Exhibit 1.1
Execution Copy
GENERAL MOTORS
CORPORATION
DEALER MANAGERS
AGREEMENT
April 26, 2009
Morgan Stanley & Co.
Incorporated
Banc of America Securities LLC
Barclays Capital Inc.
Deutsche Bank Securities Inc.
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
UBS Securities LLC
Wachovia Capital Markets, LLC
(at their respective addresses set forth in
Schedule 2 hereto)
Ladies and Gentlemen:
General Motors Corporation, a
Delaware corporation (the “ Company ”), plans,
on the terms and subject to the conditions described in the
Prospectus (as defined below), to make offers to exchange (the
“ Exchange Offers ”) any and all of the
outstanding (i) public unsecured notes denominated in U.S.
Dollars (“ USD ”) of the Company of each series
listed on Schedule 1 hereto (the “ Old GM USD
Notes ”), (ii) public unsecured notes denominated in
Euro of the Company of each series listed on Schedule 1
hereto (“ Old GM Euro Notes ” and, together with
the Old GM USD Notes, the “ Old GM Notes ”) and
(iii) public unsecured notes denominated in Pounds Sterling
(“ GBP ”) of GM Nova Scotia Finance Company
(“ GM Nova Scotia ”) of each series listed on
Schedule 1 hereto (the “ Old GM Nova Scotia
Notes ” and, together with the Old GM Euro Notes, the
“ Old Non-USD Notes ” and the Old Non-USD Notes
together with the Old GM Notes, the “ Old Notes
”), in each case validly tendered and not validly withdrawn
in the Exchange Offers, for a fixed amount (the “ Exchange
Consideration ”) of newly issued shares (the “
New Common Shares ” or the “ New
Securities ”) of common stock, par value $0.01 (after
giving effect to the Par Value Reduction (as defined below)), of
the Company (the “ GM Common Stock ”).
Capitalized terms not otherwise defined in Section 24 hereof
or otherwise herein are used as defined in the
Prospectus.
Not later than 30 days prior to the
Closing Date (as defined below), the Company will file with the
Commission, and not later than 20 days prior to the Closing Date,
the Company will distribute to all holders of GM Common Stock, an
information statement on Schedule 14C (the “ Schedule
14C ”) pursuant to Section 14(c) of the Exchange
Act, describing, among other things, an amendment (the “
Charter Amendment ”), in the form authorized by the
Company’s board of directors, to the Company’s restated
certificate of incorporation (the “ Certificate of
Incorporation ”) to effect (i) the implementation of
a reduction in the par value of GM Common Stock (the “ Par
Value Reduction ”), (ii) an increase in the number
of authorized shares of GM Common Stock to 62 billion shares (the
“ Common Stock Increase ”) and (iii) the
implementation of a 1 for 100 reverse split of GM Common Stock (the
“ Reverse Stock Split ”).
In respect of each voting class of
Old GM USD Notes, the Company is also soliciting (the “
Indenture Consent Solicitations ”), concurrently with
the Exchange Offers, consents (the “ Consents ”)
of holders of Old GM USD Notes to amend certain of the terms of the
indentures governing the Old GM USD Notes (the “ Existing
Indentures ”) to (i) remove substantially all
material affirmative and negative covenants and events of default,
other than those relating to the obligation to pay principal and
interest on the Old GM USD Notes (collectively, the “
Proposed Covenants Amendments ”) and (ii) solely
with respect to Company’s 1.50% Series D Convertible
Debentures due June 1, 2009 (the “ Series D Old
Notes ”), to have holders of such Series D Old Notes that
tender and do not validly withdraw such Series D Old Notes prior to
the initial Withdrawal Date irrevocably agree, in the event the
Exchange Offers and Solicitations are extended beyond June 1,
2009, to forbear from taking any action to enforce, or direct
enforcement of, and waive any and all of the rights and remedies
available to such Holders under the applicable Existing Indenture
and to extend the maturity of such tendered Series D Old Notes
until the earlier of (a) the termination of the Exchange
Offers (including in the event that the Company files a petition
for relief under the U.S. Bankruptcy Code) and (b) the Closing
Date (the “ Series D Forbearance Amendments ”
and, together with the Proposed Covenant Amendments, the “
Proposed Indenture Amendments ”), in each case in
accordance with the terms and conditions of the applicable Existing
Indenture. On or prior to the Closing Date, subject to receipt of
the requisite Consents under the applicable Existing Indenture, the
Company and the applicable Existing Trustee (as defined below) will
execute supplemental indentures (the “ Supplemental
Indentures ”) to the Existing Indentures to give effect
to the Proposed Indenture Amendments. In respect of each series of
the Old Non-USD Notes, the Company (or, in respect of the Old GM
Nova Scotia Notes, GM Nova Scotia) is soliciting (the “
Paying Agency Agreement Solicitations ” and, together
with the Indenture Consent Solicitations, the “
Solicitations ”) concurrently with the Exchange
Offers, proxies from such holders of Old Non-USD Notes (the “
Proxies ”), to approve amendments to certain of the
terms of the fiscal and paying agency agreements governing the Old
Non-USD Notes (the “ Paying Agency Agreements
”), including (i) the insertion of an early call option
(the “ Call Option ”) in such series of Old
Non-USD Notes and (ii) the removal of substantially all
material affirmative and negative covenants and events of default,
other than those relating to the obligation to pay principal and
interest on such series of Old Non-USD Notes (collectively, the
“ Proposed Paying Agency Agreement Amendments ”
and, together with the Proposed Indenture Amendments, the “
Proposed Amendments ”), in accordance with the terms
and conditions of the applicable Paying Agency
Agreement.
The Exchange Offers are part of a
larger restructuring by the Company required by that certain loan
and security agreement (as may be amended or supplemented and
including all ancillary documents related thereto, the “
UST Loan Agreement ”), dated as of December 31,
2008, by and between the Company, as borrower, and the United
States Department of the Treasury, as lender (the “ U.S.
Treasury ”). The UST Loan Agreement contains certain
requirements as it relates to the implementation of the Exchange
Offers, the Labor Modifications and the VEBA
Modifications.
As a condition to the consummation
of the Exchange Offers and Solicitations, the U.S. Treasury must
agree to accept GM Common Stock in exchange for (a) full
satisfaction of at least 50% of the Company’s outstanding
indebtedness under the UST Loan Agreement at June 1, 2009 and
(b) full satisfaction and cancellation of the Company’s
obligations under the warrant granted to the U.S. Treasury (the
“ U.S. Treasury Debt Conversion ”).
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The Exchange Offers and the
Solicitations shall be conducted on the terms and subject to the
conditions set forth in (i) the preliminary prospectus dated
April 27, 2009, attached hereto as Exhibit A (as
amended or supplemented and including any documents incorporated by
reference therein, the “ Preliminary Prospectus
”) included in the Registration Statement (as defined below)
as filed with the Commission on April 27, 2009, (ii) the
related letter of transmittal and consent (as amended, modified or
supplemented from time to time, the “ Letter of
Transmittal ”), attached hereto as Exhibit B ,
with respect to Holders tendering Old Notes pursuant to the
Exchange Offers, (iii) in respect of the USD Exchange Offer,
the tender offer statement on Schedule TO filed with the Commission
pursuant to Rule 14d-3 under the Exchange Act, including the
required exhibits thereto and any documents incorporated by
reference therein (as may be amended or supplemented, the “
Schedule TO ”) and (iv) in respect of the
Exchange Offers and the Solicitations conducted in jurisdictions
identified in Annex B hereto (the “ Non-U.S.
Approval Jurisdictions ”), one or more prospectus
supplements, translations, wraps or similar documents affixed to
the Preliminary Prospectus or Prospectus, as the case may be
(together with any such documents or exhibits thereto, official
notices and circulars in connection therewith, each a “
Non-U.S. Prospectus ”).
The date on which the New Common
Shares are issued pursuant to the Exchange Offers shall be referred
to herein as the “ Closing Date .” This
agreement between the Company and the Dealer Managers as set forth
herein shall hereinafter be referred to as the “
Agreement ,” and all reference to “
Holders ” of Old Notes refer to holders of Old Notes
who have validly tendered and not validly withdrawn their Old Notes
in the Exchange Offers. This Agreement, the Supplemental
Indentures, the Charter Amendment, the Escrow Agreement, any
binding agreement in respect of the Labor Modifications, the VEBA
Modifications, the U.S. Treasury Debt Conversion and the Proposed
Paying Agency Agreement Amendments hereinafter shall be referred to
collectively as the “ Transaction Documents
.”
References to the “ Offer
and Solicitation Material ” shall hereinafter refer to
the items in clauses (a) through (i) below, together with
all information and documents incorporated by reference therein
(such incorporated information and documents collectively, the
“ Incorporated Documents ”): (a) the
Registration Statement, (b) the Preliminary Prospectus,
(c) the Prospectus, (d) the Letter of Transmittal,
(e) the Schedule 14C, (f) each Non-U.S. Prospectus,
(g) any press releases or newspaper advertisements of the
Company and any other information that the Company may file
(including any written communication filed with the Commission
pursuant to Rule 425 under the Securities Act) or publicly
disseminate or provide to holders of Old Notes, in each case in
connection with the Exchange Offers and the Solicitations, as any
of them may be amended, modified or supplemented from time to time,
(h) any other material furnished by or with the written
consent of the Company to holders of the Old Notes in connection
with the Exchange Offers and the Solicitations and (i) the
Schedule TO.
The Offer and Solicitation Material
has been or will be prepared and approved by, and its accuracy and
completeness are the responsibility of, the Company, except as
otherwise expressly set forth in Section 12(a)(i) and
Section 12(b) of this Agreement . The Company
shall,
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to the extent permitted by law, use commercially
reasonable efforts to disseminate the Offer and Solicitation
Material (other than any press releases or newspaper advertisements
relating to the Exchange Offers and the Solicitations and the
Schedule 14C) to registered holders of Old Notes, as soon as
practicable after the Commencement Date (as defined below), and, in
respect of the convertible Old GM USD Notes, pursuant to Rule 13e-4
under the Exchange Act, so as to fulfill all requirements thereof
as to the commencement of the USD Exchange Offer not later than the
date hereof, and comply with its obligations thereunder. You are
authorized to use the Offer and Solicitation Material delivered on
or prior to the date hereof in connection with the Exchange Offers
and the Solicitations in the manner contemplated by the Offer and
Solicitation Material along with such other offering materials and
information that the Company may approve in writing in advance for
use subsequent to the date hereof in connection with the Exchange
Offers and the Solicitations (together with any and all information
and documents incorporated by reference therein, collectively, the
“ Additional Material ”). You agree to
discontinue use of any Offer and Solicitation Material and any
Additional Material promptly after written notification by the
Company that such Offer and Solicitation Material or Additional
Material shall no longer be used in connection with the Exchange
Offers and Solicitations.
The Company agrees to furnish to you
as many copies as you may reasonably request of the Offer and
Solicitation Material and any Additional Material (in each case, as
amended or supplemented, if amended or supplemented) in final form
for use by you in connection with the Exchange Offers and the
Solicitations. The Dealer Managers (as defined below) each hereby
agree that, without the prior written consent of the Company (which
consent the Company agrees will not be unreasonably withheld), the
Dealer Managers will not hereafter disseminate any written
materials to holders of Old Notes for or in connection with the
solicitation of tenders of Old Notes and Consents and Proxies
pursuant to the Exchange Offers, other than the Offer and
Solicitation Material and any Additional Material, or make any
representations to holders of Old Notes in connection with the
solicitation of tenders of Old Notes and Consents and Proxies
pursuant to the Exchange Offers, other than as contained in the
Offer and Solicitation Material and any Additional
Material.
1. The Company hereby engages Morgan
Stanley & Co. Incorporated, Banc of America Securities
LLC, Barclays Capital Inc., Deutsche Bank Securities Inc.,
Citigroup Global Markets Inc., J.P. Morgan Securities Inc., UBS
Securities LLC and Wachovia Capital Markets, LLC (collectively, the
“ Dealer Managers ”) as exclusive dealer
managers in connection with the Exchange Offers and exclusive
solicitation agents (collectively, the “ Solicitation
Agents ”) in connection with the Solicitations on the
terms and subject to the conditions set forth herein; provided,
however, that if any Dealer Manager shall withdraw under this
Agreement, then the Company shall have the right, in its sole
discretion, to appoint a new Dealer Manager. The Company authorizes
each of you to act as Dealer Manager and Solicitation Agent in
connection with the Exchange Offers and the Solicitations and
agrees that you shall act as independent contractors with duties
solely to the Company and that your rights and obligations pursuant
to this Agreement shall be several and not joint. As a Dealer
Manager and Solicitation Agent, you each agree, in accordance with
the Exchange Offers and Solicitations and otherwise in accordance
with your customary practice and all applicable laws of the United
States and those jurisdictions listed on Annex B and
Annex C , to perform those services in connection with the
Exchange Offers and the Solicitations as are customarily performed
by investment banking concerns
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in connection with Exchange Offers and
Solicitations of consents and approvals of like nature, including,
but not limited to, (i) using your commercially reasonable
efforts to solicit (A) tenders of Old Notes sought to be
exchanged by the Company pursuant to the Exchange Offers and
(B) deliveries of Consents and Proxies pursuant to the
Solicitations and (ii) communicating generally regarding the
Exchange Offers and Solicitations with brokers, dealers, commercial
banks, trust companies, nominees and other persons. You each
understand and agree that the Board of Directors of the Company is
not making any recommendation as to whether to accept or
participate in the Exchange Offers or Solicitations and therefore,
as Dealer Manager, you will not be making any such representation
or recommendation. Subject to Section 21 hereof, you each
further agree to be regarded as the broker-dealer that is making
the Exchange Offers and Solicitations on behalf of the Company in
any state of the United States in which it is required that such
Exchange Offers and Solicitations be made by or through a
registered or licensed broker-dealer, and you each represent that
you are a registered or licensed broker-dealer in each of such
states. It is understood that nothing in this Agreement nor the
nature of your services shall be deemed to create a fiduciary or
agency relationship between yourselves and the Company. The Company
acknowledges that certain affiliates of the Dealer Managers may
perform the services to be provided by the Dealer Managers and the
Solicitation Agents under this Agreement in such jurisdictions as
may be required in connection with the Exchange Offers and the
Solicitations. To the extent that any such affiliates perform such
services, they shall be entitled to the benefits of and shall be
subject to the terms of this Agreement as if they were a Dealer
Manager or Solicitation Agent hereunder, as applicable; provided,
however, that the applicable Dealer Manager shall nevertheless
remain liable for the performance of any such affiliate.
2. The Company has prepared and
filed with the Commission on April 27, 2009, under the
Securities Act, a registration statement on Form S-4, including the
Preliminary Prospectus, covering the registration of the New
Securities. The term “ Registration Statement ,”
as used in this Agreement, shall mean such registration statement,
including the exhibits thereto and any documents incorporated by
reference therein, in the form in which it becomes effective and,
in the event of any amendment or supplement thereto after the
effective date of such registration statement, shall also mean such
registration statement as so amended or supplemented. The final
prospectus included in the Registration Statement (including any
documents incorporated in such prospectus by reference) is herein
called the “ Prospectus ,” except that if the
final prospectus furnished to the Dealer Managers for use in
connection with the Exchange Offers and the Solicitations differs
from the final prospectus set forth in the Registration Statement
(whether or not such prospectus is required to be filed pursuant to
Rule 424(b)), the term “Prospectus” shall refer to the
final prospectus furnished to the Dealer Managers for such use. The
terms “supplement” and “amendment” or
“supplemented” and “amended” as used herein
with respect to the Prospectus shall include all documents that are
filed by the Company with the Commission pursuant to the Exchange
Act and incorporated by reference into the Prospectus prior to the
consummation of the Exchange Offers and the
Solicitations.
3. (a) The Company has prepared and
filed, or agrees that prior to or on the date of commencement of
the Exchange Offers and the Solicitations (the “
Commencement Date ”) it will file, with the Commission
under the Exchange Act the Schedule TO in respect of the USD
Exchange Offer, including the required exhibits thereto and any
documents incorporated by reference therein.
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(b) The Company has prepared and
filed, submitted or published, or agrees that it will use its
commercially reasonable efforts to file, submit or publish in any
such Non-U.S. Approval Jurisdiction, the applicable Non-U.S.
Prospectus required to be so filed, submitted or published in such
Non-U.S. Approval Jurisdiction in connection with the Exchange
Offers and the Solicitations and in accordance with the deadlines
therein specified.
(c) The Exchange Offers and
Solicitations (other than the Paying Agency Agreement
Solicitations) shall be made only in the United States of America,
the Non-U.S. Approval Jurisdictions and the jurisdictions
identified in Annex C hereto (the “ Non-U.S. Exempt
Jurisdictions ” and, together with the Non-U.S. Approval
Jurisdictions, the “ Non-U.S. Jurisdictions ”),
and shall be conducted in the Non-U.S. Jurisdictions (including
without limitation in respect of the use and distribution of the
Offer and Solicitation Material) in compliance with the laws, rules
and regulations applicable in such Non-U.S. Jurisdictions and the
limitations and qualifications set forth in the Prospectus under
the caption “Non-U.S. Offer Restrictions” (the “
Foreign Jurisdiction Restrictions ”). No offers,
distributions of the Offer and Solicitation Material (unless
required by the Paying Agency Agreements) or solicitation shall be
made in any other jurisdiction without the prior written consent of
the Lead Dealer Managers, which shall not be unreasonably withheld,
and the Company’s prior written consent. You agree that all
Offer and Solicitation Material published in the Non-U.S.
Jurisdictions in connection with the Exchange Offers and the
Solicitations will be issued on behalf of the Company.
4. The Company agrees that, within a
reasonable time prior to using the Offer and Solicitation Material
or any Additional Material (in each case, including amendments and
supplements thereto, if amended or supplemented), it will provide
copies of such material to the Lead Dealer Managers and counsel for
the Dealer Managers, Cahill Gordon & Reindel
LLP (“ Cahill ”), and will give
reasonable consideration to comments timely received by the Company
from the Lead Dealer Managers and their counsel.
With respect to any of you, in the
event that (i) the Company uses or permits the use of, or
files with the Commission, any Offer and Solicitation Materials
(A) that have not been timely submitted to you previously for
comment or (B) that have been so submitted, and you or your
counsel have provided material comments in a timely manner, but the
Company has unreasonably failed to address such comments;
(ii) the Company shall have breached, in any material respect,
any of its representations, warranties, agreements or covenants
contained herein, (iii) the conditions set forth in
Section 13 that are to be satisfied on or prior to the
Effectiveness Date, any Withdrawal Date and the Closing Date, as
the case may be, are not, in any material respect, satisfied as of
such applicable date, (iv) all of the Exchange Offers and the
Solicitations are terminated or withdrawn by the Company for any
reason or (v) any stop order, restraining order, injunction or
denial of an application for approval has been issued and not
thereafter stayed or vacated, or any proceeding or litigation has
been initiated, with respect to or otherwise affecting the Exchange
Offers or the Solicitations or any other action or transaction
contemplated by the Offer and Solicitation Material, any Additional
Material or this Agreement, which such Dealer Manager, in good
faith after consultation with the Company, believes renders it
inadvisable to continue to act hereunder, then in any such case
such Dealer Manager shall be entitled to withdraw as a Dealer
Manager without any liability or penalty to you (or any person
entitled to indemnification pursuant to Section 12) and
without loss of any right to reimbursement for your
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expenses, fees and costs pursuant to
Section 7 hereof; provided that in each case such Dealer
Manager delivers notice of withdrawal to the Company at least two
(2) business days prior to the effective date of such
withdrawal. If you withdraw as a Dealer Manager in compliance with
this Section 4, the reimbursement for your expenses pursuant
to Section 7 hereof through the date of such withdrawal shall
be paid to you promptly after such date. The resignation of any
Dealer Manager shall not affect the rights or obligations of the
other Dealer Managers hereunder.
5. The Company shall pay the Dealer
Managers the fees calculated and payable as set forth in Annex
A (the “ Fees ”).
6. The Company agrees to pay a
soliciting dealer fee (the “ Soliciting Dealer Fees
”) as set forth and in accordance with the procedures
described under “Dealer Managers, Exchange Agent,
Solicitation and Information Agent, the Settlement and Escrow Agent
and Luxembourg Exchange Agent—Fees and Expenses” in the
Prospectus. The Company agrees and acknowledges that it shall be
solely responsible for the payment of any Soliciting Dealer Fee and
that the Soliciting Dealers may only look to the Company for
payment of any such Soliciting Dealer Fee. Under no circumstances
shall the Dealer Managers be liable for payment of the Soliciting
Dealer Fee.
7. The Company agrees to pay all
fees and expenses incurred in connection with the Exchange Offers
and the Solicitations, including (i) all Soliciting Dealer
Fees, (ii) all fees and expenses relating to the preparation,
printing, mailing and publishing of the Offer and Solicitation
Material and any Additional Material (in each case, as amended or
supplemented, if amended or supplemented), (iii) all fees and
expenses of the Company’s counsel and accountants and of the
Depositary, the Information Agent and the Luxembourg Tender Agent
(as defined below), (iv) all advertising charges incurred with
the prior written consent of the Company, (v) the customary
mailing and handling expenses of the brokers and dealers (including
you), commercial banks, trust companies and other nominees incurred
in forwarding the Offer and Solicitation Material and any
Additional Material (in each case, as amended or supplemented, if
amended or supplemented) to their customers, (vi) all expenses
incident to the issuance and delivery of the New Securities
(including all printing and engraving costs), (vii) all filing
fees, attorneys’ fees and expenses incurred by the Company
and all filing fees and reasonable attorneys’ fees and
out-of-pocket expenses incurred by the Dealer Managers in
connection with qualifying or registering (or obtaining exemptions
from the qualification or registration of) all or any part of the
New Securities under the securities laws of the several states of
the United States or of any Non-U.S. Jurisdictions, (viii) any
fees payable in connection with the listing of the New Common
Shares on the New York Stock Exchange (“ NYSE
”), and (ix) all fees and expenses (including reasonable
fees and expenses of counsel) of the Company in connection with
approval of the New Securities by The Depository Trust Company
(“ DTC ”) in the United States, Euroclear Bank,
S.A./N.V. (“ Euroclear ”) and Clearstream
Banking, société anonyme (“ Clearstream
”) outside the United States, as applicable, for
“book-entry” transfer, and the performance by the
Company of its other obligations under this Agreement. DTC,
Euroclear and Clearstream are each referred to herein individually
as a “ Book-entry Transfer Facility .” In
addition to your compensation for your services as Dealer Managers
as contemplated by Section 5 and clause (vi) above, the
Company agrees to also reimburse you for all other reasonable
out-of-pocket fees, costs and expenses incurred by you in
connection with your services as Dealer Manager, including the
reasonable
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fees, costs and expenses of Cahill, those
foreign counsel to the Dealer Managers identified on Annex D
and, subject to prior written approval of the Company, such other
counsel as reasonably required by the Lead Dealer Managers in
connection with making the Exchange Offers and Solicitations in
jurisdictions outside the United States (collectively with foreign
counsel identified on Annex D, “ Dealer Manager Foreign
Counsel ”; Dealer Manager Foreign Counsel together with
Cahill, “ Dealer Manager Counsel ”), whether or
not (i) any Old Notes are tendered or exchanged pursuant to
the Exchange Offers, (ii) the Company acquires any Old Notes
pursuant to the Exchange Offers or otherwise, (iii) the
Proposed Amendments are adopted or (iv) any Consents or
Proxies are received in the Solicitations; provided, however, that
the Company’s obligation to reimburse the fees, costs and
expenses of Dealer Manager Foreign Counsel shall not, in the
aggregate, exceed $750,000. The Dealer Managers agree to provide,
in a timely manner, such detailed documentation of expenses
(including legal fees and expenses) as may be reasonably requested
by the Company. All payments to be made by the Company pursuant to
this Section 7 shall be made (i) not later than promptly
after the earlier of (x) the Closing Date or (y) the
termination of the Exchange Offers or in the case of amounts
payable to any of you, your withdrawal as Dealer Manager pursuant
to Section 4 (if applicable) or (ii) in the case of the
reasonable fees, costs and expenses of Dealer Manager Counsel,
(A) on the Commencement Date, in respect of such amount
invoiced up to and including the Commencement Date and
(B) promptly after the earlier of (x) the Closing Date or
(y) the termination of the Exchange Offers or the withdrawal
of all Dealer Managers pursuant to Section 4, in respect of
such amount invoiced after the Commencement Date.
8. In connection with the Exchange
Offers and the Solicitations, the Company has arranged for D.F.
King & Co. to serve as depositary and exchange agent (the
“ Depositary ”) and, as such, to advise the
Company and you at least daily as to such matters relating to the
Exchange Offers as you may request, and to serve as information
agent (the “ Information Agent ”) and, as such,
to advise the Company and you as to such matters relating to the
Exchange Offers and the Solicitations as you may reasonably request
and to furnish the Company and you with any written reports
concerning any such information as either the Company or you may
reasonably request. Additionally, in connection with the Exchange
Offers and the Solicitations in respect of Old Notes listed on the
Luxembourg Stock Exchange, the Company has arranged for Deutsche
Bank Luxembourg S.A. to serve as Luxembourg tender agent (the
“ Luxembourg Tender Agent ”) and, as such, to
advise the Company and you as to such matters relating to such
Exchange Offers and Solicitations, as either the Company or you may
reasonably request. The Company shall provide the Lead Dealer
Managers or use commercially reasonable efforts to cause each of
the trustees (each, an “ Existing Trustee ” and
together, the “ Existing Trustees ”) under the
Existing Indentures, and the applicable Book-entry Transfer
Facility to provide the Lead Dealer Managers with copies of the
records or other lists showing the names and addresses of, and
principal amounts of Old Notes held by, the record holders of Old
Notes as of a recent date and on such subsequent dates as are
requested by the Lead Dealer Managers and undertakes, from and
after such date, to use commercially reasonable efforts to cause
the Existing Trustees and the applicable Book-entry Transfer
Facility, to notify the Lead Dealer Managers of all transfers of
Old Notes as of such subsequent dates as are requested by the Lead
Dealer Managers, such notification consisting of the name and
address of the transferor and transferee of any Old Notes and the
date of such transfer. On or prior to the Commencement Date, the
Company will have made appropriate arrangements, to the extent
applicable, with the applicable Book-entry
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Transfer Facility and the Depositary to allow
for the book-entry movement of the tendered Old Notes between
depositary participants and the applicable Book-entry Transfer
Facility during the Exchange Offers.
9. The Company represents and
warrants to each of you that:
(a) the Company has been duly
incorporated and is validly existing as a corporation in good
standing in the State of Delaware with corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Offer and Solicitation Material.
The Company is duly qualified to transact business and is in good
standing (or equivalent status) in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, result in a
Material Adverse Effect;
(b) the Company has all necessary
corporate power and authority and it has taken all necessary
corporate action to authorize the making and consummation of the
Exchange Offers and the Solicitations, and, as of the expiration
date of the Exchange Offers and the Solicitations (the “
Expiration Date ”), will have taken all actions to
authorize the exchange of Old Notes pursuant to the Exchange Offers
and all other actions and transactions contemplated in the Offer
and Solicitation Material and any Additional Material (in each
case, as amended or supplemented, if amended or
supplemented);
(c) the Registration Statement,
including the Preliminary Prospectus, has been prepared by the
Company in conformity in all material respects with the
requirements of the Securities Act and has been filed with the
Commission as of the Commencement Date and is expected by the
Company to become effective not later than the scheduled Expiration
Date of the Exchange Offers; the Company will file any amendments
to the Registration Statement as may hereafter be required by
applicable law and such amendments shall be prepared and filed in
conformity in all material respects with the requirements of the
Securities Act. No stop order refusing or suspending the
effectiveness of the Registration Statement or preventing or
suspending the use of any prospectus is in effect, and no
proceedings for such purpose have been instituted or are pending
before or, to the knowledge of the Company, are threatened by the
Commission. The Exchange Offers and the Solicitations satisfy the
conditions for use of Form S-4 set forth in the instructions
thereto;
(d) the Schedule TO has been
prepared by the Company in conformity in all material respects with
the requirements of the Exchange Act and has been filed with the
Commission as of the Commencement Date; amendments to the Schedule
TO as may have been required prior to the date hereof have
similarly been prepared and filed with the Commission; and the
Company will file additional amendments to the Schedule TO as may
hereafter be required by the Exchange Act;
(e) in respect of each Non-U.S.
Approval Jurisdiction, each Non-U.S. Prospectus has been
(x) prepared by the Company in conformity in all material
respects with the requirements of the applicable laws of the
relevant Non-U.S. Approval Jurisdiction
-9-
and (y) has been filed or
submitted with, approved by, and published or made available to the
public (as applicable) in the form and manner specified by, the
relevant Non-U.S. Approval Agency in conformity in all material
respects with and to the extent required by the applicable laws of
the relevant Non-U.S. Approval Jurisdiction; the Company will amend
or supplement the applicable Non-U.S. Prospectus in each relevant
Non-U.S. Approval Jurisdiction as may hereafter be required and
such amendment or supplements shall be prepared, approved, filed,
submitted and made available to the public (as applicable) in
conformity in all material respects with applicable laws, rules and
regulations of the relevant Non-U.S. Approval Jurisdiction in which
it was filed, submitted or published. No stop or similar order
suspending the approval or use of any Non-U.S. Prospectus has been
issued and no proceedings for such purpose have been instituted or
are pending before or, to the knowledge of the Company, are
threatened by any Non-U.S. Approval Agency;
(f) the Schedule 14C will be
prepared by the Company in conformity in all material respects with
the requirements of the Exchange Act and will be, not later than 30
days prior to the Closing Date, filed with the Commission, and not
later than 20 days prior to the Closing Date, distributed to all
holders of GM Common Stock;
(g) (i) the Offer and Solicitation
Material complies in all material respects and, as amended or
supplemented, if applicable, will comply in all material respects
with the Securities Act and the Exchange Act; (ii) the
Registration Statement, when it becomes effective, will not contain
and as amended or supplemented thereafter, if applicable, will not
contain, any 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) none of the
Preliminary Prospectus, the Prospectus or any other Offer and
Solicitation Material other than the Registration Statement, nor
any Additional Material, at the Commencement Date contains, and on
any Withdrawal Date, the Expiration Date or the Closing Date, as
amended or supplemented, if applicable, will contain, any untrue
statement of a material fact or omits or will 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; except that the representations and warranties set
forth in this Section 9(g) do not apply to statements or
omissions in the Offer and Solicitation Material, any Additional
Material or any amendment or supplement thereto made in reliance
upon or in conformity with information relating to the Dealer
Managers furnished to the Company in writing by the Dealer Managers
expressly for use therein;
(h) the Incorporated Documents, at
the time they were or are hereafter filed with the Commission,
complied in all material respects and will comply in all material
respects with the requirements of the Securities Act or the
Exchange Act, as applicable, and, when read together with the other
information in the Registration Statement, Preliminary Prospectus
or the Prospectus, as the case may be, do not contain, and at no
time prior to or on the Closing Date, will contain, an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
-10-
(i) no material consent, approval,
registration, authorization, order or qualification of or with any
federal or other governmental securities and exchange agency,
authority or instrumentality, domestic or foreign in any Non-U.S.
Exempt Jurisdiction is required for the consummation of the
Exchange Offers and Solicitations or the offering, sale or delivery
of the Exchange Consideration (including pursuant to the Call
Option) as contemplated by this Agreement or the Offer and
Solicitation Material;
(j) the GM Common Stock conforms in
all material respects to the description thereof contained in the
Preliminary Prospectus and the Prospectus and the New Common Shares
(upon effectiveness of the Charter Amendment) (i) will conform
in all material respects to such description and (ii) will
conform to the rights set forth in the Certificate of Incorporation
in respect of the New Common Shares; the New Common Shares have
been duly authorized for issuance pursuant to the Certificate of
Incorporation, and, each New Common Share that is delivered to
Holders in exchange for Old Notes, will be validly issued, fully
paid and non-assessable;
(k) the Charter Amendment
(reflecting the Common Stock Increase and the Reverse Stock Split),
upon effectiveness, will conform in all material respects to the
description thereof contained in the Preliminary Prospectus and the
Prospectus;
(l) the Charter Amendment will
comply with applicable Delaware law;
(m) the Proposed Indenture
Amendments set forth in each Supplemental Indenture when executed
and delivered will conform in all material respects to the
description thereof in the Preliminary Prospectus and the
Prospectus;
(n) the Proposed Paying Agency
Agreement Amendments when approved pursuant to the terms and
conditions in the applicable Paying Agency Agreement will conform
in all material respects to the description thereof in the
Preliminary Prospectus and the Prospectus;
(o) as of the Closing Date, the VEBA
Modifications, the Labor Modification and the U.S. Treasury Debt
Conversion will conform in all material respects to the description
thereof contained in the Preliminary Prospectus and the Prospectus
and, with respect to the VEBA Modifications and the Labor
Modifications, will comply in all material respects with ERISA (as
defined below) and all applicable federal, state or local labor
statutes and regulations;
(p) prior to the date hereof, the
Company has not distributed any Offer and Solicitation Material in
connection with the Exchange Offers and Solicitations;
(q) the statements in the
Preliminary Prospectus and the Prospectus under the headings
“Description of Our Existing Capital Stock,”
“Material United States Federal Income Tax
Consequences,” “Description of the Charter
Amendment,” and “Proposed Debt Instrument
Amendments,” insofar as they purport to describe the
provisions of the laws, documents and arrangements referred to
therein, are accurate in all material respects;
-11-
(r) the Company is not and, after
giving effect to the New Securities exchanged for the Old Notes,
the VEBA Modifications, the Labor Modifications, the U.S. Treasury
Debt Conversion and the Charter Amendment, will not be an
“investment company” or any entity
“controlled” by an “investment company” as
such terms are defined in the U.S. Investment Company Act of 1940,
as amended;
(s) this Agreement has been duly
authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable against the
Company in accordance with the terms set forth herein, except as
enforcement thereof may be limited by (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors’ rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at
law), (iii) an implied covenant of good faith and fair dealing
and (iv) the enforceability of indemnity provisions due to
considerations of public policy (the “ Enforceability
Exceptions ”);
(t) each Supplemental Indenture and
the Escrow Agreement have each been duly authorized by the Company
and, when executed and delivered by the Company and assuming the
due authorization, execution and delivery by the applicable
Existing Trustee or the escrow agent, as the case may be, will each
have been duly executed and delivered on the Closing Date and will
constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as may be limited by the Enforceability
Exceptions;
(u) Deloitte & Touche LLP,
which expressed its opinion with respect to the financial
statements (which term as used in this Agreement includes the
related notes thereto) that will be included or incorporated by
reference in the Preliminary Prospectus and the Prospectus, has
informed the Company that it is an independent public or certified
public accountant within the meaning of Regulation S-X under the
Securities Act and the Exchange Act and the rules of The Public
Company Accounting Oversight Board, and any non-audit services
provided by Deloitte & Touche LLP to the Company have been
approved by the appropriate audit committee of the
Company;
(v) the financial statements,
together with the related schedules and notes, included or
incorporated by reference in the Preliminary Prospectus and the
Prospectus present fairly, in all material respects, the financial
position of the Company and its subsidiaries as of and at the dates
indicated and the results of their operations and their cash flows
for the periods presented therein. Such financial statements have
been prepared in conformity with generally accepted accounting
principles as applied in the United States (“ GAAP
”) applied on a consistent basis throughout the periods
involved, except as may be expressly stated therein. All pro forma
financial statements or data included or incorporated by reference
in the Preliminary Prospectus and the Prospectus comply in all
material respects with the requirements of the Securities Act and
the Exchange Act, and the assumptions used in the preparation of
such pro forma financial statements and data are reasonable, the
pro forma adjustments used therein are appropriate to give effect
to the transactions or circumstances described therein and the pro
forma adjustments have been properly applied to the historical
amounts in the compilation of those statements and data;
-12-
(w) at December 31, 2008, on a
consolidated basis, after giving pro forma effect to (i) the
issuance of the New Securities and the exchange of Old Notes
therefor, (ii) the VEBA Modifications, (iii) the Reverse
Stock Split, (iv) the Common Stock Increase and (v) the
U.S. Treasury Debt Conversion, each as contemplated by the
Preliminary Prospectus and the Prospectus, the Company would have
an authorized and outstanding capitalization as set forth in the
Preliminary Prospectus and the Prospectus, under the caption
“Capitalization”;
(x) the Exchange Offers and the
Solicitations , the VEBA Modifications and all other actions and
transactions contemplated in the Offer and Solicitation Material
and any Additional Material (in each case, as amended or
supplemented, if amended or supplemented), and the execution,
delivery of, and the performance of the Company’s obligations
under the Transaction Documents, (x) will not require any
material consent, approval, authorization or filing with or other
order of any court, regulatory body, administrative agency or other
governmental body having jurisdiction over the Company, except such
(i) as may have already been obtained, taken or made,
(ii) consents, approvals, authorizations or filings with or
other order of any court, regulatory body, administrative agency or
other governmental body as are set forth in the Preliminary
Prospectus and the Prospectus, (iii) consents, approvals,
authorizations or filings as may be required under state securities
or blue sky laws or in the Non-U.S. Approval Jurisdictions in
connection with the Exchange Offers and Solicitations and
(iv) required consents, approvals, authorizations or filings
in those jurisdictions relating to securities to be held in escrow
pursuant to the Escrow Agreement; (y) complies in all material
respects with all applicable provisions of the Exchange Act and the
Securities Act; and (z) will not conflict with, or result in a
breach or violation or imposition of, any material lien, charge or
encumbrance upon any property or assets of the Company pursuant to,
(i) the Certificate of Incorporation or bylaws of the Company
(the “ Bylaws ”), (ii) the terms of any
indenture or any other material agreement, obligation, condition,
covenant or instrument to which the Company is a party or bound or
to which its property is subject (including, without limitation,
the UST Loan Agreement and all other documentation related thereto)
or (iii) any statute, law, rule, regulation, judgment, order
or decree applicable to the Company of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
properties, which in the case of (ii) or (iii) would
reasonably be expected to have a Material Adverse
Effect;
(y) except as disclosed in the
Preliminary Prospectus and the Prospectus, the Company and its
subsidiaries and, to the knowledge of the Company, their respective
officers and directors are in compliance in all material respects
with the applicable provisions of the Sarbanes-Oxley Act of 2002,
including the rules and regulations of the Commission promulgated
thereunder;
(z) (i) except as disclosed in the
Preliminary Prospectus and the Prospectus, the Company and its
subsidiaries maintain systems of “internal control over
financial reporting”
-13-
(as defined in Rule 13a-15(f) of the
Exchange Act) that comply in all material respects with the
requirements of the Exchange Act and have been designed by, or
under the supervision of, their respective principal executive and
principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with GAAP and
(ii) the Company’s internal control over financial
reporting includes policies and procedures that (1) pertain to
the maintenance of records that, in reasonable detail, accurately
and fairly reflect (in all material respects) the transactions and
dispositions of the assets of the Company; (2) provide
reasonable assurance that transactions are recorded as necessary to
permit preparation of the consolidated financial statements in
conformity with GAAP, and that material receipts and expenditures
of the Company are being made only in accordance with
authorizations of management and directors of the Company; and
(3) provide reasonable assurance regarding prevention or
timely detection of unauthorized acquisition, use or disposition of
the Company’s assets that could have a material effect on the
consolidated financial statements;
(aa) except as disclosed in the
Preliminary Prospectus and the Prospectus, the Company has
established and maintains “disclosure controls and
procedures” (as such term is defined in Rules 13a-15 and
15d-14 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information
relating to the Company and its subsidiaries is made known to the
chief executive officer and chief financial officer of the Company
by others within the Company or any of its subsidiaries, and such
disclosure controls and procedures are reasonably effective to
perform the functions for which they were established subject to
the limitations of any such control system; the Company’s
auditors and the appropriate audit committee of the Company have
been advised of: (i) any significant deficiencies or material
weaknesses in the design or operation of internal controls which
could materially adversely affect the Company’s ability to
record, process, summarize, and report financial data; and
(ii) any fraud, whether or not material, that involves
management or other employees who have a role in the
Company’s internal controls;
(bb) except as disclosed in the
Preliminary Prospectus and the Prospectus, the operations of the
Company and its subsidiaries are and have been conducted at all
times in compliance in all material respects with applicable
financial recordkeeping and reporting requirements and the money
laundering statutes and the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “ Money Laundering Laws ”) and no action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company,
threatened;
(cc) except as disclosed in the
Preliminary Prospectus and the Prospectus, none of the Company, any
of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is currently subject to any sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury;
-14-
(dd) except as disclosed in the
Preliminary Prospectus and the Prospectus, neither the Company nor
any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or
any of its subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “ FCPA
”), including, without limitation, making use of the mails or
any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA; and the Company, its subsidiaries and, to the knowledge of
the Company, its affiliates have conducted their businesses in
compliance in all material respects with the FCPA and have
instituted and maintain policies and procedures reasonably designed
to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith;
(ee) except as disclosed in the
Preliminary Prospectus and the Prospectus, (i) there are no
outstanding securities convertible into or exchangeable for, or
warrants, rights or options issued by the Company to purchase, any
shares of GM Common Stock, (ii) there are no statutory,
contractual, preemptive or other rights to subscribe for or to
purchase any Old Notes or New Securities and (iii) there are
no restrictions upon transfer of the Old Notes or the New
Securities pursuant to (a) the Company’s Certificate of
Incorporation or Bylaws or (b) GM Nova Scotia’s
Memorandum of Association;
(ff) except as disclosed in the
Preliminary Prospectus and the Prospectus, the Company and its
subsidiaries and any “employee benefit plan” (as
defined under the Employee Retirement Income Security Act of 1974
(as amended, “ ERISA ,” which term, as used
herein, includes the regulations and published interpretations
thereunder)) established, maintained or contributed to by the
Company, its subsidiaries or their ERISA Affiliates (as defined
below) are in compliance in all material respects with plan terms
and the requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Internal
Revenue Code of 1986, as amended (the “ Code ,”
which term, as used herein, includes the regulations and published
interpretations thereunder). “ ERISA Affiliate ”
means, with respect to the Company or a subsidiary, any member of
any group of organizations described in Section 414 of the
Code, of which the Company or such subsidiary is a member. No
reportable event (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any “employee
benefit plan” established, maintained or contributed to by
the Company, its subsidiaries or any of their ERISA Affiliates.
Neither the Company, its subsidiaries nor any ERISA Affiliate has
incurred, nor reasonably expects to incur, any material liability
under Title IV of ERISA (other than PBGC premiums, in the ordinary
course and without default), including with respect to termination
of, or withdrawal from, any “employee benefit plan.”
Neither
-15-
the Company, its subsidiaries nor
any of their ERISA Affiliates has incurred or reasonably expects to
incur any material liability under Sections 4971, 4975 or 4980B of
the Code. Each “employee benefit plan” established or
maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401
of the Code is so qualified and nothing has occurred, whether by
action or failure to act, which would cause the loss of such
qualification;
(gg) except as contemplated by this
Agreement or as described in the Preliminary Prospectus and the
Prospectus, the Company has not paid or agreed to pay to any person
any compensation for the solicitation of tenders by holders of the
Old Notes pursuant to the Exchange Offers;
(hh) the aggregate amount of GM
Common Stock (after taking into account the New Common Shares to be
issued) outstanding following the consummation of the Exchange
Offers, will not exceed at any one time any limitation thereon
which may then be in effect by action of the Board of Directors of
the Company; and
(ii) each of the representations and
warranties set forth in this Agreement will be true and correct on
and as of the Commencement Date, any Withdrawal Date, the
Expiration Date and the Closing Date, with the same effect as if
made on each such date (except to the extent that a representation
or warranty is by its terms made as of a specified date, in which
case such representation shall be true and correct only on and as
of such date).
It is inappropriate for any person
other than you to assume the accuracy of any representation,
warranty or agreement of the Company contained in this Agreement.
This Agreement is not intended as a document for other persons to
obtain factual information about the Company or the transactions
contemplated by this Agreement. Other persons should rely instead
solely on the Offer and Solicitation Materials (including the
information incorporated by reference therein) for information
about the Company and the transactions contemplated by this
Agreement.
10. Each Dealer Manager severally
represents and warrants to the Company and agrees with the Company
that:
(a) this Agreement has been duly
authorized and validly executed and delivered by such Dealer
Manager; and
(b) without the prior written
consent of the Company (which consent the Company agrees will not
be unreasonably withheld), such Dealer Manager will not hereafter
(x) disseminate any written materials to holders of the Old
Notes for or in connection with the solicitation of tenders of the
Old Notes and Consents and Proxies pursuant to the Exchange Offers,
other than the Offer and Solicitation Material and any Additional
Material, or (y) make any representations to holders of Old
Notes in connection with the solicitation of tenders of Old Notes
and Consents and Proxies pursuant to the Exchange Offers, other
than as contained in the Offer and Solicitation Material and any
Additional Material.
-16-
11. (a) The Company will use its
commercially reasonable efforts to cause (x) the Registration
Statement to become effective as soon as possible but no later than
the Expiration Date, and (y) to advise the Lead Dealer
Managers promptly in writing of (i) the receipt of any
comments of, or requests for additional or supplemental information
from, the Commission or any Non-U.S. Approval Agency relating to
the Exchange Offers and the Solicitations, including in relation to
the Registration Statement, the Schedule TO, the Schedule 14C, the
Prospectus, any Non-U.S. Prospectus or any other Offer and
Solicitation Material, (ii) the occurrence of any event which
would cause the Company to modify, withdraw or terminate the
Exchange Offers or the Solicitations in any jurisdiction or which
would permit the Company to exercise any right not to exchange Old
Notes tendered for the New Securities, (iii) any requirement
to amend or supplement the Offer and Solicitation Material or any
Additional Material, (iv) the issuance by the Commission of
any stop order preventing or suspending the effectiveness of the
Registration Statement, (v) the breach of any representation
or warranty of the Company contained in this Agreement,
(vi) the issuance of any order or, to the knowledge of the
Company, the taking of any other material adverse action by any
administrative or judicial tribunal or other governmental agency or
instrumentality concerning the Exchange Offers and the
Solicitations (and, if in writing, will furnish the Dealer Managers
a copy thereof), (vii) any litigation or administrative action
with respect to the Exchange Offers or the Solicitations,
(viii) any proceedings to remove, suspend or terminate from
listing or quotation the New Common Shares from the NYSE, or of the
threatening or initiation of any proceedings for any of such
purposes and (ix) any other information relating to the
Exchange Offers and the Solicitations which the Lead Dealer
Managers may from time to time reasonably request. Additionally,
the Company agrees that it shall comply with the provisions of Rule
424(b), as applicable, under the Securities Act.
(b) The Company agrees that
(i) if any event occurs or condition exists as a result of
which the Offer and Solicitation Material (other than the
Registration Statement) or any Additional Material would include an
untrue statement of a material fact, or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they are made, not misleading, (ii) if any event occurs or
condition exists as a result of which the Registration Statement,
after the date the Registration Statement is declared effective by
the Commission, includes an untrue statement of a material fact, or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and
(iii) if, in the opinion of the Company it is necessary at any
time to amend or supplement the Offer and Solicitation Material or
any Additional Material to comply with applicable law, the Company
shall promptly notify the Dealer Managers, prepare an amendment or
supplement to the Offer and Solicitation Material or any Additional
Material that will correct such statement or omission or effect
such compliance, and supply such amended or supplemented Offer and
Solicitation Material or Additional Material to you.
(c) Prior to the earlier of the
Closing Date or the date of termination of the Exchange Offers and
the Solicitations, the Company will not amend or supplement the
Offer and Solicitation Material (including by filing documents
under the Exchange Act that are incorporated by reference therein)
unless the Company has submitted to the Dealer Managers
such
-17-
amendment or supplement or filing a reasonable
time prior to the proposed filing or amendment or supplement, and
the Company will give reasonable consideration to the timely
comments of the Dealer Managers and their counsel, subject in each
case to the obligation of the Company to comply with the Securities
Act, the Exchange Act and the provisions of this Agreement. The
Company will promptly advise the Dealer Managers when any document
filed under the Exchange Act that is incorporated by reference in
the Offer and Solicitation Material shall have been filed with the
Commission.
(d) Prior to the issuance of the New
Securities, the Company will use commercially reasonable efforts,
and the Dealer Managers shall cooperate in connection therewith, to
obtain the registration or qualification of the New Securities
under (or to obtain exemptions from the application of) the
securities or Blue Sky laws or other laws of the United States, the
Non-U.S. Jurisdictions and such other jurisdictions as may be
agreed upon by the Lead Dealer Managers and the Company; provided,
however, that the Company shall not be required to qualify as a
foreign corporation to do business, or to file a general consent to
service of process, in any jurisdiction, or to take any other
action that would subject it to general service of process or to
taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject. The Company will not send New
Securities into any jurisdiction where it has not
(i) registered or otherwise qualified such New Securities or
(ii) assured itself that an exemption from registration or
qualification exists. The Company will promptly advise the Dealer
Managers of the receipt by the Company of any notification with
respect to the suspension of the qualification of any New
Securities for sale in any jurisdiction or the initiation or, to
the knowledge of the Company, threatening of any proceeding for
such purpose.
(e) Old Notes acquired by the
Company pursuant to the Exchange Offers or upon exercise of the
Call Option will be cancelled upon receipt thereof. The Company
will cooperate with the Dealer Managers and use their reasonable
best efforts to permit the New Securities to be eligible for
clearance and settlement through the applicable Book-entry Transfer
Facility.
(f) The Company will give reasonable
notice to the Dealer Managers prior to the exercise of the Call
Option and will not exercise the Call Option in respect of Old
Non-USD Notes held by holders in, or deliver New Securities
pursuant to such exercise as contemplated by the Prospectus into,
any jurisdiction where such exercise or delivery would violate,
conflict with or result in liability under applicable securities
laws in such jurisdiction, until such time as the Company has
obtained all consents and approvals necessary to exercise the Call
Option in respect of such Old Non-USD Notes and deliver New
Securities pursuant thereto in compliance with such securities
laws; provided, however, that the Company may (i) exercise the
Call Option, execute the Escrow Agreement and perform the
transactions contemplated by the Escrow Agreement and
(ii) make such other arrangements in respect of any such
jurisdiction as may be agreed in writing by the Company and the
Lead Dealer Managers.
(g) During such period beginning on
the date hereof and ending on such date as, in the reasonable
opinion of counsel for the Dealer Managers, the Prospectus or any
Non-U.S. Prospectus is no longer required by law to be delivered in
connection with the Exchange Offers and the Solicitations, the
Company will (i) file all documents required to be filed with
the Commission
-18-
pursuant to Section 13, 14 or 15 of the
Exchange Act in the manner and within the time periods required by
the Exchange Act or (ii) file, submit or make available all
documents required by law to be filed, submitted or made available
in any Non-U.S. Jurisdiction.
(h) The Company will make generally
available to its security holders and the Dealer Managers as soon
as practicable an earning statement that satisfies the provisions
of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of the
Company occurring after the Effectiveness Date (it being understood
that the Company may satisfy its obligation hereunder by including
such earning statement in its periodic reports filed with the
Commission pursuant to the Exchange Act).
12.(a) The Company agrees to
indemnify and hold harmless each Dealer Manager, its affiliates,
each person, if any, who controls (within the meaning of either
Section 15 of the Securities Act or Section 20 of the
Exchange Act) such Dealer Manager and each of such Dealer
Manager’s and such person’s officers and directors
against any and all losses, liabilities, damages, costs or claims
(or actions in respect thereof) to which any of them may become
subject (including all reasonable costs of investigating, disputing
or defending any such claim or action), insofar as such losses,
liabilities, costs or claims (or actions in respect thereof) arise
out of or in connection with (i) any untrue statement or
alleged untrue statement of a material fact contained in the Offer
and Solicitation Material and any Additional Material, or any
amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
provided that the Company shall not be liable for any such loss,
liability, cost, action or claim arising from any statements or
omissions made in reliance on and in conformity with written
information furnished by such Dealer Manager to the Company
expressly for use in the Offer and Solicitation Material or any
Additional Materials or any amendment or supplement thereto (which,
for the purposes of this proviso, shall consist solely of the name,
address and telephone number of such Dealer Manager on the front
cover and back cover of the Preliminary Prospectus and the
Prospectus, as the case may be, and the back page of the Letter of
Transmittal and such other Information set forth on Annex E
), (ii) the Exchange Offers and the Solicitations, the
exercise of the Call Option and all other actions contemplated in
the Offer and Solicitation Material and any Additional Materials
with respect to the Exchange Offers and the Solicitations,
(iii) any action taken or omitted to be taken by the Dealer
Manager with the consent of the Company or in conformity with the
instructions of the Company or pursuant to the obligations of the
Dealer Managers under this Agreement, (iv) any breach by the
Company of any representation or warranty or failure to comply with
any of the covenants and the agreements contained herein,
(v) any withdrawal or termination by the Company of, or
failure by the Company to commence or consummate, the Exchange
Offers or the Solicitations, (vi) any advice or services
rendered or to be rendered by an indemnified person pursuant to
this Agreement and the transactions contemplated hereby or
(vii) the VEBA Modifications, the Labor Modifications or the
U.S. Treasury Debt Conversion. The Company shall not, however, be
required so to indemnify any indemnified party for any losses,
liabilities, costs or claims or expenses related thereto arising
under clauses (ii) through (vii) above to the extent that
such losses, liabilities, costs or claims or expenses related
thereto are finally judicially determined by a court of competent
jurisdiction to have resulted from the gross negligence, bad faith
or willful misconduct of such indemnified party or
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from a material breach by such indemnified party
of any of its representations, warranties or covenants in this
Agreement. The Company also acknowledges and agrees that no
indemnified person shall have any liability (whether direct or
indirect, in contract, tort or otherwise) to the Company or,
without limiting the effect of the foregoing provisions of this
paragraph (a), any other person for any act or omission on the part
of any broker or dealer in securities or any commercial bank, trust
company or other nominee and that no indemnified person shall have
any liability (whether direct or indirect, in contract, tort or
otherwise) to the Company or any other person for any losses,
claims, damages, liabilities or expenses arising from or in
connection with any act or omission in performing your obligations
hereunder or otherwise in connection with the Exchange Offers or
the exchange of Old Notes for the Exchange Consideration pursuant
to the Exchange Offers, or any other action contemplated in the
Offer and Solicitation Material or any Additional Material, except
to the extent that any such losses, claims, damages, liabilities or
expenses are finally judicially determined by a court of competent
jurisdiction to have resulted from the gross negligence, bad faith
or willful misconduct of such indemnified person or from a material
breach by such indemnified person of any of its representations,
warranties or covenants in this Agreement.
(b) Each Dealer Manager severally
agrees to indemnify and hold harmless the Company, its affiliates,
each person, if any, who controls (within the meaning of either
Section 15 of the Securities Act or Section 20 of the
Exchange Act), the Company and each of the Company’s and such
person’s officers and directors from and against any and all
losses, liabilities, damages, costs or claims (or actions in
respect thereof) to which any of them may become subject (including
all reasonable costs of investigating, disputing or defending any
such claim or action), insofar as such losses, liabilities,
damages, costs or claims (or actions in respect thereof) arise out
of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in the Offer and
Solicitation Material or any Additional Material or any amendment
or supplement thereto, or any omission or alleged omission to state
therein a material fact necessary to make the statements therein
not misleading, only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made
in reliance on and in conformity with written information furnished
to the Company by such Dealer Manager expressly for use in the
Offer and Solicitation Material or any Additional Material, or any
amendment or supplement thereto (it being understood that such
written information shall consist solely of the name, address and
telephone number of such Dealer Manager on the front cover and back
cover of the Preliminary Prospectus and the Prospectus, as the case
may be, and the back page of the Letter of Transmittal and such
other information set forth on Annex E ).
(c) If any claim, demand, action or
proceeding (including any governmental investigation) shall be
brought or alleged against an indemnified party in respect of which
indemnity is to be sought against an indemnifying party pursuant to
the preceding paragraphs, the indemnified party shall promptly
notify the indemnifying party in writing, and the indemnifying
party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnified party may
designate in such proceeding and shall pay the reasonable fees and
expenses of such counsel related to such proceeding; provided,
however, that in the event the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of any such proceeding, the indemnified party
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shall then be entitled to retain counsel
reasonably satisfactory to itself and the indemnifying party shall
pay the reasonable fees and disbursements of such counsel relating
to the proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the reasonable
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel, (ii) the indemnifying party has failed within a
reasonable time to retain counsel reasonably satisfactory to such
indemnified party pursuant to the preceding sentence or
(iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is agreed that the indemnifying party
shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate law firm (in addition to local
counsel where necessary) for all such indemnified parties. Such
firm shall be designated in writing by the Lead Dealer Managers.
The indemnifying party 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 from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the ind
