EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as
of September 12, 2002, by and between THE GOODYEAR TIRE & RUBBER COMPANY, an
Ohio corporation (the "Issuer"), and THE NORTHERN TRUST COMPANY, an Illinois
banking corporation ("Northern"), as the trustee (in such capacity, the
"Trustee") of The Goodyear Tire & Rubber Company Directed Retirement Trust (the
"Retirement Trust") and, as investment manager/advisor (Northern, or any
successor entity or entities appointed to act in such capacity, the "Investment
Advisor"), for and on behalf of the 1950 Pension Plan of The Goodyear Tire &
Rubber Company and The Goodyear Tire & Rubber Company Salaried Pension Plan (the
"Pension Plans"), which Pension Plans are beneficiaries of this Agreement.
WHEREAS, the Issuer has contributed 15,600,000 shares of its common
stock, without par value (the "Common Stock") to the Retirement Trust, a
repository of certain of the assets of the Pension Plans, on behalf of the
Pension Plans, which Shares are held by the Retirement Trust for the benefit of
the Pension Plans; and
WHEREAS, the Investment Advisor has been appointed by The Goodyear Tire
& Rubber Company Investment Committee, the named fiduciary (the "Named
Fiduciary") of the Pension Plans (as determined in accordance with Section
402(a) of the Employee Retirement Income Security Act of 1974, as amended), to
manage the assets of the Pension Plans held by the Retirement Trust, including
certain shares of Common Stock held by the Retirement Trust pursuant to
agreements dated June 17, 2002 and September 12, 2002, respectively, among the
Issuer, the Named Fiduciary and the Investment Advisor, and to exercise all
rights, powers and privileges appurtenant to such shares (subject to the
termination of such appointment and the appointment of one or more other
investment managers); and
WHEREAS, the Investment Advisor has full power and authority to execute
and deliver this Agreement for the account and on behalf of the Retirement
Trust, and to so bind the Retirement Trust on behalf of the Pension Plans;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Issuer, the
Investment Advisor and the Retirement Trust, on behalf of the Pension Plans,
hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, the following terms shall have the respective meanings set
forth below:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or
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cause the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Business Day" means any day that the New York Stock Exchange, Inc. is
open for business.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Common Stock, without par value, of The
Goodyear Tire & Rubber Company.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended and in effect from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Investment Advisor" means The Northern Trust Company.
"Issuer" means The Goodyear Tire & Rubber Company.
"Losses" has the meaning set forth in Section 6(d) hereof.
"Named Fiduciary" means The Goodyear Tire & Rubber Company Investment
Committee.
"Pension Plans" means and includes the 1950 Pension Plan of The
Goodyear Tire & Rubber Company and The Goodyear Tire & Rubber Company Salaried
Pension Plan.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"Registrable Securities" means the Common Stock contributed from time
to time by the Issuer to the Pension Plans, and held on behalf of the Pension
Plans by the Retirement Trust, and any securities issued or issuable with
respect to the contributed Common Stock in connection with any stock dividend,
stock split (forward or reverse), combination of shares, recapitalization,
merge, consolidation, redemption, exchange of securities or other reorganization
or reclassification after the date hereof. In the event of any of the foregoing
with respect to the Registrable Securities or similar transactions affecting the
Registrable Securities, all references herein to any designation of securities
and to any specific number of shares of Registrable Securities shall be
appropriately adjusted to give effect thereto. As to any particular Registrable
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Securities, such securities will cease to be Registrable Securities when they
have been Transferred by the Retirement Trust on behalf of the Pension Plans.
"Registration Statement" has the meaning set forth in Section 3(a)
hereof.
"Retirement Trust" means The Goodyear Tire & Rubber Company Directed
Retirement Trust established pursuant to a Trust Agreement dated June 17, 2002,
which holds certain assets on behalf of the Pension Plans.
"Transfer" means any sale, transfer or other disposition of the
Registrable Securities, whether by means of a Registration Statement hereunder
or otherwise (including by way of a private placement or sale under Rule 144
under the Act), and "Transferred" shall have a meaning correlative to the
foregoing.
"Underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Registration Statement; provided,
that, except with respect to Section 6 hereof, if the Underwriters are
represented by one or more lead or managing underwriters, reference herein to
the "Underwriters" shall be deemed to refer to such lead or managing underwriter
or underwriters as representatives of the several underwriters.
"Underwritten Offering" means an offering in which the Registrable
Securities are sold to an Underwriter for reoffering to the public.
SECTION 2. LEGENDS ON CERTIFICATES REPRESENTING REGISTRABLE SECURITIES.
(a) The Investment Advisor acknowledges that, subject to Section 2(b),
each certificate representing the Registrable Securities shall conspicuously
bear the legend set forth at Schedule I hereto.
(b) The Issuer will instruct its transfer agent that the legend set
forth in Section 2(a) shall be removed upon the Transfer of Registrable
Securities by the Retirement Trust on behalf of the Pension Plans, if such
Transfer is made in accordance with all applicable provisions of this Agreement
and the Issuer determines that such legend is no longer required pursuant to, or
deemed necessary or appropriate in order to effect compliance with, applicable
law.
(c) The Investment Advisor understands and acknowledges that the
Registrable Securities have not been registered under the Act or any state
securities law and that the Registrable Securities are "restricted securities"
within the meaning of Rule 144 under the Act until such time as they are
Transferred pursuant to an effective Registration Statement under the Act, or,
in certain circumstances, an exemption therefrom in accordance with the
agreements specified at Schedule II hereto.
(d) Notwithstanding any provision to the contrary herein, the
Investment Advisor and the Issuer agree that in exercising their respective
rights and discharging their respective obligations under this Agreement, they
will comply with the federal securities laws, ERISA, and all other requirements
of applicable law.
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SECTION 3. SHELF REGISTRATION.
(a) The Issuer hereby agrees with respect to any Registrable Securities
that a registration statement on Form S-3 or other appropriate form pursuant to
Rule 415 (or any similar rule that may be adopted by the Commission) under the
Act for the resale of the Registrable Securities (such registration statement,
including amendments or supplements thereto, a "Registration Statement") by the
Investment Advisor acting on behalf of the Pension Plans and the Retirement
Trust will be filed by the Issuer within 90 days following any request by the
Investment Advisor made within one year after the date of the contribution of
the respective Registrable Shares and that the Issuer will use its best efforts
to cause such Registration Statement to be declared effective by the Commission
as soon as possible thereafter and shall cause a registration statement to
remain continuously effective for so long as the Registrable Securities are held
on behalf of the Pension Plans. The Issuer shall notify the Retirement Trust on
behalf of the Pension Plans when any such Registration Statement has been
declared effective.
(b) If at any time, or from time to time, the Investment Advisor
proposes to cause the Retirement Trust (or other entity) acting on behalf of the
Pension Plans to effect a Transfer of Registrable Securities pursuant to a
Registration Statement, it shall notify the Issuer not less than ten business
days prior to the commencement of the proposed transfer (a "Transfer Notice").
Each Transfer Notice shall specify the proposed timetable for the Transfer.
(c) Notwithstanding anything to the contrary herein, the Issuer may
postpone the filing or effectiveness of any Registration Statement, or suspend
the use of any Prospectus included therein, at any time if the Issuer
determines, in its reasonable judgment, that (i) appropriate financial
statements will not be available when a Transfer is proposed to be made, or (ii)
that such filing, effectiveness or proposed Transfer would (1) materially
interfere with any proposal or plan by the Issuer or any of its Affiliates to
engage in a material acquisition, merger, consolidation, tender offer,
securities offering or other material transaction, significant work on which had
commenced prior to receipt by the Issuer of the Transfer Notice relating to the
proposed Transfer or (2) would require the Issuer to make a public disclosure of
previously non-public information. Upon receipt by the Issuer of a Transfer
Notice, the Issuer shall promptly notify the Investment Advisor, the Retirement
Trust and the Pension Plans of any postponement or suspension pursuant to this
paragraph. The Issuer agrees that it will terminate any such postponement or
suspension as promptly as reasonably practicable, consistent with the
consummation of such transactions and the ripeness for and appropriateness of
public disclosure of the non-public information (as applicable), and will
promptly notify the Investment Advisor, the Retirement Trust and the Pension
Plans of such termination. In making any such determination to initiate or
terminate a postponement or suspension, the Issuer shall not be required to
consult with the Pension Plans, the Retirement Trust or the Investment Advisor
and any such determination shall be Issuer's responsibility alone, and neither
the Pension Plans nor the Retirement Trust nor the Investment Advisor shall have
any responsibility or liability therefor.
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(d) The Investment Advisor agrees that it will not cause the Retirement
Trust to make any transfer of Registrable Securities pursuant to any
Registration Statement other than in accordance with the plan of distribution
described therein and that it will keep (and will cause any Underwriter or other
person acting on its behalf to keep) strictly confidential any information
provided to them in connection with the Issuer's exercise of its rights under
Section 3(c) hereof or otherwise provided to the Investment Advisor, or any
person acting on its behalf, hereunder. Nothing herein shall be construed to
prevent the Investment Advisor from causing the Retirement Trust to effect any
Transfer of Registrable Securities otherwise than pursuant to a Registration
Statement hereunder, provided that any such Transfer complies with all
applicable laws.
SECTION 4. REGISTRATION PROCEDURES. In connection with any Registration
Statement filed in accordance with the terms hereof, the following provisions
shall apply:
(a) The Issuer shall furnish to the Investment Advisor, prior to the
filing thereof with the Commission, a copy of any Registration Statement, and
each amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein shall use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as the Retirement
Trust and the Investment Advisor, acting on behalf of the Pension Plans, may
reasonably propose. The Investment Advisor and Retirement Trust, acting on
behalf of the Pension Plans, agree to provide to the Issuer any information that
the Issuer may reasonably request in connection with the preparation and filing
of any such Registration Statement and any amendment or supplement thereto.
(b) The Issuer shall ensure that (i) any Registration Statement, and
any amendment and any Prospectus forming part thereof, and any amendment or
supplement thereto, complies in all material respects with the Act and the rules
and regulations thereunder, (ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, 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 and (iii) any Prospectus
forming part of any Registration Statement, and any amendment or supplement to
such Prospectus, does not 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 that no representation or agreement is made hereby with respect to
information supplied in writing for inclusion in a Registration Statement or
Prospectus by the Investment Advisor or the Retirement Trust.
(c) The Issuer shall notify the Retirement Trust and the Pension Plans
in writing:
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when a Registration Statement or
any post-effective amendment thereto has become effective;
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(ii) of any request by the Commission for amendments or supplements
to any Registration Statement or any Prospectus included therein or
for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Issuer of any notification with respect
to the suspension of the qualification of the Registrable
Securities included in any Registration Statement for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
(v) of the occurrence of any event that requires the making of any
changes in any Registration Statement or Prospectus so that, as of
such date, the statements therein are not misleading and do not
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were
made) not misleading (in which case the notice shall be accompanied
by an instruction to suspend the use of the Prospectus until the
requisite changes have been made).
(d) The Issuer shall use its reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
(e) The Issuer shall furnish to the Investment Advisor and to the
Underwriters, if any, named therein, such copies of any such Registration
Statement, amendment or supplement thereto, and any Prospectus included therein
(including each preliminary Prospectus and any amendments or supplements
thereto), and such other documents as the Investment Advisor or such
Underwriters (or their counsel) may reasonably request in order to facilitate
the disposition of the Registrable Securities.
(f) Prior to any offering of Registrable Securities pursuant to any
Registration Statement, the Issuer shall use its best efforts to register or
qualify such Registrable Securities under the securities or blue sky laws of
such jurisdictions as the Investment Advisor or the Underwriters, if any, shall
reasonably request (if such laws require the registration or qualification of
such Registrable Securities to consummate the Transfer thereof) and to any and
all other acts or things necessary or advisable to enable the Pension Plans to
consummate the Transfer of the Registrable Securities in such jurisdictions;
provided, however, that the Issuer will not be required to qualify generally to
do business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
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(g) The Issuer shall cooperate with the Investment Advisor and the
Pension Plans to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be Transferred pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as the Investment Advisor or the Underwriters, if
any, may request.
(h) Upon the occurrence of any event contemplated by paragraph (c) (v)
above, the Issuer shall promptly prepare a post-effective amendment to any
Registration Statement or an amendment or supplement to the related Prospectus
or file any other required document so that, as thereafter delivered to
purchasers of the Registrable Securities included therein, the Prospectus will
not include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(i) So long as the Common Stock is listed on any U.S. securities
exchange, the Issuer shall use its best efforts to cause all of the Registrable
Securities to be listed on such exchange.
(j) The Issuer shall, if requested, promptly include in a Prospectus
supplement or post-effective amendment to a Registration Statement such
information as the Investment Advisor and, if applicable, the Underwriters
reasonably agree should be included therein, and shall make all required filings
of such Prospectus supplement or post-effective amendment as soon as reasonably
practicable after being notified of the matters to be included in such
Prospectus supplement or post-effective amendment.
(k) The Issuer shall enter into such agreements (including underwriting
agreements in customary form) and take all other appropriate actions in order to
expedite or facilitate the registration or the Transfer of the Registrable
Securities as the Investment Advisor or the Underwriters, if any, may reasonably
request.
(l) The Issuer shall (i) cause the Issuer's officers, directors,
employees and independent accountants to supply all relevant information
reasonably requested by the Investment Advisor or any such Underwriter,
attorney, accountant or agent in connection with any such Registration Statement
as is customary for similar due diligence examinations; provided, however, that
any information that is provided by or on behalf of Issuer shall be kept
confidential by the Investment Advisor, the Retirement Trust and the Pension
Plans and any such Underwriter, attorney, accountant or agent, unless disclosure
thereof is made in connection with a court proceeding or is required by law, or
such information has become available to the public generally or through a third
party without an accompanying obligation of confidentiality; (ii) make such
representations and warranties to the Pension Plans, the Retirement Trust, the
Investment Advisor and the Underwriters, if any, in form and substance as are
customarily made by issuers to Underwriters; (iii) obtain opinions of counsel to
the Issuer (which counsel may be an officer or employee of the Issuer) and
updates thereof (which counsel and opinions (in form and substance) shall be
reasonably satisfactory) addressed to the Retirement Trust
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on behalf of the Pension Plans, the Investment Advisor and the Underwriters, if
any, covering such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
the Retirement Trust on behalf of the Pension Plans and such Underwriters; (iv)
obtain "cold comfort" letters and updates thereof from the independent public
accountants of the Issuer addressed to the Retirement Trust and the Pension
Plans (provided the Pension Plans and the Trustee furnish the accountants with
such representations as the accountants customarily require in similar
situations), the Investment Advisor and the Underwriters, if any, in customary
form and covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings; and (v) deliver such
documents and certificates as may be reasonably requested by the Pension Plans,
the Retirement Trust, the Investment Advisor and the Underwriters, if any, and
with any customary conditions contained in the underwriting agreement or other
agreement entered into by the Issuer. The foregoing actions set forth in clauses
(ii), (iii), (iv), and (v) above shall be performed at the effectiveness of such
Registration Statement and each post-effective amendment thereto and, if any, at
each closing of an Underwritten Offering under any underwriting or similar
agreement as and to the extent required thereunder.
SECTION 5. REGISTRATION EXPENSES. The Issuer shall bear all expenses
incurred in connection with the performance of its obligations under this
Agreement and shall reimburse the Pension Plans and the Investment Advisor for
the reasonable fees and disbursements of one counsel (which shall be reasonably
acceptable to the Issuer) designated by each of them to act as their respective
legal counsel in connection with any Registration Statement hereunder. The
Issuer shall have the right to select the financial printer to be used in
connection with any registration of Registrable Securities hereunder. In no
event shall Issuer have any obligation in respect of any fees or commissions to
any broker, dealer, agent or other party or any underwriting discount,
commission, fee or allowance incurred by the Retirement Trust on behalf of the
Pension Plans or the Investment Advisor in connection with any Transfer of the
Registrable Securities or any of them.
SECTION 6. INDEMNIFICATION AND CONTRIBUTION.
(a) (i) In connection with any Registration Statement, the Issuer
agrees to indemnify and hold harmless the Pension Plans, the Retirement Trust
and the Investment Advisor and each person who controls either of them within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration or in any preliminary Prospectus or
Prospectuses, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the 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 agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
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liability or action; provided, however, that the Issuer will not be liable in
any case to the extent that any such loss, claim, damage or liability arises out
of or is based upon (A) any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Issuer by or on behalf of the Pension
Plans or any other indemnified party specifically for inclusion therein, (B) use
a Registration Statement or the related Prospectus during a period when a stop
order has been issued in respect of such Registration Statement or any
proceedings for that purpose have been initiated or use of a Prospectus when use
of such Prospectus has been suspended pursuant to Section 3(d); provided,
further, in each case, that the Pension Plans, the Retirement Trust or the
Investment Advisor or such other indemnified party received prior notice of such
stop order, initiation of proceedings or suspension or (C) if the Pension Plans,
the Retirement Trust or the Investment Advisor fail to deliver a Prospectus or
the then current Prospectus. This indemnity agreement will be in addition to any
liability which the Issuer may otherwise have.
(ii) The Issuer also agrees to indemnify any Underwriters of
Registrable Securities under a Registration Statement, their officers and
directors and each person who controls such Underwriters on substantially the
same basis as that of the indemnification of the Pension Plans, the Retirement
Trust and the Investment Advisor provided in this Section 6(a) and shall, if
requested by the Retirement Trust on behalf of the Pension Plans and the
Investment Advisor, enter into an underwriting agreement reflecting such
agreement, as provided in Section 4 hereof.
(b) Each Underwriter (if any) shall agree to indemnify and hold
harmless the Issuer, the Investment Advisor, the Retirement Trust and the
Pension Plans, and each of their directors, officers, employees and agents, and
each person who controls the Issuer within the meaning of either the Act or the
Exchange Act to the same extent as the foregoing indemnity from the Issuer, but
only with reference to written information relating to the Underwriter furnished
to the Issuer by or on behalf of such Underwriter specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any such Underwriter may otherwise
have.
(c) Promptly after receipt by an indemnified party under this Section 6
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent the
indemnifying party did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and
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expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party; provided further, that the indemnifying party shall
not be responsible for the fees and expenses of more than one separate counsel
(together with appropriate local counsel) representing all the indemnified
parties under paragraph (a)(i), paragraph (a)(ii) or paragraph (b) above. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 6 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. The parties agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), the aggregate contribution of the Retirement Trust and
the Pension Plans
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hereunder shall not exceed the gross proceeds received by the Pension Plans
(including the Retirement Trust) from the Transfer of the Registrable Securities
and no person quality of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 6, each person who controls the Retirement Trust and/or the Pension
Plans within the meaning of either the Act or the Exchange Act shall have the
same rights to contribution as the Pension Plans (including the Retirement
Trust), and each person who controls the Issuer within the meaning of either the
Act or the Exchange Act, and each of its directors, officers, employees and
agents, shall have the same rights to contribution as the Issuer, subject in
each case to the applicable terms and condition of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any indemnified
party, and will survive the termination of this Agreement and the sale by the
Retirement Trust on behalf of the Pension Plans of any Registrable Securities
covered by a Registration Statement hereunder.
SECTION 7. SELECTION OF UNDERWRITERS.
Each of the Pension Plans (acting through the Retirement Trust) may
sell, at its option, any Registrable Securities pursuant to an Underwritten
Offering. In any such Underwritten Offering, the Underwriters that will
participate in the offering will be selected by the Retirement Trust and the
Investment Advisor; provided, however, that such Underwriters must be reasonably
satisfactory to the Issuer.
SECTION 8. MISCELLANEOUS.
(a) No Inconsistent Agreements. The Issuer has not, as of the date
hereof, entered into, any agreement that is inconsistent with the rights granted
to the Pension Plans herein or that otherwise conflict with the provisions
hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless agreed to in a writing executed by the Issuer and the
Pension Plans (acting through the Retirement Trust) and the Investment Advisor.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall, except where notice by teleconference is specifically
provided for herein, be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) If to the Pension Plans, the Retirement Trust, the Trustee
and/or the Investment Advisor at the following address:
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The Northern Trust Company
50 South LaSalle Street
Chicago, Illinois 60675
Attention: Mr. Peter Sparrow, Vice President
Tel: (312) 444-4930
Fax: (312) 630-6062
(ii) If to the Issuer, at the following address:
The Goodyear Tire & Rubber Company
1144 East Market Street
Akron, Ohio 44316-0001
Attention: Vice President and Treasurer
Tel: (330) 796-7848
Fax: (330) 796-1021
All such notices and communications shall be deemed to have
been duly given when received.
The Pension Plans, the Retirement Trust, the Trustee, the
Investment Advisor, or the Issuer may, by notice to the other,
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto
and their respective directors, trustees, officers, employees, agents and
controlling persons. None of the rights or obligations under this Agreement
shall be assigned by the Retirement Trust or the Investment Advisor without the
prior written consent of the Issuer.
(e) Counterparts. This agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State, without regard to such
State's conflicts of laws provisions.
(h) No Third Party Beneficiaries. This Agreement is for the sole and
exclusive benefit of the Issuer, the Pension Plans, the Retirement Trust and the
Investment Advisor, and to the extent set forth in Section 5, those other
persons expressly named as indemnified parties hereunder. Nothing in this
Agreement shall be construed to
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give to any other person any legal or equitable right, remedy or claim under
this Agreement.
(i) Termination. Unless extended by the Issuer, this Agreement shall
terminate at such time as there are no longer any Registrable Securities held by
the Retirement Trust on behalf of the Pension Plans.
(j) Cooperation. Each party hereto shall take such further action, and
execute and deliver such additional documents, as may be reasonably requested by
any other party hereto in order to carry out the purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto, being duly authorized, have
executed and delivered this Agreement as of the date first above written.
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ Darren R. Wells
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Name: Darren R. Wells
Title: Vice President and Treasurer
THE GOODYEAR TIRE & RUBBER COMPANY
DIRECTED RETIREMENT TRUST
By: The Northern Trust Company, as Trustee
By: /s/ Peter R. Sparrow
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Name: Peter R. Sparrow
Title: Vice President
THE NORTHERN TRUST COMPANY, as
Investment Advisor
By: /s/ Peter R. Sparrow
---------------------------------------------------
Name: Peter R. Sparrow
Title: Vice President
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SCHEDULE I
"THE SHARES OF COMMON STOCK OF THE GOODYEAR TIRE & RUBBER COMPANY
("GOODYEAR") REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OF THE UNITED STATES OF
AMERICA (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS OR OTHER
SIMILAR LAWS OF ANY JURISDICTION (THE "LAWS"), AND MAY NOT BE OFFERED,
SOLD, TRANSFERRED, ASSIGNED, PLEDGE OR OTHERWISE DISPOSE OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR IN COMPLIANCE WITH APPLICABLE EXEMPTIONS(S) FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND OTHER APPLICABLE
LAWS AND UNTIL GOODYEAR SHALL HAVE RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO IT THAT THE SHARES OF COMMON STOCK EVIDENCED BY THIS
SECURITY MAY BE OFFERED AND SOLD OR OTHERWISE TRANSFERRED IN COMPLIANCE
WITH ALL SUCH APPLICABLE LAWS. ANY OFFER, SALE, TRANSFER OR OTHER
DISPOSITION OF THIS SECURITY IS SUBJECT TO RESTRICTIONS CONTAINED IN A
LETTER OF AGREEMENT DATED SEPTEMBER 12, 2002 AMONG GOODYEAR, THE
GOODYEAR COMMON TRUST FOR THE COLLECTIVE INVESTMENT OF RETIREMENT PLAN
FUNDS, THE GOODYEAR DIRECTED RETIREMENT TRUST AND THE NORTHERN TRUST
COMPANY. THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH
THE TERMS OF SAID AGREEMENT, A COPY OF WHICH IS ON FILE AT, AND MAY BE
REVIEWED AT OR OBTAINED FROM, THE OFFICE OF THE SECRETARY OF GOODYEAR
LOCATED AT 1144 EAST MARKET STREET, AKRON, OHIO 44316-0001, UNITED
STATES OF AMERICA.
SCHEDULE II
Agreement dated September 12, 2002, among Issuer, the Pension
Trust, the Retirement Trust, the Named Fiduciary and Northern.
Agreement dated June 17, 2002, among Issuer, the Pension
Trust, the Retirement Trust, the Named Fiduciary and Northern.