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EXHIBIT 10.1
CORPORATE AGREEMENT
THIS CORPORATE AGREEMENT ("Agreement") is entered into as of
_______________, 1996 by and between FORD MOTOR COMPANY, a Delaware corporation
("Ford"), and ASSOCIATES FIRST CAPITAL CORPORATION, a Delaware corporation
("Associates").
RECITALS
X. Xxxx, through its indirect, wholly owned subsidiary Ford
FSG, Inc., a Delaware corporation ("FFSG"), beneficially owns all of the issued
and outstanding Class B Common Stock, par value $.01 per share ("Class B Common
Stock"), of Associates and directly owns _____ shares of Class A Common Stock,
par value $.01 per share ("Class A Common Stock"), of Associates, and
Associates is a member of Ford's "affiliated group" of corporations (the "Ford
Group") for federal income tax purposes.
B. The parties are contemplating the possibility that
Associates will issue shares of Class A Common Stock in an initial public
offering (the "Initial Public Offering") registered under the Securities Act of
1933, as amended.
C. The parties desire to enter into this Agreement to set
forth their agreement regarding (i) Ford's rights to purchase additional shares
of Class B Common Stock upon any issuance of certain classes of capital stock
of Associates to any person to permit Ford to maintain its percentage ownership
interest in Associates, (ii) Ford's rights to purchase shares of non-voting
classes of capital stock of Associates to permit Ford to own 80 percent of each
class of such stock outstanding, (iii) certain registration rights with respect
to Class B Common Stock (and any other securities issued in respect thereof or
in exchange therefor) and (iv) certain representations, warranties, covenants
and agreements applicable so long as Associates is a subsidiary of Ford.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Ford and Associates,
for themselves, their successors, and assigns, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. As used in this Agreement, the following
terms will have the following meanings, applicable both to the singular and the
plural forms of the terms described:
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"Affiliate" means, with respect to a given Person, any Person
controlling, controlled by or under common control with such Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as applied to any
Person, means the possession, directly or indirectly, of the power to vote a
majority of the securities having voting power for the election of directors
(or other Persons acting in similar capacities) of such Person or otherwise to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"Agreement" has the meaning ascribed thereto in the preamble
hereto, as such agreement may be amended and supplemented from time to time in
accordance with its terms.
"Applicable Stock" means at any time the (i) shares of Common
Stock owned by the Ford Entities that were owned on the date hereof, plus (ii)
shares of Class B Common Stock purchased by the Ford Entities pursuant to
Article II of this Agreement, plus (iii) shares of Common Stock that were
issued to Ford Entities in respect of shares described in either clause (i) or
clause (ii) in any reclassification, share combination, share subdivision,
share dividend, share exchange, merger, consolidation or similar transaction or
event.
"Associates" has the meaning ascribed thereto in the preamble
hereto.
"Associates Entities" means Associates and its Subsidiaries,
and "Associates Entity" shall mean any of the Associates Entities.
"Class A Common Stock" has the meaning ascribed thereto in the
recitals to this Agreement.
"Class B Common Stock" has the meaning ascribed thereto in the
recitals to this Agreement.
"Class B Common Stock Option" has the meaning ascribed thereto
in Section 2.1(a).
"Class B Common Stock Option Notice" has the meaning ascribed
thereto in Section 2.2.
"Common Stock" means the Class B Common Stock, the Class A
Common Stock, any other class of Associates' capital stock representing the
right to vote generally for the election of directors and, for so long as
Associates continues to be a subsidiary corporation includable in a
consolidated federal income tax return of the Ford Group, any other security of
Associates treated as stock for purposes of Section 1504 of the Internal
Revenue Code of 1986, as amended.
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"Company Securities" has the meaning ascribed thereto in
Section 3.2(b).
"Disadvantageous Condition" has the meaning ascribed thereto
in Section 3.1(a).
"FFSG" has the meaning ascribed thereto in the preamble
hereto.
"Ford Entities" means Ford and Subsidiaries of Ford (other
than Subsidiaries that constitute Associates Entities), and "Ford Entity" shall
mean any of the Ford Entities.
"Ford Ownership Reduction" means any decrease at any time in
the Ownership Percentage to less than 45%.
"Ford Transferee" has the meaning ascribed thereto in Section
3.9.
"Ford" has the meaning ascribed thereto in the preamble
hereto.
"Ford Group" has the meaning ascribed thereto in the recitals
to this Agreement.
"Holder" means Ford, the other Ford Entities and any
Transferee.
"Holder Securities" has the meaning ascribed thereto in
Section 3.2(b).
"Initial Public Offering" has the meaning ascribed thereto in
the recitals to this Agreement.
"Initial Public Offering Date" means the date of completion of
the initial sale of Class A Common Stock in the Initial Public Offering.
"Issuance Event" has the meaning ascribed thereto in Section
2.2.
"Issuance Event Date" has the meaning ascribed thereto in
Section 2.2.
"Market Price" of any shares of Class A Common Stock on any
date means (i) the average of the last sale price of such shares on each of the
five trading days immediately preceding such date on the New York Stock
Exchange, Inc. or, if such shares are not listed thereon, on the principal
national securities exchange or automated interdealer quotation system on which
such shares are traded or (ii) if such sale prices are unavailable or such
shares are not so traded, the value of such shares on such date determined in
accordance with agreed-upon procedures reasonably satisfactory to Associates
and Ford.
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"Nonvoting Stock" means any class of Associates' capital stock
not representing the right to vote generally for the election of directors.
"Nonvoting Stock Option" has the meaning ascribed thereto in
Section 2.1(c).
"Nonvoting Stock Option Notice" has the meaning ascribed
thereto in Section 2.2.
"Other Holders" has the meaning ascribed thereto in Section
3.2(b).
"Other Securities" has the meaning ascribed thereto in Section
3.2.
"Ownership Percentage" means, at any time, the fraction,
expressed as a percentage and rounded to the next highest thousandth of a
percent, whose numerator is the aggregate Value of the Applicable Stock and
whose denominator is the aggregate Value of outstanding shares of Common Stock
of Associates; provided, however, that any shares of Common Stock issued by
Associates in violation of its obligations under Article II of this Agreement
shall not be deemed outstanding for the purpose of determining the Ownership
Percentage. For purposes of this definition, "Value" means, with respect to
any share of stock, the value of such share determined by Ford under principles
applicable for purposes of Section 1504 of the Internal Revenue Code of 1986,
as amended.
"Person" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization,
government (and any department or agency thereof) or other entity.
"Registrable Securities" means shares of Class B Common Stock,
shares of Class A Common Stock and any stock or other securities into which or
for which such Common Stock may hereafter be changed, converted or exchanged
and any other shares or securities issued to Holders of such Common Stock (or
such shares or other securities into which or for which such shares are so
changed, converted or exchanged) upon any reclassification, share combination,
share subdivision, share dividend, share exchange, merger, consolidation or
similar transaction or event or pursuant to the Nonvoting Stock Option. As to
any particular Registrable Securities, such Registrable Securities shall cease
to be Registrable Securities when (i) a registration statement with respect to
the sale by the Holder thereof shall have been declared effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) they shall have been distributed to the
public in accordance with Rule 144, (iii) they shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been
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delivered by Associates and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any state
securities or blue sky law then in effect or (iv) they shall have ceased to be
outstanding.
"Registration Expenses" means any and all expenses incident to
performance of or compliance with any registration of securities pursuant to
Article III, including, without limitation, (i) the fees, disbursements and
expenses of Associates' counsel and accountants and the fees and expenses of
counsel selected by the Holders in accordance with this Agreement in connection
with the registration of the securities to be disposed of, such fees and
expenses of such counsel selected by the Holders to be reasonable in the
reasonable discretion of Associates; (ii) all expenses, including filing fees,
in connection with the preparation, printing and filing of the registration
statement, any preliminary prospectus or final prospectus, any other offering
document and amendments and supplements thereto and the mailing and delivering
of copies thereof to any underwriters and dealers; (iii) the cost of printing
or producing any underwriting agreements and blue sky or legal investment
memoranda and any other documents in connection with the offering, sale or
delivery of the securities to be disposed of; (iv) all expenses in connection
with the qualification of the securities to be disposed of for offering and
sale under state securities laws, including the fees and disbursements of
counsel for the underwriters or the Holders of securities in connection with
such qualification and in connection with any blue sky and legal investment
surveys; (v) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of
the securities to be disposed of; (vi) transfer agents' and registrars' fees
and expenses and the fees and expenses of any other agent or trustee appointed
in connection with such offering; (vii) all security engraving and security
printing expenses; (viii) all fees and expenses payable in connection with the
listing of the securities on any securities exchange or automated interdealer
quotation system or the rating of such securities, (ix) any other fees and
disbursements of underwriters customarily paid by the sellers of securities,
but excluding underwriting discounts and commissions and transfer taxes, if
any, and (x) other reasonable out-of-pocket expenses of Holders other than
legal fees and expenses referred to in clause (i) above.
"Rule 144" means Rule 144 (or any successor rule to similar
effect) promulgated under the Securities Act.
"Rule 415 Offering" means an offering on a delayed or
continuous basis pursuant to Rule 415 (or any successor rule to similar effect)
promulgated under the Securities Act.
"SEC" means the United States Securities and Exchange
Commission.
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"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute.
"Selling Holder" has the meaning ascribed thereto in Section
3.4(e).
"Subsidiary" means, as to any Person, any corporation,
association, partnership, joint venture or other business entity of which more
than 50% of the voting capital stock or other voting ownership interests is
owned or controlled, directly or indirectly, by such Person or by one or more
of the Subsidiaries of such Person or by a combination thereof. "Subsidiary,"
when used with respect to Ford or Associates, shall also include any other
entity affiliated with Ford or Associates, as the case may be, that Ford and
Associates may hereafter agree in writing shall be treated as a "Subsidiary"
for the purposes of this Agreement.
"Transferee" has the meaning ascribed thereto in Section 3.9.
1.2. Internal References. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement and
references to the parties shall mean the parties to this Agreement.
ARTICLE II
OPTIONS
2.1. Options. (a) Associates hereby grants to Ford, on the
terms and conditions set forth herein, a continuing right (the "Class B Common
Stock Option") to purchase from Associates, at the times set forth herein, such
number of shares of Class B Common Stock as is necessary to allow the Ford
Entities to maintain the Ownership Percentage. The Class B Common Stock Option
shall be assignable, in whole or in part and from time to time, by Ford to any
Ford Entity. The exercise price for the shares of Class B Common Stock
purchased pursuant to the Class B Common Stock Option shall be the Market Price
of the Class A Common Stock as of the date of first delivery of notice of
exercise of the Class B Common Stock Option by Ford (or its permitted assignee
hereunder) to Associates.
(b) The provisions of Section 2.1(a) hereof notwithstanding,
the Class B Common Stock Option granted pursuant to Section 2.1(a) shall not
apply and shall not be exercisable in connection with the issuance by
Associates of any shares of Common Stock pursuant to any stock option or other
executive or employee benefit or compensation plan maintained by Associates, so
long as, from and after the date hereof and prior to the issuance of such
shares, Associates has repurchased from shareholders and not subsequently
reissued a number of shares
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equal or greater to the number of shares to be issued in any such issuance.
(c) Associates hereby grants to Ford, on the terms and
conditions set forth herein, a continuing right (the "Nonvoting Stock Option"
and, together with the Class B Common Stock Option, the "Options") to purchase
from Associates, at the times set forth herein, such number of shares of
Nonvoting Stock as is necessary to allow the Ford Entities to own 80 percent of
each class of outstanding Nonvoting Stock. The Nonvoting Stock Option shall be
assignable, in whole or in part and from time to time, by Ford to any Ford
Entity. The exercise price for the shares of Nonvoting Stock purchased
pursuant to the Nonvoting Stock Option shall be the price at which such
Nonvoting Stock is then being sold to third parties, or, if no Nonvoting Stock
is being sold, the fair market value thereof as determined in good faith by the
Board of Directors of Associates.
2.2. Notice. At least 20 business days prior to the issuance
of any shares of Common Stock (other than in connection with the Initial Public
Offering, including the full exercise of all underwriters' over-allotment
options granted in connection therewith and other than issuances of Common
Stock to any Ford Entity) or the first date on which any event could occur
that, in the absence of a full or partial exercise of the Class B Common Stock
Option, would result in a reduction in the Ownership Percentage, Associates
will notify Ford in writing (a "Class B Common Stock Option Notice") of any
plans it has to issue such shares or the date on which such event could first
occur. At least 20 business days prior to the issuance of any shares of
Nonvoting Stock (other than issuances of Nonvoting Stock to any Ford entity) or
the first date on which any event could occur that, in the absence of a full or
partial exercise of the Nonvoting Stock Option, would result in the Ford
Entities owning less than 80 percent of each class of outstanding Nonvoting
Stock, Associates will notify Ford in writing (a "Nonvoting Stock Option
Notice" and, together with a Class B Common Stock Option Notice, an "Option
Notice") of any plans it has to issue such shares or the date on which such
event could first occur. Each Option Notice must specify the date on which
Associates intends to issue such additional shares or on which such event could
first occur (such issuance or event being referred to herein as an "Issuance
Event" and the date of such issuance or event as an "Issuance Event Date"), the
number of shares Associates intends to issue or may issue and the other terms
and conditions of such Issuance Event.
2.3. Option Exercise and Payment. The Class B Common Stock
Option may be exercised by Ford (or any Ford Entity to which all or any part of
the Class B Common Stock Option has been assigned) for a number of shares equal
to or less than the number of shares that are necessary for the Ford Entities
to maintain, in the aggregate, the then- current Ownership Percentage. The
Nonvoting Stock Option may be exercised by Ford (or any Ford
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Entity to which all or any part of the Nonvoting Stock Option has been
assigned) for a number of shares equal to or less than the number of shares
that are necessary for the Ford Entities to own, in the aggregate, 80 percent
of each class of outstanding Nonvoting Stock. Each Option may be exercised at
any time after receipt of an applicable Option Notice and prior to the
applicable Issuance Event Date by the delivery to Associates of a written
notice to such effect specifying (i) the number of shares of Class B Common
Stock or Nonvoting Stock, as the case may be, to be purchased by Ford, or any
of the Ford Entities and (ii) a calculation of the exercise price for such
shares. Upon any such exercise of either Option, Associates will, prior to the
applicable Issuance Event Date, deliver to Ford (or any Ford Entity designated
by Ford), against payment therefor, certificates (issued in the name of Ford or
its permitted assignee hereunder or as directed by Ford) representing the
shares of Class B Common Stock or Nonvoting Stock, as the case may be, being
purchased upon such exercise. Payment for such shares shall be made by wire
transfer or intrabank transfer of immediately-available funds to such account
as shall be specified by Associates, for the full purchase price for such
shares.
2.4. Effect of Failure to Exercise. Except as provided in
Section 2.6, any failure by Ford to exercise either Option, or any exercise for
less than all shares purchasable under either Option, in connection with any
particular Issuance Event shall not affect Ford's right to exercise the
relevant Option in connection with any subsequent Issuance Event.
2.5. Initial Public Offering. Notwithstanding the foregoing,
Ford shall not be entitled to exercise the Class B Common Stock Option in
connection with the Initial Public Offering of the Class A Common Stock if,
upon the completion of the Initial Public Offering, including the full exercise
of all underwriters' over-allotment options granted in connection therewith,
the Ownership Percentage would be no less than 80%.
2.6. Termination of Options. The Options shall terminate
upon the occurrence of any Issuance Event that, after considering Ford's
response thereto and to any other Issuance Events, results in the Ownership
Percentage being less than 45%, other than any Issuance Event in violation of
this Agreement. Each Option, or any portion thereof assigned to any Ford
Entity other than Ford, also shall terminate in the event that the Person to
whom such Option, or such portion thereof has been transferred, ceases to be a
Ford Entity for any reason whatsoever.
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ARTICLE III
REGISTRATION RIGHTS
3.1. Demand Registration - Registrable Securities.
(a) Upon written notice provided at any time after the Initial Public Offering
Date from any Holder of Registrable Securities requesting that Associates
effect the registration under the Securities Act of any or all of the
Registrable Securities held by such Holder, which notice shall specify the
intended method or methods of disposition of such Registrable Securities,
Associates shall use its best efforts to effect the registration under the
Securities Act and applicable state securities laws of such Registrable
Securities for disposition in accordance with the intended method or methods of
disposition stated in such request (including in a Rule 415 Offering, if
Associates is then eligible to register such Registrable Securities on Form S-3
(or a successor form) for such offering); provided that:
(i) with respect to any registration statement filed,
or to be filed, pursuant to this Section 3.1, if Associates shall
furnish to the Holders of Registrable Securities that have made such
request a certified resolution of the Board of Directors of Associates
(adopted by the affirmative vote of a majority of the directors not
designated by the Ford Entities) stating that in the Board of
Directors' good faith judgment it would (because of the existence of,
or in anticipation of, any acquisition or financing activity, or the
unavailability for reasons beyond Associates's reasonable control of
any required financial statements, or any other event or condition of
similar significance to Associates) be significantly disadvantageous
(a "Disadvantageous Condition") to Associates for such a registration
statement to be maintained effective, or to be filed and become
effective, and setting forth the general reasons for such judgment,
Associates shall be entitled to cause such registration statement to
be withdrawn and the effectiveness of such registration statement
terminated, or, in the event no registration statement has yet been
filed, shall be entitled not to file any such registration statement,
until such Disadvantageous Condition no longer exists (notice of which
Associates shall promptly deliver to such Holders). Upon receipt of
any such notice of a Disadvantageous Condition, such Holders shall
forthwith discontinue use of the prospectus contained in such
registration statement and, if so directed by Associates, each such
Holder will deliver to Associates all copies, other than permanent
file copies then in such Holder's possession, of the prospectus then
covering such Registrable Securities current at the time of receipt of
such notice; provided, that the filing of any such registration
statement may not be delayed for a period in excess of six months due
to the occurrence of any particular Disadvantageous Condition;
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(ii) after any Ford Ownership Reduction, the Holders of
Registrable Securities may collectively exercise their rights under
this Section 3.1 (through notice delivered by Holders owning in the
aggregate a majority in economic interest of the Registrable
Securities then held by Holders) on not more than three occasions (it
being acknowledged that prior to any Ford Ownership Reduction, there
shall be no limit to the number of occasions on which such Holders
(other than any Ford Transferees and their Affiliates (other than Ford
Entities)) may exercise such rights);
(iii) Except as otherwise provided herein, the Holders of
Registrable Securities shall not have the right to exercise
registration rights pursuant to this Section 3.1 within the 180-day
period following the registration and sale of Registrable Securities
effected pursuant to a prior exercise of the registration rights
provided in this Section 3.1; and
(iv) the Holders of Registrable Securities shall not have
the right to exercise registration rights pursuant to this Section 3.1
within the 180-day period following the effective date of the
Registration Statement in connection with the Initial Public Offering.
(b) Notwithstanding any other provision of this Agreement to
the contrary, a registration requested by a Holder of Registrable Securities
pursuant to this Section 3.1 shall not be deemed to have been effected (and,
therefore, not requested for purposes of paragraph (a) above), (i) unless it
has become effective, (ii) if after it has become effective such registration
is interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court for any reason other than a
misrepresentation or an omission by such Holder and, as a result thereof, the
Registrable Securities requested to be registered cannot be completely
distributed in accordance with the plan of distribution set forth in the
related registration statement or (iii) if the conditions to closing specified
in the purchase agreement or underwriting agreement entered into in connection
with such registration are not satisfied or waived other than by reason of some
act or omission by such Holder of Registrable Securities.
(c) In the event that any registration pursuant to this
Section 3.1 shall involve, in whole or in part, an underwritten offering, the
Holders of a majority of the Registrable Securities to be registered shall have
the right to designate an underwriter or underwriters reasonably acceptable to
Associates as the lead or managing underwriters of such underwritten offering
and, in connection with each registration pursuant to this Section 3.1, such
Holders may select one counsel reasonably acceptable to Associates to represent
all such Holders.
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(d) Associates shall have the right to cause the registration
of additional equity securities for sale for its account, the account of any
Associates Entity or any existing or former directors, officers or employees of
the Associates Entities in any registration of Registrable Securities requested
by the Holders pursuant to paragraph (a) above; provided, however, that if the
registration and sale of such additional equity securities would require Ford
or any Ford Entity to exercise the Options to maintain the then-current
Ownership Percentage or ownership of 80% of each class of outstanding Nonvoting
Stock, then the number of such additional equity securities shall be reduced so
that exercise of the Options would not be necessary for Ford or any Ford Entity
to maintain such ownership levels and, provided, further, that if such Holders
are advised in writing (with a copy to Associates) by a nationally recognized
investment banking firm selected by such Holders reasonably acceptable to
Associates (which shall be the lead underwriter or a managing underwriter in
the case of an underwritten offering) that, in such firm's good faith view, all
or a part of such additional equity securities cannot be sold and the inclusion
of such additional equity securities in such registration would be likely to
have an adverse effect on the price, timing or distribution of the offering and
sale of the Registrable Securities then contemplated by any Holder, the
registration of such additional equity securities or part thereof shall not be
permitted. The Holders of the Registrable Securities to be offered may require
that any such additional equity securities be included in the offering proposed
by such Holders on the same conditions as the Registrable Securities that are
included therein. In the event that the number of Registrable Securities
requested to be included in a registration statement by the Holders thereof
exceeds the number which, in the good faith view of such investment banking
firm, can be sold without adversely affecting the price, timing, distribution
or sale of securities in the offering, the number shall be allocated pro rata
among the requesting Holders on the basis of the relative number of Registrable
Securities then held by each such Holder (provided that any number in excess of
a Holder's request may be reallocated among the remaining requesting Holders in
a like manner).
3.2. Piggyback Registration. In the event that Associates at
any time after the Initial Public Offering Date proposes to register any of its
Common Stock, any other of its equity securities or securities convertible into
or exchangeable for its equity securities (collectively, including Common
Stock, "Other Securities") under the Securities Act, whether or not for sale
for its own account, in a manner that would permit registration of Registerable
Securities for sale for cash to the public under the Securities Act, it shall
at each such time give prompt written notice to each Holder of Registrable
Securities of its intention to do so and of the rights of such Holder under
this Section 3.2. Subject to the terms and conditions hereof, such notice
shall offer each such Holder the opportunity to
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include in such registration statement such number of Registerable Securities
as such Holder may request. Upon the written request of any such Holder made
within 15 days after the receipt of Associates' notice (which request shall
specify the number of Registrable Securities intended to be disposed of and the
intended method of disposition thereof), Associates shall use its best efforts
to effect, in connection with the registration of the Other Securities, the
registration under the Securities Act of all Registerable Securities which
Associates has been so requested to register, to the extent required to permit
the disposition (in accordance with such intended method of disposition
thereof) of the Registrable Securities so requested to be registered; provided,
that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective date of
the registration statement filed in connection with such registration,
Associates shall determine for any reason not to register the Other Securities,
Associates may, at its election, give written notice of such determination to
such Holders and thereupon Associates shall be relieved of its obligation to
register such Registrable Securities in connection with the registration of
such Other Securities, without prejudice, however, to the rights of the Holders
of Registrable Securities immediately to request that such registration be
effected as a registration under Section 3.1 to the extent permitted
thereunder;
(b) if the registration referred to in the first sentence of
this Section 3.2 is to be an underwritten registration on behalf of Associates,
and a nationally recognized investment banking firm selected by Associates
advises Associates in writing that, in such firm's good faith view, all or a
part of such Registrable Securities cannot be sold and the inclusion of all or
a part of such Registrable Securities in such registration would be likely to
have an adverse effect upon the price, timing or distribution of the offering
and sale of the Other Securities then contemplated, Associates shall include in
such registration: (i) first, all Other Securities Associates proposes to sell
for its own account ("Company Securities"), (ii) second, up to the full number
of Registrable Securities held by Holders constituting Ford Entities that are
requested to be included in such registration (Registrable Securities that are
so held being sometimes referred to herein as "Holder Securities") in excess of
the number of Company Securities to be sold in such offering which, in the good
faith view of such investment banking firm, can be sold without adversely
affecting such offering (and (x) if such number is less than the full number of
such Holder Securities, such number shall be allocated by Ford among such Ford
Entities and (y) in the event that such investment banking firm advises that
less than all of such Holder Securities may be included in such offering, such
Ford Entities may withdraw their request for registration of their Registrable
Securities under this Section 3.2 and 90 days subsequent to the effective date
of
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the registration statement for the registration of such Other Securities
request that such registration be effected as a registration under Section 3.1
to the extent permitted thereunder), (iii) third, up to the full number of
Registrable Securities held by Holders (other than Ford Entities) of
Registrable Securities that are requested to be included in such registration
in excess of the number of Company Securities and Holder Securities to be sold
in such offering which, in the good faith view of such investment banking firm,
can be so sold without so adversely affecting such offering (and (x) if such
number is less than the full number of such Registrable Securities, such number
shall be allocated pro rata among such Holders on the basis of the number of
Registrable Securities requested to be included therein by each such Holder and
(y) in the event that such investment banking firm advises that less than all
of such Registrable Securities may be included in such offering, such Holders
may withdraw their request for registration of their Registrable Securities
under this Section 3.2 and 90 days subsequent to the effective date of the
registration statement for the registration of such Other Securities request
that such registration be effected as a registration under Section 3.1 to the
extent permitted thereunder) and (iv) fourth, up to the full number of the
Other Securities (other than Company Securities), if any, in excess of the
number of Company Securities and Registrable Securities to be sold in such
offering which, in the good faith view of such investment banking firm, can be
so sold without so adversely affecting such offering (and, if such number is
less than the full number of such Other Securities, such number shall be
allocated pro rata among the holders of such Other Securities (other than
Company Securities) on the basis of the number of securities requested to be
included therein by each such Holder);
(c) if the registration referred to in the first sentence of
this Section 3.2 is to be an underwritten secondary registration on behalf of
holders of Other Securities (the "Other Holders"), and the lead underwriter or
managing underwriter advises Associates in writing that in their good faith
view, all or a part of such additional securities cannot be sold and the
inclusion of such additional securities in such registration would be likely to
have an adverse effect on the price, timing or distribution of the offering and
sale of the Other Securities then contemplated, Associates shall include in
such registration the number of securities (including Registrable Securities)
that such underwriters advise can be so sold without adversely affecting such
offering, allocated pro rata among the Other Holders and the Holders of
Registrable Securities on the basis of the number of securities (including
Registrable Securities) requested to be included therein by each Other Holder
and each Holder of Registrable Securities; provided, that if such registration
statement is to be filed at any time after a Ford Ownership Reduction, if such
Other Holders have requested that such registration statement be filed pursuant
to demand registration rights granted to them by Associates, Associates
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shall include in such registration (i) first, Other Securities sought to be
included therein by the Other Holders pursuant to the exercise of such demand
registration rights, (ii) second, the number of Holder Securities sought to be
included in such registration in excess of the number of Other Securities
sought to be included in such registration by the Other Holders which in the
good faith view of such investment banking firm, can be so sold without so
adversely affecting such offering (and (x) if such number is less than the full
number of such Holder Securities, such number shall be allocated by Ford among
such Ford Entities and (y) in the event that such investment banking firm
advises that less than all of such Holder Securities may be included in such
offering, such Ford Entities may withdraw their request for registration of
their Registrable Securities under this Section 3.2 and 90 days subsequent to
the effective date of the registration statement for the registration of such
Other Securities request that such registration be effected as a registration
under Section 3.1 to the extent permitted thereunder) and (iii) third, the
number of Registrable Securities sought to be included in such registration by
Holders (other than Ford Entities) of Registrable Securities in excess of the
number of Other Securities and the number of Holder Securities sought to be
included in such registration which, in the good faith view of such investment
banking firm, can be so sold without so adversely affecting such offering (and
(x) if such number is less than the full number of such Registrable Securities,
such number shall be allocated pro rata among such Holders on the basis of the
number of Registrable Securities requested to be included therein by each such
Holder and (y) in the event that such investment banking firm advises that less
than all of such Registrable Securities may be included in such offering, such
Holders may withdraw their request for registration of their Registrable
Securities under this Section 3.2 and 90 days subsequent to the effective date
of the registration statement for the registration of such Other Securities
request that such registration be effected as a registration under Section 3.1
to the extent permitted thereunder);
(d) Associates shall not be required to effect any
registration of Registrable Securities under this Section 3.2 incidental to the
registration of any of its securities in connection with mergers, acquisitions,
exchange offers, subscription offers, dividend reinvestment plans or stock
option or other executive or employee benefit or compensation plans; and
(e) no registration of Registrable Securities effected under
this Section 3.2 shall relieve Associates of its obligation to effect a
registration of Registrable Securities pursuant to Section 3.1.
3.3. Expenses. Except as provided herein, Associates shall
pay all Registration Expenses with respect to a particular offering (or
proposed offering). Notwithstanding the foregoing, each Holder and Associates
shall be responsible for its own
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internal administrative and similar costs, which shall not constitute
Registration Expenses.
3.4. Registration and Qualification. If and whenever
Associates is required to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 3.1 or 3.2, Associates shall
as promptly as practicable:
(a) prepare, file and use its reasonable best efforts to
cause to become effective a registration statement under the Securities Act
relating to the Registrable Securities to be offered;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities until the earlier of (A) such
time as all of such Registrable Securities have been disposed of in accordance
with the intended methods of disposition set forth in such registration
statement and (B) the expiration of six months after such registration
statement becomes effective; provided, that such six-month period shall be
extended for such number of days that equals the number of days elapsing from
(x) the date the written notice contemplated by paragraph (f) below is given by
Associates to (y) the date on which Associates delivers to the Holders of
Registrable Securities the supplement or amendment contemplated by paragraph
(f) below;
(c) furnish to the Holders of Registrable Securities and to
any underwriter of such Registrable Securities such number of conformed copies
of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus included in such registration statement (including each preliminary
prospectus and any summary prospectus), in conformity with the requirements of
the Securities Act, such documents incorporated by reference in such
registration statement or prospectus, and such other documents, as the Holders
of Registrable Securities or such underwriter may reasonably request, and upon
request a copy of any and all transmittal letters or other correspondence to or
received from, the SEC or any other governmental agency or self-regulatory body
or other body having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering;
(d) use its reasonable best efforts to register or qualify
all Registrable Securities covered by such registration statement under the
securities or blue sky laws of such U.S. jurisdictions as the Holders of such
Registrable Securities or any underwriter to such Registrable Securities shall
request, and use its reasonable best efforts to obtain all appropriate
registrations, permits and consents in connection therewith, and
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do any and all other acts and things which may be necessary or advisable to
enable the Holders of Registrable Securities or any such underwriter to
consummate the disposition in such jurisdictions of its Registrable Securities
covered by such registration statement; provided, that Associates shall not for
any such purpose be required to qualify generally to do business as a foreign
corporation in any such jurisdiction wherein it is not so qualified or to
consent to general service of process in any such jurisdiction;
(e) (i) use its best efforts to furnish to each Holder of
Registrable Securities included in such registration (each, a "Selling Holder")
and to any underwriter of such Registrable Securities an opinion of counsel for
Associates addressed to each Selling Holder and dated the date of the closing
under the underwriting agreement (if any) (or if such offering is not
underwritten, dated the effective date of the registration statement) and (ii)
use its best efforts to furnish to each Selling Holder a "cold comfort" letter
addressed to each Selling Holder and signed by the independent public
accountants who have audited the financial statements of Associates included in
such registration statement, in each such case covering substantially the same
matters with respect to such registration statement (and the prospectus
included therein) as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten public
offerings of securities and such other matters as the Selling Holders may
reasonably request and, in the case of such accountants' letter, with respect
to events subsequent to the date of such financial statements;
(f) as promptly as practicable, notify the Selling Holders in
writing (i) at any time when a prospectus relating to a registration pursuant
to Sections 3.1 or 3.2 is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, 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, in light of the circumstances
under which they were made, not misleading and (ii) of any request by the SEC
or any other regulatory body or other body having jurisdiction for any
amendment of or supplement to any registration statement or other document
relating to such offering, and in either such case, at the request of the
Selling Holders prepare and furnish to the Selling Holders a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading;
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(g) if reasonably requested by the lead or managing
underwriters, use its best efforts to list all such Registrable Securities
covered by such registration on each securities exchange and automated
inter-dealer quotation system on which a class of common equity securities of
Associates is then listed;
(h) to the extent reasonably requested by the lead or
managing underwriters, send appropriate officers of Associates to attend any
"road shows" scheduled in connection with any such registration, with all
out-of-pocket costs and expense incurred by Associates or such officers in
connection with such attendance to be paid by Associates; and
(i) furnish for delivery in connection with the closing of
any offering of Registrable Securities pursuant to a registration effected
pursuant to Sections 3.1 or 3.2 unlegended certificates representing ownership
of the Registrable Securities being sold in such denominations as shall be
requested by the Selling Holders or the underwriters.
3.5. Conversion of Other Securities, Etc. In the event that
any Holder offers any options, rights, warrants or other securities issued by
it or any other Person that are offered with, convertible into or exercisable
or exchangeable for any Registrable Securities, the Registrable Securities
underlying such options, rights, warrants or other securities shall continue to
be eligible for registration pursuant to Sections 3.1 and 3.2.
3.6. Underwriting; Due Diligence. (a) If requested by the
underwriters for any underwritten offering of Registrable Securities pursuant
to a registration requested under this Article III, Associates shall enter into
an underwriting agreement with such underwriters for such offering, which
agreement will contain such representations and warranties by Associates and
such other terms and provisions as are customarily contained in underwriting
agreements of Associates to the extent relevant and as are customarily
contained in underwriting agreements generally with respect to secondary
distributions to the extent relevant, including, without limitation,
indemnification and contribution provisions substantially to the effect and to
the extent provided in Section 3.7, and agreements as to the provision of
opinions of counsel and accountants' letters to the effect and to the extent
provided in Section 3.4(e). The Selling Holders on whose behalf the
Registrable Securities are to be distributed by such underwriters shall be
parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, Associates to and for
the benefit of such underwriters, shall also be made to and for the benefit of
such Selling Holders. Such underwriting agreement shall also contain such
representations and warranties by such Selling Holders and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, when relevant, including, without limitation,
indemnification and
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contribution provisions substantially to the effect and to the extent provided
in Section 3.7.
(b) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act pursuant to this Article III, Associates shall give the Holders of such
Registrable Securities and the underwriters, if any, and their respective
counsel and accountants, such reasonable and customary access to its books and
records and such opportunities to discuss the business of Associates with its
officers and the independent public accountants who have certified the
financial statements of Associates as shall be necessary, in the opinion of
such Holders and such underwriters or their respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
3.7. Indemnification and Contribution. (a) In the case of
each offering of Registrable Securities made pursuant to this Article III,
Associates agrees to indemnify and hold harmless, to the extent permitted by
law, each Selling Holder, each underwriter of Registrable Securities so offered
and each Person, if any, who controls any of the foregoing Persons within the
meaning of the Securities Act and the officers, directors, affiliates,
employees and agents of each of the foregoing, against any and all losses,
liabilities, costs (including reasonable attorney's fees and disbursements),
claims and damages, joint or several, to which they or any of them may become
subject, under the Securities Act or otherwise, including any amount paid in
settlement of any litigation commenced or threatened, insofar as such losses,
liabilities, costs, claims and damages (or actions or proceedings in respect
thereof, whether or not such indemnified Person is a party thereto) arise out
of or are based upon any untrue statement by Associates or alleged untrue
statement by Associates of a material fact contained in the registration
statement (or in any preliminary or final prospectus included therein) or in
any offering memorandum or other offering document relating to the offering and
sale of such Registrable Securities prepared by Associates or at its direction,
or any amendment thereof or supplement thereto, or in any document incorporated
by reference therein, or any omission by Associates or alleged omission by
Associates to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however that
Associates shall not be liable to any Person in any such case to the extent
that any such loss, liability, cost, claim or damage arises out of or relates
to any untrue statement or alleged untrue statement, or any omission, if such
statement or omission shall have been made in reliance upon and in conformity
with information relating to a Selling Holder, another holder of securities
included in such registration statement or underwriter furnished to Associates
by or on behalf of such Selling Holder, other holder or underwriter
specifically for use in the registration statement (or in any preliminary or
final prospectus
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included therein), offering memorandum or other offering document, or any
amendment thereof or supplement thereto. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Selling Holder, any other holder or any underwriter and shall survive the
transfer of such securities. The foregoing indemnity agreement is in addition
to any liability that Associates may otherwise have to each Selling Holder,
other holder or underwriter of the Registrable Securities or any controlling
person of the foregoing and the officers, directors, affiliates, employees and
agents of each of the foregoing; provided, further, that, in the case of an
offering with respect to which a Selling Holder has designated the lead or
managing underwriters (or a Selling Holder is offering Registrable Securities
directly, without an underwriter), this indemnity does not apply to any loss,
liability, cost, claim or damage arising out of or relating to any untrue
statement or alleged untrue statement or omission or alleged omission in any
preliminary prospectus or offering memorandum if a copy of a final prospectus
or offering memorandum was not sent or given by or on behalf of any underwriter
(or such Selling Holder or other holder, as the case may be) to such Person
asserting such loss, liability, cost, claim or damage at or prior to the
written confirmation of the sale of the Registrable Securities as required by
the Securities Act and such untrue statement or omission had been corrected in
such final prospectus or offering memorandum.
(b) In the case of each offering made pursuant to this
Agreement, each Selling Holder, by exercising its registration rights
hereunder, agrees to indemnify and hold harmless, and to cause each underwriter
of Registrable Securities included in such offering (in the same manner and to
the same extent as set forth in Section 3.7(a)) to agree to indemnify and hold
harmless, Associates, each other underwriter who participates in such offering,
each other Selling Holder or other holder with securities included in such
offering and in the case of an underwriter, such Selling Holder or other
holder, and each Person, if any, who controls any of the foregoing within the
meaning of the Securities Act and the officers, directors, affiliates,
employees and agents of each of the foregoing, against any and all losses,
liabilities, costs (including reasonable attorney's fees and disbursements),
claims and damages to which they or any of them may become subject, under the
Securities Act or otherwise, including any amount paid in settlement of any
litigation commenced or threatened, insofar as such losses, liabilities, costs,
claims and damages (or actions or proceedings in respect thereof, whether or
not such indemnified Person is a party thereto) arise out of or are based upon
any untrue statement or alleged untrue statement by such Selling Holder or
underwriter, as the case may be, of a material fact contained in the
registration statement (or in any preliminary or final prospectus included
therein) or in any offering memorandum or other offering document relating to
the offering and sale of such Registrable Securities prepared by
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Associates or at its direction, or any amendment thereof or supplement thereto,
or any omission by such Selling Holder or underwriter, as the case may be, or
alleged omission by such Selling Holder or underwriter, as the case may be, of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that
such untrue statement of a material fact is contained in, or such material fact
is omitted from information relating to such Selling Holder or underwriter, as
the case may be, furnished to Associates by or on behalf of such Selling Holder
or underwriter, as the case may be, specifically for use in such registration
statement (or in any preliminary or final prospectus included therein),
offering memorandum or other offering document, or any amendment thereof or
supplement thereto. The foregoing indemnity is in addition to any liability
which such Selling Holder or underwriter, as the case may be, may otherwise
have to Associates, or controlling persons and the officers, directors,
affiliates, employees, and agents of each of the foregoing; provided, however,
that, in the case of an offering made pursuant to this Agreement with respect
to which Associates has designated the lead or managing underwriters (or
Associates is offering securities directly, without an underwriter), this
indemnity does not apply to any loss, liability, cost, claim, or damage arising
out of or based upon any untrue statement or alleged untrue statement or
omission or alleged omission in any preliminary prospectus or offering
memorandum if a copy of a final prospectus or offering memorandum was not sent
or given by or on behalf of any underwriter (or Associates, as the case may be)
to such Person asserting such loss, liability, cost, claim or damage at or
prior to the written confirmation of the sale of the Registrable Securities as
required by the Securities Act and such untrue statement or omission had been
corrected in such final prospectus or offering memorandum.
(c) Each party indemnified under paragraph (a) or (b) above
shall, promptly after receipt of notice of a claim or action against such
indemnified party in respect of which indemnity may be sought hereunder, notify
the indemnifying party in writing of the claim or action; provided, that the
failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party on account of the indemnity
agreement contained in paragraph (a) or (b) above otherwise than under such
subsection. If any such claim or action shall be brought against an
indemnified party, and it shall have notified the indemnifying party thereof,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified party and indemnifying parties may exist in respect of
such claim, the indemnifying party shall be entitled to participate therein,
and, to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel satisfactory to
the indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party). After notice from
the indemnifying party to the indemnified party
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of its election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 3.7 for
any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. If the indemnifying party does not assume the defense of such
claim or action, it is understood that the indemnifying party shall not, in
connection with any one such claim or action or separate but substantially
similar or related claims or actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to one
separate firm of local attorneys in each such jurisdiction) at any time for all
such indemnified parties. Any indemnifying party against whom indemnity may be
sought under this Section 3.7 shall not be liable to indemnify an indemnified
party if such indemnified party settles such claim or action without the
consent of the indemnifying party, which consent shall not be unreasonably
withheld.
(d) If the indemnification provided for in this Section 3.7
shall for any reason be unavailable (other than in accordance with its terms)
to an indemnified party in respect of any loss, liability, cost, claim or
damage referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, cost, claim or
damage in such proportion as shall be appropriate to reflect (i) the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other hand or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law or if the indemnified party failed to give
the notice required under paragraph (c) above, the relative benefits and the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other with respect to the statements or omissions which resulted
in such loss, liability, cost, claim or damage as well as any other relevant
equitable considerations. The relative benefits received by the indemnifying
party and the indemnified party shall be deemed to be in the same respective
proportion as the net proceeds (before deducting expenses) of the offering
received by such party (or, in the case of an underwriter, such underwriter's
discounts and commissions) bear to the aggregate offering price of the
Registrable Securities or Other Securities. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the indemnifying party on the one hand or the
indemnified party on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission, but not by reference to any indemnified party's stock
ownership in Associates. The amount paid or payable by an indemnified party as
a result of the loss, cost, claim, damage or liability, or action in respect
thereof,
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referred to above in this paragraph (d) shall be deemed to include, for
purposes of this paragraph (d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) Indemnification and contribution similar to that
specified in the preceding paragraphs of this Section 3.7 (with appropriate
modifications) shall be given by Associates, the Selling Holders and
underwriters with respect to any required registration or other qualification
of securities under any state law or regulation or governmental authority.
(f) The obligations of the parties under this Section 3.7
shall be in addition to any liability which any party may otherwise have to any
other party.
3.8. Rule 144 and Form S-3. Commencing 90 days after the
Initial Public Offering Date, Associates shall use its best efforts to ensure
that the conditions to the availability of Rule 144 set forth in paragraph (c)
thereof shall be satisfied. Upon the request of any Holder of Registrable
Securities, Associates will deliver to such Holder a written statement as to
whether it has complied with such requirements. Associates further agrees to
use its reasonable efforts to cause all conditions to the availability of Form
S-3 (or any successor form) under the Securities Act of the filing of
registration statements under this Agreement to be met as soon as practicable
after the Initial Public offering Date. Notwithstanding anything contained in
this Section 3.8, Associates may deregister under Section 12 of the Securities
Exchange Act of 1934, as amended, if it then is permitted to do so pursuant to
said Act and the rules and regulations thereunder.
3.9. Transfer of Registration Rights. Any Holder may
transfer all or any portion of its rights under Article III to any transferee
of a number of Registrable Securities owned by such Holder exceeding three
percent (3%) of the outstanding class or series of such securities at the time
of transfer (each transferee that receives such minimum number of Registrable
Securities, a "Transferee"); provided, that each Transferee of Registrable
Securities (other than Ford Entities) to which Registrable Securities are
transferred, sold or assigned directly by a Ford Entity (such Transferee, a
"Ford Transferee"), together with any Affiliate of such Ford Transferee (and
any subsequent direct or indirect Transferees of Registrable Securities from
such Ford Transferee and any Affiliates thereof) shall be entitled to request
the registration of Registrable Securities pursuant to this Section 3.9 only
once prior to a Ford Ownership Reduction and thereafter shall only be entitled
to request the registration of Registrable Securities pursuant to Section
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3.1(a)(ii) and, provided, further, that no Transferee shall be entitled to
request registration pursuant to this Section 3.9 for an amount of Registrable
Securities equal to less than $50,000,000. Any transfer of registration
rights pursuant to this Section 3.9 shall be effective upon receipt by
Associates of (i) written notice from such Holder stating the name and address
of any Transferee and identifying the number of Registrable Securities with
respect to which the rights under this Agreement are being transferred and the
nature of the rights so transferred and (ii) a written agreement from such
Transferee to be bound by the terms of this Article III and Sections 5.3, 5.4,
5.9, 5.10, and 5.12 of this Agreement. The Holders may exercise their rights
hereunder in such priority as they shall agree upon among themselves.
3.10. Holdback Agreement. If any registration pursuant to
this Article III shall be in connection with an underwritten public offering of
Registrable Securities, each Selling Holder agrees not to effect any public sale
or distribution, including any sale under Rule 144, of any equity security of
Associates or any security convertible into or exchangeable or exercisable for
any equity security of Associates, in the case of Registrable Securities
(otherwise than through the registered public offering then being made), within
7 days prior to or 90 days (or such lesser period as the lead or managing
underwriters may permit) after the effective date of the registration statement
(or the commencement of the offering to the public of such Registrable
Securities in the case of Rule 415 offerings). Associates hereby also so
agrees; provided, that, subject to Section 3.6(a) hereof, Associates shall not
be so restricted from effecting any public sale or distribution of any security
in connection with any merger, acquisition, exchange offer, subscription offer,
dividend reinvestment plan or stock option or other executive or employee
benefit or compensation plan.
3.11. Registration of Preferred Stock. Associates agrees
that it shall from time to time enter into one or more agreements with Ford
and/or the Class B Transferee, if any, in form and substance reasonably
satisfactory to the parties thereto, granting to Ford or the Class B
Transferee, as the case may be, registration rights for the registration of any
shares of preferred stock of Associates that may hereafter be owned, directly
or indirectly, by Ford or the Class B Transferee, as the case may be,
substantially upon the same terms and conditions as those contained in Article
III for the benefit of Ford.
ARTICLE IV
CERTAIN COVENANT AND AGREEMENTS
4.1. No Violations. (a) For so long as the Ownership
Percentage is equal to or greater than 50%, Associates covenants and agrees
that it will not take any action or enter into any commitment or agreement
which may reasonably be anticipated to result, with or without notice and with
or without lapse of time
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or otherwise, in a contravention or event of default by any Ford Entity of (i)
any provisions of applicable law or regulation, including but not limited to
provisions pertaining to the Internal Revenue Code of 1986, as amended, or the
Employee Retirement Income Security Act of 1974, as amended, (ii) any provision
of Ford's, Ford Holdings, Inc.'s or FFSG's certificate of incorporation or
bylaws, (iii) any credit agreement or other material instrument binding upon
Xxxx, Xxxx Holdings, Inc. or FFSG or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over Xxxx, Xxxx
Holdings, Inc. or FFSG or any of their respective assets.
(b) Associates and Ford agree to provide to the other any
information and documentation requested by the other for the purpose of
evaluating and ensuring compliance with Section 4.1(a) hereof.
(c) Notwithstanding the foregoing Sections 4.1(a) and 4.1(b),
nothing in this Agreement is intended to limit or restrict in any way Ford's
right's as a shareholder of Associates.
4.2. Confidentiality. Except as required by law, regulation
or legal or judicial process, Ford agrees that neither it nor any Ford Entity
nor any of their respective directors, officers or employees will without the
prior written consent of Associates disclose to any Person any material,
non-public information concerning the business or affairs of Associates
acquired from any director, officer or employee of Associates (including any
director, officer or employee of Associates who is also a director, officer or
employee of Ford).
ARTICLE V
MISCELLANEOUS
5.1. Limitation of Liability. Neither Ford nor Associates
shall be liable to the other for any special, indirect, incidental or
consequential damages of the other arising in connection with this Agreement.
5.2. Subsidiaries. Ford agrees and acknowledges that Ford
shall be responsible for the performance by each Ford Entity of the obligations
hereunder applicable to such Ford Entity.
5.3. Amendments. This Agreement may not be amended or
terminated orally, but only by a writing duly executed by or on behalf of the
parties hereto. Any such amendment shall be validly and sufficiently
authorized for purposes of this Agreement if it is signed on behalf of Ford and
Associates by any of their respective presidents or vice presidents.
5.4. Term. This Agreement shall remain in effect until all
Registrable Securities held by Holders have been transferred by them to Persons
other than Transferees; provided,
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that the provisions of Section 3.7 shall survive any such expiration.
5.5. Severability. If any provision of this Agreement or the
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement or such provision
of the application of such provision to such party or circumstances, other than
those to which it is so determined to be invalid, illegal or unenforceable,
shall remain in full force and effect to the fullest extent permitted by law
and shall not be affected thereby, unless such a construction would be
unreasonable.
5.6. Notices. All notices and other communications required
or permitted hereunder shall be in writing, shall be deemed duly given upon
actual receipt, and shall be delivered (a) in person, (b) by registered or
certified mail, postage prepaid, return receipt requested or (c) by facsimile
or other generally accepted means of electronic transmission (provided that a
copy of any notice delivered pursuant to this clause (c) shall also be sent
pursuant to clause (b)), addressed as follows:
(a) if to Associates, to:
Associates First Capital Corporation
000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy No.: 000-000-0000
(b) If to Ford, to:
Ford Motor Company
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
Telecopy No.: 000-000-0000
or to such other addresses or telecopy numbers as may be specified by
like notice to the other parties.
5.7. Further Assurances. Ford and Associates shall execute,
acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such instruments and take such other action as may be
necessary or advisable to carry out their obligations under this
Agreement and under any exhibit, document or other instrument
delivered pursuant hereto.
5.8. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original
instrument, but all of
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which together shall constitute but one and the same agreement.
5.9. Governing Law. This Agreement and the transactions
contemplated hereby shall be construed in accordance with, and
governed by, the laws of the State of Delaware.
5.10. Entire Agreement. This Agreement constitutes the
entire understanding of the parties hereto with respect to the subject
matter hereof.
5.11. Class B Transferee. Associates agrees that it shall
enter into an agreement with the Class B Transferee (as defined in
Associates' Restated Certificate of Incorporation), if any, in form
and substance reasonably satisfactory to the Class B Transferee and
Associates (i) granting to the Class B Transferee options for the
purchase of Class B Common Stock and Nonvoting Stock substantially
upon the same terms and conditions as those contained in Article II,
(ii) granting to the Class B Transferee registration rights for the
registration of Registrable Securities substantially upon the same
terms and conditions as those contained in Article III for the benefit
of Ford and (iii) containing other covenants and agreement for the
benefit of the Class B Transferee that are substantially similar to
the other covenants and agreements contained in this Agreement for the
benefit of Ford; provided, that such agreement shall contain terms
(including covenants and agreements of the Class B Transferee) for the
benefit of Associates that are substantially similar to the terms
(including the covenants and agreements of Ford) for the benefit of
Associates contained herein.
5.12. Successors. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns. Nothing contained in this Agreement, express
or implied, is intended to confer upon any other person or entity any
benefits, rights or remedies.
5.13. Specific Performance. The parties hereto acknowledge
and agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. Accordingly, it is
agreed that they shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or
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any state thereof, in addition to any other remedy to which they may
be entitled at law or equity.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
Ford Motor Company
By:
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Name:
Title:
Associates First Capital Corporation
By:
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Name:
Title: