and Restated Registration
Rights Agreement"), by and among General Motors, the Hourly Pension Plan, the
Salaried Pension Plan and the VEBA; and
WHEREAS, Issuer, the Hourly Pension Plan and the VEBA have agreed to
amend and restate the Restated Registration Rights Agreement on the terms set
forth in the Amended and Restated Registration Rights Agreement and to add the
Salaried Pension Plan as a party thereto; and
WHEREAS, Issuer, the Hourly Pension Plan and the VEBA have agreed to
amend and restate the Transfer Agreement on the terms set forth herein and to
add the Salaried Pension Plan as a party hereto; and
WHEREAS, General Motors wishes to preserve its ability to consummate
at a later date a tax-free transaction (or series of transactions) 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'
$12/3 par value common stock and/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, the Hourly Pension Plan, the Salaried Pension Plan and the
VEBA are prepared to accept the shares of Class H Common Stock that may be
contributed to them as described in the Amended and Restated Registration Rights
Agreement and to hold and Transfer any such shares and other shares of Class H
Common Stock owned by them on the terms and conditions stated herein; and
WHEREAS, the Hourly Pension Plan Trustee has been appointed by the
named fiduciary of the Hourly Pension Plan (the "Hourly 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 Hourly Pension Plan as described in
the Amended and Restated Registration Rights Agreement and this Agreement and to
exercise all rights, powers and privileges appurtenant to such shares
(subject to the authority of the Hourly Pension Plan Named Fiduciary to
terminate such appointment and appoint one or more other investment managers
for any such shares); and
WHEREAS, the Salaried Pension Plan Trustee has been appointed by the
named fiduciary of the Salaried Pension Plan (the "Salaried Pension Plan Named
Fiduciary") (as determined in accordance with Section 402(a) of ERISA), to
manage any shares of Class H Common Stock held by the Salaried Pension Plan as
described in the Amended and Restated Registration Rights Agreement and this
Agreement and to exercise all rights, powers and privileges appurtenant to such
shares (subject to the authority of the Salaried 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 Amended and Restated 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 Trustees have the full power and authority to execute
and deliver this Agreement for the account and on behalf of each of the Hourly
Pension Plan, the Salaried Pension Plan and the VEBA and to so bind the Hourly
Pension Plan, the Salaried 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 is hereby acknowledged, General Motors, the
Hourly Pension Plan, the Salaried 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 were
contributed to a Donee pursuant to the Registration Rights Agreement or the
Amended and Restated Registration Rights Agreement, as applicable (the "Initial
Contribution Date"), such Donee shall not make any Transfer of the Transferable
Securities to any Person.
(b) The restriction set forth in Section 1(a) above shall terminate one year
after the date on which a Spin-Off is effected (the "Spin-Off Date"), unless
there was an agreement, understanding, arrangement or negotiation (collectively,
an "Agreement") with respect to such Transfer within such one-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) The restriction set forth in Section 1(a) shall terminate from and after
such time as the Donees receive written notice from General Motors that General
Motors has abandoned active consideration of a potential separation of Xxxxxx in
the form of a Spin-Off.
(d) 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.
(e) 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.
(f) Until all restrictions set forth in Sections 1(a) through 1(e) 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.
(g) Until all restrictions set forth in Sections 1(a) through 1(e) have
terminated pursuant to the terms set forth therein, the Donees (or the Trustees
on behalf of the Hourly Pension Plan, the Salaried 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.
(h) 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.
(i) Each certificate representing the shares of Class H Common Stock (or other
evidence thereof) contributed to the Donees pursuant to the Registration Rights
Agreement and the Amended and Restated 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
FIRST AMENDED AND RESTATED TRANSFER AGREEMENT, DATED AS OF MARCH 12,
2003
(THE "TRANSFER AGREEMENT"), 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 THE 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 or the Amended and Restated 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
related Persons acting pursuant to a plan or arrangement) who is not required to
execute a transferee agreement under Section 1(e) and (ii) the termination of
all restrictions set forth in Sections 1(a) through 1(e) pursuant to the terms
set forth therein.
(j) 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
Amended and Restated Registration Rights Agreement) set forth in the Amended and
Restated 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 Amended and Restated 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 Amended and Restated Registration Rights Agreement.
2. Representations, Warranties and Covenants.
(a) The Hourly Pension Plan represents that it beneficially owned 161,774,552
shares of Class H Common Stock as of March 11, 2003. The VEBA represents that it
beneficially owned 20,807,050 shares of Class H Common Stock as of March 11,
2003. The Salaried Pension Plan represents that it beneficially owned 671,623
shares of Class H Common Stock as of March 11, 2003.
(b) Each of the Trustees agrees that from and after the date hereof it shall
not, on behalf of the applicable Donee, 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 or rights in the Class H Common Stock;
provided, that (i) any securities received by any 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 any 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 Registration Rights Agreement or the Amended and Restated
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.
(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 Donees shall cooperate with
each other (and any such tax counsel) and shall take (or refrain from taking)
such actions as any 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 Amended and Restated Registration Rights Agreement (including any notice
of election to participate in any Piggyback Registration) or, if no such date is
provided for in the Amended and Restated 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, 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 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 any 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 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.
"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 or the
Amended and Restated 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 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 any 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)
each of the 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), each of the 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 at 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 Hourly Pension Plan, the Salaried Pension
Plan and the VEBA. Notwithstanding the foregoing, any provision of this
Agreement may be waived by a writing signed by the parties to this Agreement to
whom the benefit of such provision inures.
(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:
(i) If to the Hourly 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
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) If to the Salaried 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
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iii) 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
Xxxxx Day
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iv) 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 Hourly Pension Plan, the Salaried
Pension Plan, the VEBA, the Hourly Pension Plan Trustee, the Salaried Pension
Plan Trustee, the VEBA Trustee and any other investment manager or managers
acting on behalf of the Hourly Pension Plan, the Salaried Pension Plan or the
VEBA with respect to the Transferable 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.
(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 any 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 and delivered by all parties when each party
has executed a counterpart hereof and delivered an original or facsimile copy
thereof to the other parties. 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) at such time as General Motors shall request, 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 Donees 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).
* * * * *
IN WITNESS WHEREOF, the parties hereto, being duly authorized, have
executed and delivered this First Amended and Restated Transfer Agreement on the
date first above written.
GENERAL MOTORS CORPORATION
By:________________________________
Name:
Title:
GENERAL MOTORS SPECIAL HOURLY
EMPLOYEES PENSION TRUST
By: The United States Trust Company
of New York, As Trustee
By:_________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
GENERAL MOTORS SPECIAL SALARIED
EMPLOYEES PENSION TRUST
By: The United States Trust Company
of New York, As Trustee
By:_________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
SUB-TRUST OF THE GENERAL MOTORS
WELFARE BENEFIT TRUST
By: The United States Trust Company
of New York, As Trustee
By:_____________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
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
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
First Amended and Restated Registration Rights Agreement, dated as of March 12,
2003 (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 "Hourly Pension Plan Trustee") of the General Motors
Special Hourly Employees Pension Trust established under the General Motors
Hourly-Rate Employees Pension Plan (the "Hourly Pension Plan"), for the account
of and on behalf of the Hourly Pension Plan, United States Trust Company of New
York, as trustee (the "Salaried Pension Plan Trustee") of the General Motors
Special Salaried Employees Pension Trust established under the General Motors
Retirement Program for Salaried Employees (the "Salaried Pension Plan") for the
account of and on behalf of the Salaried Pension Plan, and United States Trust
Company of New York, as a trustee (the "VEBA Trustee") of the Sub-Trust of the
General Motors Welfare Benefit Trust established under the General Motors
Welfare Benefit Trust, a voluntary employees' beneficiary association trust
established to fund certain collectively bargained hourly retiree health care
benefits under the General Motors Health Care Program for Hourly Employees and
certain collectively bargained hourly retiree life insurance benefits under the
General Motors Life and Disability Benefits Program for Hourly Employees and
such benefits under other applicable collectively bargained 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 by and among General Motors, United
States Trust Company of New York, as trustee of the Hourly Pension Plan, United
States Trust Company of New York, as trustee of the Salaried Pension Plan, and
United States Trust Company of New York, as a trustee of the VEBA; 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: _____________________________
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 SPECIAL HOURLY
EMPLOYEES PENSION TRUST
By: United States Trust Company
of New York, as Trustee
By:________________________________
Its:_________________________________
GENERAL MOTORS SPECIAL SALARIED
EMPLOYEES PENSION TRUST
By: United States Trust Company
of New York, as Trustee
By:________________________________
Its:_________________________________
SUB-TRUST OF THE GENERAL MOTORS
WELFARE BENEFIT TRUST
By: United States Trust Company
of New York, as Trustee
By:________________________________
Its:_________________________________
