Exhibit 99.10
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June 21, 1999, between
GENERAL MOTORS CORPORATION, a Delaware corporation ("Company"), and AMERICA
ONLINE, INC., a Delaware corporation ("Investor").
W I T N E S S E T H:
WHEREAS, Company and Investor have entered into the Purchase Agreement
dated as of June 21, 1999 (the "Purchase Agreement"), pursuant to which Company
has agreed to issue and sell, and Investor has agreed to purchase, on the terms
and subject to the conditions set forth in the Purchase Agreement, shares of
Series H 6.25% Automatically Convertible Preference Stock (the "Preference
Shares"), convertible into shares of Class H Common Stock, par value $0.10 per
share, of Company (the "Common Stock"); and
WHEREAS, in order to induce Investor to enter into the Purchase
Agreement and to purchase the Preference Shares, Company has agreed to provide
certain registration rights with respect thereto;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
1. Definitions. Capitalized terms used herein but not defined herein
shall have the respective meanings defined for them in the Purchase Agreement.
The following terms have for purposes of this agreement the meanings set forth
below:
"Common Stock" has the meaning set forth in the recitals.
"Conversion Shares" means the shares of Common Stock (or other securities,
where provided by the Certificate of Designations) issued to Investor upon
conversion of the Preference Shares (or Spinco Preference Shares, Greater Spinco
Preference Shares or Xxxxxx Preference Shares, as provided by Section
6(iii)(d)(II) or Section 7, as the case may be) after a DTV Sale (as defined in
the Certificate of Designations), other than a conversion made in accordance
with Section 6(iv)(c) of the Certificate of Designations, or a Termination Event
as defined in Section 5.3(c) of the Purchase Agreement).
"Initiating Holders" means any holder or holders of Registrable Securities
holding at least 50% of the Registrable Securities (in each case by reference to
the number of shares at the time issued and outstanding), and initiating a
request pursuant to Section 2.1 for the registration of all or part of such
holder's or holders' Registrable Securities.
"Preference Shares" has the meaning set forth in the recitals.
"Records" has the meaning set forth in Section 2.4.
"Registrable Securities" means the Conversion Shares and any securities
issued or issuable with respect to any such Conversion Shares by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise
(including without limitation any exchange offers by the Company or any
successor) which the holders thereof are entitled to receive. As to any
particular Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (a) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (b) they shall have been sold pursuant to Rule 144 (or any successor
provision) under the Securities Act, (c) they shall have been otherwise
transferred and new certificates or other evidence of ownership for them not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any similar state law then in
force, or (d) they shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with Section 2, including, without limitation, (a)
all SEC and any NASD registration and filing fees and expenses, (b) all fees and
expenses in connection with the registration or qualification of the Registrable
Securities for offering and sale under the State securities and blue sky laws
and, in the case of an underwritten offering, determination of their eligibility
for investment under the laws of such jurisdictions as the managing underwriter
or underwriters may designate, including reasonable fees and disbursements, if
any, of counsel for the underwriters in connection with such registrations or
qualifications and determination, (c) all expenses relating to the preparation,
printing, distribution and reproduction of the registration statement required
to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Registrable Securities for delivery and the expenses
of printing or producing any underwriting agreement(s) among underwriters and
"Blue Sky" or legal investment memoranda, any selling agreements and all other
documents in connection with the offering, sale or delivery of Registrable
Securities to be disposed of, (d) messenger, telephone and delivery expenses of
the Company, (e) fees and expenses of any transfer agent and registrar with
respect to the Registrable Securities and any escrow agent or custodian, (f)
internal expenses of the Company (including, without limitation, all salaries
and expenses of the Company's officers and employees performing legal or
accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance), (h) fees, expenses and disbursements of any other
persons retained by the Company, including special experts retained by the
Company in connection with such registration and (i) all fees and expenses
incurred in connection with the qualification of the Conversion Shares
constituting Registrable Securities for the listing of such shares on any
securities exchange. Registration Expenses shall exclude any underwriting
discounts and reallowances attributable to the sale of Registrable Securities by
the holders thereof.
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"Registration Rights Effective Date" means either (i) the effective date of
a conversion of Preference Shares into Common Stock in connection with a DTV
Sale pursuant to Section 6(ii) of the Certificate of Designations (other than a
conversion made in accordance with Section 6(iv)(c)) or (ii) the date of
occurrence of a Termination Event as defined in Section 5.3(c) of the Purchase
Agreement.
2. Registration under Securities Act, etc.
2.1 Registration on Request.
(a) Request. At any time or from time to time after the Registration
Rights Effective Date, subject to Section 2.6 and Section 3, upon the written
request of one or more Initiating Holders requesting that the Company effect the
registration under the Securities Act of all or part of such Initiating Holders'
Registrable Securities and specifying the number of Registrable Securities
sought to be registered and the intended method of disposition thereof and the
delivery by such Initiating Holders of an opinion of counsel that registration
under the Securities Act is required to effectuate the disposition of such
securities, the Company will promptly give written notice of such requested
registration to all registered holders of Registrable Securities. After delivery
of such notice, the Company will, subject to the terms of this Agreement, use
commercially reasonable efforts to effect the registration under the Securities
Act of:
(i) the Registrable Securities which the Company has been so
requested to register by such Initiating Holders for disposition in
accordance with the intended method of disposition stated in such
request;
(ii) all other Registrable Securities the holders of which shall
have made a written request to the Company for registration thereof
within 15 days after the giving of such written notice by the Company
(which request shall specify the intended method of disposition of
such Registrable Securities); and
(iii) all other securities of the Company which the Company or
other holders of the Company's securities having registration rights
may elect to register in connection with the offering of Registrable
Securities pursuant to this Section 2.1 (provided that the Company
shall send reasonably prompt notice to the Initiating Holders
identifying such other holders having registration rights and the
amount of securities that such other holders intend to register in
connection with the offering of Registrable Securities),
all to the extent required to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities and the
additional securities of the Company, if any, so to be registered; provided that
the Company shall not be required to effect any registration pursuant to this
Section 2.1 (x) on more than four separate occasions (which shall exclude any
registered offering required by Parent pursuant to Section 5.6 of the Purchase
Agreement) and (y) unless the holders have requested to sell
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at least two million shares of Common Stock (or other Registrable Securities
that were issued in respect of at least two million shares of Common Stock or
that have a fair market value (based upon the closing price of such Registrable
Securities quoted on the securities exchange on which such Registrable
Securities are listed on the trading day immediately preceding any request
pursuant to this Section 2.1) of at least $200 million).
(b) Registration Statement Form. Registrations under this Section 2.1
shall be on such appropriate registration form of the SEC as shall permit the
disposition of such Registrable Securities in accordance with the intended
method or methods of disposition specified in their request for such
registration and as shall be permitted under the Securities Act; provided that
such form shall not indicate that the securities to be registered thereunder are
to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act.
(c) Expenses. The Company will pay all of the Registration Expenses
in connection with any registration requested pursuant to this Section 2.1 by
any Initiating Holders. Each Initiating Holder shall be responsible for its own
expenses in connection with the registration requested pursuant to Section 2.1,
including without limitation, the expenses of its counsel.
(d) Effective Registration Statement. A registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected (i)
unless a registration statement with respect thereto has become effective;
provided that a registration which does not become effective after the Company
has filed a registration statement with respect thereto solely by reason of the
refusal to proceed of the Initiating Holders (other than a refusal to proceed
based upon the written advice of counsel relating to a matter with respect to
the Company) shall be deemed to have been effected by the Company at the request
of such Initiating Holders unless the Initiating Holders shall have elected to
pay all Registration Expenses (other than internal expenses of the Company) in
connection with such registration, (ii) if, after it has become effective, such
registration becomes subject to any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court for any reason,
other than by reason of some act or omission by such Initiating Holders with
respect thereto, or (iii) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration are not satisfied, other than by reason of some act or omission by
such Initiating Holders.
(e) Selection of Underwriters. If a requested registration pursuant
to this Section 2.1 involves an underwritten offering, any managing or lead
underwriter shall be selected by the Company and shall be reasonably acceptable
to the holders of at least a majority (by number of shares) of the Registrable
Securities as to which registration has been requested, which holders shall not
unreasonably withhold their acceptance of any such underwriters, and any other
underwriter shall be selected by the Company.
(f) Priority in Requested Registrations. If a requested registration
pursuant to this Section 2.1 involves an underwritten offering, and the managing
underwriter shall advise the Company in writing (with a copy to each holder of
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Registrable Securities requesting registration) that, in its opinion, the number
of securities requested to be included in such registration (including
securities to be sold by the Company or by other Persons not holding Registrable
Securities) exceeds the number which can be sold in such offering within a price
range acceptable to the holders of a majority of the Registrable Securities
requested to be included in such registration, the Company will include in such
registration, to the extent of the number which the Company is so advised can be
sold in such offering, (i) first, Registrable Securities requested to be
included in such registration by the holder or holders of Registrable
Securities, pro rata among such holders requesting such registration on the
basis of the number of such securities requested to be included by such holders,
(ii) second, securities of the Company that the Company proposes to sell and
(iii) third, securities of the Company held by other Persons having registration
rights proposed to be included in such registration by the holders thereof.
2.2 Registration Procedures. If and whenever the Company is required
to use commercially reasonable efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 2.1, the
Company shall, as expeditiously as possible, subject to the provisions of
Section 2.6:
(i) prepare and file with the SEC (such filing to be made within
60 days after the initial request of one or more Initiating Holders of
Registrable Securities and in any event as soon after receipt of such
request as practicable) the requisite registration statement to effect
such registration (including such audited financial statements as may
be required by the Securities Act or the rules and regulations
promulgated thereunder) and thereafter use commercially reasonable
efforts to cause such registration statement to become effective as
promptly as practicable under the circumstances; provided that before
filing such registration statement or any amendments thereto, the
Company will furnish to the counsel selected by the holders of
Registrable Securities which are to be included in such registration
copies of all such documents proposed to be filed, which documents
will be subject to the review, but not the prior approval, of such
counsel;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such registration statement until the earlier of such time
as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set
forth in such registration statement or the expiration of 90 days
after such registration statement becomes effective;
(iii) furnish to each seller of Registrable Securities covered
by such registration statement and each underwriter, if any, of the
securities being sold by such seller such number of conformed copies
of such
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registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies
of the prospectus contained in such registration statement (including
each preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as such seller and underwriter, if any, may reasonably
request;
(iv) use commercially reasonable efforts to register or qualify
all Registrable Securities and other securities covered by such
registration statement under such other securities laws or blue sky
laws of such jurisdictions as any seller thereof and any underwriter
of the securities being sold by such seller shall reasonably request,
to keep such registrations or qualifications in effect for so long as
such registration statement remains in effect, and take any other
action which may be reasonably necessary or advisable to enable such
seller and underwriter to consummate the disposition in such
jurisdictions of the securities owned by such seller, except that the
Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this subdivision (iv)
be obligated to be so qualified, to subject itself to taxation in any
such jurisdiction or to consent to general service of process in any
such jurisdiction;
(v) use commercially reasonable efforts to cause all Registrable
Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as
may be necessary to enable the seller or sellers thereof to consummate
the disposition of such Registrable Securities;
(vi) furnish to each seller of Registrable Securities a signed
counterpart, addressed to such seller and the underwriters, if any,
of:
(1) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such
registration includes an underwritten public offering, an opinion
dated the date of the closing under the underwriting agreement)
covering such matters as are customary in connection with such
registration, reasonably satisfactory in form and substance to such
seller, and
(2) a "comfort" letter (or, in the case of any such Person
which does not satisfy the conditions for receipt of a "comfort"
letter specified in Statement on Auditing Standards No. 72, an "agreed
upon procedures" letter), dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, a letter of like kind dated the date of
the closing under the underwriting agreement), signed by the
independent public accountants who have
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certified the Company's financial statements included in such
registration statement, covering substantially the same matters with
respect to such registration statement (and the prospectus included
therein) and, with respect to events subsequent to the date of such
financial statements, as are customarily covered in accountants'
letters delivered to the underwriters in underwritten public offerings
of securities (with, in the case of an "agreed upon procedures"
letter, such modifications or deletions as may be required under
Statement on Auditing Standards No. 35);
(vii) notify the holders of Registrable Securities and the
managing underwriter or underwriters, if any, promptly:
(1) when the registration statement, the prospectus or any
prospectus supplement related thereto or post-effective amendment to
the registration statement has been filed, and, with respect to the
registration statement or any post-effective amendment thereto, when
the same has become effective;
(2) of any request by the SEC for amendments or
supplements to the registration statement or the prospectus or for
additional information;
(3) of the issuance by the SEC of any stop order suspending
the effectiveness of the registration statement or the initiation of
any proceedings by any Person for that purpose (in which case the
period mentioned in paragraph (ii) of this Section 2.2 shall be
extended by the length of the period during which such stop order is
in effect);
(4) if at any time the representations and warranties of
the Company made as contemplated by Section 2.3 below cease to be true
and correct; or
(5) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation or threat of any proceeding for such
purpose;
(viii) notify each seller of Registrable Securities covered by
such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon the
discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made, and at the request of any
such seller promptly prepare and furnish to such seller and each
underwriter, if any, a reasonable number of copies of
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a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances under which they were made;
(ix) make commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the
registration statement at the earliest possible moment;
(x) use commercially reasonable efforts to list all Registrable
Securities covered by such registration statement on any securities
exchange on which any of the securities of the same class as the
Registrable Securities are then listed; and
(xi) use commercially reasonable efforts to provide a CUSIP
number for the Registrable Securities, not later than the effective
date of the registration statement.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
occurrence of any event of the kind described in subdivision (viii) of this
Section 2.2, such holder will forthwith discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (viii) of this
Section 2.2 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such holder's possession of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in paragraph (ii) of
this Section 2.2 shall be extended by the length of the period from and
including the date when each seller of any Registrable Securities covered by
such registration statement shall have received such notice to the date on which
each such seller has received the copies of the supplemented or amended
prospectus contemplated by paragraph (viii) of this Section 2.2.
If any such registration statement refers to any holder of Registrable
Securities by name or otherwise as the holder of any securities of the Company,
then such holder shall have the right to require (i) the insertion therein of
language, in form and substance reasonably satisfactory to such holder, to the
effect that the holding by such holder of such securities is not to be construed
as a recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding
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does not imply that such holder will assist in meeting any future financial
requirements of the Company, or (ii) in the event that such reference to
such holder by name or otherwise is not required by the Securities Act or
any similar federal statute then in force and a written opinion from
counsel to the holder to such effect is delivered to the Company, the
deletion of the reference to such holder.
2.3 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the underwriters
for any underwritten offering by holders of Registrable Securities pursuant
to a registration requested under Section 2.1, the Company will enter into
an underwriting agreement with such underwriters for such offering, such
agreement to be in customary form for offerings of this type by the Company
and acceptable to each holder of Registrable Securities registered under
such registration statement, whose acceptance shall not be unreasonably
withheld, and to contain such representations and warranties by the Company
and such other terms as are generally prevailing in agreements of this type
entered into by the Company, including, without limitation, indemnities at
least as broad as those provided in Section 2.5. The holders of the
Registrable Securities will cooperate with the Company in the negotiation
of the underwriting agreement and will give consideration to the reasonable
suggestions of the Company regarding the form thereof. The holders of
Registrable Securities to be distributed by such underwriters shall be
parties to such underwriting agreement and may, at their option, require
that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such holders of Registrable
Securities. Any such holder of Registrable Securities shall not be required
to make any representations or warranties to or agreements with the Company
or the underwriters other than representations and warranties or agreements
regarding such holder, such holder's Registrable Securities and such
holder's intended method of distribution and any other representation
required by law.
(b) Holdback Agreements. Each holder of Registrable Securities agrees,
by acquisition of such Registrable Securities, if so required by the
managing underwriter, not to sell, make any short sale of, loan, grant any
option for the purchase of, effect any public sale or distribution of or
otherwise dispose of any Registrable Securities not to be sold in an
underwritten offering pursuant to Section 2.1, during the 30 days prior to
the anticipated consummation of such underwritten offering and 90 days
after the applicable underwritten registration pursuant to Section 2.1 has
become effective, except as part of such underwritten registration.
Notwithstanding the foregoing sentence, during any period described above,
each holder of Registrable Securities subject to the foregoing sentence
shall be entitled to sell securities in a private sale so long as the
purchaser of such securities agrees to be bound by the restrictions set
forth above to the same extent as the seller for the remainder of the
applicable period.
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(c) Participation in Underwritten Offerings. No Person (other than the
Company, which will be subject to and governed by the other terms and
provisions of this Agreement) may participate in any underwritten offering
hereunder unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved, subject to
the terms and conditions hereof, by the holders of a majority of
Registrable Securities to be included in such underwritten offering and
(ii) completes and executes all questionnaires, indemnities, underwriting
agreements and other documents (other than powers of attorney) reasonably
required under the terms of such underwriting arrangements. Notwithstanding
the foregoing, no underwriting agreement (or other agreement in connection
with such offering) shall require any holder of Registrable Securities to
make any representations or warranties to or agreements with the Company or
the underwriters other than representations and warranties or agreements
regarding such holder, such holder's Registrable Securities and such
holder's intended method of distribution and any other representation
required by law.
2.4 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give the holders of
Registrable Securities registered under such registration statement, their
underwriters, if any, and their respective counsel and accountants, the
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the SEC, and each
amendment thereof or supplement thereto, and will give each of them such
access to its books and records (collectively, the "Records") and such
opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial
statements as shall be necessary to conduct a reasonable investigation
within the meaning of the Securities Act; provided, that such holders,
underwriters, counsel and accountants shall not disclose any Records to any
Person (other than to any holder of Registrable Securities) unless (a) such
Records have become generally available to the public or (b) the disclosure
of such Records may be necessary or, in the case of clause (z) below,
appropriate (x) in compliance with any law, rule, regulation or order
applicable to any such holder, underwriter, counsel or accountant, (y) in
response to any subpoena or other legal process or (z) in connection with
any litigation to which such holder, underwriter, counsel or accountant is
a party, and such Person shall sign an agreement to such effect that shall
be customary in form and reasonably acceptable to the Company and such
Person.
2.5 Indemnification.
(a) Indemnification by the Company. In the event of any registration
of any securities of the Company under the Securities Act pursuant to this
Agreement, the Company will, and hereby does agree to, indemnify and hold
harmless in the case of any registration statement filed pursuant to
Section 2.1, the holder of any Registrable Securities covered by such
registration statement, its directors, officers, employees and agents, each
Person, if any, who controls such holder within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which such holder or any such director or officer or
controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
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actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities
Act, any final prospectus or summary prospectus contained therein (in each
case as amended or supplemented), or any amendment or supplement thereto,
or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein,
in the case of any final prospectus or summary prospectus (in each case as
amended or supplemented), in light of the circumstances under which they
were made, not misleading, and the Company will reimburse such holder and
each such director, officer, and controlling person for any legal or any
other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, liability, action or proceeding,
provided that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such final prospectus,
summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of a holder or underwriter specifically for use therein. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such holder or any such director,
officer, underwriter or controlling person and shall survive the transfer
of such securities by such holder.
(b) Indemnification by the Sellers. As a condition to including any
Registrable Securities in any registration statement filed pursuant to
Section 2.1, the Company shall have received from each seller of
Registrable Securities a written undertaking reasonably satisfactory to it
from the prospective seller of such Registrable Securities, to indemnify
and hold harmless (in the same manner and to the same extent as set forth
in subdivision (a) of this Section 2.5) the Company, each director of the
Company, each officer of the Company and each other person, if any, who
controls the Company within the meaning of the Securities Act, with respect
to any statement or alleged statement in or omission or alleged omission
from such registration statement, any final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, if
such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such seller specifically stating that it
is for use in the preparation of such registration statement, final
prospectus, summary prospectus, amendment or supplement. Any such indemnity
shall remain in full force and effect, regardless of any investigation made
by or on behalf of the Company or any such director, officer or controlling
person and shall survive the transfer of such securities by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this Section 2.5, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified
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party to give notice as provided herein shall not relieve the indemnifying
party of its obligations under the preceding subdivisions of this Section
2.5, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim and representation
of both is not appropriate, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified, to the extent that the indemnifying
party may wish, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party for any legal or other
expenses subsequently incurred by the latter in connection with the defense
thereof. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement of any such action which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified
party of a release from all liability in respect to such claim or
litigation. No indemnified party shall consent to entry of any judgment or
enter into any settlement of any such action the defense of which has been
assumed by an indemnifying party without the consent of such indemnifying
party.
(d) Contribution. If the indemnification provided for in the preceding
subdivisions of this Section 2.5 is unavailable to an indemnified party in
respect of any expense, loss, claim, damage or liability referred to
therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such expense, loss, claim, damage or
liability. As between the Company, on the one hand, and selling
securityholders, on the other, the amount of contribution shall be in such
proportions as appropriate to reflect the relative fault of the Company and
of each selling securityholder. The relative fault of the Company, on the
one hand, and of a securityholder, on the other, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission to state a material fact relates
to information supplied by the Company or by the holder and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, provided that the foregoing
contribution agreement shall not inure to the benefit of any indemnified
party if indemnification would be unavailable to such indemnified party by
reason of the provisions contained in the first sentence of subdivision (a)
of this Section 2.5, and in no event shall the obligation of any
indemnifying party to contribute under this subdivision (d) exceed the
amount that such indemnifying party would have been obligated to pay by way
of indemnification if the indemnification provided for under subdivisions
(a) or (b) of this Section 2.5 had been available under the circumstances.
The Company and the holders of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this
subdivision (d) were determined by pro rata allocation (even if the holders
and any underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and
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liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth in the preceding
sentence and subdivision (c) of this Section 2.5, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this subdivision (d), no holder of
Registrable Securities shall be required to contribute any amount in excess
of the amount by which, in the case of any such holder, the net proceeds
received by such holder from the sale of Registrable Securities exceeds, in
any such case, the amount of any damages that such holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
2.6 Suspension of Registration. Notwithstanding anything to the
contrary contained herein, the Company will not be required to file any
registration statement pursuant to Section 2.1(a), furnish any supplement
to a prospectus pursuant to Section 2.2(viii), file any amendment thereto,
cause any registration statement or other filing to become effective, or
take any similar action, and any and all sales pursuant to an effective
registration statement shall be suspended: (i) 30 days prior to the
anticipated consummation of a public offering by the Company of its
securities and 90 days subsequent to the consummation of such public
offering where in the good faith judgment of the managing underwriter or
underwriters thereof, such actions would have an adverse effect on such
offering, (ii) if such actions are prohibited by applicable law, (iii) if
the Company promptly certifies to any Initiating Holder that such actions
could materially interfere with business activities or plans of the
Company, or (iv) if the Company promptly certifies to any Initiating Holder
that such actions would, in the good faith judgment of counsel of the
Company, require the disclosure of material information which the Company
has a bona fide business purpose for preserving as confidential and which
the Company would not otherwise be required to disclose; provided that the
Company may not delay any such actions or cause any such suspension
pursuant to clauses (iii) and (iv) of the first sentence of this Section
2.6 for more than an aggregate of 90 days in any twelve-month period. Upon
the termination of the condition described in clauses (iii) or (iv)of the
first sentence of this Section 2.6, the Company shall give prompt notice to
all holders of Registrable Securities and shall promptly file any
registration statement requested to be filed pursuant to Section 2.1(a),
furnish any prospectus supplement required to be furnished pursuant to
Section 2.2(viii), terminate the suspension of sales and take such other
actions as contemplated by this Agreement.
2.7 Other Agreements. The Company shall not enter into any agreement
or instrument which would conflict with or result in a breach or violation
of any of the terms or provisions of this Agreement.
3. Rule 144. The Company shall timely file the reports required to be filed
by it under the Securities Act and the Exchange Act (including but not limited
to the reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c) of Rule 144 adopted by the SEC under the Securities Act) and
the rules and regulations adopted
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by the SEC thereunder (or, if the Company is not required to file such reports,
will, upon the request of any holder of Registrable Securities, make publicly
available other information) and will take such further action as any holder of
Registrable Securities or any broker facilitating such sale may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC. Notwithstanding anything in this
Agreement to the contrary, without the consent of the Company, the Initiating
Holders shall not have the right to request registration under the Securities
Act with respect to any Registrable Securities if the amount of Registrable
Securities such holders expect to sell can otherwise be disposed of in
accordance with Rule 144. The Company shall also provide such information and
otherwise use commercially reasonable efforts to cooperate with any holder of
Registrable Securities in connection with any other sale by such holder pursuant
to another exemption under the Securities Act, in each case to the extent such
information or other action by the Company may be necessary to effect such sale
pursuant to the applicable exemption. Upon the request of any holder of
Registrable Securities, the Company will, at its cost, deliver to such holder
any information to be delivered or filed in connection with the requirements of
this Section 3.
4. Amendments and Waivers. This Agreement may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the holder or
holders of 50% or more of the shares of Registrable Securities and, in the case
of any such amendment, action or omission to act in respect of the first
sentence of Section 3, the written consent of each holder affected thereby. Each
holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any consent authorized by this Section 4, whether or not such
Registrable Securities shall have been marked to indicate such consent.
5. Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election by written notice to the Company,
be treated as the holder of such Registrable Securities for purposes of any
request or other action by any holder or holders of Registrable Securities
pursuant to this Agreement or any determination of any number or percentage of
shares of Registrable Securities held by any holder or holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities.
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6. Notices. Except as otherwise provided in this Agreement, all notices,
requests and other communications to any Person provided for hereunder shall be
in writing and shall be given to such Person (a) in the case of Investor,
addressed to Investor in the manner set forth in the Purchase Agreement or at
such other address as such party shall have furnished to the Company in writing,
or (b) in the case of any other holder of Registrable Securities, at the address
that such holder shall have furnished to the Company in writing, or, until any
such other holder so furnishes to the Company an address, then to and at the
address of the last holder of such Registrable Securities who has furnished an
address to the Company, or (c) in the case of the Company, at 000 Xxxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, to the attention of Xxxxxx X. Xxxxxxxx,
Esq., with a copy to Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000, to the attention of Xxxxxxxxx X. Xxxxx, Esq., or at such other address,
or to the attention of such other officer, as the Company shall have furnished
to each Holder of Registrable Securities at the time outstanding. Each such
notice, request or other communication shall be effective (i) if given by mail,
72 hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (ii) if given by any other means
(including, without limitation, by air courier), when delivered at the address
specified above, provided that any such notice, request or communication to any
holder of Registrable Securities shall not be effective until received.
7. Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns.
8. Descriptive Headings. The descriptive headings of the several sections
and paragraphs of this Agreement are inserted for reference only and shall not
limit or otherwise affect the meaning hereof.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS.
10. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
11. Entire Agreement. This Agreement and the Purchase Agreement embody the
entire agreement and understanding between the Company and each other party
hereto relating to the subject matter hereof and supersedes all prior agreements
and understandings relating to such subject matter. In the event that any
provision of this Agreement is found to be inconsistent with the provisions of
the Purchase Agreement, the provisions of this Agreement shall control.
12. Submission to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY
EXECUTION AND
15
DELIVERY OF THIS AGREEMENT, THE COMPANY AND INVESTOR EACH HEREBY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. EACH
OF THE COMPANY AND THE INVESTOR HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF TO THE COMPANY OR THE INVESTOR, AS THE CASE MAY
BE, BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED,
TO SUCH PARTY AT ITS ADDRESS SPECIFIED IN SECTION 6. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS.
13. Severability. If any provision of this Agreement, or the application of
such provisions to any Person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to Persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
GENERAL MOTORS CORPORATION
By: /s/ X.X. Xxxx
----------------------
Name: X. X. Xxxx
Title: Exec. V.P. & CFO
AMERICA ONLINE, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President, Business Affairs
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