Exhibit 3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered into
as of the 9th day of November, 1999, by and between General Magic, Inc., a
Delaware corporation (the "Company"), and General Motors Corporation, a Delaware
corporation, by and through its OnStar division (the "Purchaser").
RECITALS
A. The Company has agreed, upon the terms and subject to the conditions of
the Series G Preferred Stock and Warrant Purchase Agreement (the "Preferred
Stock Purchase Agreement"), to issue and sell to Purchaser (i) shares of the
Company's Series G Convertible Preferred Stock (the "Series G Stock"), which
will be convertible into shares of the Company's common stock, par value $0.001
per share (the "Common Stock"), in accordance with the terms of the Company's
Certificate of Designations, Preferences and Rights of Series G Convertible
Preferred Stock (the "Certificate of Designations"); and (ii) a warrant to
acquire up to 500 additional shares of the Company's Series G Stock (the
"Warrant").
B. To induce the Purchaser to execute and deliver the Preferred Stock
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended (the "Securities Act"), and
the rules and regulations promulgated thereunder, as well as applicable state
securities laws.
NOW, THEREFORE, the parties hereto agree as follows:
AGREEMENT
1. Registration Rights.
1.1 Definitions. For purposes of this Section 1:
(a) Registration. The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such registration statement by
the U.S. Securities and Exchange Commission (the "SEC").
(b) Registrable Securities. The term "Registrable Securities"
means: (1) all the shares of Common Stock of the Company issued or issuable upon
the conversion of any shares of Series G Stock issued pursuant to the Preferred
Stock Purchase Agreement or upon exercise of the Warrant (collectively, the
"Conversion Shares"); (2) all shares of Common Stock issued or issuable with
respect to the Conversion Shares, the Series G Stock or the Warrant as a result
of any stock split, stock dividend, recapitalization, exchange or similar event;
provided, however, that
notwithstanding Section 2.2 below, such shares of Common Stock shall no longer
be treated as Registrable Securities after they have been sold to or through a
broker or dealer or underwriter in a public distribution or a public securities
transaction, whether in a registered offering, pursuant to Rule 144 or
otherwise, and whether or not sold to an Affiliate (as defined in Section 2.2
below).
1.2 Demand Registration.
(a) Request for Registration. If the Company shall receive at any
time a written request from Purchaser that the Company effect a registration
with respect to Registrable Securities pursuant to this Section 1.2 (a
"Registration Request"), then the Company shall, within ten (10) business days
of the receipt of such Registration Request, give written acknowledgment thereof
("Request Acknowledgment") to Purchaser, and effect, as soon as practicable
thereafter, but in no event later than sixty (60) days following receipt by
Purchaser of the Request Acknowledgment, such registration; provided, however,
that the Company shall not be obligated to take any action to effect any such
registration: (i) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, unless the Company is already subject to service in such
jurisdiction; (ii) unless the Registrable Securities sought to be registered by
Purchaser comprise at least forty percent (40%) of all Registrable Securities
then held by Purchaser (including all Registrable Securities issuable pursuant
to the exercise or conversion of any warrant, right or other security) or have
an anticipated aggregate public offering price (after any underwriting discounts
and commissions) of $5,000,000; or (iii) after the Company has effected two such
registrations pursuant to this Section 1.2.
(b) Underwriting. If Purchaser initiates the registration request
under this Section 1.2 and intends to distribute the Registrable Securities
covered by its request by means of an underwriting, then Purchaser shall so
advise the Company as a part of its request made pursuant to this Section 1.2
and the Company shall include such information in the written notice referred to
in subsection 1.2(a). In such event, the right of Purchaser to include its
Registrable Securities in such registration shall be conditioned upon
Purchaser's participation in such underwriting and the inclusion of Purchaser's
Registrable Securities in the underwriting to the extent provided herein. If
Purchaser proposes to distribute its Registrable Securities through such
underwriting, it shall enter into an underwriting agreement in customary form
with the managing underwriter or underwriters selected for such underwriting by
the Company and approved by Purchaser, which approval shall not be unreasonably
withheld. Any Registrable Securities excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the registration.
(c) Delay. If the Company shall furnish to Purchaser a
certificate signed by the President of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, the filing of a
registration statement pursuant to this Section 1.2 would (i) require disclosure
of material information the Company has a bona fide business purpose of
retaining as confidential or (ii) have a
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material adverse effect on the Company or its shareholders, in relation to any
financing, acquisition, corporate reorganization or other material transaction
contemplated by the Board of Directors of the Company, involving the Company or
any of its affiliates, in each case as determined by the Company, then the
Company may direct that the filing of a registration statement be delayed for a
period not in excess of one hundred twenty (120) days, but may only exercise
this right once within any twelve (12) month period.
1.3 Piggyback Registrations. The Company shall notify Purchaser in
writing at least fifteen (15) business days prior to filing any registration
statement under the Securities Act for purposes of effecting a public offering
of securities of the Company (including, but not limited to, registration
statements relating to a secondary offering of securities of the Company, and
registration statements relating to any registration under Section 1.2 of this
Agreement, but excluding registration statements relating to any employee
benefit plan or a transaction under Rule 145 of the Securities Act) and will
afford Purchaser an opportunity to include in such registration statement all or
any part of the Registrable Securities then held by Purchaser. If Purchaser
desires to include in any such registration statement all or any part of its
Registrable Securities, Purchaser shall, within ten (10) business days after
receipt of the above-described notice from the Company, so notify the Company in
writing, and in such notice shall inform the Company of the number of
Registrable Securities Purchaser wishes to include in such registration
statement. If Purchaser decides not to include all of its Registrable
Securities in any registration statement thereafter filed by the Company,
Purchaser shall nevertheless continue to have the right to include any
Registrable Securities in any subsequent registration statement or registration
statements as may be filed by the Company with respect to offerings of its
securities, all upon the terms and conditions set forth herein. An election by
Purchaser to include Registrable Securities in any registration statement
pursuant to this Section 1.3 shall not under any circumstances constitute a
request for registration by Purchaser under Section 1.2 hereof.
If a registration statement under which the Company gives notice under this
Section 1.3 is for an underwritten offering, then the Company shall so advise
Purchaser. In such event, the right of Purchaser to be included in a
registration pursuant to this Section 1.3 shall be conditioned upon Purchaser's
participation in such underwriting, and the inclusion of Purchaser's Registrable
Securities in the underwriting to the extent provided herein. If Purchaser
proposes to distribute its Registrable Securities through such underwriting,
Purchaser shall enter into an underwriting agreement in customary form with the
managing underwriter or underwriter(s) selected for such underwriting.
Notwithstanding any other provision of this Agreement, if the managing
underwriter determines in good faith that marketing factors require a limitation
of the number of shares to be underwritten, then the managing underwriter(s) may
exclude shares (including Registrable Securities) from the registration and the
underwriting, and the number of shares that may be included in the registration
and the underwriting shall be allocated, first, to the Company or other party
for whom the registration is being effected, second, to Purchaser and to other
holders of securities of the Company with piggyback registration rights on a pro
rata basis based on the total number of registrable securities then held by
Purchaser and such other holders, and third, to such persons as the Board of
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Directors of the Company may approve. If Purchaser disapproves of the terms of
any such underwriting, Purchaser may elect to withdraw therefrom by written
notice to the Company and the underwriter. Any Registrable Securities excluded
or withdrawn from such underwriting shall be excluded and withdrawn from the
registration.
The Company shall have the right to terminate or withdraw any registration
initiated by it under this Section 1.3 prior to the effectiveness of such
registration, whether or not Purchaser has elected to include Registrable
Securities in such registration.
1.4 Form S-3 Registration. In case the Company shall receive from
Purchaser a written request that the Company effect a registration on Form S-3
with respect to all or a part of the Registrable Securities owned by Purchaser,
then the Company will, as soon as reasonably practicable, effect such
registration on Form S-3 as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of Purchaser's
Registrable Securities as are specified in such request; provided, however, that
the Company shall not be oblligated to effect any such registration,
qualification or compliance pursuant to this Section 1.4:
(i) if Form S-3 is not available for such offering by Purchaser;
(ii) if the aggregate value of the Registrable Securities
proposed to be sold by Purchaser in such offering is less than $1,000,000;
(iii) if the Company shall furnish to Purchaser a certificate
signed by the President or Chief Executive Officer of the Company stating that,
in the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such Form S-3
registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 registration statement no more
than once during any twelve month period for a period of not more than one
hundred twenty (120) days after receipt of the request of Purchaser under this
Section 1.4;
(iv) if the Company has, within the twelve (12) month period
preceding the date of such request, already effected two (2) registrations
pursuant to Section 1.2 and 1.4; or
(v) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance.
Only one (1) Form S-3 registration shall be deemed to be a demand
registration as described in Section 1.2 above.
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1.5 Obligations of the Company.
(a) Expenses. All expenses incurred in connection with all
registrations pursuant to Sections 1.2, 1.3 and 1.4, including without
limitation all registration and qualification fees, printers' and accounting
fees, fees and disbursements of counsel for the Company (but excluding
underwriters' and brokers' discounts and commissions and fees and disbursements
of counsel for Purchaser), shall be borne by the Company; provided, however,
that Purchaser shall bear all expenses incurred in connection with any
registration requested pursuant to Section 1.2 or 1.4 within six months after
the date of this Agreement. Purchaser shall bear its proportionate share (based
on the total number of shares sold in such registration other than for the
account of the Company) of all underwriting discounts or commissions payable to
underwriters or brokers in connection with such offerings.
(b) Registration. Whenever required to effect the registration of
any Registrable Securities under this Agreement, the Company shall, as
expeditiously as reasonably possible:
(i) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities, use its best efforts to cause such
registration statement to become effective and, upon the request of Purchaser,
keep such registration statement effective for up to ninety (90) days plus any
additional periods represented by any "Black-Out Period" (as defined in the last
paragraph of Section 1.5(b) below) or until the distribution described in the
registration statement has been completed.
(ii) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as the Company may determine to be necessary to
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement.
(iii) Furnish to Purchaser such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as it may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by it and included in such registration.
(iv) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested by
Purchaser, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
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(v) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Purchaser
shall also enter into and perform its obligations under such an agreement.
(vi) Notify Purchaser at any time when a prospectus relating
to the Registrable Securities 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, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact necessary, in light of the
circumstances under which made, to make the statements therein not misleading,
and, at the request of Purchaser, the Company will promptly prepare and provide
to it a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of Purchaser's Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary, in light of the circumstances under which
made, to make the statements therein not misleading.
(vii) Furnish, at the reasonable request of Purchaser, on
the date that its Registrable Securities are delivered to the underwriters for
sale, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated as of such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably satisfactory to
Purchaser, addressed to the underwriters, if any, and to Purchaser, and (ii) a
"comfort" letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to Purchaser, addressed to the
underwriters, if any, and to Purchaser.
(viii) Purchaser agrees that if the Company has delivered
preliminary or final prospectuses to Purchaser and after having done so (a) the
Company determines that the prospectus needs to be amended or supplemented to
comply with the requirements of the Securities Act, (b) a stop order suspending
the effectiveness of the registration statement is issued by the SEC or (c) the
Company shall, in good faith and for business reasons, enter into negotiations
relating to or otherwise commence a material business transaction, including,
without limitation, the acquisition or divestiture of assets or the offering or
sale of securities, then the Company shall promptly notify Purchaser and
Purchaser shall immediately cease making offers and sales of Registrable
Securities and return all remaining prospectuses to the Company. Following such
amendment or supplement, the lifting of any stop order or the completion or
termination of any material transaction, the Company shall promptly provide
Purchaser with revised prospectuses, and, following receipt of the revised
prospectuses, Purchaser shall be free to resume making offers of the Registrable
Securities, or any portion thereof. The period during which the Company
exercises its rights as described in this paragraph to postpone, delay or
interrupt the offer and sale of the Registrable Securities or during the
pendency of any
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stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court shall be referred to herein as the "Black-Out
Period."
1.6 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 1.2, 1.3 or
1.4 that Purchaser shall furnish to the Company such information regarding
itself, the Registrable Securities held by it, and the intended method of
disposition of such securities and such other information as the Company may
reasonably request to timely effect the registration of its Registrable
Securities.
1.7 Indemnification. In the event any Registrable Securities are
included in a registration statement under Sections 1.2, 1.3 or 1.4:
(a) By the Company. The Company agrees to indemnify and hold
harmless Purchaser, each of its directors and officers, any underwriters (as
defined in the Securities Act) for the Purchaser and each person, if any, who
controls Purchaser within the meaning of the Securities Act, against any losses,
claims, damages, liabilities or expenses to which Purchaser or such officer or
director, underwriter or controlling person may become subject, under the
Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any other federal or state statutory law or regulation, or at common
law or otherwise (including in settlement of any litigation, if such settlement
is effected with the written consent of the Company), insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement, including the prospectus, financial statements and schedules, and all
other documents filed as a part thereof or incorporated by reference therein, as
amended at the time of effectiveness of the registration statement, including
any information deemed to be a part thereof as of the time of the effectiveness
pursuant to paragraph (b) of Rule 430A, or pursuant to Rule 434 of the rules and
regulations, or the prospectus, in the form first filed with the SEC pursuant to
Rule 424(b) of the regulations, or filed as part of the registration statement
at the time of effectiveness if no Rule 424(b) filing is required (the
"Prospectus"), or any amendment or supplement thereto, (ii) the omission or
alleged omission to state in any of them a material fact required to be stated
therein or necessary to make the statements in any of them not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act or any federal or state securities law in connection with the
offering covered by such registration statement (the matters in the foregoing
clauses (i) through (iii) being, collectively, "Violations"), and will reimburse
Purchaser and each such officer or director, underwriter or controlling person
for any legal and other expenses as such expenses are reasonably incurred by
Purchaser or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon (i) an untrue statement or
alleged untrue statement or omission or alleged omission made in the
registration statement, the Prospectus or any amendment or supplement thereto in
reliance upon and
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in conformity with written information furnished to the Company by or on behalf
of Purchaser expressly for use therein, (ii) the failure of Purchaser to comply
with the covenants and agreements contained in this Agreement respecting the
sale of the Registrable Securities, (iii) the inaccuracy of any representations
made by Purchaser herein, or (iv) any statement or omission in any Prospectus
that is corrected in any subsequent Prospectus that was delivered to Purchaser
prior to the pertinent sale or sales by Purchaser.
(b) By Purchaser. Purchaser will indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the registration
statement and each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims, damages, liabilities or
expenses to which the Company, each of its directors, each of its officers who
signed the registration statement or controlling person may become subject,
under the Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of Purchaser) insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out of or
are based upon any Violation, in each case to the extent, but only to the
extent, that such Violation occurs in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any Purchaser
expressly for use therein, and will reimburse the Company, each of its
directors, each of its officers who signed the registration statement or
controlling person for any legal and other expenses reasonably incurred by the
Company, each of its directors, each of its officers who signed the registration
statement or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action.
(c) Notice. Promptly after receipt by an indemnified party
under this Section 1.7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 1.7, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party for contribution or otherwise than under the indemnity
agreement contained in this Section 1.7 or to the extent it is not prejudiced as
a proximate result of such failure. In case any such action is brought against
any indemnified party and such indemnified party seeks or intends to seek
indemnity from an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, jointly with all other
indemnifying parties similarly notified, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party; provided, however, if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be a conflict between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such
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legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 1.7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by such
indemnifying party in the case of paragraph (a), representing the indemnified
parties who are parties to such action) or (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of action, in each of which cases the fees and expenses of counsel
shall be at the expense of the indemnifying party.
(d) Limitation. The foregoing indemnity agreements of the Company
and Purchaser are subject to the condition that, insofar as they relate to the
bases for any losses, claims, damages, liabilities or expenses contemplated in
Section 1.7(a) arising out of the preparation and filing of the preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the registration statement in question becomes effective or in
the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the
"Final Prospectus"), such indemnity agreement shall not inure to the benefit of
any person if a copy of the Final Prospectus was furnished to the indemnified
party and was not furnished to the person asserting the loss, liability, claim
or damage at or prior to the time such action is required by the Securities Act.
(e) Contribution. If the indemnification provided for in this
Section 1.7 is required by its terms but is for any reason held to be
unavailable to or otherwise insufficient to hold harmless an indemnified party
under paragraphs (a), (b) or (c) of this Section 1.7 in respect to any losses,
claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of any losses, claims, damages, liabilities
or expenses referred to herein in such proportion as is appropriate to reflect
the relative fault of the Company and Purchaser in connection with the
statements or omissions or inaccuracies in the representations and warranties in
this Agreement which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of the Company and Purchaser shall be determined by reference to, among
other things, whether the untrue or alleged misstatement of a material fact or
the omission or alleged omission to state a material fact or the inaccurate or
the alleged inaccurate representation and/or warranty relates to information
supplied by the Company or by Purchaser and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to
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the limitations set forth in Section 1.7(c) any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim. The provisions set forth in Section 1.7(c) with respect to
notice of commencement of any action shall apply if a claim for contribution is
to be made under this paragraph (d); provided, however, that no additional
notice shall be required with respect to any action for which notice has been
give under Section 1.7(c) for purposes of indemnification. The Company and
Purchaser agree that it would not be just and equitable if contribution pursuant
to this Section 1.7(d) were determined solely by pro rata allocation (even if
Purchaser were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this paragraph. Notwithstanding the provisions of this Section 1.7(d),
Purchaser shall not be required to contribute any amount in excess of the amount
by which the amount paid by Purchaser for the Registrable Securities that were
sold pursuant to the registration statement and the amount received by Purchaser
from such sale exceeds the amount of any damages that Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged 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.
(f) Survival. The obligations of the Company and the Purchaser
under this Section 1.7 shall survive the completion of any offering of
Registrable Securities in a registration statement, and otherwise.
1.8 Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the SEC, which may at any time permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the date hereof;
(b) Use its best efforts to file with the SEC in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act; and
(c) So long as Purchaser owns any Registrable Securities, to
furnish to Purchaser forthwith upon request (i) a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144,
and of the Securities Act and the Exchange Act, (ii) a copy of the most recent
annual or quarterly report of the Company, and (iii) such other reports and
documents of the Company as Purchaser may reasonably request in availing itself
of any rule or regulation of the Commission allowing Purchaser to sell any such
securities without registration.
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2. Transfer and Assignment; Term.
2.1 Transfer and Assignment. Purchaser may not sell or otherwise
transfer or assign any shares of Series G Preferred, or any voting or other
rights therein, to any person or entity except (i) with the prior written
consent of the Company, or (ii) to an Affiliate of Purchaser (as defined below)
pursuant to the terms of this Agreement. Subject to the provisions of Section
2.2, this provision shall not effect the Purchaser's right to transfer
Conversion Shares.
2.2 Transfer of Rights. Notwithstanding anything herein to the
contrary, the registration rights of Purchaser under Section 1 hereof may be
assigned only (i) with the prior written consent of the Company; or (ii) to an
Affiliate of Purchaser, with such rights being exercisable only for so long as
such entity remains an Affiliate of Purchaser; provided, however that no entity
may be assigned any of the foregoing rights unless the Company is given written
notice by the assigning entity at the time of such assignment stating the name
and address of the assignee and identifying the securities of the Company as to
which the rights in question are being assigned; and provided further that any
such assignee shall receive such assigned rights subject to all the terms and
conditions of this Agreement, including without limitation the provisions of
this Section 2. For the purpose of this Agreement, the term Affiliate with
respect to Purchaser shall mean Saab Automobile AB and any entity controlled
directly or indirectly by General Motors Corporation, where "control" means the
ownership of more than fifty percent (50%) of the outstanding voting securities
or voting interests of the entity in question.
2.3 Term. Subject to Section 1.7(f), the Company's obligations
under this Agreement shall terminate on the tenth anniversary of the Closing as
defined in the Preferred Stock Purchase Agreement.
3. General Provisions.
3.1 Assignment. Except as provided in Section 2 above, no party to
this Agreement may assign, by operation of law or otherwise, all or any portion
of its rights, obligations or liabilities under this Agreement.
3.2 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and permitted assigns, any rights or remedies under or by reason of
this Agreement.
3.3 Governing Law. This Agreement shall be governed by and construed
under the internal laws of the State of Delaware as applied to agreements among
Delaware residents entered into and to be performed entirely within Delaware,
without reference to principles of conflict of laws or choice of laws.
3.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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3.5 Headings. The headings and captions used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
3.6 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
and received (a) upon personal delivery, (b) on the fifth day following mailing
by registered or certified mail, return receipt requested, postage prepaid,
addressed to the Company or to Purchaser, as the case may be, at their
respective addresses set forth below, (c), upon transmission of telegram or
facsimile (with telephonic notice), or (d) upon confirmed delivery by overnight
commercial courier service.
If to Purchaser: OnStar
000 Xxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: General Motors Legal Staff
New Center One Building
Mail Code: 000-000-000
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to General Magic: General Magic, Inc.
000 X. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx Godward
Five Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Such addresses may be changed, from time to time, by means of a notice given in
the manner provided in this Section 3.6.
3.7 Attorneys' Fees. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys' fees, experts' fees and costs,
including those for pretrial, trial, on appeal, in arbitration and in bankruptcy
and all other costs and necessary disbursements associated with any such
actions, in addition to any other relief to which such party may be entitled.
3.8 Adjustments for Stock Splits, Etc. Wherever in this Agreement
there is a reference to a specific number of shares of Common Stock or preferred
stock of the Company of any class or series, then, upon the occurrence of any
subdivision, combination or stock dividend of such class or series of stock, the
specific number of shares so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the affect on the outstanding shares of such
class or series of stock by such subdivision, combination or stock dividend.
3.9 Aggregation of Stock. All shares held or acquired by the
Purchaser and its Affiliates shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
3.10 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any provision of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holder of
at least a majority of the Registrable Securities. Any amendment or waiver
effected in accordance with this Section 3.10 shall be binding upon Purchaser
and the Company. No waiver of any of the provisions of this Agreement shall be
deemed to be or shall constitute a waiver of any other provisions hereof,
whether or not similar, nor shall any such waiver constitute a continuing
waiver.
3.11 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement. In the event of such invalidity, the parties shall seek to
agree on an alternative enforceable provision that preserves the original
purpose of this Agreement.
3.12 Entire Agreement. This Agreement, the Preferred Stock Purchase
Agreement, the Certificate of Designations and the Warrant constitute the entire
agreement and understanding of the parties with respect to the subject matter
hereof and thereof and supersede any and all prior negotiations, correspondence,
agreements,
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understandings, duties or obligations between the parties with respect to the
subject matter hereof and thereof.
3.13 Expenses. Except as otherwise provided herein, each of the
Company and the Purchaser shall bear the expenses incurred on its behalf with
respect to this Agreement and the transaction contemplated hereby.
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IN WITNESS WHEREOF, the foregoing Registration Rights Agreement is hereby
executed as of the date first above written.
COMPANY:
GENERAL MAGIC, INC.
/s/ Xxxxxx Xxxxxxx
By:______________________________
Xxxxxx Xxxxxxx
Name:____________________________
Chief Executive Officer
Title:___________________________
PURCHASER:
GENERAL MOTORS CORPORATION
By and through its OnStar Division
/s/ X.X. Xxxxx
By:______________________________
X.X. Xxxxx
Name:____________________________
Executive Director, Onstar
Title:___________________________
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