Exhibit 10.4
EXECUTION COPY
EQUITY REGISTRATION RIGHTS
AGREEMENT
This EQUITY REGISTRATION RIGHTS
AGREEMENT (this “ Agreement ”) is entered into
as of July 10, 2009 by and among GENERAL MOTORS COMPANY
(formerly known as NGMCO, Inc.), a Delaware corporation and
successor-in-interest to Vehicle Acquisition Holdings LLC (the
“ Corporation ”), THE UNITED STATES DEPARTMENT
OF THE TREASURY (the “ UST ”), 7176384 CANADA
INC., a corporation organized under the laws of Canada (“
Canada ”), the UAW RETIREE MEDICAL BENEFITS TRUST, a
voluntary employees’ beneficiary association (the “
VEBA ”), and MOTORS LIQUIDATION COMPANY (formerly
known as General Motors Corporation), a Delaware corporation (the
“ Debtor ”).
WHEREAS, each Holder owns, as of the
date hereof, that number of shares of common stock, par value $0.01
per share, of the Corporation (the “ Common Stock
”) set forth opposite such Holder’s name on Annex
I hereto;
WHEREAS, each of the VEBA and the
Debtor owns, as of the date hereof, one or more warrants initially
exercisable for that number of shares of Common Stock set forth
opposite such Holder’s name on Annex I hereto
(collectively, the “ Warrants ”);
WHEREAS, each of the Government
Holders and the VEBA owns, as of the date hereof, that number of
shares of Series A Fixed Rate Cumulative Perpetual Preferred Stock,
par value $0.01 per share (the “ Preferred Stock
”), set forth opposite such Holder’s name on Annex
I hereto;
WHEREAS, concurrently with the
execution of this Agreement, the Corporation, the UST, Canada and
the VEBA have executed that certain Stockholders Agreement, dated
as of the date hereof; and
WHEREAS, the Corporation has agreed
to provide the UST, Canada, the VEBA and the Debtor with
registration rights with respect to such shares of Common Stock,
Warrants and Preferred Stock held by such Holders and their
permitted assigns, on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of
the foregoing and the mutual agreements contained in this
Agreement, and for other good and valuable consideration, the
value, receipt and sufficiency of which are acknowledged, the
parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Certain Defined
Terms . As used in this
Agreement, the following terms have the following meanings set
forth below or in the sections set forth below:
“ Adverse Disclosure
” means public disclosure of material non-public information
that, in the Corporation’s good faith judgment, after
consultation with independent outside counsel to the Corporation,
(a) would be required to be made in any registration statement
or report filed with the SEC by the Corporation so that such
registration statement or report would not be materially
misleading; (b) would not be required to be made at such time
but for the filing of such registration statement; and (c) the
Corporation has a bona fide business purpose for not
disclosing publicly.
“ Adverse Effect
” shall have the meaning set forth in
Section 2.1.6 .
“ Advice ” shall
have the meaning set forth in Section 2.7 .
“ Affiliate ”
means, with respect to any Person, any other Person who Controls,
is Controlled by or is under common Control with, such
Person.
“ Agreement ”
shall have the meaning set forth in the Preamble.
“ Canada ” shall
have the meaning set forth in the Preamble.
“ Co-Managers ”
shall have the meaning set forth in Section
2.1.4(a) .
“ Common Stock ”
shall have the meaning set forth in the Recitals.
“ Control ” means
the direct or indirect power to direct or cause the direction of
management or policies of a Person, whether through the ownership
of voting securities, general partnership interests or management
member interests, by contract or trust agreement, pursuant to a
voting trust or otherwise. “Controlling” and
“Controlled” have the correlative meanings.
“ Corporation ”
shall have the meaning set forth in the Preamble.
“ Corporation Shelf
Registration ” shall have the meaning set forth in
Section 2.2.1 .
“ Debtor ” shall
have the meaning set forth in the Preamble.
“ Demand Registration
” shall have the meaning set forth in
Section 2.1.1(a) .
“ Demand Request
” shall have the meaning set forth in
Section 2.1.1(a) .
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder.
“ Excluded Registration
” means a registration under the Securities Act of
(a) securities pursuant to one or more Demand Registrations
pursuant to Article 2 hereof, (b) securities
registered on Form S-4 or S-8 or any similar successor forms,
(c) securities convertible into or exercisable or exchangeable
for Common Stock and (d) securities registered on Form S-3 or
any successor form covering solely securities issued under a
dividend reinvestment program.
“ FINRA ” shall
have the meaning set forth in Section 2.5(a)(xvii)
.
“ Government Holder
” means the UST or Canada.
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“ Governmental
Authority ” means any United States or non-United States
federal, provincial, state or local government or other political
subdivision thereof, any entity, authority, agency or body
exercising executive, legislative, judicial, regulatory or
administrative functions of any such government or political
subdivision, and any supranational organization of sovereign states
exercising such functions for such sovereign states.
“ Holder ” means
each of (a) the UST, Canada, the VEBA and the Debtor and
(b) any direct or indirect transferee of any such Holder who
shall become a party to this Agreement in accordance with
Section 2.10 .
“ Indemnitee ”
shall have the meaning set forth in Section 2.9.1
.
“ Indemnitor ”
shall have the meaning set forth in Section 2.9.3(a) but
shall, for the avoidance of doubt, exclude the Government Holders
and the VEBA for purposes of providing indemnification
hereunder.
“ Initial Sale Time
” shall have the meaning set forth in
Section 2.9.1 .
“ Inspectors ”
shall have the meaning set forth in
Section 2.5(a)(xiii) .
“ IPO ” means the
Corporation’s first public offering of Common Stock (whether
such offering is primary or secondary) that is underwritten by a
nationally recognized investment bank, pursuant to a registration
statement filed under the Securities Act and declared effective by
the SEC (other than a registration effected solely to implement an
employee benefit plan or a transaction to which Rule 145 under
the Securities Act is applicable, or a registration statement on
Form S-4, Form S-8 or a successor to one of those
forms).
“ Issuer Free Writing
Prospectus ” shall have the meaning set forth in
Section 2.6 .
“ Lead Underwriters
” shall have the meaning set forth in
Section 2.1.4(a) .
“ Losses ” shall
have the meaning set forth in Section 2.9.1
.
“ Market Value ”
shall mean with respect to any particular class or type of
Registrable Securities (a) at any time securities of the same
class or type as the applicable Registrable Securities are listed
on a national securities exchange, the closing price of such class
or type of securities on the trading day immediately preceding the
date of the Demand Request or Transfer Notice, (b) at any time
that the Warrants are not listed on a national securities exchange
but the Common Stock is listed on a national securities exchange,
for each Warrant, the closing price of one share of Common Stock
multiplied by the number of shares of Common Stock for which such
Warrant is then exercisable (assuming cashless exercise), or
(c) other than in the case of clause (a) or
clause (b), the estimated market value determined in good
faith by the Corporation based upon the advice of a nationally
recognized independent investment banking firm retained by the
Corporation (at the sole expense of the Corporation) for this
purpose (which investment banking firm shall be reasonably
acceptable to the UST or if the UST is not the Requesting Holder,
the Holders of a majority of the Registrable Securities covered by
the Demand Request or Transfer Notice).
“ Master Sale and Purchase
Agreement ” means the Amended and Restated Master Sale
and Purchase Agreement, dated as of June 26, 2009 and as
amended from time to time, by and among the Debtor, Saturn LLC,
Saturn Distribution Corporation, Chevrolet-Saturn of Harlem, Inc.
and the Corporation.
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“ Material Adverse
Change ” means (a) any general suspension of trading
in, or limitation on prices for, securities on any national
securities exchange or over-the-counter market in the United States
of America; (b) the declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States of
America; (c) a material outbreak or escalation of armed
hostilities or other international or national calamity (including
an act of terrorism) involving the United States of America or the
declaration by the United States of a national emergency or war or
a change in national or international financial, political or
economic conditions; or (d) any material adverse change in the
business, assets or condition (financial or otherwise) of the
Corporation and its subsidiaries, taken as a whole.
“ Person ” means
any individual, partnership, firm, corporation, association, trust,
unincorporated organization, joint venture, limited liability
company, Governmental Authority or other entity.
“ Piggyback Offering
” shall have the meaning set forth in
Section 2.2.1 .
“ Preferred Stock
” shall have the meaning set forth in the
Recitals.
“ Records ” shall
have the meaning set forth in Section 2.5(a)(xiii)
.
“ register ,”
“ registered ” and “ registration
” refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act, and
the declaration or ordering of the effectiveness (or automatic
effectiveness) of such registration statement.
“ Registrable
Securities ” means (a) Warrants and the shares of
Common Stock and/or Preferred Stock owned from time to time by the
UST, Canada, the VEBA and the Debtor as of the date hereof and set
forth on Annex I hereto, (b) the shares of Common Stock
issued or issuable to any Holder upon exercise of a Warrant,
(c) any additional securities of the Corporation issued to the
Debtor pursuant to Section 3.2 of the Master Sale and Purchase
Agreement and (d) any equity security issued in exchange for
or with respect to any shares of Common Stock referred to in
clauses (a), (b) or (c) above by way of a stock
dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other
reorganization or similar transaction, or otherwise. As to any
particular Registrable Securities, such securities shall cease to
be Registrable Securities on the earliest of the date on which such
securities: (i) have been registered under the Securities Act
and disposed of in accordance with a registration statement;
(ii) have been sold pursuant to Rule 144 under the Securities
Act (or any successor provision); (iii) are held by a Holder
that may sell all such Registrable Securities held by it in a
single day pursuant to, and in accordance with, Rule 144 under the
Securities Act (or any successor provision); (iv) cease to be
outstanding (whether as a result of exercise, redemption,
repurchase, conversion or otherwise); or (v) are held by any
Person who is not a Holder. For purposes hereof, “a majority
of the Registrable Securities” and “on the basis of the
number of Registrable Securities” shall be determined
assuming the exercise of the Warrants in full.
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“ Representatives
” means, with respect to any Person, any of such
Person’s officers, directors, employees, agents, attorneys,
accountants, actuaries, consultants or financial advisors or any
other Person acting on behalf of such Person.
“ Requesting Holders
” shall have the meaning set forth in
Section 2.1.1(a) .
“ SEC ” means the
United States Securities and Exchange Commission.
“ Securities Act
” means the Securities Act of 1933, as amended, and the rules
and regulations thereunder.
“ Shelf Registration
” shall have the meaning set forth in
Section 2.1.2(a) .
“ Suspension Notice
” shall have the meaning set forth in Section 2.7
.
“ Take-Down ”
shall have the meaning set forth in Section 2.1.2(b)
.
“ Transfer Notice
” shall have the meaning set forth in
Section 2.1.2(b) .
“ UST ” shall
have the meaning set forth in the Preamble.
“ VEBA ” shall
have the meaning set forth in the Preamble.
“ VEBA Designee ”
shall mean the person(s) authorized by the Committee (as defined in
the UAW Retiree Medical Benefits Trust Agreement, entered into and
effective on October 16, 2008, by and between the Committee
(as defined therein) and State Street Bank and Trust Company) to
execute this Agreement and/or carry out the transactions
contemplated hereby.
“ Warrants ”
shall have the meaning set forth in the Recitals.
Section 1.2 Terms
Generally . The
definitions in Section 1.1 shall apply equally to both
the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words
“include,” “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation,” unless the context
expressly provides otherwise. All references herein to Articles,
Sections, paragraphs, subparagraphs or clauses shall be deemed
references to Articles, Sections, paragraphs, subparagraphs or
clauses of this Agreement, unless the context requires otherwise.
Unless otherwise specified, the words “this Agreement,”
“herein,” “hereof,” “hereto”
and “hereunder” and other words of similar import refer
to this Agreement as a whole and not to any particular provision of
this Agreement. The word “extent” in the phrase
“to the extent” shall mean the degree to which a
subject or other thing extends, and such phrase shall not mean
simply “if.” Unless expressly stated otherwise, any law
defined or referred to herein means such law as from time to time
amended, modified or supplemented, including by succession of
comparable successor laws and references to all attachments thereto
and instruments incorporated therein.
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ARTICLE 2
REGISTRATION
RIGHTS
Section 2.1 Demand
Registration .
Section 2.1.1 Request for
Registration .
(a) Subject to
Section 2.1.3 , any Holder or Holders of Registrable
Securities shall have the right to require the Corporation to file
a registration statement under the Securities Act for a public
offering of all or part of its or their Registrable Securities (a
“ Demand Registration ”), by delivering to the
Corporation written notice stating that such right is being
exercised, naming, if applicable and to the extent known by such
Holder or Holders, any other Holders whose Registrable Securities
are to be included in such registration (collectively, the “
Requesting Holders ”), specifying the number and type
of each such Holder’s Registrable Securities to be included
in such registration, specifying whether the Registrable Securities
to be included by the Requesting Holder are all of the Registrable
Securities then held by such Requesting Holder and, subject to
Section 2.1.4 hereof, describing the intended method of
distribution thereof (a “ Demand Request ”).
Subject to Section 2.1.3 , after receipt of any Demand
Request, the Corporation shall comply with the applicable notice
requirements set forth in Section 2.1.5 .
(b) Subject to
Section 2.1.3 and Section 2.1.7 , the
Corporation shall file the registration statement in respect of a
Demand Registration as promptly as practicable and, in any event,
(i) with respect to the filing of a Form S-3, within
forty-five (45) days and (ii) with respect to the filing
of any other type of registration statement, within ninety
(90) days after receiving a Demand Request, and shall use
reasonable best efforts to cause the same to be declared effective
by the SEC as promptly as practicable after such filing.
Section 2.1.2 Shelf Registration;
Take-Downs .
(a) Subject to
Section 2.1.3 , with respect to any Demand
Registration, at any time that the Corporation is eligible to use
Form S-3 or an automatic shelf registration statement (as defined
in Rule 405 under the Securities Act) on Form S-3 (or any
successor forms) with respect to the Registrable Securities, the
Requesting Holders may request that the Corporation (i) file a
registration statement pursuant to Rule 415 under the Securities
Act (or any successor rule) to effect such Demand Registration, or
(ii) at any time that a registration statement pursuant to
Rule 415 covering Registrable Securities is effective,
register additional Registrable Securities of the Requesting
Holders pursuant to such shelf registration statement to effect
such Demand Registration (in either case, a “ Shelf
Registration ”). For the avoidance of doubt, a Shelf
Registration shall be deemed a “Demand Registration”
for all purposes under this Agreement except as otherwise provided
in Section 2.1.3 .
(b) Subject to
Section 2.1.3 , any Holder or Holders with Registrable
Securities registered pursuant to a Shelf Registration that intends
to effect an underwritten offering with respect to such Registrable
Securities shall deliver a notice to the Corporation at least
fifteen (15) days prior to the commencement of such
underwritten offering, stating (i) that such Holder or Holders
intend to effect an underwritten offering of all or part of the
Registrable Securities included by such Holder or Holders in the
Shelf
6
Registration, (ii) if
applicable and to the extent known by such Holder, any other
Holders whose Registrable Securities are to be included in the
underwritten offering, (iii) the number and type of each such
Holder’s Registrable Securities to be included in such
underwritten offering, (iv) whether the Registrable Securities
to be included by such Holder are all of the Registrable Securities
then held by such Holder, and (v) the proposed timetable for
such underwritten offering. Any Holder with Registrable Securities
registered pursuant to a Shelf Registration that intends to effect
any other sale or transfer of such Registrable Securities (each a
“ Take-Down ”) shall deliver a notice to the
Corporation at least five (5) days prior to effecting such
non-underwritten sale or transfer, stating (i) that such
Holder intends to effect a non-underwritten sale or transfer of all
or part of the Registrable Securities included by such Holder in
the Shelf Registration, (ii) the number and type of the
Registrable Securities to be included in such sale or transfer and
(iii) the proposed manner and timetable for such sale or
transfer. A notice provided by any Requesting Holder pursuant to
the first two sentences of this Section 2.1.2(b) is
referred to herein as a “ Transfer Notice .”
Subject to Section 2.1.3 , after receipt of any
Transfer Notice, the Corporation shall comply with the applicable
notice requirements set forth in Section 2.1.5 . For
the avoidance of doubt, a Take-Down shall not be deemed to be a
Demand Registration and shall not be subject to
Section 2.1.3 .
(c) Subject to
Section 2.1.3 , the Corporation shall use its
reasonable best efforts to keep any Shelf Registration requested
pursuant to Section 2.1.2(a) continuously effective
under the Securities Act in order to permit the prospectus forming
a part thereof to be usable by the Holders until the earlier of
(i) the date as of which all Registrable Securities have been
sold pursuant to the Shelf Registration or another registration
statement filed under the Securities Act (but in no event prior to
the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder) and (ii) the date
as of which all of such Requesting Holders are permitted to sell
their Registrable Securities without registration pursuant to
Rule 144 under the Securities Act without volume limitation or
other restrictions on transfer thereunder.
(d) The Corporation shall, from time
to time, supplement and amend the Shelf Registration if required by
the Securities Act, including the rules, regulations or
instructions applicable to the registration form used by the
Corporation for such Shelf Registration.
Section 2.1.3
Limitations .
(a) Notwithstanding anything to the
contrary herein, a Holder shall not be permitted to request a
Demand Registration prior to one hundred eighty (180) days
after the date of this Agreement, unless prior thereto the
Corporation has a class of equity securities registered under
Section 12(b) of the Exchange Act.
(b) A Holder (other than the UST)
shall not be permitted to request a Demand Registration prior to
the time the Corporation has registered a class of equity
securities under Section 12(b) of the Exchange Act.
(c) A Holder shall not be permitted
to request a Demand Registration, or submit a Transfer Notice with
respect to an underwritten offering pursuant to a Shelf
Registration, within one hundred eighty (180) days after
either (i) the effective date of a previous Demand
Registration (other than a Shelf Registration) or (ii) the
completion of any underwritten offering pursuant to a Shelf
Registration.
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(d) A Holder shall not be permitted
to submit a Demand Request, or a Transfer Notice for an
underwritten offering, or effect any such Demand Registration or
underwritten offering unless such Demand Request or Transfer Notice
for an underwritten offering is for either (i) the lesser of
(A) a number of Registrable Securities having a Market Value
equal to or exceeding $400 million in the aggregate or (B) at
least 15 million shares of Common Stock and/or Warrants
exercisable for at least 15 million shares of Common Stock in
the aggregate, or (ii) all of the Registrable Securities then
held by the Requesting Holder, if following the disposition of such
Registrable Securities by the Requesting Holder pursuant to a
Demand Request, or a Transfer Notice for an underwritten offering,
such Requesting Holder would own no further Registrable
Securities.
(e) The Corporation shall not be
required to effect, (i) until (but excluding) the third
anniversary of the date hereof, more than two (2) Demand
Registrations (which shall include for this purpose any
underwritten offering pursuant to a Shelf Registration but shall
exclude a Shelf Registration) in the aggregate during any
consecutive twelve (12) month period, and (ii) from and
including the third anniversary of the date hereof, more than one
(1) Demand Registration (which shall include for this purpose
any underwritten offering pursuant to a Shelf Registration but
shall exclude a Shelf Registration) in the aggregate during any
consecutive twelve (12) month period. Notwithstanding the
foregoing, (i) the VEBA shall have the right, from and
including the third anniversary of the date hereof, to request one
additional Demand Registration (which shall include for this
purpose any underwritten offering pursuant to a Shelf Registration
but shall exclude a Shelf Registration) during any consecutive
twelve (12) month period, and (ii) for the avoidance of
doubt, the limitations set forth in this Section 2.1.3
shall not apply to any non-underwritten Take-Down by any Holder
under a Shelf Registration.
Section 2.1.4 Demand
Registrations for Underwritten Offerings .
(a) At the request of the UST or
Canada, or if the UST or Canada is not participating in the
proposed offering, the Holders of a majority of the Registrable
Securities submitting a Demand Request or Transfer Notice for an
underwritten offering of Registrable Securities, the Corporation
shall direct the applicable underwriter to conduct such offering in
the form of a “firm commitment.” With respect to any
such underwritten offering, (i) the UST, or if the UST is not
participating in the proposed offering, the Holders of a majority
of the Registrable Securities to be registered or included in such
underwritten offering shall select the investment banking firm or
firms to lead the underwritten offering (the “ Lead
Underwriters ”); provided that such Lead
Underwriters shall be reasonably acceptable to the Corporation, and
(ii) the Corporation shall select the other investment banking
firms, if any, to co-manage such underwritten offering (the “
Co-Managers ”), provided that such Co-Managers
shall be reasonably acceptable to the UST or Canada, or if the UST
or Canada is not participating in the proposed offering, the
Holders of a majority of the Registrable Securities to be
registered or included in such underwritten offering.
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(b) If a Demand Registration is for
an underwritten offering or a transfer pursuant to a Shelf
Registration involves an underwritten offering, no Holder may
participate in any such underwritten offering unless such Holder
(i) agrees to sell such Holder’s Registrable Securities
on the basis provided in any underwriting arrangements approved by
the Corporation; provided that such arrangements are subject
to the consent of the UST, or if the UST is not participating in
the proposed offering, the Holders of a majority of the Registrable
Securities to be registered or included in such underwritten
offering, and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting
arrangements; provided , however , that no such
Holder shall be required to make any representations or warranties
in connection with any such underwritten offering other than
representations and warranties as to (A) such Holder’s
ownership of its Registrable Securities to be transferred free and
clear of all liens, claims, and encumbrances, (B) such
Holder’s power and authority to effect such transfer, and
(C) such matters pertaining to compliance with securities laws
as may be reasonably requested; provided , further ,
however , that (i) any obligation (if agreed to) of
each such Holder to indemnify the Lead Underwriters and any
Co-Managers pursuant to any such underwriting arrangements shall
(1) only be with respect to information it provides to the
Corporation in writing for use in such underwritten offering,
(2) be several, not joint and several, and (3) be limited
to the net amount received by such Holder from the sale of its
Registrable Securities pursuant to such offering and
(ii) neither the Government Holders nor the VEBA shall be
required to indemnify any Indemnitee pursuant to this
Agreement.
Section 2.1.5 Rights of
Nonrequesting Holders and the Corporation . Subject to Section 2.1.3 , after
receipt of any Demand Request or any Transfer Notice relating to an
underwritten offering pursuant to a Shelf Registration, the
Corporation shall promptly (but in any event within five
(5) days) give written notice of (i) such proposed Demand
Registration to all other Holders or (ii) such Transfer Notice
to such other Holders whose securities are covered by such Shelf
Registration, who shall have the right, exercisable by written
notice to the Corporation within five (5) days of their
receipt of the Corporation’s notice, to elect to include in
such Demand Registration or underwritten offering such portion of
their Registrable Securities as they may request. All Holders
requesting to have their Registrable Securities included in a
Demand Registration or underwritten offering shall be deemed to be
“Requesting Holders” for purposes of this
Section 2.1 . For the avoidance of doubt, subject to
Section 2.1.6 , the Corporation may register in any
Demand Registration any equity securities of the
Corporation.
Section 2.1.6 Priority on Demand
Registrations . With
respect to any underwritten offering based on a Demand Registration
(including an underwritten offering pursuant to a Shelf
Registration), if the Lead Underwriters (after consultation with
the Co-Managers) advise that the inclusion of the securities
proposed to be included in such registration would adversely affect
the price, timing or distribution of the offering or otherwise
adversely affect its success (an “ Adverse Effect
”), the Corporation shall include in such underwritten
offering (a) first, the Registrable Securities, pro rata among
the Requesting Holders on the basis of the number of Registrable
Securities owned by each such Requesting Holder, and
(b) second, any other securities requested to be included in
such underwritten offering (including securities to be sold for the
account of the Corporation); provided , however ,
that if more than 25% of the Registrable Securities of any Holder
subject to a Demand Request or Transfer Notice for an underwritten
offering are excluded pursuant to the terms of this
Section 2.1.6 from the applicable Demand Registration
or underwritten offering pursuant to a Shelf Registration, the
offering shall not be deemed to constitute a Demand Registration
for the purposes of Section 2.1.3 .
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Section 2.1.7 Deferral of Filing;
Suspension of Use . The
Corporation may defer the filing (but not the preparation) or the
effectiveness, or suspend the use, of any registration statement
required by or filed pursuant to Section 2.1 , at any
time if (a) the Corporation determines, in its sole
discretion, that such action or use (or proposed action or use)
would require the Corporation to make an Adverse Disclosure, or
(b) prior to receiving the Demand Request or Transfer Notice,
as applicable, the board of directors of the Corporation had
determined to effect a registered underwritten public offering of
Company equity securities or Company securities convertible into or
exchangeable for Company equity securities for the
Corporation’s account and the Corporation had taken
substantial steps (such as selecting a managing underwriter for
such offering) and is proceeding with reasonable diligence to
effect such offering; provided , however , that the
Corporation shall not exercise its rights to deferral or suspension
pursuant to this Section 2.1.7 , and shall not so
effect any such deferral or suspension, for more than a total of
one hundred eighty (180) days (which need not be consecutive)
in any consecutive twelve (12) month period. In making any
such determination to defer the filing or effectiveness, or suspend
the use, of a registration statement required by
Section 2.1 , the Corporation shall not be required to
consult with or obtain the consent of any Holder or any investment
manager therefor, and any such determination shall be in the sole
discretion of the Corporation, and neither the Holders nor any
investment manager for any Holder shall be responsible or have any
liability therefor. The Corporation shall promptly notify the
Holders of any deferral or suspension pursuant to this
Section 2.1.7 and the Corporation agrees that it will
terminate any such deferral or suspension as promptly as reasonably
practicable and will promptly notify each Holder in writing of the
termination of any such deferral or suspension.
Section 2.1.8 Withdrawal from
Demand Registration .
Any Holder may withdraw its Registrable Securities from a Demand
Registration or underwritten offering at any time (prior to a sale
thereunder) by providing the Corporation with written notice. Upon
receipt of such written notice, the Corporation shall continue all
efforts to secure registration or effect the underwritten offering
of the remaining Registrable Securities not requested to be
withdrawn, unless the remaining Registrable Securities would not
meet the requirements of Section 2.1.3(b) or
Section 2.1.3(d) , in which case, the Corporation may
in its sole discretion cease all efforts to proceed with
registration or the underwritten offering. If the Corporation
ceases all efforts to secure registration or effect the
underwritten offering pursuant to this Section 2.1.8 ,
then such registration or underwritten offering shall nonetheless
be deemed an effective or completed Demand Registration or
completed underwritten offering pursuant to a Shelf Registration
for all purposes hereunder unless (i) the withdrawal is made
following the occurrence of a Material Adverse Change not known to
the Requesting Holders at the time of the Demand Request or
Transfer Notice or (ii) the Requesting Holders pay or
reimburse the Corporation for all out-of-pocket fees and expenses
reasonably incurred in connection with such Demand Registration or
underwritten offering; provided that if, after a Demand
Registration has become effective or an underwritten offering of
Registrable Securities has been commenced, it is interfered with by
any stop order, injunction or other order or requirement of the SEC
or other governmental agency or court, it shall be deemed not to
have been effected and shall not count as a Demand Registration or
underwritten offering for the purposes of Section 2.1.3
.
10
Section 2.2 Piggyback
Offerings .
Section 2.2.1 Right to
Piggyback . Each time the
Corporation proposes to offer any of its equity securities in a
registered underwritten offering (other than pursuant to an
Excluded Registration) under the Securities Act (whether for the
account of the Corporation or the account of any equity holder of
the Corporation other than a Holder) (a “ Piggyback
Offering ”), the Corporation shall give prompt written
notice to each Holder of Registrable Securities (which notice shall
be given not less than twenty (20) days prior to (i) the
offering in the case of an underwritten offering pursuant to
Rule 415 under the Securities Act (or any successor rule) (a
“ Corporation Shelf Registration ”) or
(ii) the anticipated filing date of the Corporation’s
registration statement in a registration other than a Corporation
Shelf Registration), which notice shall offer each such Holder the
opportunity to include any or all of its Registrable Securities in
such underwritten offering, subject to the limitations contained in
Section 2.2.2 hereof. Each Holder who desires to have
its Registrable Securities included in such underwritten offering
shall so advise the Corporation in writing (stating the number and
type of Registrable Securities desired to be registered or
included) within fifteen (15) days after the date of such
notice from the Corporation. Any Holder shall have the right to
withdraw such Holder’s request for inclusion of such
Holder’s Registrable Securities in any underwritten offering
pursuant to this !Section 2.2.1 by giving written
notice to the Corporation of such withdrawal. Subject to
Section 2.2.2 below, the Corporation shall include in
such underwritten offering all such Registrable Securities so
requested to be included therein. Notwithstanding the foregoing,
the Corporation may at any time withdraw or cease proceeding with
any such offering if it shall at the same time withdraw or cease
proceeding with the offering of all other equity securities
originally proposed to be included in such offering.
Section 2.2.2 Priority on
Piggyback Offerings .
(a) If a Piggyback Offering was
initiated by the Corporation, and if the managing underwriter
advises that the inclusion of the securities proposed to be
included in such Piggyback Offering would cause an Adverse Effect,
the Corporation shall include in such Piggyback Offering
(i) first, the securities the Corporation proposes to sell,
(ii) second, the Registrable Securities requested to be
included in such Piggyback Offering, pro rata among the Holders of
such Registrable Securities on the basis of the number of
Registrable Securities owned by each such Holder, and
(iii) third, any other securities requested to be included in
such Piggyback Offering. If as a result of the provisions of this
Section 2.2.2(a) , any Holder shall not be entitled to
include all Registrable Securities in such Piggyback Offering that
such Holder has requested to be so included, such Holder may
withdraw its request to include its Registrable Securities in such
Piggyback Offering.
(b) If a Piggyback Offering was
initiated by a security holder of the Corporation (other than a
Holder), and if the managing underwriter advises that the inclusion
of the securities proposed to be included in such Piggyback
Offering would cause an Adverse Effect, the Corporation shall
include in such Piggyback Offering (i) first, the securities
requested to be included therein by the security holders requesting
such Piggyback Offering and the Registrable Securities requested to
be included in such Piggyback Offering, pro rata among the holders
of such securities on the basis of the number of securities owned
by each such holder, and (ii) second, any other securities
requested to be included in such Piggyback Offering (including
securities to be sold
11
for the account of the Corporation).
If as a result of the provisions of this
Section 2.2.2(b) any Holder shall not be entitled to
include all Registrable Securities in such Piggyback Offering that
such Holder has requested to be so included, such Holder may
withdraw such Holder’s request to include Registrable
Securities in such Piggyback Offering.
(c) No Holder may participate in a
Piggyback Offering unless such Holder (i) agrees to sell such
Holder’s Registrable Securities on the basis provided in any
underwriting arrangements approved by the Corporation and
(ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents,
each in customary form and reasonably satisfactory to the Holders,
reasonably required under the terms of such underwriting
arrangements; provided , however , that no such
Holder shall be required to make any representations or warranties
in connection with any such registration other than representations
and warranties as to (A) such Holder’s ownership of its
Registrable Securities to be sold or transferred free and clear of
all liens, claims, and encumbrances, (B) such Holder’s
power and authority to effect such transfer, and (C) such
matters pertaining to compliance with securities laws as may be
reasonably requested; provided , further ,
however , that (i) any obligation, if agreed to, of
each such Holder to indemnify the underwriters pursuant to any such
underwriting arrangements shall (1) only be with respect to
information it provides to the Corporation in writing for use in
such underwritten offering, (2) be several, not joint and
several, and (3) be limited to the net amount received by such
Holder from the sale of its Registrable Securities pursuant to such
registration and (ii) neither the Government Holders nor the
VEBA shall be required to indemnify any Indemnitee pursuant to this
Agreement.
Section 2.2.3 Selection of
Underwriters . The
Corporation shall select the investment banking firm or firms to
manage the Piggyback Offering.
Section 2.2.4
No registration of Registrable
Securities effected pursuant to this Section 2.2 shall
be deemed to have been effected pursuant to Sect
