REGISTRATION RIGHTS AGREEMENT by GMAC LLC and GM Preferred Finance Co. Holdings LLC Dated as of June 30, 2009
by
GMAC
LLC
and
GM
Preferred Finance Co. Holdings LLC
Dated as
of June 30, 2009
This
Registration Rights Agreement (this “Agreement”) is made and
entered into as of June 30, 2009, by and between GMAC LLC, a Delaware limited
liability company (the “Company”), and GM Preferred
Finance Co. Holdings LLC, a Delaware limited liability company (“GM HoldCo”) and wholly-owned
subsidiary of General Motors Corporation. GM HoldCo currently holds
GM Preferred Membership Interests (the “GM Preferred Interests”),
which were originally issued by the Company on November 30, 2006 pursuant to the
Amended and Restated Limited Liability Company Operating Agreement of the
Company, dated as of November 30, 2006. Execution of this Agreement
is required prior to a GMAC Conversion (as defined below) in accordance with
Section 12.11 of the Sixth Amended and Restated Limited Liability Company
Operating Agreement of the Company, dated as of May 22, 2009 (the “Operating
Agreement”). Following such GMAC Conversion, Section 2.8 of
the Operating Agreement provides that the GM Preferred Interests must be
converted into a class of equity securities of the Company (the “Securities”) with
substantially identical powers, preferences, rights and obligations, and
qualifications, limitations and restrictions thereof, and representing
substantially identical proportional ownership of the Company as the GM
Preferred Interests, adapted to reflect the change from a partnership to C
corporation status of the Company for federal income tax purposes.
The
parties hereby agree as follows:
SECTION
1. Definitions. As
used in this Agreement, the following capitalized terms shall have the following
meanings:
Agreement: As
defined in the preamble hereto.
Broker-Dealer: Any
broker or dealer registered under the Exchange Act.
Business Day: Any
day other than a Saturday, Sunday or U.S. federal holiday or a day on which
banking institutions or trust companies located in New York, New York are
authorized or obligated to be closed.
Company: As
defined in the preamble hereto.
Demand Registration
Statement: As defined in Section 4(a) hereof.
Demand Registrations: As
defined in Section 4(a) hereof.
Exchange Act: The
Securities Exchange Act of 1934, as amended.
GM HoldCo: As
defined in the preamble hereto
GM Preferred
Interests: As defined in the preamble hereto.
GMAC
Conversion: Means a Section 2.8 Conversion, as that term is
defined in the Operating Agreement.
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Holdback
Period: As defined in Section 7(e) hereof.
Holders: As
defined in Section 2(b) hereof.
Holders’ Counsel: Means one
counsel for the selling Holders chosen by Holders holding a majority interest in
the Registrable Securities being registered.
Initiating
Holders: As defined in Section 4(a) hereof.
Long-Form
Registrations: As defined in Section 4(a) hereof.
Majority
Holders: With respect to any date, Holders of a majority of
the amount of outstanding Registrable Securities.
Operating
Agreement: As defined in the preamble hereto.
Person: An
individual, partnership, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
Piggyback Registration: As
defined in Section 5(a) hereof.
Prospectus: The
prospectus included in any Registration Statement, as amended or supplemented by
any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
Prospectus.
Register, registered, and
registration: Refers to a registration effected by preparing and (A)
filing a registration statement or amendment thereto in compliance with the
Securities Act and applicable rules and regulations thereunder, and the
declaration or ordering of effectiveness of such registration statement or
amendment thereto or (B) filing a prospectus and/or prospectus supplement in
respect of an appropriate effective registration statement on Form
S-3.
Registrable
Securities: The Securities and any equity securities issued or
otherwise distributed directly or indirectly with respect to the Securities by
way of exchange thereof or distribution or split or in connection with a
combination of securities, recapitalization, reclassification, merger,
amalgamation, arrangement, consolidation or other reorganization; provided that, once issued,
such Securities will not be Registrable Securities when (1) they are sold
pursuant to an effective registration statement under the Securities Act, (2)
they shall have ceased to be outstanding or (3) they have been sold in a private
transaction in which the transferor’s rights under this Agreement are not
assigned to the transferee of the securities. No Registrable
Securities may be registered under more than one registration statement at any
one time.
Registration Expenses: All
expenses incurred by the Company in effecting any registration pursuant to this
Agreement (whether or not any registration or prospectus becomes effective or
final) or otherwise complying with its obligations under this Agreement,
including all registration, filing and listing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses, expenses
incurred in connection with any “road show”, the reasonable fees and
disbursements of Holders’ Counsel, and expenses of the Company’s independent
accountants in connection with any regular or special reviews or audits incident
to or required by any such registration, but shall not include Selling
Expenses.
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Registration Statement: Any
Shelf Registration Statement or Demand Registration Statement.
Rule 144, Rule 144A, Rule 159A, Rule
405 and Rule 415: In each case, such rule promulgated under the
Securities Act (or any successor provision), as the same shall be amended from
time to time.
SEC: The United
States Securities and Exchange Commission.
Securities: As
defined in the preamble hereto.
Securities
Act: The Securities Act of 1933, as amended.
Selling Expenses: All
discounts, selling commissions and transfer taxes applicable to the sale of
Registrable Securities and fees and disbursements of counsel for any Holder
(other than the fees and disbursements of Holders’ Counsel included in
Registration Expenses).
Shelf Filing
Deadline: As defined in Section 3(a) hereof.
Shelf Registration
Statement: As defined in Section 3(a) hereof.
Short-Form
Registrations: As defined in Section 4(a) hereof.
Special Registration: The registration of (A)
equity securities and/or options or other rights in respect thereof solely
registered on Form S-4 or Form S-8 (or successor form) or (B) shares of equity
securities and/or options or other rights in respect thereof to be offered to
directors, members of management, employees, consultants, customers, lenders or
vendors of the Company or any of its subsidiaries or in connection with dividend
reinvestment plans.
Underwritten Registration or
Underwritten Offering: A registration in which securities of
the Company are sold to an underwriter for reoffering to the
public.
SECTION
2.` Securities Subject to this
Agreement.
(a) Registrable
Securities. The securities entitled to the benefits of this
Agreement are the Registrable Securities.
(b) Holders of Registrable
Securities. A Person is deemed to be a holder of Registrable
Securities (each, a “Holder”) whenever such Person
(including any successors or assigns) owns Registrable Securities.
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SECTION
3. Shelf
Registration.
(a) Shelf
Registration. Subject to the terms and conditions of this
Agreement, the Company covenants and agrees that within 15 days of the date the
Company files its Form 10-Q for the third quarter of 2009 (the “Shelf Filing
Deadline”), the Company shall prepare and file with the SEC a Shelf Registration
Statement covering all Registrable Securities (or otherwise designate an
existing Shelf Registration Statement filed with the SEC to cover the
Registrable Securities), and, to the extent the Shelf Registration Statement has
not theretofore been declared effective or is not automatically effective upon
such filing, the Company shall use reasonable best efforts to cause such Shelf
Registration Statement to be declared or become effective and to keep such Shelf
Registration Statement continuously effective and in compliance with the
Securities Act and usable for resale of such Registrable Securities for a period
from the date of its initial effectiveness until such time as (i) there are no
Registrable Securities remaining or (ii) such time as all Registrable Securities
may be sold without restriction under Rule 144 (including by refiling such Shelf
Registration Statement (or a new Shelf Registration Statement) if the initial
Shelf Registration Statement expires).
(b) Underwritten Shelf
Offerings. Any registration pursuant to Section 3(a) shall be
effected by means of a shelf registration on an appropriate form under Rule 415
under the Securities Act (a “Shelf Registration Statement”). If any
Holder intends to distribute any Registrable Securities by means of an
underwritten offering it shall promptly so advise the Company and the Company
shall take all reasonable steps to facilitate such distribution, including the
actions required pursuant to Section 6; provided that the Company shall not be
required to facilitate an underwritten offering of Registrable Securities unless
either (i) Registrable Securities representing at least two percent of the then
outstanding series of such Registrable Securities are proposed by the Holders to
be included in such offering or (ii) the expected aggregate gross proceeds from
such offering exceed $200 million. Within 10 days after receipt of
any notice of an underwritten offering pursuant to the immediately preceding
sentence, the Company shall give written notice of such offering to all other
Holders who hold Registrable Securities and, subject to Section 3(c) below,
there shall be included in such offering, on the same terms and conditions as
any other Registrable Securities included therein, all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein (which written requests shall specify the number of Registrable
Securities requested to be included in such registration) within 15 days after
the receipt of the Company’s notice.
(c) Priority on Underwritten Shelf
Offerings. If any Holder intends to distribute any Registrable
Securities by means of an underwritten offering pursuant to Section 3(b) and the
underwriters advise the Company in writing that, in their opinion, the number of
Registrable Securities and, if applicable, other securities requested to be
included in such offering exceeds the number of Registrable Securities and, if
applicable, other securities which can be sold in an orderly manner in such
offering within a price range acceptable to the Holders of a majority of the
Registrable Securities proposed to be included in such offering, the Company
shall include securities in such registration in the following order of
priority: (i) first, the number of Registrable Securities of Holders requested
to be included which in the opinion of such underwriters can be sold in an
orderly manner within the price range of such offering, allocated pro rata among
the respective Holders thereof on the basis of the amount of Registrable
Securities owned by each such Holder and (ii) second, the number of other
securities requested to be included which in the opinion of such underwriters
can be sold in an orderly manner within the price range of such
offering.
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(d) Blackout
Period. The Company shall not be required to effect a
registration (including a resale of Registrable Securities from an effective
Shelf Registration Statement) or an underwritten offering pursuant to this
Section 3: (A) with respect to securities that are not Registrable Securities;
or (B) if the Company has notified the Holders that in the good faith judgment
of the Company’s board of directors, it would be materially detrimental to the
Company or its securityholders for such registration or underwritten offering to
be effected at such time, in which event the Company shall have the right to
defer such registration for a period of not more than 45 days after receipt of
the request of any Holder; provided that such right to delay a registration or
underwritten offering shall be exercised by the Company (1) only if the Company
has generally exercised (or is concurrently exercising) similar black-out rights
against holders of similar securities that have registration rights and (2) not
more than three times in any 12-month period and not more than 90 days in the
aggregate in any 12-month period.
(e) Notwithstanding
the foregoing, if at any time the Company is not eligible to file a registration
statement on Form S-3 (or any successor form), then the Company shall not be
obligated to file or keep effective a Shelf Registration Statement at such time.
The Company shall use its commercially reasonable best efforts to remain a
well-known seasoned issuer (as defined in Rule 405 under the Securities Act) and
not to become an ineligible issuer (as defined in Rule 405 under the Securities
Act).
SECTION
4. Demand
Registrations.
(a) Requests for Registration.
Subject to the terms and conditions of this Section 4, at any time after the
Shelf Filing Deadline when a Shelf Registration Statement is not effective
pursuant to Section 3 of this Agreement, any Holder may request (in each case,
such requesting Holders, the “Initiating Holders”) registration under the
Securities Act of all or any portion of the Registrable Securities held by such
Holder on Form S-1 or any similar long-form registration (“Long-Form
Registrations”) or on Form S-3 or any similar short-form registration
(“Short-Form Registrations”), if available (a “Demand Registration Statement”).
All registrations requested pursuant to this Section 4(a) are referred to in
this Agreement as “Demand Registrations”. Each request for a Demand Registration
shall be in writing and shall specify the approximate aggregate number of
Registrable Securities requested to be registered (which aggregate number of
Registrable Securities must represent at least two percent of the then
outstanding series of such Registrable Securities, the anticipated per share
price range for such offering (if known) and the intended method of distribution
(including whether or not such offering is to be underwritten). Within 10 days
after receipt of any such request, the Company shall give written notice of such
requested registration to all other Holders who hold Registrable Securities and,
subject to Sections 4(b), 4(c) and 4(d) below, shall include in such
registration (and in all related registrations and qualifications under state
blue sky laws or in compliance with other registration requirements and in any
related underwriting), on the same terms and conditions as any other Registrable
Securities included therein, all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the delivery of the Company’s written notice.
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(b) Limit on Number of Demand
Registrations. In no event shall the Company be obligated to effectuate
(i) more than one Demand Registration (including Long-Form Registration and
Short-Form Registration) in any 12-month period or (ii) any non-underwritten
Demand Registration for any Registrable Securities that may be sold without
restriction under Rule 144 at the time of such Demand Registration. A
registration shall not count as a Demand Registration until it has become
effective. Initiating Holders making a request for a Demand
Registration may withdraw from such registration at any time prior to the
effective date of such Demand Registration, in which case the Company may
withdraw such registration (unless otherwise requested in writing by other
Holders, to the extent that such other Holders have the right to demand a Demand
Registration at such time in accordance with this Section 4), and such request
shall count as a Demand Registration, unless the Initiating Holders shall have
paid all fees, expenses and other costs of the Company incurred in connection
with such request.
(c) Priority on Demand
Registrations. If a Demand Registration is an underwritten
offering and the underwriters advise the Company in writing that, in their
opinion, the number of Registrable Securities and, if applicable, other
securities requested to be included in such offering exceeds the number of
Registrable Securities and, if applicable, other securities which can be sold in
an orderly manner in such offering within a price range acceptable to the
Holders of a majority of the Registrable Securities proposed to be included in
such offering, the Company shall include securities in such registration in the
following order of priority: (i) first, the number of Registrable Securities of
Holders requested to be included which in the opinion of such underwriters can
be sold in an orderly manner within the price range of such offering, allocated
pro rata among the respective Holders thereof on the basis of the amount of
Registrable Securities owned by each such Holder; and (ii) second, the number of
other securities requested to be included which in the opinion of such
underwriters can be sold in an orderly manner within the price range of such
offering provided, however,
that if the Company has, prior to the date of this Agreement, entered
into an agreement with respect to its securities that is inconsistent with the
order of priority contemplated hereby then it shall apply the order of priority
in such conflicting agreement to the extent that it would otherwise result in a
breach under such agreement.
(d) Blackout
Period. The Company shall not be required to effect a
registration or an underwritten offering pursuant to this Section 4: (A) with
respect to securities that are not Registrable Securities; or (B) if the Company
has notified the Holders that in the good faith judgment of the Company’s board
of directors, it would be materially detrimental to the Company or its
securityholders for such registration or underwritten offering to be effected at
such time, in which event the Company shall have the right to defer such
registration for a period of not more than 45 days after receipt of the request
of any Holder; provided that such right to delay a registration or underwritten
offering shall be exercised by the Company (1) only if the Company has generally
exercised (or is concurrently exercising) similar black-out rights against
holders of similar securities that have registration rights and (2) not more
than three times in any 12-month period and not more than 90 days in the
aggregate in any 12-month period.
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SECTION
5. Piggyback
Registration
(a) If
(i) during any period when an effective Shelf Registration Statement is not
available, the Company proposes to register any of its equity securities, or
(ii) at any time, the Company proposes to undertake an underwritten offering,
other than, in each case, in connection with a registration pursuant to Section
3(a), a Demand Registration or a Special Registration, and the registration form
to be filed may be used for the registration or qualification for distribution
of Registrable Securities, the Company will give prompt written notice to the
Holders of its intention to effect such a registration (but in no event less
than ten days prior to the anticipated filing date) and will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within ten business days after
the date of the Company’s notice (a “Piggyback
Registration”). Any such person that has made such a written
request may withdraw its Registrable Securities from such Piggyback Registration
by giving written notice to the Company and the managing underwriter, if any, on
or before the fifth business day prior to the planned effective date of such
Piggyback Registration. The Company may terminate or withdraw any
registration under this Section 5(a) prior to the effectiveness of such
registration, whether or not any Holders have elected to include Registrable
Securities in such registration.
(b) If
the registration referred to in Section 5(a) is proposed to be underwritten, the
Company will so advise the Holders as a part of the written notice given
pursuant to Section 5(a). In such event, the right of each Holder to
registration pursuant to Section 5(a)will be conditioned upon such person’s
compliance with Section 10. If any participating person disapproves
of the terms of the underwriting, such person may elect to withdraw therefrom by
written notice to the Company and the managing underwriter.
(c) If
a Piggyback Registration under Section 5(a) relates to an underwritten offering
on behalf of the Company, and the managing underwriters advise the Company that
in their reasonable opinion the number of securities requested to be included in
such offering exceeds the number which can be sold without adversely affecting
the marketability of such offering (including an adverse effect on the per share
offering price), the Company will include in such offering only such number of
securities that in the reasonable opinion of such managing underwriters can be
sold without adversely affecting the marketability of the offering (including an
adverse effect on the per share offering price), which securities will be so
included in the following order of priority: (i) first, the securities the
Company proposes to sell, (ii) then the Registrable Securities of the Holders
who have requested inclusion of Registrable Securities pursuant to Section 5(a),
pro rata on the basis
of the aggregate number of such securities or shares owned by each such person
and (iii) lastly, any other securities of the Company that have been requested
to be so included, subject to the terms of this Agreement; provided, however, that if
the Company has, prior to the date of this Agreement, entered into an agreement
with respect to its securities that is inconsistent with the order of priority
contemplated hereby then it shall apply the order of priority in such
conflicting agreement to the extent that it would otherwise result in a breach
under such agreement.
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(d) If
a Piggyback Registration under Section 5(a) relates to an underwritten secondary
offering on behalf of holders of the Company’s securities, and the managing
underwriters advise the Company that in their reasonable opinion the number of
securities requested to be included in such offering exceeds the number which
can be sold without adversely affecting the marketability of such offering
(including an adverse effect on the per share offering price), the Company will
include in such offering only such number of securities that in the reasonable
opinion of such managing underwriters can be sold without adversely affecting
the marketability of the offering (including an adverse effect on the per share
offering price), which securities will be so included in the following order of
priority: (i) first, the Registrable Securities of the Holders who have
requested inclusion of Registrable Securities pursuant to Section 5(a), pro rata on the basis of the
aggregate number of such securities or shares owned by each such person and (ii)
second, any other securities of the Company that have been requested to be so
included, subject to the terms of this Agreement; provided, however, that if
the Company has, prior to the date of this Agreement, entered into an agreement
with respect to its securities that is inconsistent with the order of priority
contemplated hereby then it shall apply the order of priority in such
conflicting agreement to the extent that it would otherwise result in a breach
under such agreement.
SECTION
6. Obligations of the Company.
Whenever the Company is required to register any Registrable Securities
or facilitate any offering pursuant to this Agreement, the Company shall use its
commercially reasonable best efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
disposition thereof, and pursuant thereto the Company shall as expeditiously as
possible (to the extent applicable to the intended method of
disposition):
(a) prepare
and file with the SEC a registration statement, and all amendments and
supplements thereto and related prospectuses and prospectus supplements as may
be necessary to comply with applicable securities laws with respect to such
Registrable Securities and use its commercially reasonable best efforts to cause
such registration statement to become effective; provided that before
filing a registration statement or prospectus or any amendments or supplements
thereto, the Company shall furnish to the Holders’ Counsel copies of all such
documents proposed to be filed, which documents shall be subject to the
reasonable review and comment of such counsel, and upon filing such documents,
the Company shall promptly notify such counsel of the receipt by the Company of
any written comments by the SEC with respect to such registration statement or
prospectus or any amendment or supplement thereto or any written request by the
SEC for the amending or supplementing thereof or for additional information with
respect thereto;
(b)
(i) notify each Holder holding Registrable Securities of the effectiveness
of each registration statement filed under this Agreement and prepare and file
with the SEC such amendments and post-effective amendments as may be necessary
to keep such registration statement continuously effective (A) in the case of
the Shelf Registration Statement, for the period set forth in Section 2(a) of
this Agreement and (B) in the case of all other registration statements, for a
period of not less than 120 days or, if shorter, such time as all securities in
such offering have been disposed of in accordance with the intended method of
distribution thereof, (ii) cause the related prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provision then in force) under the
Securities Act and (iii) comply with the provisions of the Securities Act,
the Exchange Act, and the rules and regulations of the SEC promulgated
thereunder applicable to it with respect to the disposition of all securities
covered by such registration statement during the applicable period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
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(c) furnish
to each seller of Registrable Securities such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities held by such seller,
and the Company hereby consents to the use of such prospectus and each amendment
or supplement thereto by each of the selling holders of Registrable Securities
and the underwriters or agents, if any, in connection with the offering and sale
of the Registrable Securities covered by such prospectus and any amendment or
supplement thereto;
(d) use
its commercially reasonable best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
determined by the underwriters after consultation with the Company and the
Holders participating in the offering and do any and all other acts and things
which may be reasonably necessary or advisable to enable each such seller to
consummate the disposition in such jurisdictions of the Registrable Securities
held by such seller (provided that the Company shall not be required to
(i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject
itself to taxation in any such jurisdiction, (iii) consent to general
service of process in any such jurisdiction or (iv) or take any other actions
that would have or be reasonably likely to have a material adverse effect on the
Company);
(e) promptly
notify each seller of Registrable Securities, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
occurrence of any event as a result of which the prospectus included in such
registration statement contains an untrue statement of a material fact or omits
any fact necessary to make the statements therein not misleading, and, at the
request of any such seller, the Company shall prepare a supplement or amendment
to such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein not misleading in light of the circumstances under which they were
made;
(f) cause
all such Registrable Securities to be listed on each national securities
exchange (including the New York Stock Exchange or NASDAQ) on which similar
securities issued by the Company are then listed or, if no similar securities
issued by the Company are then listed on any national securities exchange, use
its commercially reasonable best efforts to cause all such Registrable
Securities to be listed on such national securities exchange as the Company
shall designate;
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(g) provide
a transfer agent and registrar for all such Registrable Securities not later
than the effective date of such registration statement;
(h) enter
into an underwriting agreement in form, scope and substance as is customary in
underwritten offerings and take all such actions as are reasonably requested by
the managing underwriters in order to expedite or facilitate the registration or
the disposition (including by using commercially reasonable best efforts to have
officers and senior management of the Company and its subsidiaries participate
in “road shows”, including analyst or investor presentations, as part of the
selling efforts relating to any underwritten Demand Registration) of such
Registrable Securities, and in such connection (i) make such
representations and warranties to the underwriters, with respect to the business
of the Company and its subsidiaries, and the registration statement, prospectus
and documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if and
when requested, (ii) obtain 10b-5 statements and opinions of counsel to the
Company and updates thereof (which counsel, statements and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters), addressed to the underwriters covering the matters customarily
covered in 10b-5 statements and opinions requested in underwritten offerings and
such other matters as may be reasonably requested by underwriters,
(iii) obtain “cold comfort” letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the registration
statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in “cold
comfort” letters in connection with underwritten offerings and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable to the holders of Registrable
Securities than those set forth in Section 8 of this Agreement (or such other
provisions and procedures acceptable to holders of a majority of the Registrable
Securities covered by such registration statement (or, in the case of an
Underwritten Shelf Offering, such offering) and the managing underwriters or
agents) with respect to all parties to be indemnified pursuant to Section 8 of
this Agreement, and each of the above shall be done at each closing under such
underwriting agreement, or as and to the extent required
thereunder;
(i) make
reasonably available for inspection by any seller of Registrable Securities, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by Holders
holding a majority of the Registrable Securities of the Holders included in such
offering or such underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and use reasonable best
efforts to cause the Company’s officers, directors, members, managers, employees
and independent accountants to supply all information reasonably requested by
any such seller, underwriter, attorney, accountant or agent in connection with
such registration statement;
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(j) otherwise
use its commercially reasonable best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period of at least
twelve months beginning with the first day of the Company’s first full calendar
quarter after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder;
(k) permit
any Holder that, in such Holder’s sole and exclusive judgment, might be deemed
to be an underwriter or a controlling person of the Company, to participate in
the preparation of such registration or comparable statement and to require the
insertion therein of material related to such Eligible Holder, furnished to the
Company in writing, which in the reasonable judgment of such Eligible Holder and
its counsel should be included;
(l) promptly
notify each seller of Registrable Securities (i) of the issuance by the SEC
of any stop order suspending the effectiveness of a registration statement or of
any order preventing or suspending the use of any preliminary prospectus, or
(ii) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of a
registration statement or any of the Registrable Securities for offer or sale in
any jurisdiction;
(m) in
the event of the issuance of any stop order suspending the effectiveness of a
registration statement, or of any order suspending or preventing the use of any
related prospectus or suspending the qualification of any Registrable Securities
included in such registration statement for sale in any jurisdiction, use its
commercially reasonable best efforts promptly to obtain the withdrawal of such
order;
(n) use
its commercially reasonable best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable
Securities;
(o) if
and to the extent requested by the managing underwriters in connection with any
underwritten Demand Registration, include in such registration securities of the
Company in an amount, if any, (not to exceed the amount requested by such
underwriters) that the Company’s board of directors deems appropriate in its
sole and absolute discretion (it being understood that the Company’s board of
directors may choose not to include any securities of the Company in such
offering) for the Company in view of the Company’s need for funds and other
relevant facts and circumstances at such time, to be offered in a primary
offering of the Company’s securities contemporaneously with such offering of
Registrable Securities; and
(p) use
its commercially reasonable best efforts to take all other steps necessary to
effect the registration of Registrable Securities contemplated by this
Agreement. Timely provide to its security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
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SECTION
7. Registration
Procedures
(a) Provision by Holders of Certain
Information in Connection with any Registration Statement. No
Holder may include any of its Registrable Securities in any Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 Business Days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Registration Statement or prospectus or preliminary
prospectus included therein. Each Holder as to which any Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
(b) Suspension of
Sales. Upon receipt of written notice from the Company that a
Registration Statement, Prospectus or Prospectus supplement contains or may
contain an untrue statement of a material fact or omits or may omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that circumstances exist that make inadvisable use of
such Registration Statement, prospectus or prospectus supplement, each Holder of
Registrable Securities shall forthwith discontinue disposition of Registrable
Securities until the Holder has received copies of a supplemented or amended
prospectus or prospectus supplement, or until the Holder is advised in writing
by the Company that the use of the prospectus and, if applicable, prospectus
supplement may be resumed, and, if so directed by the Company, such Holder shall
deliver to the Company (at the Company’s expense) all copies, other than
permanent file copies then in such Holder’s possession, of the Prospectus and,
if applicable, Prospectus supplement covering such Registrable Securities
current at the time of receipt of such notice. The total number of
days that any such suspension may be in effect in any 12-month period shall not
exceed 90 days.
(c) Termination of Registration
Rights. A Holder’s registration rights as to any securities
held by such Holder shall not be available unless such securities are
Registrable Securities.
(d) Furnishing Information. No
Holder shall use any free writing prospectus (as defined in Rule 405) in
connection with the sale of Registrable Securities without the prior written
consent of the Company.
(e) Holdback. In
connection with any primary underwritten offering by the Company of equity
securities which are Securities, each Holder agrees not to effect any sale or
distribution, including any sale pursuant to Rule 144 under the Securities
Act, of any Registrable Securities (in each case, other than as part of such
underwritten offering) in each case, during the ten days prior to, and during
such period as the managing underwriters may (subject to the proviso below)
require beginning on, the closing date of the sale of such Securities pursuant
to an effective registration statement (the period during which such restriction
applies, the “Holdback
Period”); provided
that the Holdback Period shall not exceed 100 days in the
aggregate.
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SECTION
8. Registration
Expenses. All Registration Expenses incurred in connection
with any registration, qualification or compliance hereunder shall be borne by
the Company. All Selling Expenses incurred in connection with any
registrations hereunder shall be borne by the holders of the securities so
registered pro rata on
the basis of the aggregate offering or sale price of the securities so
registered.
SECTION
9. Indemnification.
(a) The
Company agrees to indemnify and hold harmless each Holder, its directors and
officers, and each person, if any, who controls any Holder within the meaning of
the Securities Act and the Exchange Act against any loss, claim, damage,
liability or expense, as incurred, to which such Holder, director, officer or
controlling person may become subject, under the Securities Act, the Exchange
Act or other U.S. federal or state statutory law or regulation, or at common law
or otherwise (including in settlement of any litigation, if such settlement is
effected with the prior written consent of the Company), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus (or any amendment or
supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order
to make the statements
therein not misleading; and
to reimburse each Holder
and each such
director, officer, employee or controlling person for any and all
expenses (including the fees and disbursements of counsel) as such expenses
are reasonably incurred by such Holder or such director, officer or controlling person in connection with
investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the Company will not be liable in any
case to the extent such loss, claim, damage, liability or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished
to the Company by such
Holder expressly for use in
any Registration
Statement or Prospectus (or any amendment or supplement
thereto). The indemnity agreement set forth in this Section 9(a)
shall be in addition to any liabilities that the Company may otherwise
have.
(b) Each
Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company and each of its directors and officers who sign
a Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, against
any loss, claim, damage, liability or expense, as incurred, to which the Company
or any such director, officer or controlling person may become subject, under
the Securities Act, the Exchange Act, or other U.S. federal or state statutory
law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Majority Holders), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
any Registration Statement or Prospectus (or any amendment or
supplement thereto), in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use therein; and to
reimburse the Company and each such director and officer or controlling person
for any and all expenses (including the fees and disbursements of counsel) as
such expenses are reasonably incurred by the Company or such director, officer
or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. The indemnity agreement set forth in this Section 9(b) shall
be in addition to any liabilities that each Holder may otherwise
have.
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(c) Promptly
after receipt by an indemnified party under this Section 9 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 9 notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party for contribution or otherwise other than
under the indemnity agreement contained in this Section 9 or from any liability
it may have under this Section 9 to the extent it is not materially prejudiced
as a proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict may
arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party’s
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such indemnified
party under this Section 9 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with local counsel), reasonably approved by the
indemnifying party, representing the indemnified parties who are parties to such
action) or (ii) 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 commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) The
indemnifying party under this Section 9 shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of judgment in
any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have
been sought hereunder by such indemnified party, unless such settlement,
compromise or consent (i) includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action,
suit or proceeding and (ii) does not include any statements as to or any
findings of fault, culpability or failure to act by or on behalf of any
indemnified party.
-15-
(e) If
the indemnification provided for in Section 9 hereof is for any reason held
to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount paid or payable by such indemnified party, as incurred, as a
result of any losses, claims, damages, liabilities or expenses referred to
therein, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Holders, on the other
hand, or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and the Holders, on the other hand, in connection
with the statements or omissions or inaccuracies in the representations and
warranties herein which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and the Holders, on
the other hand, shall be determined in a manner as is appropriate to reflect the
relative economic benefits of the Company, on the one hand, and the Holders, on
the other hand, in the matters contemplated by this Agreement. The
relative fault of the Company, on the one hand, and the Holders, on the other
hand, shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by the Company, on
the one hand, or the Holders, on the other hand, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or inaccuracy.
(f) The
amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 9 hereof, any legal or other fees
or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim. The provisions set forth in
Section 9 hereof with respect to
notice of commencement of any action shall apply if a claim for contribution is
to be made under Section 9(e) above; provided, however, that no additional
notice shall be required with respect to any action for which notice has been
given under Section 9 hereof for purposes of
indemnification. The Company and each Holder agree that it would not
be just and equitable if contribution pursuant to Section 9(e) were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in
Section 9(e).
-16-
(g) Notwithstanding
the provisions of Section 9(e), no Holder shall be required to contribute
any amount in excess of the dollar amount by which the total net profit received
by such Holder from the sale of any Securities exceeds the amount of any damages
which such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11 of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders’ obligations
to contribute pursuant to Section 9(e) above are several, and not joint, on a
pro rata basis based on such Holder’s aggregate principal amount of Registrable
Securities included in such Registration Statement or
Prospectus. For purposes of Section 9(e) above, each director,
officer and employee of a Holder and each person, if any, who controls a Holder
within the meaning of the Securities Act and the Exchange Act shall have the
same rights to contribution as such a Holder, and each director and officer of
the Company, and each person, if any, who controls the Company within the
meaning of the Securities Act and the Exchange Act shall have the same rights to
contribution as the Company.
SECTION
10. Participation in Underwritten
Registrations. No Holder may participate in any Underwritten
Registration hereunder unless such Holder (a) agrees to sell such Holder’s
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements; provided that no
Holder shall be required to make any representations or warranties to the
Company or the underwriters (other than reasonable representations and
warranties regarding such Holder and such Holder’s ownership of Registrable
Securities and such Holder’s intended method of distribution), or to undertake
any indemnification obligations to the Company or the underwriters with respect
thereto, except as otherwise provided in Section 9 of this
Agreement. Each Holder agrees that upon receipt from the Company of
notice of its intention to suspend the effectiveness of any Registration
Statement pursuant to Section 3(d) or 4(d) of this Agreement, such Holder shall
immediately discontinue offers and sales of the Registrable Securities under the
applicable Registration Statement until such Holder receives a subsequent notice
from the Company that such suspension has been revoked or
withdrawn.
-17-
SECTION
11. Selection of
Underwriters. The Holders of Registrable Securities covered by
any registration statement filed pursuant hereto who desire to do so may sell
such Registrable Securities in an underwritten offering. In any
underwritten offering pursuant to Sections 3 and 4 of this Agreement, the
managing underwriter(s) that will administer such offering will be selected by
the Holders of a majority of the Registrable Securities included in such
offering; provided, however, that such managing underwriter(s) must be
reasonably satisfactory to the Company.
SECTION
12. Miscellaneous.
(a) Remedies. The
Company hereby agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent
Agreements. The Company will not on or after the date of this
Agreement enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof.
(c) Amendments and
Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of the Majority Holders (excluding any Registrable Securities held by
the Company or its affiliates).
(d) Notices. All
notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, first-class mail (registered or certified,
return receipt requested), telex, telecopier, facsimile, or air courier
guaranteeing overnight delivery:
(i) if
to a Holder, at the address set forth on the stock register of the Company;
and
(ii) if
to the Company:
GMAC
LLC
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General
Counsel
-18-
With a
copy to:
Wachtell,
Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
All such
notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
(e) Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including,
without limitation, and without the need for an express assignment, subsequent
Holders; provided,
however, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless such successor or assign
acquired Registrable Securities from such Holder.
(f) Counterparts. This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate 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.
(g) Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
(h) Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE. ANY RIGHT TO TRIAL BY JURY WITH RESPECT
TO ANY CLAIM OR PROCEEDING RELATED TO OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION OR CONDUCT IN CONNECTION HEREWITH, IS WAIVED.
(i) Severability. In
the event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(j) Entire
Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
-19-
(k) Third-Party
Beneficiaries. Holders (including Broker-Dealers holding
Registrable Securities) are express and intended third-party beneficiaries of
this Agreement, and this Agreement may be enforced by such Persons.
[Signature
Pages follow]
-20-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
GMAC
LLC
By:
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Secretary
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Secretary
GM
PREFERRED FINANCE CO. HOLDINGS LLC
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CEO
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: CEO
Signature
Page to Preferred Registration Rights Agreement