EXHIBIT 99.6
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
THE NEWS CORPORATION LIMITED
AND
GENERAL MOTORS CORPORATION
DATED AS OF APRIL 9, 2003
TABLE OF CONTENTS
1. Background..........................................................1
2. Definitions.........................................................1
3. Piggyback Registrations.............................................3
(a) Right to Include Registrable Securities......................3
(b) Expenses.....................................................4
(c) Priority in Piggyback Registrations..........................4
(d) Underwritten Public Offerings................................5
4. Demand Registrations................................................5
(a) Anticipated Closing Date.....................................5
(b) Request by Holders...........................................5
(c) Expenses.....................................................7
(d) Effective Registration Statement.............................7
(e) Selection of Underwriters....................................7
(f) Priority in Demand Registrations.............................7
(g) Additional Rights............................................8
(h) Other Disposition of Registrable Securities..................8
5. Registration Procedures.............................................8
6. Indemnification....................................................12
(a) Indemnification by the Company..............................12
(b) Indemnification by Participating Holders....................12
(c) Notices of Claims, Etc......................................13
(d) Other Indemnification.......................................13
(e) Contribution................................................13
(f) Non-Exclusivity.............................................14
7. Rule 144...........................................................14
8. Miscellaneous......................................................14
(a) Holdback Agreement..........................................14
(b) Underwriter's Lock-Ups......................................14
(c) Amendments and Waivers......................................15
(d) Restrictions on Transfer....................................15
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(e) Successors, Assigns and Transferees...........................15
(f) Notices.......................................................16
(g) Holder Communications through GM..............................17
(h) Descriptive Headings..........................................17
(i) Severability..................................................17
(j) Counterparts..................................................17
(k) Governing Law.................................................18
(l) Specific Performance..........................................18
(m) No Inconsistent Rights; Acknowledgement of Other Agreements...18
(n) Termination...................................................19
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of April 9, 2003
between The News Corporation Limited, a South Australia corporation (the
"Company"), and General Motors Corporation, a Delaware corporation ("GM" and
together with its successors and assigns, the "Holders").
1. Background. The Company and GM have entered into the Stock
Purchase Agreement (as defined below) on the date hereof. On the terms and
subject to the conditions of the Stock Purchase Agreement, the Company may issue
a number of ADSs (the "Shares") to GM as part of the Purchase Price (as defined
in the Stock Purchase Agreement). In connection therewith, as a condition to
such transaction, the Company and GM have executed and delivered this Agreement.
2. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
"ADSs" - American Depositary Shares, each representing four
Preferred Limited Shares.
"ANTICIPATED CLOSING DATE" -- as defined in Section 4(a).
"AFFILIATE" - with respect to any Person, any entity which
Controls, is Controlled by or is under common Control with such Person.
"CLOSING" - as defined in the Stock Purchase Agreement.
"COMPANY" - as defined in the preamble.
"COMPANY INDEMNITEES" - as defined in Section 6(b).
"CONTROL" - the power, directly or indirectly, to direct or
cause the direction of the management and policies of a Person, whether by
ownership of voting securities, by contract or otherwise.
"CONTROLLED AFFILIATE" - with respect to any Person, an
Affiliate of such Person which such Person Controls, it being understood that
any employee benefit plan maintained by GM shall not be deemed to be a
Controlled Affiliate of GM.
"DEPOSIT AGREEMENT" - as defined in Section 8(d).
"DEPOSITARY" - as defined in Section 8(d).
"DERIVATIVE SECURITY" - as defined in the definition of
Registrable Securities.
"EARLY REGISTRATION" - as defined in Section 4(b)(ii).
"EXCHANGE ACT" - the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"GM" - as defined in the preamble.
"GM INDEMNITEES" - as defined in Section 6(a).
"HOLDERS" - as defined in the preamble.
"INDEMNIFIED PARTY" - as defined in Section 6(c).
"INSPECTORS" - as defined in Section 5(a)(xii).
"MINIMUM AMOUNT" - means a number of Registrable Securities
which represent not less than 10% of the Registrable Securities then
outstanding.
"PERSON" - Any individual, partnership, joint venture,
limited liability company, corporation, trust, unincorporated organization or
other entity or government or any department or agency thereof.
"PREFERRED LIMITED SHARES" - The Company's preferred limited
voting ordinary shares.
"RECORDS" - as defined in Section 5(a)(xii).
"REGISTRABLE SECURITIES" - All of (i) the Shares, (ii) any
shares of capital stock which may be issued or distributed in respect of the
Shares by way of conversion, exchange, stock dividend, eligible bonus issue, or
stock split or other distribution, recapitalization or reclassification and
(iii) any Registrable Securities described in clause (i) or clause (ii) above
that underlie (A) any securities issued by a Holder, the value of which relates
to or is based upon the Registrable Securities described in clause (i) or clause
(ii) above or which are exchangeable for or convertible into such Registrable
Securities ("Derivative Securities"), or (B) any equity swap transaction or
mandatory or non-mandatory exchangeable note transaction entered into by a
Holder, to the extent any such Registrable Securities referred to in this clause
(iii) require registration by the Company (Registrable Securities described in
this clause (iii) being sometimes referred to in this Agreement as "Underlying
Registrable Securities"); provided that any Shares (or other shares of capital
stock) registered pursuant to this Agreement shall be registered in the form of
ADSs (or other American Depositary Shares) representing such shares, so long as
the ADSs are publicly traded in the United States at the relevant time. As to
any particular Registrable Securities, once issued, such securities shall cease
to be Registrable Securities when (a) a registration statement with respect to
the sale of such securities shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance with such
registration statement, (b) they shall have been distributed to the public
pursuant to Rule 144 or 144A (or any successor provisions) under the Securities
Act, (c) they shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been delivered by
the Company (or the Depositary, as applicable) and subsequent disposition shall
not require their registration or qualification of them under the Securities Act
or (d) they shall have ceased to be outstanding.
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"REGISTRATION EXPENSES" - Any and all reasonable expenses
incident to performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees, (ii) all fees and expenses of
complying with securities or blue sky laws (including reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing, messenger and
delivery expenses, (iv) all fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange pursuant to
clause (viii) of Section 5(a), (v) the fees and disbursements of counsel for the
Company and of its independent public accountants, including the expenses of any
special audits and/or "cold comfort" letters required by or incident to such
performance and compliance, and (vi) all fees and expenses, if any, incurred in
connection with retaining a depositary for the ADSs; provided that the expenses
described in the provisos to Sections 3(b) and 4(c) shall not be deemed to be
"Registration Expenses."
"REGISTRATION STATEMENT" - as defined in Section 4(d).
"RESTRICTED SECURITIES LETTER AGREEMENT" - the Letter
Agreement, dated as of December 17, 2001, between the Depositary and the
Company.
"RULE 144A OFFERING" - as defined in Section 8(b).
"SECURITIES ACT" - The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"SEC" - The Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act or the Exchange Act.
"SHARES" - the American Depositary Shares, as defined in
Section 1.
"STOCK PURCHASE AGREEMENT" - means the Stock Purchase
Agreement, dated as of the date hereof, between the Company, GM and Xxxxxx
Electronics Corporation, a Delaware corporation.
"UNDERLYING REGISTRABLE SECURITIES" - as defined in the
definition of Registrable Securities.
"UNDERWRITER'S LOCK-UP" - as defined in Section 8(b).
"UNDERWRITTEN OFFERING" - as defined in Section 8(b).
3. Piggyback Registrations.
(a) Right to Include Registrable Securities. If the
Company at any time proposes to register its Preferred Limited Shares, ADSs or
other shares of its capital stock of the same class or series as capital stock
constituting Registrable Securities (or American Depositary Shares representing
any of the foregoing) under the Securities Act (other than a registration on
Form F-4 or S-8, or any successor or other forms promulgated for similar
purposes) which registration is reasonably anticipated to become effective after
the Closing, whether or not for
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sale for its own account, pursuant to a registration statement on which it is
permissible to register Registrable Securities for sale to the public under the
Securities Act, it will each such time give prompt written notice to all Holders
of Registrable Securities of its intention to do so, referring to such Holders'
rights under this Section 3. Upon the written request of any such Holder made
within 15 days after the receipt of any such notice, which request may request
only the registration of Registrable Securities that are of the same class or
series of capital stock as the securities that are proposed by the Company to be
covered by the registration statement (or American Depositary Shares
representing such capital stock), the Company will use its best efforts to
effect the registration under the Securities Act of all such Registrable
Securities which the Company has been so requested to register by the Holders
thereof. If a registration requested pursuant to this Section 3(a) involves an
underwritten public offering, any Holder of Registrable Securities requesting to
be included in such registration may elect, in writing prior to the effective
date of the registration statement filed in connection with such registration,
not to register such securities in connection with such registration.
(b) Expenses. The Company will, or will cause one of
its Controlled Affiliates to, pay all Registration Expenses in connection with
each registration of Registrable Securities requested pursuant to this Section
3; provided that each Holder will pay all underwriting discounts and commissions
and transfer taxes relating to the sale or other disposition of such Holder's
Registrable Securities pursuant to such registration and the fees and expenses
of its counsel.
(c) Priority in Piggyback Registrations. If a
registration pursuant to this Section 3 involves an underwritten offering and
the managing underwriter advises the Company in writing that, in its opinion,
the amount of securities requested to be included in such registration exceeds
the amount which can be sold in such offering, so as to be likely to have an
adverse effect on such offering as contemplated by the Company (including the
price at which the Company proposes to sell such securities), then the Company
will include in such registration (A) if such registration relates to a primary
offering initiated by the Company, (i) first, the securities proposed to be sold
by the Company, (ii) second, to the extent the number of securities proposed to
be included in such registration by the Company is less than the number of
securities which the Company has been advised by the underwriter can be sold in
such offering without having the adverse effect referred to above, the
securities requested to be included in such registration by the Holders and
other Persons entitled to participate in such registration (provided that if the
number of such securities, in combination with the number of securities proposed
to be included in such registration by the Company, exceeds the number which the
Company has been advised can be sold in such offering without having the adverse
effect referred to above, the number of such securities included in such
registration shall be allocated pro rata among all such Holders and other
Persons on the basis of the number of securities that each of the Holders and
the other Persons has individually requested to be included in such registration
relative to the aggregate number of securities that all requesting Holders and
other Persons have so requested); and (B) if such registration relates to a
secondary offering initiated by any Person other than a Holder, (i) first, the
securities requested to be included in such registration by such other Person
(to the extent that the number of such securities does not exceed the number of
securities which the Company has been advised by the underwriter can be sold in
such offering without having the adverse effect described above), (ii) second,
to the extent the number of securities requested to be included in such
registration by such other Person
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is less than the number of securities which the Company has been advised by the
underwriter can be sold in such offering without having the adverse effect
referred to above, the securities proposed to be sold by the Company (to the
extent that the number of securities does not exceed, in combination with the
securities of such other Person to be included in such registration, the number
of securities which the Company has been advised by the underwriter can be sold
in such offering without having the adverse effect described above), (iii)
third, to the extent the sum of the number of securities requested to be
included in such registration by such other Person plus the number of securities
proposed to be included in such registration by the Company is less than the
number of securities which the Company has been advised by the underwriter can
be sold in such offering without having the adverse effect referred to above,
the securities requested to be included in such registration by the Holders and
other Persons entitled to participate in such registration (provided that if the
number of such securities, in combination with the securities of such other
Person and the securities of the Company to be included in such registration,
exceeds the number which the Company has been advised by the underwriter can be
sold in such offering without having the adverse effect referred to above, the
number of such securities included in such registration shall be allocated pro
rata among all such Holders and other Persons on the basis of the number of
securities that each the Holders and the other Persons has individually
requested to be included in such registration relative to the aggregate number
of securities that all requesting Holders and other Persons have so requested).
(d) Underwritten Public Offerings. If a registration
pursuant to this Section 3 involves an underwritten public offering, each Holder
who has requested that any of its Registrable Securities be included in such
registration must sell such Registrable Securities to the underwriters on the
same terms (appropriately adjusted for differences between Preferred Limited
Shares and ADSs (or other American Depositary Shares)) and conditions as apply
to the Company or such other Person initiating the registration, with such
differences, in the case of any primary registration, including any with respect
to indemnification and contribution, as may be customary or appropriate in
combined primary and secondary offerings.
4. Demand Registrations.
(a) Anticipated Closing Date. At any time and from
time to time at GM's request, GM and the Company shall consult with each other
and shall jointly determine the date upon which the parties reasonably
anticipate the Closing to occur (the "Anticipated Closing Date"), which date
shall in no event be less than sixty (60) days after the date of such
determination.
(b) Request by Holders. Upon the written request of
any Holder or Holders (which request may be made at any time before or after the
Closing) requesting that the Company effect the registration under the
Securities Act of an amount of such Holder's or Holders' Registrable Securities
representing, in the aggregate, not less than the Minimum Amount, and specifying
the intended method of disposition thereof, the Company will promptly give
written notice of such requested registration to all other Holders of
Registrable Securities, and thereupon will, as expeditiously as possible, use
its best efforts to effect the registration under the Securities Act of:
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(i) the Registrable Securities which the Company has
been so requested to register by such Holder or Holders; and
(ii) if, at the time of such request, there are any
other Holders of Registrable Securities, all other Registrable
Securities which the Company has been requested to register by
any other Holder thereof by written request given to the
Company within 15 days after the giving of such written notice
by the Company (the original request and all additional
requests given within such 15-day period being considered one
request for registration), so as to permit the disposition (in
accordance with the intended method thereof as aforesaid) of
the Registrable Securities so to be registered; provided,
however, that the Company may delay filing the registration
statement for up to 180 days if its Board of Directors
determines that filing the Registration Statement would be
materially detrimental to the Company, provided, further,
however, that the Company may not so delay such filing with
respect to a registration requested pursuant to this Section
4(b) on or before the 30th day following the Closing (an
"Early Registration"). So long as the Company does not breach
any of its obligations in respect of the registration
contemplated by this Section 4 (other than a breach which
would not materially adversely affect any Holder's rights
hereunder), with respect to all Holders, the Company shall
only be required to comply with an aggregate of three requests
for registration pursuant to this Section 4. The requests for
registration referred to in the preceding sentence may be
exercised by the Holders, in the aggregate, no more than twice
in a twelve calendar month period. If any Holder withdraws its
request for registration following the filing of a
registration statement therefor and other than as a result of
a material adverse change in the business, financial condition
or results of operations of the Company, such withdrawn
request shall be deemed to be one of the three requests
granted to the Holders pursuant to this Section 4. If (a) any
Holder withdraws its request for registration (i) after the
filing of a registration statement therefor as a result of a
material adverse change in the business, financial condition
or results of operations of the Company, or (ii) prior to such
filing, (b) the Company withdraws the registration statement
for any reason other than a breach by such Holder of its
obligations hereunder with respect to such registration
statement, or (c) an offering of Registrable Securities
pursuant to the requested registration statement after it has
become effective is interfered with by any stop order,
injunction or other order or requirement of the SEC or other
governmental agency or court and the Holders of a majority of
the Registrable Securities included in such registration
statement determine not to proceed with such offering, then in
each such event the request for such registration shall not be
deemed to be one of the three requests granted to the Holders
pursuant to this Section 4. The Holders shall only exercise
registration rights for Registrable Securities which they
intend to sell, transfer or otherwise dispose of within 60
days of the effectiveness of the registration statement
relating to such Registrable Securities. The Company shall not
include in such registration securities proposed to be sold
for its account or securities held by any other Person, unless
such securities proposed to be included in such registration
are of the same class or series of capital stock of the
Company
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as the class or series of capital stock constituting
Registrable Securities for which registration has been
requested (or American Depositary Shares, as applicable).
(c) Expenses. The Company will, or will cause one of
its Controlled Affiliates to, pay all Registration Expenses in connection with
the registrations of Registrable Securities pursuant to this Section 4; provided
that each Holder will pay all underwriting discounts and commissions and
transfer taxes relating to the sale or other disposition of such Holder's
Registrable Securities pursuant to such registration and the fees and expenses
of its counsel.
(d) Effective Registration Statement. A registration
requested pursuant to this Section 4 will not be deemed to have been effected
unless a registration statement covering the Registrable Securities (in the form
of ADSs to the extent possible) (a "Registration Statement") has become
effective; provided that if, within 60 days after the effective date of the
Registration Statement, the offering of Registrable Securities pursuant to such
registration is prevented by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court, such registration
will be deemed not to have been effected. Notwithstanding the preceding
sentence, if any such stop order, injunction or other order or requirement is
rescinded, the period during which the Company is required to maintain the
effectiveness of the Registration Statement shall continue upon such rescission
and be extended by the number of days by which such stop order, injunction or
other order or requirement delayed the offering, unless the Holders of a
majority of the Registrable Securities included in the Registration Statement
elect to terminate the offering.
(e) Selection of Underwriters. If a requested
registration pursuant to this Section 4 involves either a firm or best efforts
underwritten public offering, the Holder or Holders of a majority of the
Registrable Securities shall have the right to select the underwriter or
underwriters of nationally recognized standing to administer the offering,
subject to the prior written consent of the Company, which consent shall not be
unreasonably withheld, and each Holder participating in such registration must
sell such Registrable Securities to the underwriters on the same terns and
conditions.
(f) Priority in Demand Registrations. If a requested
registration pursuant to this Section 4 involves an underwritten offering and
the managing underwriter advises the Company in writing that, in its opinion,
the number of securities requested to be included in such registration exceeds
the number which can be sold in such offering without adversely affecting the
price of the offering, the Company will include in such registration only the
Registrable Securities requested to be included in such registration. In the
event that the number of Registrable Securities requested to be included in such
registration exceeds the number which, in the opinion of such managing
underwriter, can be so sold in such offering, the number of such Registrable
Securities to be included in such registration shall be allocated pro rata among
all requesting Holders on the basis of the number of Registrable Securities then
individually held by each such Holder relative to the aggregate number of
Registrable Securities held by all requesting Holders (provided that such
Registrable Securities thereby allocated to any such Holder that exceed such
Holder's request shall be reallocated among the remaining requesting Holders in
like manner). If the number of Registrable Securities requested to be included
in such registration is less than the number which, in the opinion of the
managing
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underwriter, can be so sold in such offering, the Company may include
in such registration securities of the same class or series of capital stock
constituting the Registrable Securities for which registration is requested (or
American Depositary Shares, as applicable) which the Company proposes to sell up
to the number of securities that, in the opinion of the underwriter, can be so
sold in such offering. In the event that the number of Registrable Securities
requested to be included in such registration plus the number of securities
proposed to be included in such registration by the Company is less than the
number which, in the opinion of the managing underwriter, can be so sold in such
offering, the securities requested to be included in such registration by other
Persons whose requests have been approved by the Company (which securities are
of the same class or series as the Registrable Securities proposed to be
registered by the Holders (or American Depositary Shares, as applicable)) may be
included in such registration up to the number of securities that, in the
opinion of the underwriter, can be so sold.
(g) Additional Rights. The Company shall not grant
any other Person rights to register securities of the Company on terms which
could restrict in any way the ability of the Company fully to perform its
obligations to the Holders pursuant to this Section 4.
(h) Other Disposition of Registrable Securities. In
connection with any exercise of the rights set forth in this Section 4, if the
Company, within 10 business days following the receipt of a written request from
the Holders in accordance with the first sentence of Section 4(b), notifies the
Holders in writing that the Company has determined in good faith that the
registration of the Registrable Securities under the Securities Act pursuant to
such request is not necessary to provide the Holders making such request with a
liquid market for the sale of such Registrable Securities on the proposed terms
of the sale (which notice shall identify the alternative market or markets which
would permit such sale), then the Company shall not be required to effect the
registration so requested unless the Holders, after due consideration of the
Company's good faith determination, disagree on a reasonable basis with such
determination and advise the Company to proceed with the requested registration.
5. Registration Procedures
(a) If and whenever the Company is required to use
its best efforts to effect or cause the registration of any Registrable
Securities under the Securities Act as provided in this Agreement, the Company
will, subject to the provisions of Section 4(b), as expeditiously as possible:
(i) prepare and file with the SEC within 60 days (or
as soon thereafter as possible, if any required financial
statements of the Company are not available within such 60 day
period) after the end of the period within which requests for
registration may be given to the Company, a Registration
Statement and use its best efforts to cause such Registration
Statement to become effective; provided, however, that with
respect to an Early Registration, the Company shall prepare
and file the Registration Statement related thereto with the
SEC as soon as practicable after GM makes its written request
to the Company in accordance with Section 4(b) and use its
best efforts to cause such Registration Statement to become
effective; provided, further, that if a request for an Early
Registration is made pursuant to Section 4(b) at least 60 days
prior to the Anticipated Closing
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Date, the Company shall use its commercially reasonable
efforts to cause such Registration Statement to become
effective on the date of the Closing;
(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 for a period not in
excess of 60 days (as the same may be extended pursuant to
Sections 4(c) and 5(c)) and to comply with the provisions of
the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such
period in accordance with the intended methods of disposition
by the seller or sellers thereof set forth in such
Registration Statement; provided that, before filing a
Registration Statement or prospectus, or any amendments or
supplements thereto, the Company will furnish to one counsel
selected by the Holders of a majority of the Registrable
Securities covered by such Registration Statement to represent
all Holders of Registrable Securities covered by such
Registration Statement, copies of all documents proposed to be
filed, which documents will be subject to the review of such
counsel;
(iii) furnish to each seller of such Registrable
Securities such number of copies of such Registration
Statement and of each amendment and supplement thereto (in
each case including all exhibits), such number of copies of
the prospectus included in such Registration Statement
(including each preliminary prospectus and summary
prospectus), in conformity with the requirements of the
Securities Act, and such other documents as such seller may
reasonably request in order to facilitate the disposition of
the Registrable Securities by such seller;
(iv) use its best efforts to register or qualify such
Registrable Securities covered by such Registration Statement
under such other securities or blue sky laws of such
jurisdictions as each seller shall reasonably request, and do
any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable
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
where, but for the requirements of this clause (iv), it would
not 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 its best efforts to cause such Registrable
Securities covered by such Registration Statement to be
registered with or approved by such other governmental
agencies or authorities of the United States of America as may
be necessary by virtue of the business and operations of the
Company to enable the seller or sellers thereof to consummate
the disposition of such Registrable Securities;
(vi) immediately notify each seller of any such
Registrable Securities covered by such Registration Statement,
(x) at any time when a prospectus
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relating thereto is required to be delivered under the
Securities Act within the appropriate period mentioned in
clause (ii) of this Section 5(a), of the Company's becoming
aware that 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 required to
be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then
existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such
Registrable 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 then existing and (y) of any stop order issued
or to the Company's knowledge threatened to be issued and
shall take all reasonable action required to prevent the entry
of such stop order or to remove it if entered;
(vii) otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably
practicable (but not more than fifteen months) after the
effective date of the Registration Statement, an earnings
statement which shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations
promulgated thereunder;
(viii) use its best efforts to list such Registrable
Securities on any securities exchange on which the ADSs are
then listed, if such Registrable Securities are not already so
listed and if such listing is then permitted under the rules
of such exchange, and provide a transfer agent and registrar
for such Registrable Securities covered by such Registration
Statement not later than the effective date of such
Registration Statement;
(ix) enter into an agreement with a depositary to
provide for the custody of the Registrable Securities and
issuance of American Depositary Receipts representing such
Registrable Securities;
(x) enter into such customary agreements (including
an underwriting agreement in customary form) and take such
other actions customarily taken by registrants as sellers of a
majority of such Registrable Securities or the underwriters,
if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities;
(xi) obtain a "cold comfort" letter or letters from
the Company's independent public accountants in customary form
and covering matters of the type customarily covered by "cold
comfort" letters as the seller or sellers of a majority of
such Registrable Securities shall reasonably request; and
(xii) make available for inspection by any seller of
such Registrable Securities covered by such Registration
Statement, by any underwriter
10
participating in any disposition to be effected pursuant to
such Registration Statement and by any attorney, accountant or
other agent retained by any such seller or any such
underwriter (collectively, "Inspectors"), all pertinent
financial and other records, pertinent corporate documents and
properties of the Company (collectively the "Records") as
shall be reasonably necessary to enable them to exercise "due
diligence," and cause all of the Company's officers, directors
and employees to supply all information reasonably requested
by any Inspector in connection with such Registration
Statement; provided that if the Company reasonably determines
in good faith that any of such Records or other information
are confidential and so notifies the Inspectors in writing,
then, unless (x) the disclosure of such Records is necessary
to avoid or correct a material misstatement or material
omission in the registration statement or is otherwise
required by law or legal process, (y) the release of such
Records is required pursuant to a subpoena, court order or
regulatory or agency request, or (z) the information in such
Records has been made generally available to the public
without violation of any confidentiality obligations
hereunder, the Company's obligation to make such confidential
Records or other information available hereunder shall be
subject to the appropriate parties signing confidentiality
agreements reasonably acceptable to the Company.
(b) The Company may require each seller of
Registrable Securities as to which any registration is being effected to furnish
the Company with such information regarding such seller and pertinent to the
disclosure requirements relating to the registration and the distribution of
such securities as the Company may from time to time reasonably request in
writing.
(c) Each Holder of Registrable Securities agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in clause (vi) of Section 5(a), such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by clause (vi)
of Section 5(a), and, if so directed by the Company, such Holder 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 covering such
Registrable Securities at the time of receipt of such notice. In the event the
Company gives any such notice, the period mentioned in clause (ii) of Section
5(a) shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (vi) of
Section 5(a) to and including the date when each seller of Registrable
Securities covered by such Registration Statement shall have received the copies
of the supplemented or amended prospectus contemplated by clause (vi) of Section
5(a) up to the number of days remaining in such period, such extension to begin
on the later of the end of the period or the date on which each Holder of
Registrable Securities covered by such Registration Statement shall have
received such copies of such supplemented or amended prospectus.
(d) The Company shall make available members of the
management of the Company and its affiliates for reasonable assistance in the
selling efforts relating to any public offering of the Registrable Securities,
to the extent customary for public offerings
11
(including, without limitation, to the extent customary and reasonable, senior
management attendance at due diligence meetings with underwriters and their
counsel and road shows and other similar marketing efforts), and for such
assistance as is reasonably requested by the Holders and their counsel in the
selling efforts relating to any transaction, whether or not such transaction is
an underwritten public offering.
6. Indemnification.
(a) Indemnification by the Company. In the event of
any registration of any Registrable Securities of the Company under the
Securities Act pursuant to Section 3 or 4, the Company will, and it hereby does,
indemnify and hold harmless, to the extent permitted by law, the seller of any
Registrable Securities covered by such Registration Statement, each Affiliate of
such seller and their respective stockholders, members, employees, directors and
officers and general and limited partners (and the directors, officers,
Affiliates and controlling Persons thereof), each other Person who participates
as an underwriter in the offering or sale of such securities and each other
Person, if any, who controls such seller or any such underwriter within the
meaning of the Securities Act (collectively, the "GM Indemnitees"), against any
and all losses, claims, damages or liabilities, joint or several, and reasonable
expenses to which any of such GM Indemnitees may become subject under the
Securities Act, common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof, whether commenced
or threatened, and whether or not such GM Indemnitee is a party thereto) arise
out of or are based upon (a) any untrue statement or alleged untrue statement of
any material fact contained or incorporated by reference in any Registration
Statement under which such securities were registered under the Securities Act,
any preliminary, final or summary prospectus contained therein (except where
errors or omissions in such preliminary prospectus are corrected in the final
prospectus and the seller fails to deliver such final prospectus) or any
amendment or supplement thereto, or (b) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Company will reimburse such GM
Indemnitee for any legal or any other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided that the Company shall not be liable to any GM
Indemnitee 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 any untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement or amendment or supplement
thereto or in any such preliminary, final or summary prospectus in reliance upon
and in conformity with written information with respect to such seller furnished
to the Company by such seller for use in the preparation thereof. The indemnity
agreements contained in this Section 6(a) shall not apply to amounts paid in
settlement of claims if such settlement is effectuated without the consent of
the Company (which consent shall not be unreasonably withheld). Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such seller or any GM Indemnitee and shall survive the transfer of
the Registrable Securities by such seller.
(b) Indemnification by Participating Holders. In the
event of the registration of any Registrable Securities of the Company under the
Securities Act pursuant to Section 3 or 4, each participating Holder will, and
it hereby does, indemnify and hold harmless (in the same manner and to the same
extent as set forth in subdivision (a) of this Section 6) the
12
Company, each of its Affiliates, employees, directors and officers and each
Person, if any, who controls the Company within the meaning of the Securities
Act (collectively "Company Indemnitees"), with respect to any statement or
alleged statement in or omission or alleged omission from such Registration
Statement, any preliminary, final or summary prospectus contained therein, or
any amendment or supplement, if such statement or alleged statement or omission
or alleged omission was made in reliance upon and in conformity with written
information with respect to such Holder furnished to the Company by such Holder
for use in the preparation of such Registration Statement, preliminary, final or
summary prospectus or amendment or supplement, or a document incorporated by
reference into any of the foregoing; provided, however, that the indemnity
agreement contained in this paragraph 6(b) shall not apply to amounts paid in
settlement of any loss, claim, damage, liability or action arising pursuant to a
registration under Section 3 or 4 if such settlement is effected without the
consent of the Holder (which consent shall not be unreasonably withheld). Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Company or any Holder, or any of its Affiliates,
directors, officers or controlling Persons, and shall survive the transfer of
such Registrable Securities by such Holder.
(c) Notices of Claims, Etc. Promptly after receipt by
any GM Indemnitee or Company Indemnitee (each, an "Indemnified Party") of
written notice of the commencement of any action or proceeding with respect to
which a claim for indemnification may be made pursuant to this Section 6, 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 the Indemnified Party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the provisions of this Section 6, 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 Parties and indemnifying parties may exist in respect of such claim,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified to
the extent that it 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 and its
retention of such counsel, the indemnifying party will 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 will
consent to entry of any judgment or enter into any settlement 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.
(d) Other Indemnification. Indemnification similar to
that specified in the provisions of this Section 6 (with appropriate
modifications) shall be given by the Company and each Holder of Registrable
Securities with respect to any required registration or other qualification of
Registrable Securities under any federal or state law or regulation or
governmental authority other than the Securities Act.
(e) Contribution. To the extent any indemnification
by an indemnifying party provided for in Section 6(a), 6(b) or 6(d) is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution permitted by law with respect to
13
any amounts for which it would otherwise be liable under this Section 6;
provided that (i) no contribution shall be made under circumstances where the
maker would not have been liable for indemnification under the fault standards
set forth in this Section 6, and (ii) no Holder of Registrable Securities guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Holder of Registrable
Securities who was not guilty of such fraudulent misrepresentation.
(f) Non-Exclusivity. The obligations of the parties
under this Section 6 shall be in addition to any liability which any party may
otherwise have to any other party.
7. Rule 144. The Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and that it will take such further action as any Holder of Registrable
Securities 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 (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(ii) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of any Holder of Registrable Securities, the Company will deliver to
such Holder a written statement as to whether it has complied with such
requirements.
8. Miscellaneous.
(a) Holdback Agreement. If any registration of
Registrable Securities under this Agreement shall be in connection with an
underwritten public offering, each Holder of Registrable Securities agrees not
to effect any public sale or distribution, including any sale pursuant to Rule
144 under the Securities Act, of any equity securities of the Company, or of any
security convertible into or exchangeable or exercisable for any equity security
of the Company (in each case, other than as part of such underwritten public
offering), within 7 days before or 60 days (or such lesser period as the
managing underwriters may permit) after the effective date of such registration
(other than (i) as part of such underwritten offering, (ii) any such sale or
distribution in connection with any merger or consolidation by the Company or
any subsidiary of the Company or the acquisition by the Company or any
subsidiary of the Company of capital stock or assets of any other Person, or
(iii) in connection with an employee stock option or other benefit plan,
including any dividend reinvestment plan), and the Company hereby also so
agrees.
(b) Underwriter's Lock-Ups. At any time after the
earlier of (i) the 90th day following the effectiveness of a Registration
Statement related to an Early Registration and (ii) the 30th day following the
Closing, if there is no Early Registration and, in each case, for so long as the
Holders collectively own 50% or more of the number of Shares issued to GM at the
Closing, if requested by the managing underwriters in an underwritten public
offering (an "Underwritten Offering"), or by the initial purchasers or
representative purchasers in an offering under Rule 144A under the 1933 Act (a
"Rule 144A Offering"), by the Company for its own account of its equity
securities (including debt securities convertible into or exchangeable or
exercisable for equity securities of the Company), each Holder of Registrable
Securities agrees to enter into a customary form of lock-up agreement (an
"Underwriter's Lock-Up"), subject to customary exceptions (including, without
limitation, those specified in Section 8(a)), covering such Holder's Registrable
Securities during the period commencing on the effective date of such
14
Underwritten Offering or, in the case of a Rule 144A Offering, the date of the
definitive offering memorandum for the Rule 144A Offering (or such earlier date
chosen by the managing underwriters in an Underwritten Offering or by the
initial purchasers or representatives of the initial purchasers in a Rule 144A
Offering) and continuing for a period of no longer than ninety (90) days
following either (a) the effective date of such Underwritten Offering or, in the
case of a Rule 144A Offering, the date of the definitive offering memorandum for
the Rule 144A Offering or (b) such earlier date, if applicable, except for any
Registrable Securities that are part of such Underwritten Offering or Rule 144A
Offering, as the case may be, or, unless otherwise permitted by such managing
underwriters in the case of an Underwritten Offering or by the initial
purchasers or the representatives or the initial purchasers in a Rule 144A
Offering; provided, however, that the Holders shall not be required to enter
into an Underwriter's Lock-Up that provides for a lock-up period that is longer
than the shortest lock-up period, or other terms more onerous to such Holder
than the terms, applicable to the Company, each holder of 5% or more of any
class of its capital stock or any of its other stockholders that are entering
into lock-up agreements with respect to such Underwritten Offering or Rule 144A
Offering, as applicable.
(c) 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 Holders of a majority of the Registrable Securities then outstanding.
Each Holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this Section 8(c), whether or not
such Registrable Securities shall have been marked to indicate such consent
requirement.
(d) Restrictions on Transfer. The Registrable
Securities have not been registered under the Securities Act, and none of the
Registrable Securities may be sold, assigned, transferred, pledged, encumbered
or otherwise disposed of (collectively, "transferred") unless such Registrable
Securities have been registered under the Securities Act and applicable state
securities laws or, in the opinion of counsel reasonably acceptable to the
Company, in form and substance reasonably satisfactory to the Company, exemption
from such registration is available. The Holder agrees that the Registrable
Securities may be legended to reflect the restrictions contained in this Section
8(d) and that corresponding instructions may be given to the transfer agent (or
any depositary) for the Registrable Securities.
The Company agrees that, upon the written request of
GM, it will take such actions as are reasonably necessary (including, without
limitation, providing appropriate instructions (including, but not limited to,
instructions to remove legends from certificates evidencing the Registrable
Securities) to Citibank, N.A., as Depositary (the "Depositary") under the
Amended and Restated Deposit Agreement, dated as of December 3, 1996 (as amended
by the Restricted Securities Letter Agreement) between the Company, the
Depositary and certain other persons, as such agreement has been or may in the
future be amended or supplemented (the "Deposit Agreement")) to (i) facilitate
transfers permitted hereby and under the Restricted Securities Letter Agreement
and (ii) cause the Registrable Securities to cease to be deemed Restricted
Securities pursuant to the Deposit Agreement at such time as particular
Registrable Securities cease to be Registrable Securities in accordance with the
last sentence of the definition of Registrable Securities herein.
15
(e) Successors, Assigns and Transferees. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns. In addition, and
whether or not any express assignment shall have been made, the provisions of
this Agreement which are for the benefit of the parties hereto other than the
Company shall also be for the benefit of and enforceable by any subsequent
Holder of any Registrable Securities (including, without limitation, any
employee benefit plan maintained by GM to which GM may hereafter contribute
Registrable Securities), subject to the provisions contained herein.
(f) Notices. All notices and other communications
provided for hereunder shall be in writing and shall be sent by telecopier,
courier or hand delivery:
(i) if to the Company, to:
The News Corporation Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Senior Executive Vice President
and Group General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(ii) if to GM or any other Holder, to:
(x) GM, as representative of such other Holder, until
such time as (A) GM or such other Holder is not a
Controlled Affiliate of GM, and (B) GM so notifies
the Company:
General Motors Corporation
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
with a copy to:
Jenner & Block, LLC
Xxx XXX Xxxxx
00
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxx Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
(y) if to GM or any Holder which the Company has been
notified is not a Controlled Affiliate of GM, to the
address of such other Holder as shown in the books
and records of the Company, or to such other address
as any of the above shall have designated in writing
to all of the other parties listed above.
All such notices and communications shall be deemed to have been given or made
(1) when delivered (or when delivery is refused) by courier, certified mail or
by hand, or (2) when telecopied, with oral confirmation of receipt.
(g) Holder Communications through GM. For purposes of
all notices and other communications under this Agreement, GM is the
representative of each other Holder that is a Controlled Affiliate of GM.
Accordingly, unless and until notified by GM that a Holder is not a Controlled
Affiliate of GM, (i) in accordance with Section 8(f), the Company's notice or
other communication to GM is sufficient notice to any other Holder that is a
Controlled Affiliate of GM, and (ii) the Company shall not be obligated to take
action in response to any instruction or any request pursuant to this Agreement
from any other Holder that is a Controlled Affiliate of GM, other than from GM
as the representative of such other Holder, and, unless specified to the
contrary in such writing, any request or instruction made by GM shall be deemed
to have been made by it on behalf of all Holders which are Controlled Affiliates
of GM, and the Registrable Securities held by such Holders shall be aggregated
together for all purposes hereunder and as specified in such request or
instruction.
(h) Descriptive Headings. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning of terms contained herein.
(i) Severability. In the event that any one or more
of the provisions, paragraphs, words, clauses, phrases or sentences contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired, it
being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
(j) Counterparts. This Agreement may be executed in
two or more counterparts, and by different parties on separate counterparts,
each of which shall be deemed an original, but all such counterparts shall
together constitute one and the same instrument, and it shall not be necessary
in making proof of this Agreement to produce or account for more than one such
counterpart.
17
(k) Governing Law. This Agreement will be governed by
the internal laws of the State of New York, without regard to conflicts of laws
rules. The Company hereby appoints The News Corporation Limited, 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx, as its
authorized agent (the "Authorized Agent") upon which process may be served in
any such action arising out of or based upon this Agreement or the transactions
contemplated hereby that may be instituted in any court by any party hereto and
expressly consents to the jurisdiction of any such court, but only in respect of
any such action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. The Company represents and warrants that the
Authorized Agent has agreed to act as said agent for service of process, and the
Company agrees to take any and all action, including the filing of any and all
documents and instruments, that may be necessary to continue such appointment in
full force and effect as aforesaid. If the Authorized Agent shall cease to act
as the Company's agent for service of process, the Company shall appoint without
delay another such agent and notify GM of such appointment. With respect to any
such action in the courts, service of process upon the Authorized Agent in the
manner provided in Section 8(f) for the giving of notices and written notice of
such service to the Company shall be deemed, in every respect, effective service
of process upon the Company. Any action to enforce any provision of this
Agreement may be brought only in a United States Federal court or a court of any
state of the United States having jurisdiction in such matter. Each party (a)
hereby submits to the general jurisdiction of such courts and agrees to accept
service of process at its address for notices pursuant to this Agreement in any
such action or proceeding and (b) irrevocably waives any objection it may have
to the laying of venue of such action or proceeding brought in any such court
and any claim that such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(l) Specific Performance. The parties hereto
acknowledge and agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that they
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States or
any state thereof, in addition to any remedy to which they may be entitled at
law or equity.
(m) No Inconsistent Rights; Acknowledgement of Other
Agreements. On the date of the Closing, the Company will not be a party to or
otherwise bound by any agreement to register any of its securities under the
Securities Act or under any state securities law, other than pursuant to (i) the
Amended and Restated Registration Rights Agreement, by and between the Company
and Kingdom 5-KR-65, Ltd., dated as of July 15, 1999, (ii) the Registration
Rights and Lock-Up Agreement by and between the Company and Liberty Media
Corporation, dated as of July 15, 1999, as such agreement may be amended (x) to
include not more than 40,000 additional ADSs as "Registrable Securities"
thereunder, and (y) in any manner that will not adversely affect the rights of
the Holder(s) under this Agreement, (iii) the Amended and Restated Registration
Rights and Lock-Up Agreement, by and between the Company and Liberty Media
Corporation, dated as of December 3, 2001 (the "2001 Liberty Registration Rights
Agreement"), and (iv) a registration rights agreement to be entered into by and
between the Company and Liberty Media Corporation relating to the Put / Call
Letter Agreement between the parties, dated as of March 27, 2003, which shall be
substantially in the form of the 2001
18
Liberty Registration Rights Agreement (except with respect to the "lock-up"
provisions contained therein other than those provisions that are comparable to
the provisions of Section 8(b) hereof). The Company is not, and will not become,
a party to or otherwise bound by any agreement, including, without limitation,
the agreements identified in the foregoing sentence, that conflicts with,
results in a breach of or violates this Agreement.
(n) Termination. All rights, restrictions and
obligations of the Company (with respect to any Holder) and such Holder shall
terminate and this Agreement shall have no further force and effect with respect
to any Holder, upon the earlier of (i) such time as such Holder no longer
directly or indirectly owns any Registrable Securities of the Company, (ii)
termination of the Stock Purchase Agreement pursuant to Section 3.2 thereof, or
(iii) Closing, if the Company does not issue any Shares to GM pursuant to
Article II of the Stock Purchase Agreement.
19
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
THE NEWS CORPORATION LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
GENERAL MOTORS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant General Counsel
