EXHIBIT K
EXECUTION COPY
ADDITIONAL INVESTOR AGREEMENT
ADDITIONAL INVESTOR AGREEMENT, dated as of July 23, 2007 (this
"Agreement"), by and among A-D Acquisition Holdings, LLC, a limited liability
company formed under the laws of the State of Delaware ("XXXX"), Harbinger
Del-Auto Investment Company, Ltd., an exempted company incorporated in the
Cayman Islands, UBS Securities LLC, a limited liability company formed under the
laws of the State of Delaware and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, a corporation formed under the laws of Delaware (each an "Initial
Investor" and collectively, the "Initial Investors") and the investors listed on
the signature pages hereto (each an "Additional Investor" and collectively, the
"Additional Investors").
Section 1. General. Reference is made to the Equity Purchase and
Commitment Agreement, by and among the Initial Investors, Pardus DPH Holding
LLC, Xxxxxxx Sachs & Co. and Delphi Corporation (the "Company"), in the form
attached hereto as Exhibit A (as amended, supplemented or otherwise modified,
the "EPCA"). Capitalized terms used herein that are not defined herein but are
defined in the EPCA shall have the meanings assigned to them in the EPCA.
Each Initial Investor is relying on the obligations, representations
and warranties of the Additional Investors contained herein.
Section 2. Agreement to Sell and Purchase Shares. (a) To the extent
the Initial Investors purchase Direct Subscription Shares or Unsubscribed Shares
pursuant to the EPCA, the Initial Investors shall sell to each Additional
Investor (i) the sum of (A) the aggregate amount of Direct Subscription Shares
purchased by the Initial Investors plus (B) the aggregate amount of Unsubscribed
Shares purchased by the Initial Investors multiplied by (ii) the fractional
amount set forth for each Additional Investor as set forth on Schedule I hereto,
rounded down to the next whole Share for the aggregate Purchase Price; provided,
that the Purchase Price payable by any Additional Investor shall not be
increased above $38.39 per Share without the written consent of such Additional
Investor. No Additional Investor shall be required to purchase more than its
maximum number of Unsubscribed Shares as set forth on Schedule I hereto. The
Shares to be sold to and purchased by the Additional Investors as set forth in
this Section 2(a) are referred to as the "Purchased Shares". The product of the
Purchase Price multiplied by the number of Purchased Shares that each Additional
Investor is obligated to purchase pursuant hereto is referred to herein as such
Additional Investor's "Purchase Commitment."
(b) XXXX shall provide a copy of the Purchase Notice or the
Satisfaction Notice, as applicable, to each Additional Investor promptly upon
receipt of such notice from the Company. XXXX shall send to each Additional
Investor at least two (2) Business Days before the Settlement Date (as
hereinafter defined) a written notice specifying the aggregate amount of
Purchased Shares being purchased by the Initial Investors pursuant to the EPCA
and the number of Purchased Shares to be purchased by each Additional Investor
pursuant to this Agreement (the "Additional Investor Purchase Notice"). Each
Additional Investor agrees that such Additional Investor shall, on the
Settlement Date, purchase from the Initial Investors the aggregate amount of
Purchased Shares specified in such Additional Investor Purchase Notice at the
Purchase Price.
(c) Each Additional Investor's payment of its Purchase Commitment for
Purchased Shares, if any, shall be made without setoff or counterclaim not later
than 12:00 Noon, New York City time, on the second Business Day after the
Business Day that such Additional Investor receives the Additional Investor
Purchase Notice. Such Business Day is hereinafter referred to as a "Settlement
Date." The Purchased Shares shall be delivered against payment therefor on the
Settlement Date or as soon as practicable thereafter.
(d) Each Additional Investor's payment pursuant to Section 2(c) shall
be made by wire transfer to the Initial Investors at the account set forth on
Schedule II hereto (or as otherwise notified to the Initial Investors in
accordance with Section 8), in U.S. Dollars ("Dollars") and in immediately
available funds. Interest shall be payable to the Initial Investors as directed
by XXXX on any unpaid amounts from the Settlement Date until payment in full at
the rate that is equal to the 1-month London Interbank Offered Rate for Dollar
deposits appearing on the Reuters Screen LIBO Page as of approximately 11:00
a.m. London time on the date two business days prior to the Settlement Date (or,
if such rate does not appear on such Reuters Screen LIBO Page, from such other
source as the Initial Investors shall reasonably determine), plus six percent.
In addition, if any Additional Investor defaults in its obligation under Section
2(a), such Additional Investor shall pay or reimburse each Initial Investor for
its reasonable costs and expenses, including the fees and expenses of its
counsel, of collecting and enforcing the obligations of such defaulting
Additional Investor.
(e) The delivery on the Settlement Date by the Initial Investors to
each Additional Investor of Purchased Shares to be purchased by such Additional
Investors pursuant to this Agreement may, at the election of XXXX, be effected
by the direct issuance of such Purchased Shares to the Additional Investors by
the Company.
(f) The following shall be conditions to the purchase and sale of any
Purchased Shares under this Agreement: (a) any applicable waiting period under
the HSR Act shall have expired or been terminated; and (b) other waiting periods
under any comparable laws or regulations in any foreign jurisdiction (all such
laws and regulations, together with the HSR Act, are referred to as "Competition
Laws") required for the consummation of the transactions contemplated by this
Agreement shall have expired or been terminated and all other notifications,
consents, authorizations and approvals required to be made or obtained from any
competition or antitrust authority (all such authorities, including, without
limitation, the United States Federal Trade Commission, the United States
Department of Justice Antitrust Division and the European Commission, are
referred to as "Regulatory Authorities") shall have been made or obtained for
the transactions contemplated by this Agreement. Each Additional Investor shall
use its best efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary under Competition Laws to consummate and
make effective the transactions contemplated by this Agreement, including
furnishing all information required by applicable law in connection with
approvals of or filings with a Regulatory Authority, and filing, or causing to
be filed, as promptly as practicable, any required notification and report forms
or similar filings under Competition Laws with the applicable Regulatory
Authority. In furtherance of the foregoing, each Additional Investor shall: (1)
promptly file, to the extent that it is required to file, the Notification and
Report Form required under the HSR Act with respect to the transactions
contemplated by this Agreement with the Antitrust Division of the United States
Department of Justice and the United States Federal Trade Commission; (2)
respond promptly to
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any request made by a Regulatory Authority for additional information, data or
documents, whether formal or informal, mandatory or voluntary, including,
without limitation, a request for additional information or documentary material
under the HSR Act; (3) promptly notify the Initial Investors of, and, subject to
appropriate confidentiality safeguards, if in writing and subject to reasonable
confidentiality safeguards, furnish the Initial Investors with copies of (or, in
the case of material oral communications, advise the other party orally of) any
communications from or with a Regulatory Authority in connection with any of the
transactions contemplated by this Agreement; (4) not participate in any meeting
with a Regulatory Authority unless it consults with XXXX in advance and, to the
extent permitted by such Regulatory Authority, gives XXXX a reasonable
opportunity to attend and participate thereat and to comment on any written
submissions or presentations made to any Regulatory Authority; (5) furnish the
Initial Investors with copies of all correspondence, filings and communications
between it and any Regulatory Authority with respect to any of the transactions
contemplated by this Agreement; (6) at its sole cost, timely comply with all
restrictions and conditions, if any, specified or imposed (either as a condition
to granting clearance or as a condition to averting or settling any lawsuit that
is or may be filed by any Regulatory Authority or private party to prevent
consummation of the transactions contemplated by this Agreement) by any
Regulatory Authority with respect to any laws as a requirement for granting any
necessary clearance or terminating any applicable waiting period, subject to the
approval of such course of action by XXXX, including agreeing to hold separate,
divest, license or cause a third party to purchase assets and/or businesses of
such Additional Investor, it being understood that such Additional Investor
shall be permitted to negotiate in good faith with the Regulatory Authority; (7)
not agree with any Regulatory Authority to delay the Settlement Date, and shall
not agree to provide advance notice of the Settlement Date to any Regulatory
Authority, in each case, without the consent of XXXX; and (8) otherwise use its
best efforts to (a) cause the waiting periods under any Competition Laws to
terminate or expire, or (b) obtain approval for the transactions contemplated by
this Agreement under any Competition Laws, in each case, at the earliest
possible date after the date of filing. Each Additional Investor shall reimburse
or pay, as the case may be, its own out-of-pocket expenses incurred pursuant to
this Section 2(f). Additionally, if any Initial Investor incurs out-of-pocket
expenses in connection with any actions taken pursuant to this Section 2(f) with
respect to any Additional Investor (including any required filing fees of any
Initial Investor, reasonable fees, costs and expenses of counsel to each Initial
Investor and the reasonable fees, costs and expenses of any other professionals
obtained by each Initial Investor in connection therewith), then such Additional
Investor shall reimburse or pay such expenses.
(g) To the extent the Company pays to the Initial Investors any
portion of the Standby Commitment Fee (the "Standby Fee") pursuant to the EPCA,
the Initial Investors shall pay to each Additional Investor, within two (2)
Business Days of the Initial Investors' receipt of any portion of the Standby
Fee, an amount equal to (i) the portion of the Standby Fee so received
multiplied by (ii) the fractional amount set forth for each Additional Investor
as set forth on Schedule I hereto, rounded down to the next whole dollar;
provided, if an Additional Investor notifies the Company that an Additional
Investor Broker (such notification, and the identification of the Additional
Investor Broker, to be made on Schedule I hereto on or prior to the execution
and delivery of this Agreement) provided services in respect of the Standby Fee,
the payment pursuant to this Section 2(g) shall be made to such Additional
Investor Broker in consideration of such services rather than to the Additional
Investor; provided further, that the aggregate amount of Standby Fees and
Breakup Fees (as defined below) paid to each Additional Investor
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or Additional Investor Broker, as the case may be, shall not exceed 1.125% of
such Additional Investor's Purchase Commitment. The Initial Investors' payment
pursuant to this Section 2(g) shall be made by wire transfer to each Additional
Investor or Additional Investor Broker, as appropriate, at the account set forth
on Schedule I hereto, in U.S. Dollars ("Dollars") and in immediately available
funds.
(h) To the extent the Company pays to the Initial Investors the
Alternate Transaction Fee (the "Breakup Fee") pursuant to the EPCA, the Initial
Investors shall pay to each Additional Investor, within two (2) Business Days of
such Initial Investor's receipt of the Breakup Fee, an amount equal to (i)
1.125% of such Additional Investor's Purchase Commitment less (ii) any Standby
Fee previously paid to such Additional Investor; provided, if an Additional
Investor notifies the Company that an Additional Investor Broker (such
notification, and the identification of the Additional Investor Broker, to be
made on Schedule I hereto on or prior to the execution and delivery of this
Agreement) provided services in respect of the Standby Fee, the payment pursuant
to this Section 2(h) shall be made to such Additional Investor Broker in
consideration of such services rather than to the Additional Investor. To the
extent that the Company pays to the Initial Investors a Breakup Fee that is less
than the full Breakup Fee to which the Initial Investors are entitled under the
EPCA, the payment to the Additional Investors or Additional Investor Brokers, as
the case may be, pursuant to this Section 2(h) shall be adjusted downward
proportionately. The Initial Investors' payment pursuant to this Section 2(h)
shall be made by wire transfer to each Additional Investor or Additional
Investor Broker, as appropriate, at the account set forth on Schedule I hereto,
in Dollars and in immediately available funds. The aggregate amount of Standby
Fees and Breakup Fees paid to any Additional Investor or Additional Investor
Broker shall not exceed 1.125% of such Additional Investor's Purchase
Commitment.
(i) Each of the Initial Investors agrees to use its commercially
reasonably efforts to make available to each Additional Investor the
registration rights referred to in Section 8(c)(iv) of the EPCA and to assign or
otherwise make available to the Additional Investors any registration rights
(other than demand registration rights) granted to the Initial Investors
pursuant to the Registration Rights Agreement.
Section 3. Support of Restructuring. Each Additional Investor hereby
agrees that concurrently with the execution of this Agreement such Additional
Investor shall be bound, and shall cause its Affiliates to be bound, by the
EPCA; provided, that the Initial Investors are not hereby assigning and the
Additional Investors are not hereby assuming the primary obligations of the
Initial Investors pursuant to the EPCA. Such agreement by each Additional
Investor shall be a condition precedent to the obligations of the Initial
Investors hereunder regarding such Additional Investor, and the Initial
Investors may, in their sole discretion, terminate this Agreement with respect
to such Additional Investor if such Additional Investor fails to comply with the
requirements set forth in this Section. Notwithstanding the foregoing, no
agreement is made on behalf of any Fiduciary Affiliate to the extent such
agreement would be prohibited by the fiduciary duties of such Fiduciary
Affiliates. The term Fiduciary Affiliates shall mean, with respect to any
Additional Investor, the specific entities identified as such on Schedule I
hereto.
Section 4. Nature of Obligations. Each Additional Investor's
obligations under Section 2 shall be absolute, unconditional and irrevocable
under any and all circumstances
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(including, without limitation, any adverse change in the business, prospects,
condition (financial or otherwise) of the Company and its subsidiaries, or any
disruption of or material adverse change in conditions in the financial, banking
or capital markets except and only to the extent that the obligations of the
Initial Investors are terminated under the EPCA) and irrespective of any setoff,
counterclaim or defense to payment that such Additional Investor may have
against any Initial Investor, the Company or any other Person. The Additional
Investor also agrees that the Initial Investors shall not be responsible for,
and such Additional Investor's obligations under Section 2 shall not be affected
by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged. Any determination made by the Initial Investors
under the EPCA or this Agreement shall be binding on each Additional Investor
absent willful misconduct. The Initial Investors shall not be liable for any
error, omission, interruption or delay in connection with this Agreement, the
EPCA, the Plan, the Rights, the Purchased Shares or any transaction contemplated
hereby or thereby, except for errors or omissions found by a final and
non-appealable decision of a court of competent jurisdiction to have resulted
from willful misconduct of the Initial Investors. Any action taken or omitted by
the Initial Investors under or in connection with this Agreement, the EPCA, the
Plan, the Rights, the Purchased Shares or any transaction contemplated hereby or
thereby in the absence of willful misconduct, shall be binding on the Additional
Investors and shall not result in any liability of any Initial Investor to any
Additional Investor. The obligations of the Additional Investors and the Initial
Investors under Section 2 shall terminate automatically upon the termination of
the EPCA in accordance with its terms.
Section 5. No Reliance on, or Liability of, Initial Investors. (a)
Each Initial Investor shall have the same rights and powers as any Additional
Investors and may exercise the same as though it were not an Initial Investor,
and each Initial Investor and its Affiliates may engage in any kind of business
with the Company or any Additional Investor as if it were not an Initial
Investor.
(b) No Initial Investor nor any of its employees, officers, directors,
representatives, attorneys, advisors or Affiliates (all of the foregoing
collectively "Related Parties") shall have any duties or obligations to the
Additional Investors in respect of the Company or under or in respect of this
Agreement, the EPCA, the Plan, the Rights, the Purchased Shares or any
transaction contemplated hereby or thereby, except those expressly set forth
herein and the duty to deal with such parties in good faith. Without limiting
the generality of the foregoing, (i) no Initial Investor nor any of its Related
Parties shall be subject to any fiduciary or other implied duties to the
Additional Investors, (ii) no Initial Investor nor any of its Related Parties
shall have any duty to take any discretionary action or exercise any
discretionary powers, (iii)(A) no Initial Investor nor any of its Related
Parties shall have any duty to the Additional Investors to obtain, through the
exercise of diligence or otherwise, to investigate, confirm, or disclose to the
Additional Investors any information relating to the Company or any of its
Related Parties that may have been communicated to or obtained by the Initial
Investor or any of its Affiliates in any capacity and (B) the Additional
Investors may not rely, and confirm that they have not relied, on any due
diligence investigation that any Initial Investor or any person or entity acting
on its behalf may have conducted with respect to the Company or any of its
Affiliates or any of their respective securities, (iv) each Additional Investor
acknowledges that no Initial Investor or any other Additional Investor is acting
as a placement agent, initial
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purchaser, underwriter, broker or finder with respect to its Purchased Shares or
Purchase Commitment, and (v) each Initial Investor acknowledges that no Initial
Investor or any Additional Investor is acting as a placement agent, initial
purchaser, underwriter, broker or finder with respect to its Shares or its
obligations under the EPCA. No Initial Investor nor any of its Related Parties
shall be liable to any Additional Investor or its Related Parties for any action
taken or not taken by any of them with the written consent or at the written
request of such Additional Investor or its Related Party or in the absence of
its own willful misconduct. No Initial Investor nor any of its Related Parties
shall have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, the EPCA, the Plan,
the Rights, the Purchased Shares or any transaction contemplated hereby or
thereby (other than such Initial Investor's own representations or warranties),
or in any reports made by the Company with the Securities and Exchange
Commission, (ii) the contents of any certificate, report or other document
(other than such Initial Investor's own information contained in any such
certificate, report or document) delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or
therein (other than such Initial Investor's own covenants and agreements), (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement,
the EPCA, the Plan, the Rights, the Purchased Shares or any transaction
contemplated hereby or thereby or any other agreement, instrument or document
(other than the validity, enforceability, effectiveness or genuineness with
respect to such Initial Investor), or (v) the satisfaction of any condition set
forth in the EPCA or the Plan, nor shall they have any responsibility to any
Additional Investor or any of its Related Parties in respect of any of the
foregoing.
(c) Each Initial Investor and any of its Related Parties shall be
entitled to rely on, and shall not incur any liability for relying on, any
notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the
proper person. Each Initial Investor and any of its Related Parties also may
rely on any statement made to it orally or by telephone and believed by it to be
made by the proper person, and shall not incur any liability for relying
thereon. Each Initial Investor may consult with legal counsel (who may be
counsel for the Company), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
(d) Each Initial Investor may perform any and all of its obligations
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Initial Investor, which sub-agents shall be Affiliates of the
Initial Investor. Each Initial Investor and any such sub-agent may perform any
and all of its duties and exercise its rights and powers through Related
Parties. The exculpatory provisions of the preceding paragraphs shall apply to
any such sub-agent and to the Related Parties of each Initial Investor and any
such sub-agent, and shall apply to its respective activities in connection with
the transactions provided for herein, in the EPCA or the Plan as well as
activities as Initial Investor, provided that the Initial Investor shall
continue to be responsible for its obligations hereunder.
(e) Each Additional Investor acknowledges that it has, independently
and without reliance upon any Initial Investor, any of its Related Parties or
any other person or entity, and based on such documents and information as it
has deemed appropriate, made its own
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investment, tax, legal and economic analysis of this Agreement, the EPCA, the
Company and its subsidiaries, the Rights and the Purchased Shares and its own
independent decision to enter into this Agreement and any transaction
contemplated hereby or thereby and is not relying on any representation or
warranty of, or information or analysis provided by or on behalf of, any Initial
Investor or any of its Related Parties concerning this Agreement, the EPCA, the
Company and its subsidiaries, the Plan, the Rights and the Purchased Shares and
any transaction contemplated hereby or thereby. Each Additional Investor also
acknowledges that it will, independently and without reliance on any Initial
Investor, any of its Related Parties or any other person or entity, and based on
such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
on this Agreement, the EPCA, the Plan, the Rights, the Purchased Shares and any
transaction contemplated hereby or thereby.
(f) Each Additional Investor, severally and not jointly, agrees to
indemnify each Initial Investor and its Related Parties, (i) for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time be
imposed on, incurred by or asserted against such Initial Investor or any of its
Related Parties as a result of any breach by such Additional Investor of any of
its obligations hereunder or any representation or warranty of such Additional
Investor made herein being untrue or incorrect, (ii) for its Pro Rata Share of
any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that
may at any time be imposed on, incurred by or asserted against such Initial
Investor or any of its Related Parties in any way relating to or arising out of,
this Agreement, the Purchased Shares or the transactions contemplated hereby or
any action taken or omitted by such Initial Investor or its Related Parties
under or in connection with any of the foregoing and (iii) for its Pro Rata
Portion of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time be imposed on, incurred by or asserted against
such Initial Investor or any of its Related Parties in any way relating to or
arising out of, any documents contemplated by or referred to in this Agreement
or any action taken or omitted by such Initial Investor or its Related Parties
under or in connection with any of the foregoing other than those covered by
clauses (i) and (ii) of this Section 5(f); provided, that no Additional Investor
shall be liable to any Initial Investor for (i) the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements that are found by a final and
non-appealable decision of a court of competent jurisdiction to have resulted
from such Initial Investor's or its Related Parties' willful misconduct
(including any willful breach of the EPCA) and (ii) any payment under this
Section 5(f) in excess of such Additional Investor's Purchase Commitment. As
used in this Section 5(f), the terms (i) "Pro Rata Share" shall mean, for any
Additional Investor, such Additional Investor's respective Purchase Commitment
hereunder as a proportion to the total Purchase Commitments hereunder, and (ii)
"Pro Rata Portion" shall mean, for any Additional Investor, such Additional
Investor's respective Purchase Commitment hereunder as a proportion of
$2,550,000,000.
(g) If such indemnification is for any reason not available or is
insufficient to hold any Initial Investor or its Related Parties harmless, each
Additional Investor, severally and not jointly, agrees to contribute to the
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements referred to in Section 5(f) in such proportion
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as is appropriate to reflect the relative benefits received (or anticipated to
be received) by such Additional Investor, on the one hand, and by such Initial
Investor and its Related Parties, on the other hand, under this Agreement or, if
such allocation is determined by a court or arbitral tribunal of competent
jurisdiction to be unavailable, in such proportion as is appropriate to reflect
other equitable considerations such as the relative fault of such Additional
Investor, on the one hand and of such Initial Investor and its Related Parties,
on the other hand. No Additional Investor shall be liable for any payment under
this Section 5(g) in excess of such Additional Investor's Purchase Commitment.
(h) Each Additional Investor acknowledges that the Initial Investors
may disclose this Agreement and the transactions contemplated hereby, including
in any filing with the Securities and Exchange Commission under the Securities
Act or the Exchange Act.
(i) Each Additional Investor acknowledges that (i) the Initial
Investors may possess certain material, non-public information concerning the
Company and its affiliates that may or may not be independently known to the
Additional Investor (the "Non-Public Information"), (ii) the Additional Investor
does hereby decline to receive such Non-Public Information, (iii) the Initial
Investors are relying on this Section 5(i) and would not enter into the
Agreement absent this Section 5(i) and (iv) the Additional Investor agrees to
purchase the Purchased Shares from the Initial Investors notwithstanding that it
is aware that the Non-Public Information may exist and that the Initial
Investors are or may be involved in negotiations with the Company or its
affiliates and that the Initial Investors have not disclosed information with
respect to such negotiations or any Non-Public Information. Each Additional
Investor does for itself and its respective successors and/or assigns, hereby
irrevocably forever release, discharge and waive any and all claims, rights,
causes of action, suits, obligations, debts, demands, liabilities,
controversies, costs, expenses, fees, or damages of any kind (including, but not
limited to, any and all claims alleging violations of federal or state
securities laws, common-law fraud or deceit, breach of fiduciary duty,
negligence or otherwise), whether directly, derivatively, representatively or in
any other capacity, against the Initial Investors or any of their affiliates,
including, without limitation, any and all of their present and/or past
directors, officers, members, partners, employees, fiduciaries, agents or
accounts under management, and their respective successors and assigns, which
are based on or arise from or in any way relate to or involve, directly or
indirectly, the existence or substance of the Non-Public Information or the
Initial Investors' negotiations with the Company or its affiliates or the fact
that the Non-Public Information or information with respect to Initial
Investors' negotiations with the Company or its financial advisors have not been
disclosed to it.
Section 6. Representations and Warranties of Each Additional Investor.
Each Additional Investor, severally and not jointly, represents and warrants to,
and agrees with, the Initial Investors as set forth below:
(a) It has been duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its organization.
(b) It has the requisite power and authority to enter into, execute
and deliver this Agreement and to perform its obligations hereunder, including,
without limitation, the purchase of the Purchased Shares it has agreed to
purchase hereunder, and has taken all action required for the due authorization,
execution, delivery and performance by it of this Agreement.
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(c) Its execution and delivery of this Agreement and the performance
of its obligations hereunder do not violate or conflict with any provision of
its constitutional documents, any law, order or judgment applicable to it or any
of its assets or any contractual restriction binding on or affecting it or any
of its assets.
(d) No material consent, authorization, approval, order, exemption,
registration, qualification or other action of, or filing with or notice to, any
federal or state regulatory or governmental agency (each, an "Authorization") is
required in connection with its execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated hereby, except
(1) the approval of the Plan and receipt of the Initial Approval Order and Final
Approval Order, and (2) Authorizations under Competition Laws. Prior to the
Settlement Date, all Authorizations under Competition Laws will have been
obtained, taken or made, as the case may be, and all waiting periods under
Competition Laws will have expired or been terminated.
(e) This Agreement has been duly and validly executed and delivered by
such party and, assuming due execution and delivery by the other parties hereto,
constitutes, or will constitute upon execution, as applicable, its valid and
binding obligation, enforceable against it in accordance with its terms.
(f) The Purchased Shares will not be offered for sale, sold or
otherwise transferred by the Additional Investor except pursuant to a
registration statement or in a transaction exempt from or not subject to
registration under the Securities Act and at all times in accordance with any
applicable state securities laws.
(g) It has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of its investment
in the Shares being acquired hereunder. It is an "accredited investor" within
the meaning of Rule 501(a) under the Securities Act and a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act. It
understands and is able to bear any economic risks associated with such
investment (including, without limitation, the necessity of holding the Shares
for an indefinite period of time).
(h) It acknowledges and understands that the Purchased Shares must be
held indefinitely unless they are subsequently registered under the Securities
Act or an exemption from such registration is available, and the certificates
representing the Purchased Shares may contain a legend under the Securities Act
to such effect.
(i) It is not and, after giving effect to the transactions
contemplated hereby, will not be an "investment company," as such term is
defined in the Investment Company Act of 1940, as amended (the "1940 Act"), that
is required to be registered under the 1940 Act.
(j) It has obtained adequate information concerning the Company to
make the decision to enter into this transaction and has been afforded an
adequate opportunity to seek and obtain additional information from, and
otherwise to conduct due diligence of, the Company.
(k) It is acting and will at all times act independently of the
Initial Investors with respect to the voting of or disposition of New Common
Stock other than as may be contractually required or permitted by the
Registration Rights Agreement.
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(l) It agrees to be bound by, and cause its Affiliates who are not
Fiduciary Affiliates to be bound by, the EPCA and, to the extent relevant,
confirms the accuracy of the representations contained in Section 4 of the EPCA
as to itself and such Affiliates; provided, that the Initial Investors are not
hereby assigning, and the Additional Investors are not hereby assuming, the
primary obligations of the Initial Investors pursuant to the EPCA.
(m) It has funds available, and on the Settlement Date will have funds
available, that are sufficient to perform its obligations hereunder.
Section 7. Representations and Warranties of the Initial Investors.
Each Initial Investors, severally and not jointly, represents and warrants to,
and agrees with each of the Additional Investors as set forth below:
(a) It has been duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its organization.
(b) It has the requisite power and authority to enter into, execute
and deliver this Agreement and to perform its obligations hereunder, including,
without limitation, the delivery of the Purchased Shares, and has taken all
action required for the due authorization, execution, delivery and performance
by it of this Agreement.
(c) Its execution and delivery of this Agreement and the performance
of its obligations hereunder do not violate or conflict with any provision of
its constituent documents, any law, order or judgment applicable to it or any of
its assets or any contractual restriction binding on or affecting it or any of
its assets.
(d) Except for the Plan and the Court Orders and as expressly
disclosed in writing to the Additional Investors, no material consent,
authorization, approval, order, exemption, registration, qualification or other
action of, or filing with or notice to, any federal or state regulatory or
governmental agency is required to be obtained by it in connection with its
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby. All such required material consents,
authorizations, approvals, orders, exemptions, registrations, qualifications and
other actions of and filings and notices will have been obtained, taken or made,
as the case may be, and all statutory or regulatory waiting periods will have
elapsed, prior to its sale of Shares hereunder on the Settlement Date.
(e) This Agreement has been duly and validly executed and delivered by
the Initial Investor and, assuming due execution and delivery by the other
parties hereto, constitutes, or will constitute upon execution, as applicable,
its valid and binding obligation, enforceable against it in accordance with its
terms.
Section 8. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
subsection (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or sent by telecopy, as
follows:
10
(i) if to the Initial Investors, to:
(a) If to:
A-D Acquisition Holdings, LLC
c/o Appaloosa Management L.P.
00 Xxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxx
with a copy to:
White & Case LLP
Wachovia Financial Center
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000/5766
Attention: Xxxxxx X. Xxxxxx
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx
Xxxxxxx Xxxxx
(b) If to:
Harbinger Del-Auto Investment Company, Ltd.
c/o Harbinger Capital Partners Offshore Manager, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx Management Corp.
Xxx Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
White & Case LLP
11
Wachovia Financial Center
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Facsimile: (000) 000-0000/5766
Attention: Xxxxxx X. Xxxxxx
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx
Xxxxxxx Xxxxx
with a copy to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxx and Xxxx Xxxx Xxxxxx
(c) If to:
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000 / (000) 000-0000
Attention: Xxxxx Xxxxx / Xxxxx Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
12
(d) If to:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxx / Xxxx Xxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
(ii) if to an Additional Investor, to it at its address (or facsimile
number) set forth on Schedule I hereto.
(b) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
Section 9. Waivers; Amendments. (a) No failure or delay by any party
in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No waiver of any provision of this Agreement or consent to any
departure therefrom shall in any event be effective unless the same shall be
permitted by subsection (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given.
(b) This Agreement and any provision hereof may be waived, amended or
modified only pursuant to an agreement or agreements in writing entered into
between the Initial Investors and the Additional Investors that are party
hereto; provided, that this Agreement and any provision hereof may be waived,
amended or modified pursuant to an agreement or agreements in writing with
Additional Investors representing a majority of the aggregate Purchase
Commitments (the "Requisite Additional Investors") and any such waiver,
amendment or modification shall be binding on each Additional Investor;
provided, further, that no such agreement shall (i) increase the Purchase
Commitment of, or any amounts payable by, any Additional Investor without the
written consent of such Additional Investor, (ii) reduce any amount payable
hereunder to a party, without the written consent of such party, (iii) postpone
the scheduled date of any delivery or payment hereunder, without the written
consent of each party affected thereby, (iv) increase the Pro Rata Share of any
Additional Investor (as referred to in Section 5(f)), without the written
consent of such Additional Investor, (v) modify a representation or warranty of
an Additional Investor in a manner so as to cause such Additional Investor to
breach such representation or warranty, without the consent of such Additional
13
Investor or (vi) change any of the provisions of Sections 9(b), 11 or 12 without
the written consent of each Additional Investor.
Section 10. Successors and Assigns; No Assignments. The provisions of
this Agreement shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns permitted hereby. No Initial Investor
may assign or otherwise transfer any of its obligations hereunder, except to a
Related Purchaser in accordance with the EPCA, without the prior written consent
of the Requisite Additional Investors (and any attempted assignment or transfer
by the Initial Investor without such consent shall be null and void) and (ii) no
Additional Investor may assign or otherwise transfer its rights or obligations
hereunder without the prior written consent of each Initial Investor. Nothing in
this Agreement is intended to confer upon any person or entity other than the
parties hereto any legal or equitable right, remedy or claim under or by reason
of this Agreement.
Section 11. Survival. All covenants, agreements, representations and
warranties made by the any party herein shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and delivery of
this Agreement and the closing of any transactions contemplated herein,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that any other party may have had notice or knowledge of any
incorrect representation or warranty at any time. Notwithstanding anything
contained herein to the contrary (other than the last sentence of Section 4 of
this Agreement), all covenants, agreements, representations and warranties made
herein with respect to the Additional Investors and the Additional Investor
Affiliates (as defined below) shall terminate and be of no force or effect upon:
(i) the termination of the EPCA in accordance with its terms; provided, that,
any such termination shall not be effective for these purposes if, within ten
(10) days of said termination event, the Initial Investors shall notify the
Additional Investors in accordance with Section 8 that the Initial Investors
have submitted to the Company a substantive proposal for, or are actively
negotiating or entering into with the Company, a transaction similar to the
transactions contemplated by the EPCA or any Alternate Transaction in respect of
the Company, and the Initial Investors are continuing to actively pursue such
transaction or (ii) the consummation of a plan of reorganization in respect of
the Company other than the plan of reorganization implementing the transactions
contemplated by the EPCA. Upon the consummation of a plan of reorganization
implementing the transactions contemplated by the EPCA, the parties agree that
the Additional Investors shall not be bound by Section 12 of this Agreement.
Section 12. Non-Interference. (a) Each Additional Investor represents,
warrants and covenants that neither it nor any of its Affiliates is, and it will
not become and will cause its Affiliates to not become, a party to or
participant in any competing or other transaction inconsistent with this
Agreement or the EPCA. No representation, warranty or covenant is made pursuant
to this Section 12 with respect to any Fiduciary Affiliate.
(b) Notwithstanding anything contained in this Agreement to the
contrary (including, without limitation, any provision hereof otherwise
requiring the Additional Investor to comply with provisions of the EPCA),
nothing in this Agreement shall be deemed to prohibit or restrict (i) any
affiliate of any Additional Investor (each an "Additional Investor Affiliate")
from providing financing to the Company under that certain Revolving Credit,
Term Loan and Guaranty Agreement, dated as of January 9, 2007, among the
Company, certain of its
14
subsidiaries and the lenders party thereto (as it may be amended, restated
and/or continued from time to time, the "DIP Facility") or from continuing to
act as a lender or from acting in its other capacities under, and exercising all
rights and remedies under, the DIP Facility, (ii) any Additional Investor
Affiliate from arranging, underwriting and/or providing any other financing to
the Company or any of its affiliates other than in connection with any Competing
Transaction, (iii) any Additional Investor Affiliate from arranging,
underwriting and/or providing any other financing (x) to the Company or any
other entity under or through any credit facilities to which any Additional
Investor Affiliate is a party in effect as of the date hereof or (y) to any
party other than the Company or its affiliates under or through any new credit
facility, amendment to an existing credit facility, or debt or equity securities
offering the proceeds of which are not restricted, so long as the Additional
Investor Affiliate is not aware that such proceeds will be used for the purpose
of financing a Competing Transaction or (iv) any ordinary course sales and
trading undertaken by any Additional Investor Affiliate engaged in such
activities in the ordinary course of its business. For the avoidance of doubt,
no representation, warranty, agreement or covenant is made by the Additional
Investor or any Additional Investor Affiliate pursuant to Sections 3 or 12 of
this Agreement with respect to the transactions and the activities of the
Additional Investor Affiliates described above. For the purpose of this Section,
"Competing Transaction" means, in each case other than the transactions
contemplated by the EPCA, (i) any proposal, offer or transaction regarding a
merger, consolidation, dissolution, liquidation, tender offer, recapitalization,
reorganization, restructuring, plan of reorganization, share exchange, business
combination or similar transaction (a "Strategic Transaction") in respect of the
Company, (ii) any proposal, offer or transaction regarding an acquisition,
directly or indirectly, of 5% or more of any class of equity securities of the
Company or (iii) any Strategic Transaction involving a substantial portion of
the consolidated total assets (including, without limitation, equity securities
of its subsidiaries) of the Company and its subsidiaries taken as a whole.
Section 13. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement constitutes
the entire contract among the parties relating to the subject matter hereof and
supersedes any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. This Agreement shall become effective
when it shall have been executed by each Initial Investor and when each Initial
Investor shall have received counterparts hereof which, when taken together,
bear the signatures of each of the other parties hereto, and thereafter shall
bind and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
Section 14. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
15
Section 15. Governing Law; Jurisdiction; Consent to Service of
Process; Damage Waiver. (a) This Agreement shall be construed in accordance with
and governed by the law of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right any party may otherwise have to
bring any action or proceeding relating to this Agreement in the courts of any
jurisdiction.
(c) Each party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
subsection (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process by registered mail. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by
law.
(e) To the extent permitted by applicable law, no party hereto shall
assert, and each hereby waives, any claim against any other party hereto or any
employees, officers, directors, representatives, attorneys, advisors or
affiliates of any party hereto, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any transaction contemplated hereby.
Section 16. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
A-D ACQUISITION HOLDINGS, LLC, as
Initial Investor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HARBINGER DEL-AUTO INVESTMENT COMPANY,
LTD., as Initial Investor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
UBS SECURITIES LLC, as Initial Investor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED, as Initial Investor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[Additional Investor Signature Page]
[ADDITIONAL INVESTOR], as
Additional Investor
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
