EXHIBIT 1.2
MARKETING MANAGER AGREEMENT
____________, 2000
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs or Madams:
General Motors Corporation ("GM"), a Delaware corporation and parent
of Xxxxxx Electronics Corporation ("Xxxxxx"), a Delaware corporation, proposes
to make an offer to exchange shares of GM's Class H Common Stock, par value
$0.10 per share ("Class H Common Stock" or the "Exchange Shares"), for shares of
GM's Common Stock, par value $1 2/3 per share ("$1 2/3 Common Stock" or the
"Shares"), validly tendered and accepted by GM in the exchange offer. The terms
and conditions of the exchange offer are to be set forth in the Prospectus (as
defined below) and in the Letter of Transmittal (as defined below) that will be
delivered to you prior to commencement of the exchange offer. Such exchange
offer, as it may be amended or supplemented from time to time, including any
extension thereof, is hereinafter referred to as the "Exchange Offer."
GM has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-4 (File No. 333-30826) under
the Securities Act of 1933, as amended (the "Securities Act"), in respect of the
Exchange Shares and such registration statement and any post-effective amendment
thereto has been declared effective by the Commission. The various parts of such
registration statement, including all exhibits thereto and including the
documents incorporated by reference into the prospectus contained in the
registration statement at the time such part of the registration statement
became effective, each as amended at the time such part of the registration
became effective, are hereinafter called the "Registration Statement"; and the
final prospectus, in the form included in the Registration Statement at the time
it became effective, is hereinafter called the "Prospectus"; any reference
herein to the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 15 of Form S-4 under the
Securities Act, as of the date of the Prospectus, as the case may be; and any
reference to any amendment or supplement to the Prospectus shall be deemed to
refer to and include any documents filed after the date of the Prospectus under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus.
GM has agreed that not later than the Commencement Date (as defined
herein), it will file with the Commission under the Exchange Act and the rules
and regulations promulgated thereunder a Statement on Schedule TO with respect
to the Exchange Offer (including the exhibits thereto and any documents
incorporated by reference therein, and as amended from time to time, the
"Schedule TO").
Subject to the matters discussed in GM's letter to the Commission in
connection with the Exchange Offer, dated , 2000, with respect to the
jurisdictions set forth on Annex A (the "Foreign Jurisdictions"), GM is either
relying on a private placement or other similar exemption or exception under the
securities laws of the applicable Foreign Jurisdiction or has filed or agrees
that it will file, with the applicable regulatory agencies for the Foreign
Jurisdictions all materials and information in connection with the Exchange
Offer as required to be filed by such jurisdictions and, in each case, in a
manner consistent in all material respects with the Company's letter to the
Commission in connection with the Exchange Offer dated , 2000.
The Prospectus and the related letter from GM to brokers, securities
dealers, commercial banks, trust companies and other nominees, letter to
beneficial owners of the Shares, letter of transmittal to be used by holders
tendering Shares pursuant to the Exchange Offer and the related instructions to
the letter of transmittal (together, the "Letter of Transmittal"), notice of
guaranteed delivery, and any newspaper announcements, press releases and other
offering materials and information (including, without limitation, the materials
and filings used in connection with the immediately preceding paragraph) as GM
may use or prepare, approve or authorize for use in connection with the Exchange
Offer, including the Schedule TO, each as amended or supplemented from time to
time, are herein collectively referred to as the "Exchange Offer Materials."
1. Appointment, Fees and Expenses
A. You are hereby appointed to act as sole Marketing Manager for
Xxxxxx in connection with the Exchange Offer (you being sometimes hereinafter
referred to in that capacity as "Marketing Manager"). You agree that in
connection with the Exchange Offer, you will participate in the marketing
efforts related to the Exchange Offer Transactions as described below, it being
understood that neither the Board of Directors of GM nor the Board of Directors
of Xxxxxx is making any recommendation to holders of $1 2/3 Common Stock as to
whether to accept or participate in the Exchange Offer and therefore, as
Marketing Manager, you will not be making any recommendation.
B. In your role as Marketing Manager for Xxxxxx in the Exchange Offer,
you shall (A) participate in and assist management of Xxxxxx in its preparation
and conduct of presentations to institutional and retail investors during the
roadshow which is to be arranged by the Dealer Manager (as defined below) for
the Exchange Offer in order to present Xxxxxx and the terms of the Exchange
Offer to institutional and retail investors that may be in a position to
participate in the Exchange Offer, and (B) provide information, analysis and
advice to management of Xxxxxx in connection with the preparation by such
management for its participation in the discussions which they are expected to
have with management of GM, the General Motors Corporation Board of Directors
and the Dealer Manager with respect to the Exchange Offer. In all other
respects, your role in the Exchange Offer shall be that which broker-dealers not
engaged by a principal to the transaction customarily perform in connection with
tender offers similar to the Exchange Offer. In this regard, it is understood
that in the period immediately after the exchange ratio has been set, you will
not initiate contact with any institutional or retail investors in connection
with the Exchange Offer until the earlier of (A) GM has confirmed to you that
the Dealer Manager has completed its initial contact with such parties,
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and (B) 24 hours after the exchange ratio has been set; thereafter, your sales
force and securities analysts who publish reports concerning Xxxxxx may initiate
contact with institutional and retail investors with regard to the Exchange
Offer provided that such representatives shall not accept any letters of
transmittal from institutional or retail investors, but shall direct all such
submissions to be handled by such institutional or retail investors in
accordance with the steps prescribed in the Exchange Offer Materials. You have
been engaged to act as the sole Marketing Manager for Xxxxxx in connection with
the Exchange Offer, and, in such capacity, you have no role in the solicitation
of tenders (except to the extent that compliance with the foregoing may be
deemed a solicitation of tenders) and shall act as an independent contractor
with duties solely to Xxxxxx. You agree that you are not, and shall not be
deemed to be acting as the agent of GM, Xxxxxx or Xxxxxx Xxxxxxx & Co.
Incorporated, which has been appointed by GM as the Dealer Manager for the
Exchange Offer (the "Dealer Manager"), and none of GM, Xxxxxx or the Dealer
Manager shall be deemed to be acting as your agent. Neither the Dealer Manager
nor any brokers, dealers, commercial banks and trust companies (each, a
"Dealer") shall be deemed to be acting as an agent for you, GM or Xxxxxx.
C. Pursuant to a letter agreement dated September 30, 1999 between
Xxxxxx and you (the "Engagement Letter") Xxxxxx has agreed, among other things,
to compensate you for your services as Marketing Manager. You and Xxxxxx agree
that $1.5 million of that compensation shall represent your fee for serving as
Marketing Manager.
X. Xxxxxx agrees to reimburse you promptly for all of your reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of your
counsel, incurred by you in connection with the Exchange Offer, promptly after
such expenses become due. Xxxxxx will pay your expenses as set forth in this
Section 1D whether or not GM exchanges any $1 2/3 Common Stock for shares of
Class H Common Stock pursuant to the Exchange Offer.
E. Each of Xxxxxx and you agrees that nothing contained herein shall
affect Xxxxxx' and your rights and obligations under the letter agreements with
Xxxxxx, dated September 30, 1999 and October 28, 1999, respectively, which
letter agreements remain in full force and effect between you and Xxxxxx.
2. Covenants of Xxxxxx. Xxxxxx hereby further agrees that:
During the period of the Exchange Offer, and prior to the expiration
date thereof, Xxxxxx will notify you promptly after it receives notice or
becomes aware (1) of the occurrence of any event as a result of which it is
necessary to amend or supplement the Prospectus or any of the other Exchange
Offer Materials in order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus or other Exchange
Offer Materials are delivered, not misleading, (2) of the time when any amended
or additional Exchange Offer Materials shall have been filed, (3) of any request
by the Commission to amend or supplement the Exchange Offer Materials, or (4) of
any change of the expiration date of the Exchange Offer or the occurrence of any
event which would cause the Exchange Offer to be withdrawn, rescinded, modified
or amended.
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3. Conditions to Your Obligations. Subject to the time period set
forth in paragraph A hereof, your obligations hereunder shall at all times be
subject to the conditions that:
A. All representations, warranties and other statements of Xxxxxx and
GM contained herein and in the Representation Letter between you and GM, dated
as of the date hereof and in the form set forth in Exhibit A hereto (the
"Representation Letter") are now, and at all times during the period of the
Exchange Offer shall be, true and correct in all material respects, and Xxxxxx
and GM at all times shall have performed in all material respects all of their
respective obligations hereunder and thereunder theretofore to be performed. You
shall have a reasonable period of time after discovering or being informed of a
breach of the condition in the preceding sentence or following (i) the use by
the Company or filing with the Commission of the Prospectus (A) if it has not
been timely submitted to you previously for your and your counsel's comments or
(B) if it has have been so submitted, but you have or your counsel has made
material comments, and GM has unreasonably failed to address such comments; (ii)
the Registration Statement not having become effective on or prior to the
Commencement Date, or, at any time during the Exchange Offer prior to the
expiration date thereof, a stop order suspending the effectiveness of the
Registration Statement having been issued or a proceeding for that purpose
having been instituted or being pending or threatened by the Commission, or a
requirement by the Commission that additional information be provided not having
been satisfied in all material respects; or the issuance, at any time during the
Exchange Offer of any temporary restraining order or injunction restraining or
enjoining you from acting in your capacity as Marketing Manager to Xxxxxx; (iii)
the occurrence of a material adverse change, or any development that is
reasonably likely to result in a material adverse change, in the condition of
either (A) GM and its subsidiaries, taken as a whole, or (B) Xxxxxx and its
subsidiaries taken as a whole, in each case, from that set forth in the
Prospectus; to elect whether to continue as Marketing Manager and, in all cases,
you shall provide at least two (2) business days' prior written notice to Xxxxxx
before any election not to continue as Marketing Manager shall be effective.
B. You shall have received on the Commencement Date the opinions, each
dated the date of the Prospectus, from Xxxxxxxx X. Xxxxxxx, Esq., Assistant
General Counsel of Xxxxxx, Xxxxxx X. Xxxxxxxx, Esq., Attorney, Legal Staff of GM
and Xxxxxxxx & Xxxxx, counsel to GM, addressed to you as Marketing Manager, to
the effect set forth in Exhibit B hereto and the opinions of Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, as special international counsel to GM, as to matters relating
to the laws of certain foreign jurisdictions, and Osler, Xxxxxx and Harcourt, as
to matters relating to the securities laws of certain provinces of Canada, in
form and substance reasonably acceptable to you.
C. You shall have received a letter on the Commencement Date from
Deloitte & Touche, independent public accountants to Xxxxxx and GM, who have
prepared the financial statements included in the Prospectus, in form and
substance reasonably satisfactory to you and dated as of the date of delivery
thereof, containing statements and information of the type customarily included
in accountants' "comfort letters" with respect to the financial statements and
certain financial information contained in, or incorporated by reference into,
the Registration Statement or the Prospectus.
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4. Representation, Warranties and Agreements of Xxxxxx. Xxxxxx hereby
represents, warrants and agrees that:
X. Xxxxxx has the corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder.
B. This Agreement has been duly authorized, executed and delivered by
Xxxxxx.
C. (i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to its knowledge, threatened
by the Commission; (ii) each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference into the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder; (iii) the Registration
Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, as of the effective date of any amendment or
supplement, will not contain 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; (iv) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply in
all material respects with all applicable requirements of the Securities Act and
the rules and regulations of the Commission thereunder; and (v) the Prospectus,
as of the date it bears, does not contain and, as amended or supplemented, if
applicable (as of the date of such amendment or supplement), will not contain an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that no representation,
warranty or agreement is made as to information furnished in writing by you or
on your behalf specifically for inclusion in the Registration Statement or the
Prospectus.
D. The Schedule TO, as originally filed and subsequently amended, and
any amendments or supplements thereto comply, or will comply, in all material
respects with all applicable requirements of the Securities Act and the Exchange
Act and the rules and regulations of the Commission thereunder; and none of the
Schedule TO or any amendment or supplement thereto includes, or will include, an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that no representation,
warranty or agreement is made as to information furnished in writing by you or
on your behalf specifically for inclusion in the Schedule TO.
5. Representations, Warranties and Agreements of the Marketing
Manager. You hereby represent, warrant and agree, as Marketing Manager, that:
A. You will not cause to be disseminated to customers or Dealers or
securityholders of GM any written material for or in connection with the
Exchange Offer other than one or more of the Exchange Offer Materials. You will
keep Xxxxxx reasonably informed of your dissemination of the Exchange Offer
Materials and activities in connection with the Exchange Offer.
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B. You have the corporate power and authority to execute and deliver
this Agreement and to perform your obligations hereunder. This Agreement has
been duly authorized, executed and delivered by you.
6. Indemnity
(a) The provisions of the letter agreement dated , 2000 between
Xxxxxx and you (the "Indemnity Letter") relating to indemnification and
contribution, and to the settlement of claims and release of you (as the term
"you" is defined in the Indemnity Letter) in the event of such settlement, are
in full force and effect, and the Company agrees to indemnify and hold harmless
you (as defined in the Indemnity Letter), to contribute to amounts paid or
payable by you (as defined in the Indemnity Letter) and to comply with such
settlement and release provisions, in each case as provided in the Indemnity
Letter.
(b) You hereby agree to indemnify and hold harmless GM and Xxxxxx, any
director, officer, agent or employee of GM or Xxxxxx (collectively referred to
for purposes of this Section 6 as the "GM Indemnitees") to the full extent
lawful, from and against, and that the GM Indemnitees shall have no liability to
you or your creditors or securityholders for, any losses caused by any untrue
statement or alleged untrue statement of any material fact in any of the
Registration Statement, the Prospectus, the Schedule TO and information filed
pursuant to Rule 425 of the Securities Act or omitted statement of material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that this sentence
shall only apply with respect to such statements and omissions made in such
document in reliance upon and in conformity with written information prepared by
you or on your behalf and furnished by you or on your behalf to Xxxxxx or GM for
inclusion in such document. Xxxxxx agrees and acknowledges that the only
information furnished or to be furnished by you or on your behalf for inclusion
in the Registration Statement, the Prospectus, the Schedule TO and information
filed pursuant to Rule 425 of the Securities Act is the description of yourself
and your relationship with Xxxxxx and with GM included therein.
7. Miscellaneous
A. This Agreement has been and is made solely for your benefit and for
the benefit of the other indemnified persons referred to in Section 6 hereof and
your and their respective successors, assigns, executors and administrators, and
no other person shall acquire or have any right under or by virtue of this
Agreement. You shall not have any liability or obligation to Xxxxxx or GM for
any act or omission of Xxxxxx, XX, the Dealer Manager or any Dealer, and you
undertake no obligation to Xxxxxx other than for the performance of your
representations, warranties and agreements hereunder and as contemplated hereby.
B. The representations, warranties, agreements, indemnities and
contribution arrangements contained in this Agreement shall remain in full force
and effect regardless of any investigations made by or on behalf of you or
Xxxxxx whether or not such investigation, if diligently made, would have
disclosed facts upon which any breach of representation, warranty or agreement
is or may be based or indemnification or contribution sought, and shall survive
the exchange of $1 2/3 Common Stock for Class H Common Stock pursuant to the
Exchange Offer and the consummation of the Exchange Offer, any failure to
commence, withdrawal, termination
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or cancellation of the Exchange Offer (whether or not shares of $1 2/3 Common
Stock are exchanged) for any reason whatsoever, and any withdrawal by you as
Marketing Manager pursuant to any provision of this Agreement.
C. THIS AGREEMENT SHALL BE DEEMED MADE IN NEW YORK AND SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO SUCH STATE'S
RULES CONCERNING CONFLICTS OF LAWS.
D. Solely for purposes of enforcing this Agreement, each of Xxxxxx and
you hereby consents to personal jurisdiction, service of process and venue in
any court in which any claim which is subject to this Agreement is brought and
properly maintained against you or Xxxxxx, as the case may be. ANY RIGHT OF THE
PARTIES TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR PROCEEDING RELATED TO OR
ARISING OUT OF SUCH ENGAGEMENT, ANY TRANSACTION OR CONDUCT IN CONNECTION
THEREWITH OR THIS AGREEMENT IS WAIVED BY EACH OF THE PARTIES HERETO.
E. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. Subject to Section 1.D. herein, this
Agreement, the Representation Letter, the Engagement Letter and the Indemnity
Letter constitute the entire agreement, and supersede any and all prior
agreements, whether written or oral, between the parties hereto with respect to
the subject matter hereof. No amendment or modification of this Agreement, or
waiver of any rights of any party hereunder, shall be effective unless made
pursuant to an instrument in writing expressly referencing this Agreement signed
by each of the parties hereto.
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F. All communications hereunder shall be in writing and, except as
otherwise specified in writing, shall be delivered at, or telexed or facsimile
transmitted to, the following addresses: if to you, to Xxxxxxx Xxxxx Xxxxxx
Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention Xxxxxxxxxxx X.
Xxxxxxxx, with a copy to Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx,
Xxx Xxxx, XX 00000, attention Xxxxxx X. Xxxxxx, Esq., and if to Xxxxxx, to
Xxxxxx Electronics Corporation, X.X. Xxx 000, Xx Xxxxxxx, XX 00000-0000,
attention Xxxxxxxx X. Xxxxxxx, Esq., with a copy to General Motors Corporation,
300 Renaissance Center, Mail Code 482-C25-C22, Xxxxxxx, Xxxxxxxx 00000-0000,
attention Xxxxxx X. Xxxxxxxx, Esq.
Very truly yours,
XXXXXX ELECTRONICS CORPORATION
By:
---------------------------
Title:
Accepted and agreed to as of
the date first written above:
XXXXXXX XXXXX XXXXXX INC.
By:
---------------------------
Managing Director
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EXHIBIT A
__________, 2000
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs or Madams:
General Motors Corporation ("GM"), a Delaware corporation and parent
of Xxxxxx Electronics Corporation ("Xxxxxx"), a Delaware corporation, proposes
to make an offer to exchange shares of GM's Class H Common Stock, par value
$0.10 per share ("Class H Common Stock" or the "Exchange Shares"), for shares of
GM's Common Stock, par value $1 2/3 per share ("$1 2/3 Common Stock" or the
"Shares"), validly tendered and accepted by GM in the exchange offer. The terms
and conditions of the exchange offer are to be set forth in the Prospectus (as
defined below) and in the Letter of Transmittal (as defined below) that will be
delivered to you prior to commencement of the exchange offer. Such exchange
offer, as it may be amended or supplemented from time to time, including any
extension thereof, is hereinafter referred to as the "Exchange Offer."
GM has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-4 (File No. 333-30826) under
the Securities Act of 1933, as amended (the "Securities Act"), in respect of the
Exchange Shares and such registration statement and any post-effective amendment
thereto has been declared effective by the Commission. The various parts of such
registration statement, including all exhibits thereto and including the
documents incorporated by reference into the prospectus contained in the
registration statement at the time such part of the registration statement
became effective, each as amended at the time such part of the registration
became effective, are hereinafter called the "Registration Statement"; and the
final prospectus, in the form included in the Registration Statement at the time
it became effective, is hereinafter called the "Prospectus"; any reference
herein to the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 15 of Form S-4 under the
Securities Act, as of the date of the Prospectus, as the case may be; and any
reference to any amendment or supplement to the Prospectus shall be deemed to
refer to and include any documents filed after the date of the Prospectus under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus.
GM has agreed that not later than the Commencement Date (as defined
herein), it will file with the Commission under the Exchange Act and the rules
and regulations promulgated thereunder a Statement on Schedule TO with respect
to the Exchange Offer (including the exhibits thereto and any documents
incorporated by reference therein, and as amended from time to time, the
"Schedule TO").
Subject to the matters discussed in GM's letter to the Commission in
connection with the Exchange Offer, dated , 2000, with respect to the
jurisdictions set forth on Annex A (the "Foreign Jurisdictions"), GM is either
relying on a private placement or other similar exemption or exception under the
securities laws of the applicable Foreign Jurisdiction or has filed or agrees
that it will file, with the applicable regulatory agencies for the Foreign
Jurisdictions all materials and information in connection with the Exchange
Offer as required to be filed by such jurisdictions and, in each case, in a
manner consistent in all material respects with the Company's letter to the
Commission in connection with the Exchange Offer dated , 2000.
The Prospectus and the related letter from GM to brokers, securities
dealers, commercial banks, trust companies and other nominees, letter to
beneficial owners of the Shares, letter of transmittal to be used by holders
tendering Shares pursuant to the Exchange Offer and the related instructions to
the letter of transmittal (together, the "Letter of Transmittal"), notice of
guaranteed delivery, and any newspaper announcements, press releases and other
offering materials and information (including, without limitation, the materials
and filings used in connection with the immediately preceding paragraph) as GM
may use or prepare, approve or authorize for use in connection with the Exchange
Offer, including the Schedule TO, each as amended or supplemented from time to
time, are herein collectively referred to as the "Exchange Offer Materials."
1. Appointment, Fees and Expenses
A. You have been engaged by Xxxxxx Electronics Corporation ("Xxxxxx"),
a wholly-owned subsidiary of GM, to act as sole Marketing Manager for Xxxxxx
(you being sometimes hereinafter referred to in that capacity as "Marketing
Manager") with respect to the Exchange Offer. This letter is being furnished to
you pursuant to the Marketing Manager Agreement between you and Xxxxxx (the
"Marketing Manager Agreement") in consideration for your agreeing to act as
Marketing Manager for Xxxxxx.
B. In your role as Marketing Manager for Xxxxxx in the Exchange Offer,
you shall (A) participate in and assist management of Xxxxxx in its preparation
and conduct of presentations to institutional and retail investors during the
roadshow which is to be arranged by the Dealer Manager (as defined below) for
the Exchange Offer in order to present Xxxxxx and the terms of the Exchange
Offer to institutional and retail investors that may be in a position to
participate in the Exchange Offer, and (B) provide information, analysis and
advice to management of Xxxxxx in connection with the preparation by such
management for its participation in the discussions which they are expected to
have with management of GM, the General Motors Corporation Board of Directors
and the Dealer Manager with respect to the Exchange Offer. In all other
respects, your role in the Exchange Offer shall be that which broker-dealers not
engaged by a principal to the transaction customarily perform in connection with
tender offers similar to the Exchange Offer. In this regard, it is understood
that in the period immediately after the exchange ratio has been set, you will
not initiate contact with any institutional or retail investors in connection
with the Exchange Offer until the earlier of (A) GM has confirmed to you that
the Dealer Manager has completed its initial contact with such parties, and (B)
24 hours after the exchange ratio has been set; thereafter, your sales force and
securities analysts who publish reports concerning Xxxxxx may initiate contact
with institutional and retail
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investors with regard to the Exchange Offer provided that such representatives
shall not accept any letters of transmittal from institutional or retail
investors, but shall direct all such submissions to be handled by such
institutional or retail investors in accordance with the steps prescribed in the
Exchange Offer Materials. You have been engaged to act as the sole Marketing
Manager for Xxxxxx in connection with the Exchange Offer, and, in such capacity,
you have no role in the solicitation of tenders (except to the extent that
compliance with the foregoing may be deemed a solicitation of tenders) and shall
act as an independent contractor with duties solely to Xxxxxx. You agree that
you are not, and shall not be deemed to be acting as the agent of GM, Xxxxxx or
Xxxxxx Xxxxxxx & Co. Incorporated, which has been appointed by GM as the Dealer
Manager for the Exchange Offer (the "Dealer Manager"), and none of GM, Xxxxxx or
the Dealer Manager shall be deemed to be acting as your agent. Neither the
Dealer Manager nor any brokers, dealers, commercial banks and trust companies
(each, a "Dealer") shall be deemed to be acting as an agent for you, GM or
Xxxxxx.
C. GM will pay all reasonable fees and expenses incurred in connection
with the Exchange Offer, including, without limitation, all fees and expenses
relating to the preparation, filing, printing, mailing and publication of the
Exchange Offer Documents, all advertising and printing charges, all filing fees
and all fees and expenses of the Dealer Manager, Exchange Agent and Information
Agent subject to and in accordance with GM's agreement with those parties. GM
agrees that you shall be entitled to soliciting dealers' fees on the same basis
as other Dealers.
2. Covenants of GM. GM hereby further agrees that:
During the period of the Exchange Offer, and prior to the expiration
date thereof, GM will notify you promptly after it receives notice or becomes
aware (1) of the occurrence of any event as a result of which it is necessary to
amend or supplement the Prospectus or any of the other Exchange Offer Materials
in order to make the statements therein, in light of the circumstances under
which they were made when such Prospectus or other Exchange Offer Materials are
delivered, not misleading, (2) of the time when any amended or additional
Exchange Offer Materials shall have been filed, (3) of any request by the
Commission to amend or supplement the Exchange Offer Materials, or (4) of any
change of the expiration date of the Exchange Offer or the occurrence of any
event which would cause the Exchange Offer to be withdrawn, rescinded, modified
or amended.
3. Representation, Warranties and Agreements of GM. GM hereby
represents, warrants and agrees that (except that GM makes no representations or
warranties as to you, any of your affiliates or any persons acting on your
behalf):
A. GM has the corporate power and authority to execute and deliver
this Representation Letter, to perform its obligations hereunder and to
consummate the Exchange Offer.
B. The Exchange Offer and this Representation Letter, have been duly
authorized by all necessary corporate action by GM.
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C. This Representation Letter has been duly authorized, executed and
delivered by GM.
D. (i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to its knowledge, threatened
by the Commission; (ii) each document filed or to be filed pursuant to the
Exchange Act and incorporated by reference into the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder; (iii) the Registration
Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, as of the effective date of any amendment or
supplement, will not contain 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; (iv) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable (as of the date
of such amendment or supplement), will comply in all material respects with all
applicable requirements of the Securities Act and the rules and regulations of
the Commission thereunder; and (v) the Prospectus, as of the date it bears, does
not contain and, as amended or supplemented, if applicable (as of the date of
such amendment or supplement), will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that no representation, warranty or agreement is
made as to information furnished in writing by you or on your behalf
specifically for inclusion in the Registration Statement or the Prospectus.
E. The Schedule TO, as originally filed and subsequently amended, and
any amendments or supplements thereto comply, or will comply, in all materials
respects with all applicable requirements of the Securities Act and the Exchange
Act and the rules and regulations of the Commission thereunder; and none of the
Schedule TO or any amendment or supplement thereto includes, or will include, an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that no representation,
warranty or agreement is made as to information furnished in writing by you or
on your behalf specifically for inclusion in the Schedule TO.
F. GM will accept Shares for exchange in accordance with and subject
to the terms and conditions of the Exchange Offer; and GM has caused Fleet
National Bank (the "Exchange Agent") to make appropriate arrangements with The
Depository Trust Company and any other "qualified" registered securities
depository to allow for the book-entry movement of exchanged Shares between
depository participants and the Exchange Agent.
G. No consent, approval, authorization or order of, or qualification
with, any government body or agency is required in connection with the
execution, delivery and performance of this Representation Letter, except such
as have been obtained or as may be required by the securities or Blue Sky laws
of the various states and the securities or other laws of all applicable foreign
jurisdictions in connection with the offer and sale of the Exchange Shares,
except where the failure to obtain or make such consent, approval,
authorization, order or
4
qualification would not materially adversely affect the ability of GM to
execute, deliver and perform this Representation Letter.
H. Except as disclosed in the Prospectus, (i) the Exchange Offer, and
the execution and delivery of this Representation Letter will comply in all
material respects with all applicable requirements of law, including the
Securities Act, the Exchange Act, the various state securities or "blue sky"
laws and state "takeover" statutes (collectively, "State Statutes"), all
applicable regulations of the Commission or any other governmental or regulatory
agency (each, an "Other Agency") and all applicable laws and regulations of all
applicable foreign jurisdictions and (ii) the commencement and consummation by
GM of the Exchange Offer do not and will not require any consent, approval,
authorization or permit of, filing with or notification to, the Commission or
any Other Agency, except in each case (x) where the failure to comply with such
laws and regulations and to obtain or make such consent, approval,
authorization, or permit or other action or filing or notification would not
materially adversely affect the ability of GM to execute and deliver this
Agreement or to consummate the Exchange Offer in accordance with its terms or
(y) for such consents, approvals, authorizations, or permits that have been
granted and filings, notifications or any other appropriate action that have
been made.
I. The Exchange Offer, and the execution and delivery of, this
Representation Letter do not and will not: (i) violate any provision of the
certificate of incorporation or by-laws of GM; (ii) result in a breach of any
material agreement or other material instrument binding upon GM or (iii)
conflict with or violate in any material respect any judgment, order or decree
of any governmental body, agency or court having jurisdiction over GM, except in
each case for any such conflicts, contraventions, violations, breaches or
defaults which would not materially adversely affect the ability of GM to
execute and deliver this Representation Letter or to consummate the Exchange
Offer in accordance with its terms.
J. The Exchange Shares to be issued by GM pursuant to the terms of the
Exchange Offer have been duly authorized and, when issued and delivered pursuant
to the terms of the Exchange Offer, will be validly issued, fully paid and non-
assessable, and the issuance of the Exchange Shares will not be subject to any
preemptive or similar rights of any security holder of GM.
K. The authorized capital stock of GM, including the Class H Common
Stock, conforms as to legal matters in all material respects to the description
thereof contained in the Prospectus.
GM acknowledges that in performing your duties as Marketing Manager
for Xxxxxx, you are acting in reliance upon the representations, warranties and
agreements of GM contained in this Representation Letter.
4. Representations, Warranties and Agreements of the Marketing
Manager. You hereby represent, warrant and agree, as Marketing Manager, that:
A. You will not cause to be disseminated to customers or Dealers or
securityholders of GM any written material for or in connection with the
Exchange Offer other than one or more of the Exchange Offer Materials. You will
keep GM reasonably informed of
5
your dissemination of the Exchange Offer Materials and activities in connection
with the Exchange Offer.
B. You have the corporate power and authority to execute and deliver
this Representation Letter and to perform your obligations hereunder. This
Agreement has been duly authorized, executed and delivered by you.
5. Miscellaneous
A. This Representation Letter has been and is made solely for your
benefit and for the benefit of the other indemnified persons referred to in the
letter agreement, dated as of the date hereof, between Xxxxxx and you (the
"Indemnity Letter") and your and their respective successors, assigns, executors
and administrators, and no other person shall acquire or have any right under or
by virtue of this Representation Letter. You shall not have any liability or
obligation to GM or Xxxxxx for any act or omission of the Dealer Manager or any
Dealer, and you undertake no obligation to GM other than for the performance of
your representations, warranties and agreements hereunder. GM agrees and
acknowledges that the only information furnished or to be furnished by you or on
your behalf for inclusion in the Registration Statement, the Prospectus, the
Schedule TO and information filed pursuant to Rule 425 of the Securities Act is
the description of yourself and your relationship with Xxxxxx and GM to be
included therein.
B. Neither you nor any other person shall have any right to
indemnification or any other payment for any losses (as defined in the Indemnity
Letter) from any breach or alleged breach of this Representation Letter, except
pursuant to the terms of the Indemnity Letter.
C. The representations, warranties and agreements contained in this
Representation Letter shall remain in full force and effect regardless of any
investigations made by or on behalf of you or GM or Xxxxxx whether or not such
investigation, if diligently made, would have disclosed facts upon which any
breach of representation, warranty or agreement is or may be based or
indemnification or contribution sought, and shall survive the exchange of $1 2/3
Common Stock for Class H Common Stock pursuant to the Exchange Offer and the
consummation of the Exchange Offer Transactions, any failure to commence,
withdrawal, termination or cancellation of the Exchange Offer (whether or not
shares of $1 2/3 Common Stock are exchanged) for any reason whatsoever, and any
withdrawal by you as Marketing Manager pursuant to any provision of this
Representation Letter.
D. THIS REPRESENTATION LETTER SHALL BE DEEMED MADE IN NEW YORK AND
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO SUCH
STATE'S RULES CONCERNING CONFLICTS OF LAWS.
E. Solely for purposes of this Representation Letter, each of GM and
you hereby consents to personal jurisdiction, service and venue in any court in
which any claim which is subject to this Agreement is brought and properly
maintained against you and GM, as the case may be. ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO ANY CLAIM OR PROCEEDING RELATED TO OR ARISING OUT OF SUCH
ENGAGEMENT, ANY
6
TRANSACTION OR CONDUCT IN CONNECTION THEREWITH OR THIS AGREEMENT IS WAIVED BY
EACH OF THE PARTIES HERETO.
F. Any term or provision of this Representation Letter which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Representation Letter or affecting the validity or enforceability of any of the
terms or provisions of this Representation Letter in any other jurisdiction.
This Representation Letter constitutes the entire agreement, and supersedes any
and all prior agreements, whether written or oral, between the parties hereto
with respect to the subject matter hereof. No amendment or modification of this
Representation Letter, or waiver of any rights of any party hereunder, shall be
effective unless made pursuant to an instrument in writing expressly referencing
this Representation Letter signed by each of the parties hereto.
G. All communications hereunder shall be in writing and, except as
otherwise specified in writing, shall be delivered at, or telexed or facsimile
transmitted to, the following addresses: if to you, to Xxxxxxx Xxxxx Barney
Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention Xxxxxxxxxxx X.
Xxxxxxxx, with a copy to Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx,
Xxx Xxxx, XX 00000, attention Xxxxxx X. Xxxxxx, Esq., and if to GM, to General
Motors Corporation, 300 Renaissance Center, Mail Code 482-C25-C22 Xxxxxxx,
Xxxxxxxx 00000-0000, attention Xxxxxx X. Xxxxxxxx, Esq., with a copy to Xxxxxxxx
& Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, attention Xxxxxx X.
Xxxxxxxx, Esq.
Very truly yours,
GENERAL MOTORS CORPORATION
By:
-------------------------
Title:
Accepted and agreed to as of
the date first written above:
XXXXXXX XXXXX BARNEY INC.
By:
-------------------------
Managing Director
7
EXHIBIT B
Forms of Opinions Referred to in
Section 3C of Marketing Manager Agreement
(i) GM is a corporation validly existing and in good standing under
the laws of Delaware, is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification and has all
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted, except where the failure to
be so qualified or in good standing would not have a material adverse effect on
the financial position of GM as a whole, and has the corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the Exchange Offer. [To be provided by X. Xxxxxxxx]
(ii) Each of Xxxxxx, DirectTV, PanAmSat, and Xxxxxx Network Systems
is a corporation validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification and has all
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted, except where the failure to
be so qualified or in good standing would not have a material adverse effect on
the financial position of Xxxxxx and its subsidiaries taken as a whole. [To be
provided by X. Xxxxxxx]
(iii) The Exchange Shares to be issued by GM pursuant to the terms of
the Exchange Offer have been duly authorized and, when issued and delivered
pursuant to the terms of the Exchange Offer, will be validly issued, fully paid
and non-assessable, and the issuance of the Exchange Shares will not be subject
to any preemptive or, to such counsel's knowledge, other similar rights under
the Delaware General Corporation Law, GM's certificate of incorporation or
bylaws or any contractual provision of which such counsel has knowledge. [To be
provided by X. Xxxxxxxx and K&E]
(iv) The authorized capital stock of GM, including the Class H
Common Stock, conforms as to legal matters in all material respects to the
description thereof contained under the headings "Overview of GM Capital Stock"
and "Description of Class H Common Stock" in the Prospectus. [To be provided by
K&E and by Xxxxxx Xxxxxxxx]
(v) The Exchange Offer has been duly authorized by all necessary
corporate action by GM. [To be provided by X. Xxxxxxxx]
(vi) Each of this Agreement and the Representation Letter has been
duly authorized, executed and delivered by Xxxxxx and GM, as applicable. [To be
provided by K&E and Xxxxxx Xxxxxxxx with respect to GM and by X. Xxxxxxx with
respect to Xxxxxx]
(vii) The consummation of the Exchange Offer and the execution,
delivery and performance of the Representation Letter will not contravene any
provision of the certificate of incorporation or by-laws of GM or any provisions
of a material agreement or other material instrument known to counsel and
binding upon GM (provided that such counsel need express no
1
opinion as to compliance with any financial test or cross-default provision in
any such agreement), or conflict with or violate in any material respect any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over GM, except, in each case, for any such conflicts,
contraventions, violations, breaches or defaults which would not materially
adversely affect the ability of GM to execute and deliver the Representation
Letter or to consummate the Exchange Offer in accordance with its terms. [To be
provided by X. Xxxxxxxx]
The execution, delivery and performance of this Agreement will not
contravene any provision of the certificate of incorporation or by-laws of
Xxxxxx or any material provisions of a material agreement or other material
instrument known to counsel and binding upon Xxxxxx (provided that such counsel
need express no opinion as to compliance with any financial tests or cross-
default provision in any such agreement), or conflict with or violate in any
material respect any judgment, order or decree of any governmental body, agency
or court having jurisdiction over Xxxxxx, except, in each case, for any such
conflicts, contraventions, violations, breaches or defaults which would not
materially adversely affect the ability of Xxxxxx to execute, deliver and
perform its obligations under the Marketing Manager Agreement. [To be provided
by X. Xxxxxxx]
(viii) After reasonable inquiry, such counsel does not know of any
legal or governmental proceeding or investigation pending or threatened to which
GM/Xxxxxx or any of its subsidiaries is a party or to which any of the
properties of GM/Xxxxxx is subject which is required to be described in the
Registration Statement or the Prospectus and is not so described or of any
contract or other document which is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required. [To be provided by X.
Xxxxxxxx with respect to GM and by X. Xxxxxxx with respect to Xxxxxx]
(ix) The statements: (i) in the Prospectus under the captions
"Overview of GM Capital Stock", "Description of Class H Common Stock",
"Comparison of Rights of $1 2/3 Par Value Stockholders and Class H
Stockholders"; (ii) in Item 20 of the Registration Statement; (iii) in the
Prospectus incorporated by reference to Item 3 of Part I of GM's Annual Report
of Form 10-K for the year ended December 31, 1999, and (iv) in the Prospectus
under the caption, "Business of Xxxxxx - Legal Proceedings", in each case
insofar as such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, in all material respects fairly present the
information called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein. [To be
provided by K&E as to (i), and by X. Xxxxxxxx as to (i), (ii) and (iii) and X.
Xxxxxxx as to (iv)]
(x) The discussion set forth under the caption "Material U.S.
Federal Income Tax Consequences" in the Registration Statement is based upon
reasonable interpretations of existing law and fairly summarizes the U.S.
federal income tax considerations that are likely to be material to a holder of
$1 2/3 Common Stock. [to be provided by K&E].
(xi) The purpose of our professional engagement was not to establish
factual matters, and preparation of the Registration Statement, the Prospectus
and the Schedule TO involved many determinations of a wholly or partially
nonlegal character. We make no representation that we have independently
verified the accuracy, completeness or fairness of the
2
Registration Statement, the Prospectus or the Schedule TO or that the actions
taken in connection with the preparation of the Registration Statement, the
Prospectus or the Schedule TO (including the actions described in the next
paragraph) were sufficient to cause the Registration Statement, the Prospectus
or the Schedule TO to be accurate, complete or fair. We are not passing upon and
do not assume any responsibility for the accuracy, completeness or fairness of
the Registration Statement, the Prospectus or the Schedule TO except to the
extent otherwise explicitly indicated in numbered paragraphs (__) [description
of authorized capital stock] and (__) statements in "Overview of GM Capital
Stock", "Description of Class H Common Stock" and "Comparison of Rights of
$1 2/3 Par Value Stockholders and Class H Stockholders" above.
We can however confirm that we have participated in conferences with
representatives of GM and Xxxxxx, representatives of the independent accountants
for GM and Xxxxxx and representatives of and counsel for the Dealer Manager and
your representatives and counsel, at which conferences the contents of the
Prospectus and the Registration Statement and related matters were reviewed and
discussed. In addition, we have participated in discussions with the Staff of
the Commission. [To be provided by K&E]
Such counsel participated in the preparation of the Registration
Statement, the Prospectus and the Schedule TO. During the course of such
preparation, such counsel examined various documents, including those listed in
such counsel's opinion, and participated in various conferences with
representatives of and counsel for the Company and Xxxxxx, with representatives
of independent accountants to each of GM and Xxxxxx, and representatives of and
counsel for each of the Marketing Manager and the Dealer Manager, at which
conferences the contents of the Registration Statement, the Prospectus (and the
documents incorporated therein by reference) and the Schedule TO were reviewed
and discussed. In addition, such counsel participated in discussions with the
Staff of the Commission. Except as set forth in the opinion in paragraph (x)
above, such counsel makes no representation that such counsel has independently
verified the accuracy, completeness or fairness of the statements contained in
the Registration Statement, or the Prospectus. [to be provided by X. Xxxxxxxx
and X. Xxxxxxx, except that X. Xxxxxxx shall not address the Schedule TO]
Based upon such counsel's participation in the conferences and
discussions identified in the preceding paragraph, such counsel's understanding
of applicable law and the experience such counsel has gained in its practice
thereunder and relying as to factual matters to the extent deemed appropriate by
such counsel upon the representations and statements of officers and other
representatives of GM and Xxxxxx, such counsel can, however, advise you that no
fact came to such counsel's attention to cause such counsel to conclude that (i)
the Registration Statement, on its effective date, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) the
Prospectus, on the date it bears or on the date of this letter, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or (iii) as of the
effective date of the Registration Statement, either the Registration Statement
or the Prospectus appeared on its face not to be responsive in all material
respects to the requirements of Form S-4, except for, in each case, financial
statements and schedules and other financial and statistical data and
information included therein
3
or incorporated by reference or omitted therefrom, as to which such counsel
expresses no opinion. [To be provided by K&E, X. Xxxxxxxx, and X. Xxxxxxx]
4
