Attached files
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EX-3.1 - Ally Financial Inc. | v183596_ex3-1.htm |
8-K - Ally Financial Inc. | v183596_8-k.htm |
BYLAWS
OF ALLY FINANCIAL INC.
______________________________________________________
Dated as
of May 10, 2010
______________________________________________________
TABLE
OF CONTENTS
ARTICLE
I DEFINITIONS; INTERPRETATIVE MATTERS
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1
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Section
1.1
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Definitions
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1
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Section
1.2
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Cross-References
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9
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Section
1.3
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Interpretative
Matters
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10
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ARTICLE
II ORGANIZATIONAL MATTERS; GENERAL PROVISIONS
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11
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Section
2.1
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Formation
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11
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Section
2.2
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Name;
Office; Registered Agent
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11
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Section
2.3
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Purposes;
Powers
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12
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Section
2.4
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Duration
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12
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Section
2.5
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Filings;
Qualification in Other Jurisdictions
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12
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ARTICLE
III CAPITALIZATION; CAPITAL STOCK
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13
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Section
3.1
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Capital
Stock; Capitalization
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13
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Section
3.2
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Authorization
and Issuance of Additional Capital Stock
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13
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Section
3.3
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Certification
of Stock
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14
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ARTICLE
IV STOCK REGISTER; BOOKS AND RECORDS; AFFIRMATIVE
COVENANTS
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14
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Section
4.1
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Stock
Register
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14
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Section
4.2
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Books
and Records; Other Documents
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15
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Section
4.3
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Reports
and Audits
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15
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Section
4.4
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Financial
Statements and Other Information
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16
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Section
4.5
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Independent
Auditor
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18
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Section
4.6
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Company
Policies
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18
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ARTICLE
V DIVIDENDS
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19
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Section
5.1
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Dividends
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19
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Section
5.2
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Non-Cash
Dividends
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19
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Section
5.3
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No
Set-Off
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19
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ARTICLE
VI RIGHTS AND DUTIES OF STOCKHOLDERS
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19
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Section
6.1
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Stockholders
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19
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Section
6.2
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No
Management or Dissent Rights
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19
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Section
6.3
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No
Stockholder Fiduciary Duties
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20
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Section
6.4
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Meetings
of the Common Holders
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20
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Section
6.5
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Notice
of Meetings
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21
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Section
6.6
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Quorum
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21
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Section
6.7
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Voting
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22
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Section
6.8
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Action
Without a Meeting; Telephonic Meetings
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22
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Section
6.9
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Record
Date
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23
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Section
6.10
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Certain
Matters Requiring Approval of the Majority Holders (including at Least Two
Common Holders)
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23
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i
Section
6.11
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Liability
of Stockholders
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26
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Section
6.12
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Blocker
Corp Transactions
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26
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ARTICLE
VII BOARD OF DIRECTORS; OFFICERS
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26
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Section
7.1
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Establishment
of Board of Directors
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26
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Section
7.2
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General
Powers of the Board of Directors
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27
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Section
7.3
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Removal
of Directors for Cause
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27
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Section
7.4
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Meetings
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27
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Section
7.5
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Notice
of Meetings
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28
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Section
7.6
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Quorum
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28
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Section
7.7
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Voting
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28
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Section
7.8
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Action
Without a Meeting; Telephonic Meetings
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29
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Section
7.9
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Reserved
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29
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Section
7.10
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Reserved
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29
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Section
7.11
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Reserved
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29
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Section
7.12
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Compensation
of Directors; Expense Reimbursement
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29
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Section
7.13
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Committees
of the Board of Directors
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29
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Section
7.14
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Delegation
of Authority
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30
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Section
7.15
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Officers
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30
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Section
7.16
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Standard
of Care; Fiduciary Duties; Liability of Directors and
Officers
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32
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ARTICLE
VIII TRANSFER OF SHARES OF STOCK
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33
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Section
8.1
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Void
Transfers
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33
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Section
8.2
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Transfer
of Certain Shares of Capital Stock by GM to the U.S.
Treasury
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33
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ARTICLE
IX DISSOLUTION
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33
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Section
9.1
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In
General
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33
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Section
9.2
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Liquidation
and Termination
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33
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Section
9.3
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Filing
of Certificate of Dissolution
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34
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Section
9.4
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Reasonable
Time for Winding Up
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34
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Section
9.5
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Antitrust
Laws
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34
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Section
9.6
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Other
Remedies
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34
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ARTICLE
X OTHER AGREEMENTS
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35
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Section
10.1
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Transactions
with Affiliates
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35
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Section
10.2
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Public
Offering
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35
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Section
10.3
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Preemptive
Rights
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37
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Section
10.4
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Registration
Rights of Certain Common Holders
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39
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ARTICLE
XI CONFIDENTIALITY
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39
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Section
11.1
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Non-Disclosure
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39
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Section
11.2
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Exceptions
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39
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ARTICLE
XII MISCELLANEOUS PROVISIONS
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40
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Section
12.1
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Amendments
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40
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Section
12.2
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Remedies
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41
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ii
Section
12.3
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Notice
Addresses and Notices
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41
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Section
12.4
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Reserved
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42
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Section
12.5
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Survival
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42
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Section
12.6
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Creditors
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42
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Section
12.7
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Indemnification
and Reimbursement for Payments on Behalf of a Stockholder
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42
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Section
12.8
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Strict
Construction
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42
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SCHEDULES
AND EXHIBITS
Stock
Register (as of June 30, 2009)
Schedule
of Material Subsidiaries
Schedule
of Significant Joint Ventures
Exhibit
A—Project Agreements
Exhibit
B—Transaction Documents
Exhibit
C—Company Policies
Exhibit
D—Environmental Guidelines
Exhibit
E—Affiliate Transactions
Exhibit
F— Registration Rights of Certain Common Holders
iii
ARTICLE
I
DEFINITIONS;
INTERPRETATIVE MATTERS
Section 1.1 Definitions. The
following terms, as used herein, shall have the following meanings:
“Affiliate” means,
with respect to any Person, any other Person that, directly or indirectly,
whether through one or more intermediaries, Controls, is Controlled by or is
under common Control with such Person, excluding any employee benefit plan or
related trust. For purposes of Section 6.10(c)(ii),
the definition of “Affiliate” does not include any Subsidiary of the Company and
does not include any Governmental Entity except UST in its capacity as a
Stockholder.
“Antitrust Law” means
any Law relating to the preservation of or restraint against competition in
commercial activities, including the United States Hart-Scott-Rodino Antitrust
Improvements Act of 1976.
“Bankruptcy” means,
with respect to any Person, the occurrence of any of the following
events: (i) the filing of an application by such Person for, or
a consent to, the appointment of a trustee or custodian of such Person’s assets;
(ii) the filing by such Person of a voluntary petition in bankruptcy or the
seeking of relief under Title 11 of the United States Code, or the filing of a
pleading in any court of record admitting in writing such Person’s inability to
pay its debts as they become due; (iii) the making by such Person of a
general assignment for the benefit of creditors; (iv) the filing by such
Person of an answer admitting the material allegations of, or such Person’s
consenting to, or defaulting in answering, a bankruptcy petition filed against
him in any bankruptcy proceeding or petition seeking relief under Title 11 of
the United States Code; or (v) the entry of any order, judgment or decree
by any court of competent jurisdiction adjudicating such Person a bankrupt or
insolvent or for relief in respect of such Person or appointing a trustee or
custodian of such Person’s assets and the continuance of such order, judgment or
decree unstayed and in effect for a period of sixty consecutive calendar
days.
“BHC Act” means the
Bank Holding Company Act of 1956, as amended.
“Blocker Preferred”
means the 9% perpetual preferred stock of Blocker Sub.
“Blocker Sub” means
Preferred Blocker, Inc., a Delaware corporation.
“Business Day” means
any calendar day other than a Saturday, a Sunday or any other day on which
commercial banks in Detroit, Michigan or New York, New York are authorized or
required to close.
“Cause” means, with
respect to any Director, one or more of the following: (i) the
commission of a felony or other crime involving moral turpitude or the
commission of an act involving dishonesty or fraud with respect to the Company
or any of its Subsidiaries or any of their customers or suppliers; (ii) any
act undertaken with the intent of aiding or abetting a competitor, supplier or
customer of the Company or any of its Subsidiaries to the disadvantage or
detriment of the Company and its Subsidiaries; (iii) any breach of
fiduciary duty, gross negligence or willful misconduct with respect to the
Company or any of its Subsidiaries, in each case which is detrimental to the
Company in any material respect; (iv)(A) continued abuse of alcohol or illegal
drugs, (B) repeated public drunkenness or (C) other repeated conduct (1) causing
the Company or its Subsidiaries public disgrace or disrepute or economic harm or
(2) materially impairing such Director’s ability to perform his or her duties
and responsibilities as a Director of the Company; or (v) any breach of his
or her obligations of confidentiality to the Company or any of its
Subsidiaries.
“Charter” means the
Company’s Certificate of Incorporation filed with the Secretary of State of the
State of Delaware, including each certificate of designations adopted with
respect thereto.
“Class A Preferred
Holder” means a holder of the Class A Preferred Stock.
“Class A Preferred
Stock” means capital stock having the rights and obligations specified
with respect to Class A Preferred Stock in the Charter and these
Bylaws.
“Class C Holder” means
a holder of the Class C Preferred Stock.
“Class C Preferred
Stock” means capital stock, issued in one or more series, having the
rights and obligations specified with respect to Class C Preferred Stock in the
Charter and these Bylaws.
“Class E Preferred
Holder” means the holder of the Class E Preferred Stock.
“Class E Preferred
Stock” means capital stock having the rights and obligations specified
with respect to Class E Preferred Stock in the Charter and these
Bylaws.
“Class F-2 Preferred
Holder” means a holder of the Class F-2 Preferred Stock.
“Class F-2 Preferred
Stock” means capital stock having the rights and obligations specified
with respect to Class F-2 Preferred Stock in the Charter, these Bylaws and the
applicable Certificate of Designations.
“Class G Preferred
Holder” means a holder of the Class G Preferred Stock.
“Class G Preferred
Stock” means capital stock having the rights and obligations specified
with respect to Class G Preferred Stock in the Charter and these
Bylaws.
“Code” means the
United States Internal Revenue Code of 1986 and, to the extent applicable, any
Treasury Regulations promulgated thereunder.
“Common Holder” means
a holder of Common Stock.
“Common Stock” means
common stock, par value $0.01 per share, of the Issuer.
“Company” means Ally
Financial Inc., a Delaware corporation.
2
“Company Sale” means a
transaction with a third Person that is not an Affiliate of the Company or group
of third Persons that, acting in concert, do not collectively constitute
Affiliates of the Company, pursuant to which such Person or Persons acquire, in
any single transaction or series of related transactions, (i) all of the
outstanding Equity Securities of the Company, (ii) all or substantially all of
the assets of the Company and its Subsidiaries or (iii) Equity Securities
of the Company authorized and issued following the Effective Date and possessing
the power to elect or appoint a majority of the Board of Directors (or any
similar governing body of any surviving or resulting Person).
“Confidential
Information” means, collectively, all documents and information that, in
each case, is non-public, confidential or proprietary in nature concerning the
Company (including commercial information and information with respect to
customers, suppliers, vendors and proprietary technologies or processes), the
Stockholders or their Affiliates that was or may in the future be furnished to
the Company, any Stockholder or any of their respective Affiliates in connection
with (i) the transactions leading up to and contemplated by these Bylaws and the
Purchase Agreement, including the terms hereof and thereof, or (ii) the
operation and activities of the Company; provided that any
such information will not be Confidential Information if it is (A) otherwise
available to the public through no wrongful action by a Stockholder or an
Affiliate of a Stockholder or (B) otherwise in the rightful possession of a
Stockholder or an Affiliate of a Stockholder from any third Person having, to
the knowledge of such Stockholder or such Affiliate after reasonable inquiry, no
obligation of confidentiality with respect to such information to the other
Stockholders or the Company or any of its Subsidiaries, as
applicable.
“Control,” “Controlled” or “Controlling” means,
with respect to any Person, any circumstance in which such Person is directly or
indirectly controlled by another Person by virtue of the latter Person having
the power to (i) elect, or cause the election of (whether by way of voting
capital stock, by contract, trust or otherwise), the majority of the members of
the Board of Directors or a similar governing body of the first Person, or (ii)
direct (whether by way of voting capital stock, by contract, trust or otherwise)
the affairs and policies of such Person.
“Credit Downgrade”
means a downgrade of the credit rating of any unsecured indebtedness of the
Company or any Material Subsidiary or a negative change in the outlook of such
credit rating of the Company or any of its Material Subsidiaries.
“DGCL” means the
General Corporation Law of the State of Delaware, as in effect from time to
time.
“Effective Date” means
June 30, 2009.
“Entity” means any
general partnership, limited partnership, corporation, association, cooperative,
joint stock company, trust, limited liability company, business or statutory
trust, joint venture, unincorporated organization or Governmental
Entity.
“Equity Incentive
Plan” means the equity incentive plan adopted by Management Company on
November 30, 2006.
“Equity Securities”
means, as applicable, (i) any capital stock, membership or limited liability
company interests or other share capital, (ii) any securities directly or
indirectly convertible into or exchangeable for any capital stock, membership or
limited liability company interests or other share capital or containing any
profit participation features, (iii) any rights or options directly or
indirectly to subscribe for or to purchase any capital stock, membership or
limited liability company interests, other share capital or securities
containing any profit participation features or to subscribe for or to purchase
any securities directly or indirectly convertible into or exchangeable for any
capital stock, membership or limited liability company interests, other share
capital or securities containing any profit participation features, (iv) any
share appreciation rights, phantom share rights or other similar rights, or (v)
any Equity Securities issued or issuable with respect to the securities referred
to in clauses (i) through (iv) above in connection with a combination of shares,
recapitalization, merger, consolidation, conversion or other
reorganization.
3
“Exchange Act” means
the United States Securities Exchange Act of 1934, as amended.
“Federal Reserve
Board” means the Board of Governors of the Federal Reserve
System.
“FIM” means FIM
Holdings LLC, a Delaware limited liability company.
“Fiscal Year” means
the fiscal year of the Company and shall be the same as its taxable year, which
shall be the year ending December 31 unless otherwise required by the Code or,
subject to Section
6.10, as otherwise determined by the Board of Directors. Each
Fiscal Year shall commence on the day immediately following the last day of the
immediately preceding Fiscal Year.
“Fully Diluted Basis”
means after taking into account all outstanding shares of Common Stock and
assuming the exercise, conversion or exchange of all outstanding options,
warrants, convertible or exchangeable securities and similar rights (“Convertible
Securities”) and the issuance of all shares of Common Stock that the
Company is obligated to issue thereunder.
“GAAP” means
accounting principles generally accepted in the United States of America as in
effect from time to time, consistently applied and maintained throughout the
applicable periods both as to classification or items and amounts.
“General Motors Acceptance
Corporation” means General Motors Acceptance Corporation, a Delaware
corporation and a predecessor to the Company.
“GM” means General
Motors Corporation, a Delaware corporation, and any successor thereto, including
by assignment of assets that include GM’s rights under the Charter or these
Bylaws.
“GM Holdco” means GM
Finance Co. Holdings LLC, a Delaware limited liability company.
“GM Trust” means the
trust established by GM Holdco on May 22, 2009, named GMAC Common Equity Trust
I.
4
“GMAC LLC” means GMAC
LLC, a Delaware limited liability company and a predecessor to the
Company.
“Governance Agreement”
means the Amended and Restated Governance Agreement, dated May 21, 2009, by and
among GMAC LLC, FIM, GM Holdco, and the UST, as amended.
“Governmental Entity”
means the United States of America or any other nation, any state, province or
other political subdivision, any international or supra national entity, or any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of government, including any court, in each case having jurisdiction
over the Company or any of its Subsidiaries or any of the property or other
assets of the Company or any of its Subsidiaries.
“Indebtedness” means,
for any Person at the time of any determination, without duplication, and
without including any amounts owed by such Person to the Company or any
wholly-owned Subsidiary of the Company, the following obligations, contingent or
otherwise: (i) all obligations for borrowed money, (ii) all
obligations evidenced by notes, bonds, debentures, acceptances or similar
instruments, or arising out of letters of credit or bankers’ acceptances issued
for such Person’s account, (iii) all obligations, whether or not assumed,
secured by any Lien or payable out of the proceeds or production from any
property or assets now or hereafter owned or acquired by such Person other than
a Permitted Lien, (iv) the capitalized portion of lease obligations under
capitalized leases, (v) all obligations arising from installment purchases
of property or representing the deferred purchase price of property or services
in respect of which such Person is liable, contingently or otherwise, as obligor
or otherwise, other than trade payables and other current liabilities incurred
in the Ordinary Course of Business, (vi) all obligations of such Person
upon which interest charges are customarily paid or accrued, and (vii) any
other obligations, contingent or otherwise, of such Person that, in accordance
with GAAP, should be classified upon the balance sheet of such Person as
indebtedness, other than trade payables and other current liabilities incurred
in the Ordinary Course of Business.
“Independent Director”
means a Director who the Board of Directors has affirmatively determined is
“independent” with respect to the Company within the meaning of the rules and
regulations promulgated by the SEC and the New York Stock Exchange, each as in
effect from time to time, regardless of who appointed that Director and
notwithstanding any other provision of the Charter, these Bylaws or the
Governance Agreement; provided, that, for
the avoidance of doubt, solely for purposes of Section (3)(b)(ii) and (iii) of
the Governance Agreement, the term “Independent Manager” shall not be read to
include any “UST Designated Manager” or “Treasury Designated
Manager.”
“IRS” means the United
States Internal Revenue Service.
“Issuer” means the
Company, any direct or indirect Subsidiary of the Company or any successor to
the Company, or the issuer of any Equity Securities of which the Company
distributes to the holders of capital stock of the Company or that are received
or receivable by the holders of capital stock of the Company in connection with
a transaction contemplated by Section
10.2.
5
“Law” means any
applicable law, statute, ordinance, rule, regulation, code, order, judgment, tax
ruling, injunction or decree of any Governmental Entity, including any Law
relating to the protection of the environment.
“License Agreement”
means that certain Trademark and Trade Name License Agreement, dated as of
November 30, 2006, by and among GMAC LLC, GM and those of GM’s Subsidiaries from
time to time party thereto.
“Lien” means any
mortgage, pledge, security interest, encumbrance, lien or charge of any kind
(including any conditional sale or other title retention agreement or lease in
the nature thereof), any sale of receivables with recourse against the Company
or any of its Subsidiaries, any filing or agreement to file a financing
statement as a debtor under the Uniform Commercial Code or any similar statute
of any jurisdiction other than to reflect ownership by a third Person of
property leased to the Company or any of its Subsidiaries under a lease that is
not in the nature of a conditional sale or title retention
agreement.
“LLC Act” means the
Delaware Limited Liability Company Act, 6 Del. C. Sections 18-101 et seq.
“LLC Agreement” means
the Sixth Amended and Restated Limited Liability Company Operating Agreement of
GMAC LLC, dated as of May 22, 2009.
“Majority Holders”
means, at any time, the Common Holders holding a majority of the outstanding
shares of Common Stock.
“Management Company”
means GMAC Management LLC, a Delaware limited liability company.
“Management Holders”
means the holders of units in Management Company.
“Management Units”
means the class C membership interests issued by Management Company in one or
more series. Each series of class C membership interests issued by
Management Company shall be consecutively numbered, commencing with the class
C-1 membership interests authorized by Management Company on November 30,
2006.
“Material Subsidiary”
means each Subsidiary listed on the Schedule of Material
Subsidiaries and each other Subsidiary of the Company that from time to
time may be designated as a Material Subsidiary by the Board of
Directors.
“Ordinary Course of
Business” means the ordinary course of the business of the Company
(including the Predecessors) and its Subsidiaries.
“Permitted Additional
Stock” means (i) shares of capital stock issued and/or created and issued
following June 30, 2009 that are junior to, or rank pari passu with, the Common
Stock with respect to dividends or upon a sale or liquidation of the Company and
in connection with the issuance and/or creation and issuance thereof, the voting
and approval rights of the holders of the Common Stock are not amended, changed
or terminated, or (ii) additional shares of Series A Preferred Stock issued
and/or created and issued following June 30, 2009; provided that the
liquidation preference with respect to such additional Series A Preferred Stock
shall not exceed $3 billion in the aggregate. For the avoidance
of doubt, (x) the granting of approval rights to any holder of Permitted
Additional Stock and (y) any dilution resulting from the issuance of such
Permitted Additional Stock each shall not be deemed a change to the voting and
approval rights of the Common Holders hereunder, except as otherwise provided by
the terms of the Permitted Additional Stock.
6
“Permitted Liens”
means:
(i) Liens
securing Indebtedness that (A) is not required to be approved or (B) has been
approved, in either case, pursuant to the approval rights set forth
herein;
(ii) Liens
with respect to taxes, assessments and other governmental charges or levies not
yet due and payable or actively contested in good faith;
(iii) deposits
or pledges made in the Ordinary Course of Business in connection with, or to
secure payment of, utilities or similar services, workers’ compensation,
unemployment insurance, old age pensions or other social security, governmental
insurance and governmental benefits, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return of money bonds and similar
obligations;
(iv) purchase
money Liens in any property acquired by the Company or any of its Subsidiaries
in the Ordinary Course of Business to the extent permitted by these
Bylaws
(v) interests
or title of a licensor, licensee, lessor or sublessor under any license or lease
permitted by these Bylaws;
(vi) Liens
in respect of property of the Company or any of its Subsidiaries imposed by Law
which were incurred in the Ordinary Course of Business, such as warehousemen’s,
mechanic’s, statutory landlord’s, materialmen’s, carriers’ or contractors’ liens
or encumbrances or any similar Lien or restriction for amounts not yet due and
payable; and
(viii) easements,
rights-of-way, restrictions and other similar charges and encumbrances on real
property and minor defects or irregularities in the title thereof that do not
(A) secure obligations for the payment of money or (B) materially impair the
value of such property or its use by the Company or any of its Subsidiaries in
the Ordinary Course of Business.
“Person” means any
individual or Entity.
“Predecessors” mean
General Motors Acceptance Corporation and GMAC LLC.
“Project Agreements”
means those certain agreements between the Company (including the Predecessors)
and its Subsidiaries, on the one hand, and the Stockholders and their
Affiliates, on the other hand, set forth on Exhibit
A.
7
“Public Offering”
means an underwritten sale to the public of the Company’s (or its successor’s)
Equity Securities pursuant to an effective registration statement filed with the
SEC on Form S-1 and after which the Company’s (or its successor’s) Equity
Securities are listed on the New York Stock Exchange, NASDAQ or any other
national security exchange; provided that a
Public Offering shall not include any issuance of Equity Securities in any
merger or other business combination, and shall not include any registration of
the issuance of Equity Securities to existing securityholders or employees of
the Company and its Subsidiaries on Form S-4 or Form S-8.
“Purchase Agreement”
means the Purchase and Sale Agreement dated April 2, 2006, among GM, GM Holdco,
GMAC LLC and FIM.
“Qualified Public
Offering” means one or a series of Public Offerings by the Issuer and/or
one or more securityholders of the Issuer that results in at least twenty
percent (20%) of the issued and outstanding common stock (or equivalent Equity
Securities) of the Issuer at the time of such determination having been sold at
such time or previously through a Public Offering or Public
Offerings.
“Rating Agencies”
means, collectively, Moody’s Investors Service, Inc., (“Moody’s”),
Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., (“S&P”), and Fitch
Ratings, and, in each case, any successor.
“Required Capital
Amount” means the minimum amount of equity capital of the Company
sufficient to satisfy (a) the requirements of the BHC Act, (b) the requirements
of other applicable banking regulations, and (c) the requirements of the Federal
Reserve Board.
“SEC” means the United
States Securities and Exchange Commission.
“Securities Act” means
the Securities Act of 1933, as amended.
“Senior Executive
Officers” means, collectively, the Chief Executive Officer, the
Presidents and the Chief Financial Officer.
“Significant Joint
Venture” means each joint venture listed on the Schedule of Joint
Ventures and each other joint venture of which the Company or any of its
Subsidiaries holds Equity Securities and that from time to time may be
designated as a Significant Joint Venture by the Board of
Directors.
“Stockholders” means
holders of shares of capital stock of the Company.
“Subsidiary” means,
with respect to any Person, any other Person of which a majority of the voting
interests is owned directly or indirectly by such Person.
“Transaction
Documents” means the agreements and other documents set forth on Exhibit
B.
“Transfer” means any
sale, transfer, assignment (other than a contingent assignment for the benefit
of creditors), exchange, or other disposition of an interest (whether with or
without consideration, whether voluntarily or involuntarily or by operation of
Law). The terms “Transferee,” “Transferor,” “Transferred,” and
other forms of the word “Transfer” shall have the correlative
meanings.
8
“Treasury Regulations”
means the regulations, including temporary regulations, promulgated by the
United States Treasury Department under the Code.
“UST” means The United
States Department of the Treasury.
Section 1.2 Cross-References. In
addition to the terms set forth in Section 1.1, the
following terms are defined in the text of these Bylaws in the locations
specified below:
Term
|
Cross-Reference
|
||
Agents
|
Section
11.1
|
||
Audit
Committee
|
Section
7.13(d)
|
||
Board
of Directors
|
Section
7.1
|
||
Chief
Executive Officer
|
Section
7.15(c)(i)
|
||
Chief
Financial Officer
|
Section
7.15(c)(iii)
|
||
Compensation
Committee
|
Section
7.13(e)
|
||
Convertible
Securities
|
Definition
of “Fully Diluted Basis”
|
||
Directors
|
Section
7.1
|
||
FIM
Blocker Corp
|
Section
6.12
|
||
Fully-Diluted
Majority Holders
|
Section
10.2(a)
|
||
Independent
Auditor
|
Section
4.5
|
||
Moody’s
|
Definition
of “Rating Agencies”
|
||
Officers
|
Section
7.15(a)
|
||
Preemptive
Holder
|
Section
10.3(a)
|
||
Preemptive
Offer
|
Section
10.3(a)
|
||
Preemptive
Offer Period
|
Section
10.3(a)
|
||
Preemptive
Securities
|
Section
10.3(a)
|
9
Term
|
Cross-Reference
|
||
Preemptive
Share
|
Section
10.3(b)
|
||
President
|
Section
7.15(c)(ii)
|
||
S&P
|
Definition
of “Rating Agencies”
|
||
Sarbanes-Oxley
Act
|
Section
4.5
|
||
Secretary
|
Section
7.15(c)(iv)
|
||
Voting
Power
|
Section
6.7(a)
|
||
Section 1.3 Interpretative
Matters. In these Bylaws, unless otherwise specified or where
the context otherwise requires:
(a) the
headings of particular provisions of these Bylaws are inserted for convenience
only and will not be construed as a part of these Bylaws or serve as a
limitation or expansion on the scope of any term or provision of these
Bylaws;
(b) words
importing any gender shall include other genders;
(c) words
importing the singular only shall include the plural and vice
versa;
(d) the
words “include,” “includes” or “including” shall be deemed to be followed by the
words “without limitation”;
(e) the
words “hereof,” “herein” and “herewith” and words of similar import shall,
unless otherwise stated, be construed to refer to these Bylaws as a whole and
not to any particular provision of these Bylaws;
(f)
references to “Articles,” “Exhibits,” “Sections” or “Schedules” shall be
to Articles, Exhibits, Sections or Schedules of or to these Bylaws;
(g) references
to any Person include the heirs, executors, administrators, legal
representatives, successors and permitted assigns of such Person where the
context so permits;
(h) the
use of the words “or,” “either” and “any” shall not be exclusive;
(i)
references to “$” mean the lawful currency of the United States of
America;
(j)
references to any agreement, contract, guideline, exhibit or
schedule, unless otherwise stated, are to such agreement, contract, guideline,
exhibit or schedule as amended, amended and restated, replaced, substituted,
modified or supplemented from time to time in accordance with the terms hereof
and thereof;
10
(k) references
to any Law or a particular provision of any Law, unless otherwise stated, are to
such Law and any successor Law or to such provision of Law and the corresponding
provision in any successor Law, as applicable;
(l)
references in these Bylaws to redemptions shall not be
deemed to include actions taken upon a liquidation, winding-up or dissolution of
the Company, and a reference to any of a dissolution, liquidation or winding-up
of the Company shall refer to each such transaction; and
ARTICLE
II
ORGANIZATIONAL MATTERS;
GENERAL PROVISIONS
Section 2.1 Formation.
(a) The
Company was converted from a limited liability company to a corporation under
the DGCL by the filing of a certificate of conversion and the Charter with the
Secretary of State of the State of Delaware on June 30, 2009.
(b) The
rights, duties and liabilities of the Stockholders shall be as provided in the
DGCL, except as otherwise provided in the Charter and these
Bylaws. To the extent that the rights, powers, duties, obligations
and liabilities of any Stockholders are different by reason of any provision of
the Charter or these Bylaws than they would be in the absence of such provision,
the Charter and these Bylaws shall, to the extent permitted by the DGCL,
control.
Section
2.2 Name;
Office; Registered Agent.
(a) The
name of the Company is set forth in the Charter. The Board of
Directors may change the name of the Company at any time and from time to time
by complying with the terms of the DGCL regarding amendments to the
Charter. Prompt notification of any such change shall be given to all
Directors. The Company may conduct business under its name, the name
“GMAC” pursuant to the License Agreement, or, subject to the terms of the
License Agreement, one or more assumed names approved by the Board of Directors
from time to time. The Company shall continue to use the trade name
and trademark “GMAC” in connection with GM-directed automotive consumer and
dealer finance incentive, and other promotional programs involving GM products
for which GM compensates the Company, except as provided for in the License
Agreement or as otherwise may be agreed by the Company and GM. Except
as provided for in the License Agreement, the Company may not use any names,
trade names, service marks or logos of any Stockholder or any of its Affiliates
without the prior written consent of such Stockholder or Affiliate.
(b) The
Company’s principal office shall be located at 200 Renaissance Center, Detroit,
Michigan 48265-2000, or such other location in the United States of America as
the Board of Directors shall designate from time to time in the manner provided
by Law, which need not be in the State of Delaware, and the Company shall
maintain records at such place. The Company may maintain offices at
such other place or places as the Board of Directors deems
advisable. Prompt notice of any change in the principal office shall
be given to all Stockholders. The Company’s initial registered agent
in the State of Delaware for the service of process is as identified in the
Charter filed with the Secretary of State of the State of
Delaware. The Board of Directors may from time to time change the
registered agent, and any such change shall be reflected in appropriate filings
with the Secretary of State of the State of Delaware.
11
Section
2.3 Purposes;
Powers.
(a) The
nature of the business or purposes to be conducted or promoted by the Company is
to engage in any lawful act or activity for which corporations may be organized
under the DGCL. The Company may engage in any and all activities
necessary, desirable or incidental to the accomplishment of the
foregoing. Notwithstanding anything herein to the contrary, nothing
set forth herein shall be construed as authorizing the Company to possess any
purpose or power, or to do any act or thing, forbidden by Law to a corporation
organized under the Laws of the State of Delaware.
(b) Subject
to the provisions of these Bylaws and except as prohibited by Law, (i) the
Company may, with the approval of the Board of Directors, enter into, deliver
and perform any and all agreements, consents, deeds, contracts, proxies,
covenants, bonds, checks, drafts, bills of exchange, notes, acceptances and
endorsements, and all evidences of indebtedness and other documents, instruments
or writings of any nature whatsoever, all without any further act, vote or
approval of any Stockholder, and (ii) the Board of Directors may, pursuant to
Section 7.14,
authorize (including by general delegated authority) any Person (including any
Stockholder, Director or Officer) to enter into, deliver and perform on behalf
of the Company any and all agreements, consents, deeds, contracts, proxies,
covenants, bonds, checks, drafts, bills of exchange, notes, acceptances and
endorsements, and all evidences of indebtedness and other documents, instruments
or writings of any nature whatsoever.
(c) Subject
to the other provisions of the Charter and these Bylaws, the Company shall do
all things necessary to maintain its existence separate and apart from each
Stockholder and any Affiliate of any Stockholder, including holding regular
meetings of the Board of Directors and maintaining its books and records on a
current basis separate from that of any Affiliate of the Company or any other
Person.
Section 2.4 Duration. The
period of the Company’s duration commenced on the commencement of the existence
of General Motors Acceptance Corporation and shall continue in full force and
effect in perpetuity; provided that the
Company may be dissolved and wound up in accordance with the provisions of the
Charter, these Bylaws and the DGCL.
Section 2.5 Filings;
Qualification in Other Jurisdictions. The Company shall
prepare, following the date of these Bylaws, any documents required to be filed
or, in the Board of Directors’ view, appropriate for filing under the DGCL, and
the Company shall cause each such document to be filed in accordance with the
DGCL, and, to the extent required by Law, to be filed and recorded, and/or
notice thereof to be published, in the appropriate place in each jurisdiction in
which the Company may have established, or after the Effective Date may
establish, a place of business. The Board of Directors may cause the
Company to be qualified, formed or registered under assumed or fictitious name
statutes or similar Laws in any jurisdiction in which the Company transacts
business where the Company is not currently so qualified, formed or
registered. Any Director or Officer, acting individually as an
authorized person within the meaning of the DGCL, shall execute, deliver and
file any such documents (and any amendments and/or restatements thereof)
necessary for the Company to accomplish the foregoing. The Board of
Directors may appoint any other authorized persons to execute, deliver and file
any such documents.
12
ARTICLE
III
CAPITALIZATION; CAPITAL
STOCK
Section
3.1 Capital
Stock; Capitalization.
(a) The
Company shall have six authorized series of capital stock, consisting of
2,021,384 shares of Common Stock, which shall have equal rights and preferences
in the assets of the Company, 8,330 shares of Class C Preferred Stock, which may
be issued in one or more series and which shall be issued in the same amount and
same class as the Management Units issued by Management Company, 4,021,764
shares of Class A Preferred Stock, 2,576,601 shares of Class E Preferred
Stock, 228,750,000 shares of Class F-2 Preferred Stock, and 2,576,601
shares of Class G Preferred Stock. A share of capital stock shall for
all purposes be personal property. For purposes of these Bylaws,
except for the Class E Preferred Stock held by Blocker Sub and the Class C
Preferred Stock held by Management Company, shares of capital stock held by the
Company or any of its Subsidiaries shall be deemed not to be
outstanding. The Company may issue fractional shares pursuant to the
terms of these Bylaws, and all shares of capital stock shall be rounded to the
fourth decimal place.
(b) Upon
the Effective Date, the Stock Register of the Company shall be in the form
attached to these Bylaws. Following the Effective Date, the Company
shall update the Stock Register to reflect any changes in the Stockholders and
the capital stock held by the Stockholders in accordance with the terms of these
Bylaws.
Section
3.2 Authorization
and Issuance of Additional Capital Stock.
(a) The
Board of Directors shall have the right to cause the Company to issue and/or
create and issue at any time after the Effective Date, and for such amount and
form of consideration as the Board of Directors may determine, subject to the
provisions of Section
6.10, Section
10.3, and Section 12.1, (i)
Permitted Additional Stock and (ii) (A) other additional capital stock (of
existing classes or new classes) or other Equity Securities of the Company
(including creating additional classes or series thereof having such powers,
designations, preferences and rights as may be determined by the Board of
Directors) and (B) shares of Class C Preferred Stock; provided, however, that,
without the prior written consent of the Majority Holders, the Board of
Directors shall not have the right to cause the Company to issue or create more
shares of capital stock than are authorized by the Charter. For the
avoidance of doubt, the Majority Holders shall be deemed to have given such
consent to the issuance of the Common Stock issuable to the Class F-2 Preferred
Holder pursuant to the conversion of the Class F-2 Preferred Stock into Common
Stock. In connection with the foregoing, subject to Section 6.10, the
Board of Directors shall have the power to make such amendments to these Bylaws
in order to provide for such Permitted Additional Stock, additional shares of
Series A Preferred Stock or additional series of Class C Preferred Stock
(provided, that the aggregate number of shares of Class C Preferred Stock shall
not exceed 6,970) or, subject to Section 6.10(a)(i),
other additional shares of capital stock, and such powers, designations and
preferences and rights as the Board of Directors in its discretion deems
necessary or appropriate to give effect to such additional authorization or
issuance; provided that any
such amendment shall not reasonably be expected to have a material adverse
effect on any Stockholder, in its capacity as such, that would be borne
disproportionately by such Stockholder relative to other Stockholders having
comparable rights under the Charter or these Bylaws with respect to the capital
stock held by such Stockholder and other Stockholders prior to such amendment
(unless such Stockholder or
Stockholders consent in writing thereto); provided further that any such amendment shall not have
the effect of treating any Stockholder’s right to receive dividends pursuant to
Article
V or distributions pursuant to Article IX differently with respect to such
dividends or distributions than other Stockholders that are entitled to receive
dividends pursuant to the same provision of Article
V or distributions pursuant to the same provision of Article IX with
respect to the capital stock held by such Stockholder and other Stockholders
prior to such amendment, whether
or not of the same class of capital stock (unless the holders of a majority
of the stock so differently treated consent in writing
thereto).
13
Section 3.3 Certification
of Stock. Shares of capital
stock shall be issued in non-certificated form; provided that the
Board of Directors may cause the Company to issue certificates to a Stockholder
representing the shares of capital stock held by such Stockholder. If
any stock certificate is issued, then such certificate shall bear a legend
substantially in the following form:
This
certificate evidences a [Insert specific title of class of stock] representing
an interest in Ally Financial Inc.
The
shares of capital stock in Ally Financial Inc. represented by this certificate
are subject to restrictions on transfer set forth in the Bylaws of GMAC Inc.,
dated as of June 30, 2009, as the same may be amended from time to
time.
The
shares of capital stock in Ally Financial Inc. represented by this certificate
have not been registered under the United States Securities Act of 1933, as
amended, or under any other applicable securities laws. Such shares
of stock may not be sold, assigned, pledged or otherwise disposed of at any time
without effective registration under such Act and laws or, in each case,
exemption therefrom.
ARTICLE
IV
STOCK REGISTER; BOOKS AND
RECORDS; AFFIRMATIVE COVENANTS
Section 4.1 Stock
Register. The Company shall
maintain and keep at its principal office the Stock Register on which it shall
set forth the name and notice address of each Stockholder (and, upon notice of
any Transfer by any Stockholder of any shares of capital stock in accordance
with Article
VIII, each Transferee) and the aggregate number of shares of capital
stock of each class held by such Stockholder.
14
Section
4.2 Books and
Records; Other Documents.
(a) The
Company shall keep, or cause to be kept, (i) complete and accurate books and
records of account of the Company, (ii) minutes of the proceedings of meetings
of the Common Holders, any class of Stockholders, the Board of Directors and any
committee of the Board of Directors (including the Compensation Committee), and
(iii) a current list of the Directors and Officers and their notice
addresses. Any of the foregoing books, minutes or records may be in
written form or in any other form capable of being accurately and completely
converted into written form within a reasonable time. The books of
the Company shall be kept on the accrual basis of accounting, and otherwise in
accordance with GAAP, and shall at all times be maintained or made available at
the principal office of the Company. The Company shall, and shall
cause its Subsidiaries to, (A) make and keep financial records in reasonable
detail that accurately and fairly reflect all financial transactions and
dispositions of the assets of the Company and its Subsidiaries and (B) maintain
a system of internal accounting controls sufficient to provide reasonable
assurances that (1) transactions are executed in accordance with authorization
by the Person in charge and are recorded so as to provide proper financial
statements and maintain accountability for assets and (2) safeguards are
established to prevent unauthorized persons from having access to the assets,
including the performance of periodic physical inventories.
(b) At
all times the Company shall maintain at its principal office a current list of
the name and notice address of each Stockholder, a copy of the Charter,
including any amendments thereto, copies of these Bylaws and all amendments
hereto, and all other records required to be maintained pursuant to the
DGCL.
(c) The
Company also shall maintain at all times, at its principal office, copies of the
Company’s federal, state, local and foreign income tax returns and reports, if
any, and all financial statements of the Company for all years ending after
November 30, 2006; provided, however, the Company
shall not be required to maintain copies of income tax returns and reports, if
any, and any financial statements of the Company for any year which each member
of GMAC LLC has notified Company in writing that such member’s tax year has been
closed.
Section
4.3 Reports
and Audits.
(a) Each
Stockholder shall, to the extent that they have such right under Section 220 of
the General Corporation Law of the State of Delaware, have the right, at all
reasonable times and upon reasonable notice during normal business hours, and at
its own expense, so long as such access does not unreasonably interfere with the
normal operation of the Company, to examine and make copies of or extracts from
the books of account of the Company or any other Company record for any purpose
reasonably related to such Stockholder’s interest as a Stockholder of the
Company, including to satisfy any reporting obligations of such Stockholder
under the Exchange Act, and for federal, state, local or foreign income or
franchise tax purposes, provided that the Company shall not be obligated to
provide access to any information that is privileged or that is subject to
restrictions of Law on such access.
15
(b) If
(i) GM or any of its Affiliates is required by Law or GAAP to consolidate the
financial results of the Company into GM’s or such Affiliate’s financial
statements or to file or furnish the Company’s financial statements with or to
the SEC and (ii) the Company has failed for any reason to receive an unqualified
audit opinion from a “Big Four” accounting firm, then GM shall have the right,
at all reasonable times and upon reasonable notice during normal business hours
and at its own expense, so long as such access does not unreasonably interfere
with the normal operation of the Company, to conduct an audit of the accounting,
financial, disclosure and internal controls of the Company and its
Subsidiaries. Such audit right may be exercised through any
designated agent or employee of GM, or its respective Affiliates. The
parties agree that such audit is not intended to duplicate in its entirety the
audit conducted by the Independent Auditor. GM shall bear all of its
costs and expenses related to such review or audit (including all audit fees of
the auditor employed by GM) and the Company shall bear all of its costs and
expenses related to cooperating with such review or audit.
Any
information provided to any Stockholder pursuant to this Section 4.3 shall be
subject to the provisions of Article
XI.
Section
4.4 Financial
Statements and Other Information.
(a) Notwithstanding
that the Company may not be subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company shall file with the SEC such annual,
quarterly, current and other reports as are specified in Sections 13 and 15(d)
of the Exchange Act and applicable to a U.S. corporation subject to such
sections, including (i) all quarterly and annual financial information that
would be required to be contained in a filing with the SEC on Forms 10-Q and
10-K if the Company were required to file such forms and (ii) all current
reports that would be required to be filed with the SEC on Form 8-K if the
Company were required to file such reports. All such reports shall be
filed at or prior to the times specified for the filings of such reports under
the Exchange Act and shall contain all the information, audit reports and
exhibits required for such reports under the Exchange
Act. Notwithstanding the foregoing, if the SEC will not accept the
filing such reports from the Company, then the Company shall provide such
reports directly to each Stockholder.
(b) The
Stockholders shall be supplied with all other Company information reasonably
necessary to enable each Stockholder to prepare its federal, state, local and
foreign income tax returns. Such information shall be prepared by the
Company, and the Company shall use its reasonable best efforts to deliver such
information to each Stockholder with reasonable promptness in light of the
timing applicable to the purpose for which such information is to be used by
such Stockholder.
(c) All
determinations, valuations and other matters of judgment required to be made for
ordinary course accounting purposes and in respect of tax accounting policies
under the Charter or these Bylaws shall be made by the Board of Directors
(subject, as applicable, to Section 6.10) and
shall be conclusive and binding on all Stockholders, their Successors in
Interest and any other Person, and to the fullest extent permitted by Law or as
otherwise provided in these Bylaws, no such Person shall have the right to an
accounting or an appraisal of the assets of the Company or any successor
thereto.
16
(d) The
Company shall provide to GM such quarterly, annual and other information
reasonably required by GM so as to enable GM and each of its Affiliates to
comply with all Law and GAAP requirements applicable to it, including any
requirement to consolidate the financial results of the Company into GM’s or
such Affiliate’s financial statements, to file or furnish the Company’s
financial statements with or to the SEC, and to include information regarding
the Company in GM’s Exchange Act reports. The Company shall provide such
information to GM promptly following GM’s request and, so long as GM has made
such request reasonably in advance of the applicable Law or GAAP
deadline, within a sufficient period of time so as to enable GM or such
Affiliate to comply with such Law or GAAP deadline. The Company
acknowledges that GM is an “accelerated filer” under the Exchange Act and, as
such, the Company will be required to provide quarterly and annual financial
information to GM for the purposes of GM’s Exchange Act reports earlier than the
Company would otherwise be required to produce such information in connection
with the Company’s own Exchange Act reports.
(e) Subject
to applicable law and stock exchange regulations, with respect to the GM Trust,
for so long as the GM Trust holds at least 2.5% of the then-outstanding Common
Stock, and provided that such trust shall have executed a customary
confidentiality agreement with respect to the use and treatment of confidential
information and further provided that the Company shall be permitted to exclude
such trust from receiving certain information if, based on the advice of
counsel, such exclusion is necessary to preserve the attorney-client privilege
of the Company, provided that to the
extent practicable the Company shall provide such non-voting observer advance
written notice of any such exclusion:
(i) The
GM Trust shall receive copies of all written materials and other information
given to Directors in connection with all meetings of the Board (including
minutes of meetings) at substantially the same time such materials and
information are given to Directors;
(ii) Senior
management of the Company (including at least two of the Chief Executive
Officer, Chief Financial Offer and Chief Risk Officer, and such others as are
necessary) shall meet on at least a quarterly basis with the trustee of the GM
Trust to discuss the Company, its operations, its financial results and its
forward looking plans and projections and such other information as such
trustees may reasonably request related thereto;
(iii) The
Company shall also make available to the trustee of the GM Trust the Company’s
auditors on an annual basis and as reasonably requested in connection with any
sale of the Company’s securities or in connection with the occurrence of other
material events involving the Company, with reasonable notice to discuss issues
relevant to the trustee. The Company will invite the trustee of the
GM Trust to attend the orientation session for new Directors, it being
understood and agreed that the trustee may attend other similar sessions or
events upon invitation.
(iv) Senior
management of the Company shall use their reasonable best efforts to otherwise
respond to reasonable questions and phone calls of the trustee of the GM Trust
and support their information requirements in effecting the trustee’s
responsibilities under the trust agreement; and
17
(v) To
the extent that the GM Trust is not otherwise informed through its receipt of
materials distributed to observers to the Board of Directors, the Company shall
use its reasonable best efforts to inform such trust of material events
involving the Company a reasonable period prior (to the extent practicable) to
the occurrence thereof, including any public offering of the Company’s
securities and material mergers and acquisitions and corporate finance activity
involving the Company.
All
information provided to the GM Trust pursuant to this Section 4.4 shall
remain subject to Article
XI.
Section 4.5 Independent
Auditor. The Company and
its Subsidiaries at all times shall engage a Person to audit its financial
statements (the “Independent Auditor”)
that (a) is an independent public accounting firm within the meaning of the
American Institute of Certified Public Accountants’ Code of Professional Conduct
(American Institute of Certified Public Accountants, Professional Standards,
vol. 2, et sec. 101),
(b) is a registered public accounting firm (as defined in Section 2(a)(12)
of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”)), and (c) if the Company were an “issuer” (as defined in the
Sarbanes-Oxley Act), would not be in violation of the auditor independence
requirements of the Sarbanes-Oxley Act by reason of its acting as the auditor of
the Company and its Subsidiaries. Subject to Section 6.10, the
Independent Auditor shall be appointed by the Board of Directors and shall be a
nationally recognized certified public accounting firm. The Company
shall engage the Independent Auditor from time to time to conduct such review
and testing as from time to time may be necessary or reasonably required under
the Sarbanes-Oxley Act and to issue to the Company its written opinions and
recommendations with respect thereto.
Section 4.6 Company
Policies. On December 18,
2006, the Board of Managers of GMAC LLC (a) reconfirmed the policies, standards
and procedures relating to the Company and its Subsidiaries set forth on Exhibit C and (b)
adopted or reconfirmed, as applicable, the environmental guidelines set forth on
Exhibit
D. It is the intent of the Company and its Subsidiaries to
operate in compliance with all Laws.
18
ARTICLE
V
DIVIDENDS
Section 5.1 Dividends.
(a) Subject
to the DGCL, dividends shall be paid to each class of preferred stock
as set forth in the respective certificate of designations and to the Common
Stock when, as, and if declared by the Board of Directors, in accordance with
these Bylaws and the Charter. Dividends shall be paid in cash, except
as may otherwise be allowed pursuant to Section
5.2.
(b) Notwithstanding
the other provisions of the Charter or these Bylaws, in the event that any
dividend (or portion thereof) that is required to be paid pursuant to the
Charter or these Bylaws would, based on a good faith determination of the Board
of Directors, result in a reduction of the equity capital of the Company below
the Required Capital Amount, then such dividend (or such portion) shall not be
paid unless it has been approved in writing by at least a majority of the Board
of Directors.
Section 5.2 Non-Cash
Dividends. With the consent of the Majority Holders
(including at least two Common Holders), and in each case subject to the DGCL,
the Company shall be permitted to distribute property consisting of assets other
than cash to the Common Holders; provided that all
Common Holders receive the same type of asset; and provided further that
no such consent shall be required in connection with any distribution in-kind
pursuant to Section
9.2.
Section 5.3 No
Set-Off. The Company shall
pay all dividends without regard to any claims that the Company or any
Subsidiary of the Company or any Stockholder may have against any other
Stockholder or any Affiliate of a Stockholder
ARTICLE
VI
RIGHTS AND DUTIES OF
STOCKHOLDERS
Section 6.1 Stockholders. The Stockholders
of the Company, and their respective class and number of shares of capital
stock, are listed on the Stock Register. No Person may be a
Stockholder without the ownership of a share of capital stock. The
Stockholders shall have only such rights and powers as are granted to them
pursuant to the express terms of the Charter, these Bylaws and the
DGCL. Except as otherwise expressly provided in the Charter or these
Bylaws, no Stockholder, in such capacity, shall have any authority to bind, to
act for, to sign for or to assume any obligation or responsibility on behalf of,
any other Stockholder or the Company.
Section 6.2 No
Management or Dissent Rights. Except as set
forth in the Charter or these Bylaws or otherwise required by the DGCL, the
Stockholders shall not have any right to take part in the management or
operation of the Company other than through the Directors elected by the
Stockholders to the Board of Directors. No Stockholder shall, without
the prior written approval of the Board of Directors, take any action on behalf
of or in the name of the Company, or enter into any commitment or obligation
binding upon the Company, except for actions expressly authorized by the terms
of the Charter or these Bylaws. Except as required by the DGCL,
Stockholders shall not be entitled to any rights to dissent or seek appraisal
with respect to any transaction, including the merger or consolidation of the
Company with any Person.
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Section
6.3 No
Stockholder Fiduciary Duties.
(a) No
Stockholder shall, to the maximum extent permitted by the DGCL and other
applicable Law, owe any duties (including fiduciary duties) as a Stockholder to
the other Stockholders or the Company, notwithstanding anything to the contrary
existing at law, in equity or otherwise; provided, however, that each
Stockholder shall have the duty to act in accordance with the implied
contractual covenant of good faith and fair dealing.
(b) Except
as otherwise expressly provided in the Charter or these Bylaws or any
contractual arrangements between the Company and one or more Stockholders, any
Stockholder may engage in or possess any interest in another business or venture
of any nature and description, independently or with others, whether or not such
business or venture is competitive with the Company or any of its Subsidiaries,
and neither the Company nor any other Stockholder shall have any rights in or to
any such independent business or venture or the income or profits derived
therefrom, and the doctrine of corporate opportunity or any analogous doctrine
shall not apply to the Stockholders and the members, shareholders, partners and
Affiliates thereof. The pursuit of any such business or venture shall
not be deemed wrongful, improper or a breach of any duty hereunder, at law, in
equity or otherwise. Any Stockholder and the members, shareholders,
partners and Affiliates thereof shall be able to transact business or enter into
agreements with the Company to the fullest extent permissible under the DGCL,
subject to the terms and conditions of the Charter and these
Bylaws.
(c) Except
as otherwise expressly provided in the Charter or these Bylaws or any
contractual arrangements between the Company and one or more Stockholders, if a
Stockholder acquires knowledge, other than solely from or through the Company,
of a potential transaction or matter that may be a business opportunity for both
such Stockholder and the Company or another Stockholder, such Stockholder shall
have no duty to communicate or offer such business opportunity to the Company or
any other Stockholder and shall not be liable to the Company or the other
Stockholders for breach of any duty (including fiduciary duties) as a
Stockholder by reason of the fact that such Stockholder pursues or acquires such
business opportunity for itself, directs such opportunity to another Person, or
does not communicate information regarding such opportunity to the
Company.
(d) The
provisions of the Charter and these Bylaws, to the extent that they restrict or
eliminate the duties (including fiduciary duties) and liabilities of a
Stockholder otherwise existing at law or in equity, are agreed by the
Stockholders to replace such duties and liabilities of such
Stockholder.
Section
6.4 Meetings
of the Common Holders.
(a) An
annual meeting of the Common Holders shall be held in Detroit, Michigan, New
York, New York or at such other place, within or without the State of Delaware,
as shall from time to time be determined by the Board of Directors, but in no
event later than April 30 of each year. Prior to each annual meeting,
the Secretary shall circulate an agenda for such meeting, which agenda shall
include a discussion of the financial reports of the Company most recently filed
with the SEC (or delivered to the Stockholders, as applicable) pursuant to Section 4.4(a), such
other matters relating to the Company as any Common Holder holding in excess of
thirty three percent (33%) of the Voting Power shall request to be included in
such agenda and such other matters relating to the Company as the
representatives of the Common Holders attending such meeting shall elect to
discuss. Any Common Holder(s) holding in excess of thirty three
percent (33%) of the Voting Power individually or in the aggregate may request
that the Directors or Officers of the Company participate in such annual meeting
or make presentations regarding such matters relating to the Company as such
Common Holder(s) shall reasonably request; provided that such
participation does not unreasonably interfere with the normal performance of
their duties.
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(b) A
special meeting of the Common Holders for any purpose or purposes specified by
the person calling the meeting may be called at any time by (i) the Board of
Directors, (ii) the Chief Executive Officer, or (iii) any Common Holder(s)
holding in excess of thirty three percent (33%) of the Voting Power individually
or in the aggregate. At a special meeting, no business shall be
transacted and no action shall be taken other than that stated in the notice for
such meeting.
(c) Each
Common Holder shall have the right to attend any such meeting. Any
Common Holder who is not a natural person shall designate one individual to act
as such Common Holder’s legal representative for purposes of voting at such
meeting.
Section 6.5 Notice
of Meetings. Written notice
stating the place, day and time of every meeting of the Common Holders and, in
case of a special meeting, the purpose or purposes for which the meeting is
called, shall be mailed (a) with respect to any annual meeting, not less than
ten nor more than sixty calendar days before the date of the meeting (or if sent
by facsimile, not less than five Business Days before the date of the meeting)
or (b) with respect to any special meeting, not less than five nor more than
thirty calendar days before the date of the meeting (or if sent by facsimile,
not less than three Business Days before the date of the meeting), in either
case to each Common Holder entitled to vote at such meeting, at its notice
address maintained in the records of the Company by the
Secretary. Such further notice shall be given as may be required by
Law, but meetings may be held without notice if all the Common Holders entitled
to vote at the meeting are present in person or by telephone or represented by
proxy or if notice is waived in writing by those not present, either before or
after the meeting.
Section 6.6 Quorum. Any number of
Common Holders holding at least a majority of the shares of Common Stock
entitled to vote with respect to the business to be transacted and who shall be
present in person or by telephone or represented by proxy at any meeting duly
called shall constitute a quorum for the transaction of business. If
such quorum is not present within sixty minutes after the time appointed for
such meeting, such meeting shall be adjourned and the Board of Directors shall
reschedule the meeting no fewer than three nor more than ten Business Days
thereafter. If such meeting is rescheduled two consecutive times,
then those Common Holders who are present or represented by proxy at the second
such rescheduled meeting shall constitute a valid quorum for all purposes
hereunder; provided that written
notice of any rescheduled meetings shall have been delivered to all Common
Holders at least three Business Day prior to the date of each rescheduled
meeting.
21
Section 6.7 Voting.
(a) Except
as otherwise provided by Law, the Charter or these Bylaws, Common
Holders holding shares of Common Stock shall vote together as a single
class. Each Common Holder shall be entitled to one vote for each
share of Common Stock held by such Common Holder, in connection with the
election of Directors and on all matters to be voted upon by the Stockholders
(without prejudice to any consent rights that the holders of any class or
portion of any particular class of capital stock have expressly been granted
under these Bylaws or the Charter). The percentage of the total votes
entitled to be cast by any Common Holder or group of Common Holders with respect
to such Common Holder’s or group of Common Holders’ Common Stock, calculated
pursuant to this Section 6.7, is
herein referred to as the “Voting Power” of such
Common Holder or Common Holders.
(b) At
any meeting of the Common Holders, each Common Holder entitled to vote on any
matter coming before the meeting shall, as to such matter, have a vote, in
person, by telephone or by proxy, equal to the Voting Power of the number of
shares of Common Stock held in its name on the relevant record date established
pursuant to Section
6.9.
(c) Except
as otherwise specified herein, when a quorum is present, the affirmative vote of
the holders of a majority of the Voting Power of the capital stock present in
person or represented by proxy at a duly called meeting and entitled to vote on
the subject matter shall be the act of the Common Holders, unless the question
is one upon which by express provisions of Law or the Charter or these Bylaws a
different vote is required, in which case such express provision shall govern
and control the decision of such question. Where a separate vote by
any class of capital stock is required, the affirmative vote of the holders
holding at least a majority of the Voting Power of the capital stock of such
class present in person or represented by proxy at the meeting of such class
shall be the act of such class, unless the question is one upon which by express
provisions of Law or the Charter or these Bylaws a different vote is required,
in which case such express provision shall govern and control the decision of
such question.
(d) Each
Stockholder entitled to vote at a meeting of Common Holders or any class of
Stockholders or to express consent or dissent to any action in writing without a
meeting may authorize another person or persons to act for him or her by proxy,
but no such proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. At each meeting of
Common Holders or any class of Stockholders, and before any voting commences,
all proxies filed at or before the meeting shall be submitted to and examined by
the Secretary or a person designated by the Secretary, and no shares of capital
stock may be represented or voted under a proxy that have been found to be
invalid or irregular.
Section
6.8 Action
Without a Meeting; Telephonic Meetings.
(a) Any
action required to be taken at any annual or special meeting of, or by any vote
of, Common Holders or of any class of Stockholders, or any action or vote that
may be taken at any annual or special meeting of such Common Holders or class of
Stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken and
bearing the dates of signature of the Stockholders who signed the consent or
consents, shall be signed by Stockholders holding (i) in the case of any action
required to be taken at any annual or special meeting, or by vote, of the Common
Holders, not less than a majority of the Voting Power of the outstanding Common
Stock (or, with respect to the taking of any action that would require a higher
percentage of Common Holders to approve hereunder, such higher percentage of the
outstanding Common Stock), or (ii) in the case of any action required to be
taken at any meeting of the Stockholders holding a particular class of capital
stock, not less than a majority of the shares of capital stock of such class, as
applicable. Any such consent or consents shall be delivered to the
Company by delivery to the Company’s principal place of business, or an Officer
or agent of the Company having custody of the book or books in which proceedings
of meetings of the Stockholders are recorded. If action is so taken
without a meeting by less than unanimous written consent of the Common Holders
or of any class of Stockholders, a copy of such written consent shall be
delivered promptly to all Common Holders or all Stockholders of such class who
have not consented in writing. Any action taken pursuant to such
written consent or consents of the Common Holders or any class of Stockholders
shall have the same force and effect as if taken by the Stockholders at a
meeting of the Common Holders or the Stockholders of such class.
22
(b) Common
Holders may participate in meetings of the Common Holders, and Stockholders of
any class may participate in meetings of such class of Stockholders,
by means of conference telephone or similar communications equipment by means of
which all Persons participating in the meeting can hear each
other. Participation in a telephonic meeting pursuant to this Section 6.8(b) shall
constitute presence at such meeting and shall constitute a waiver of any
deficiency of notice.
Section 6.9 Record
Date. For the purpose
of determining the Stockholders entitled to notice of or to vote at any meeting
of Common Holders or any class of Stockholders or any adjournment thereof, or
entitled to receive a payment of any kind, or in order to make a determination
of Stockholders for any other proper purpose, the Board of Directors may fix in
advance a date as the record date for any such determination of Stockholders,
such date in any case to be not more than seventy calendar days prior to the
date on which the particular meeting or action requiring such determination of
Common Holders is to be held or taken. If no record date is fixed by
the Board of Directors, the date on which notices of the meetings are mailed or
the date on which the resolution of the Board of Directors declaring such
dividend is adopted, as the case may be, shall be the record
date. When a determination of the Common Holders has been made as
provided in this Section 6.9, such
determination shall apply to any adjournment thereof unless the Board of
Directors fixes a new record date, which it shall do if the meeting is adjourned
to a date more than one hundred twenty calendar days after the date originally
fixed.
Section
6.10 Certain
Matters Requiring Approval of the Majority Holders (including at Least Two
Common Holders).
(a) Notwithstanding
any other provision of these Bylaws, the Company and the Board of Directors
shall not, and shall take all action possible to ensure that each Subsidiary of
the Company shall not, engage in any of the following transactions without the
prior approval of the Majority Holders (including at least two Common
Holders):
23
(i)
any amendment to the organizational documents of (A) the Company,
including the Charter and these Bylaws, or (B) any of the Material Subsidiaries
if, in either case, such amendment could reasonably be expected to significantly
and adversely impact any Stockholder (including any Stockholder’s rights under
these Bylaws), the Company or such Material Subsidiary, other than any
amendment, but only to the extent necessary, to implement the issuance of (i)
Permitted Additional Stock, or (ii) additional series of Class C Preferred
Stock;
(ii)
the redemption, purchase or other acquisition, directly or
indirectly, of any capital stock or other Equity Securities of the Company,
other than (A) those shares of capital stock or other Equity Securities of the
Company held by any current or former officer, manager, director, consultant or
employee of the Company or any of its Subsidiaries or, to the extent applicable,
their respective estates, spouses, former spouses or family members, in each
case pursuant to any equity subscription agreement, option agreement, members’
agreement or similar agreement or benefit of any kind, (B) redemptions,
purchases or other acquisitions that are made pro rata among the
Stockholders holding a particular class of capital stock or other Equity
Securities, in each case, to the extent that (1) no Rating Agency has
communicated to the Company, after inquiry, that such proposed redemption,
purchase or other acquisition is reasonably likely to result in a Credit
Downgrade or (2) such proposed redemption, purchase or other acquisition will
not result in a reduction of the equity capital of the Company (as determined by
the Board of Directors) below the Required Capital Amount, unless approved by a
majority of the Independent Directors and (C) redemptions, purchases or other
acquisitions of shares of Class C Preferred Stock held by Management Company
pursuant to the Charter;
(iii) the
payment or other issuance of any dividend on any class of capital stock that is
not pro rata among all
holders of such class of capital stock;
(iv) (a)
the declaration of a Bankruptcy (or acquiescence with respect thereto), of the
Company or any Material Subsidiary, or the dissolution, liquidation,
recapitalization or reorganization in any form of transaction, of the
Company;
(b) any
dissolution, liquidation, recapitalization or reorganization in any form of
transaction of any of the Company’s Material Subsidiaries that could reasonably
be expected to significantly and adversely impact any Stockholder either
directly or indirectly (including any Stockholder’s rights under these
Bylaws);
(v) authorize
or issue any debt securities or any Equity Securities of the Company
that (A) rank senior to the Common Stock with respect to dividends or upon a
sale or liquidation of the Company and (B) in the case of any such debt
securities, are accorded the same equity treatment by the Ratings Agencies as
the Common Stock at the time of the authorization or issuance thereof, provided, however, that any
such authorization or issuance required by an order of the Federal Reserve Board
shall not require such approval;
24
(vi) any
transaction that results in a Company Sale;
(vii) any
merger or consolidation involving the Company or any Subsidiary that requires
the approval of the holders of common stock of the Company under the
DGCL;
(viii) any
change of the Independent Auditor, unless such replacement Independent Auditor
is a “Big Four” accounting firm;
(ix) any
change in the Company’s Fiscal Year; and
(x)
the taking of any other act, or the consummation of any other transaction,
involving the Company or any Subsidiary, that (A) requires the approval of the
holders of common stock of the Company under the DGCL or (B) the taking of such
act or the consummation of such transaction by a corporation with its common
stock listed on the New York Stock Exchange would require the approval of the
holders of common stock of such corporation under the rules of the New York
Stock Exchange.
(b) The
Stockholders hereby acknowledge and agree that the determination of the Common
Holders as to whether to consent to any of the actions described in this Section 6.10, shall
be entitled to be made in the sole discretion of the Common Holders, acting in
their own best interests.
(c) Notwithstanding
any other provision of these Bylaws, the Company and the Board of Directors
shall not, and shall take all action possible to ensure that each Subsidiary of
the Company shall not, engage in any of the following transactions without the
prior approval of the Majority Holders (including at least two Common Holders)
and at least a majority of the Independent Directors:
(i) the
declaration of a Bankruptcy (or acquiescence with respect thereto), dissolution
(to the fullest extent permitted by Law), liquidation, recapitalization or
reorganization in any form of transaction, in each case of the Company or any of
its Material Subsidiaries;
(ii) the
entering into, amendment or other modification of any transaction (other than
any intercompany transaction) with any Affiliate, Stockholder (other than
Governmental Entities, except UST in its capacity as a Stockholder, and other
than the Class E Preferred Holder) or any of their Affiliates or any Senior
Executive Officer (other than, in the case of any Senior Executive Officer, any
agreement or arrangement entered into with such Person in connection with and
relating to such Person’s employment with the Company or any of its
Subsidiaries, including compensation arrangements), if the value of the
consideration provided by the Company and/or any of its Subsidiaries to any such
Affiliate, Stockholder or any of their Affiliates or any Senior Executive
Officer involves in excess of $5 million or, if there is no monetary
consideration paid or quantifiable value exchanged, if the agreement is
otherwise material to the Company and/or any of its Subsidiaries (and in any
event any amendment or other modification to any agreement set forth on Exhibit E), unless at
least a majority of the Independent Directors determines that such transaction
is entered into in the Ordinary Course of Business and is on terms no less
favorable to the Company or its Subsidiaries, as applicable, than those that
would have been obtained in a comparable transaction by the Company or such
Subsidiary, as applicable, with a Person that is not an Affiliate;
and
25
(iii) the
incurrence by the Company and its Subsidiaries of Indebtedness (other than
intercompany Indebtedness) to the extent that any Rating Agency has communicated
to the Company, after inquiry, that such proposed incurrence of Indebtedness is
reasonably likely to result in a Credit Downgrade.
Section 6.11 Liability
of Stockholders. Except as
otherwise required by Law or as expressly set forth in the Charter or these
Bylaws, the debts, obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and no Stockholder or Director shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Stockholder or Director, whether to the Company, to any of the
other Stockholders, to the creditors of the Company or to any other third
Person.
Section 6.12 Blocker
Corp Transactions. Notwithstanding
anything in these Bylaws to the contrary, in no event will (i) the merger of the
Company (with the Company as the survivor) or a direct wholly owned subsidiary
thereof with each of CB FIM, LLC, FIM CB Holdings, LLC, FIM Coinvestor Holdings
I, LLC, CB FIM Coinvestors, LLC and CB FIM Coinvestors I, LLC (each a “FIM Blocker Corp”)
(or an exchange by each such FIM Blocker Corp (with either the Company or a
wholly owned subsidiary of the Company) of the FIM Blocker Corp’s shares in the
Company for new shares in the Company, or a similar exchange transaction) or
(ii) the merger of the Company (with the Company as the survivor) or a direct
wholly owned subsidiary thereof with Blocker Sub, or an exchange of the
outstanding Blocker Preferred for the Class G Preferred Stock, or a similar
exchange transaction, in each of cases (i) and (ii) consummated in accordance
with Section 2.8 and Section 12.7 of the LLC Agreement in connection with the
Issuer’s conversion into a Delaware corporation, be prohibited by the Charter or
these Bylaws or require any consent of any Stockholder other than the “Approval
of Action” dated as of June 30, 2009, which is in full force and effect as of
such date.
ARTICLE
VII
BOARD OF DIRECTORS;
OFFICERS
Section 7.1 Establishment
of Board of Directors. There is hereby
established a board of directors (the “Board of Directors”)
comprised of natural Persons (the “Directors”) having
the authority and duties set forth in the Charter and these
Bylaws. The size of the Board of Directors shall initially be nine
and shall be adjusted from time to time by a vote of the Majority
Holders. The Directors shall be elected at the annual meeting of the
Common Holders by a vote of the Majority Holders. Each Director
elected shall hold office until a successor is duly elected and qualified or
until his or her earlier death, resignation or removal as provided in the
Governance Agreement or this Article
VII.
26
Section 7.2 General
Powers of the Board of Directors. The property,
affairs and business of the Company shall be managed by or under the direction
of the Board of Directors, except as otherwise expressly provided in the Charter
or these Bylaws. In addition to the powers and authority expressly
conferred on it by these Bylaws, the Board of Directors may exercise all such
powers of the Company and do all such lawful acts and things as are permitted by
the DGCL and the Charter. Each Director shall be a “director” (as
such term is defined in the DGCL) of the Company but, notwithstanding the
foregoing, to the fullest extent permitted by applicable Law, no Director shall
have any rights or powers beyond the rights and powers granted to such Director
in the Charter or these Bylaws. Except as such power is delegated
pursuant to Section
7.14, no Director acting alone, or with any other Directors, shall have
the power to act for or on behalf of, or to bind the Company.
Section
7.3 Removal
of Directors for Cause.
(a) A
Director or the Board of Directors may be removed for Cause by a vote of the
Majority Holders.
(b) Subject
to the terms of the Governance Agreement, any vacancy occurring in the Board of
Directors shall be filled by a vote of the Majority Holders.
(c) Any
Director may resign at any time by giving written notice to the members of the
Board of Directors and the Chief Executive Officer or the
Secretary. The resignation of any Director shall take effect upon
receipt of notice thereof or at such later time as shall be specified in such
notice, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 7.4 Meetings.
(a) Regular
meetings of the Board of Directors may be held in Detroit, Michigan, New York,
New York or at such other place, within or without the State of Delaware, as
shall from time to time be determined by the Board of Directors, but in no event
less than (i) four times during any twelve-month period and (ii) once during any
three-month period. Special meetings of the Board of Directors may be
called by or at the request of the Chief Executive Officer, and in any event
shall be called by the Chief Executive Officer upon the written request of any
Director. Special meeting notices shall state the purposes of the
proposed meeting. Subject to the requirements of Section 2(c) of the
Governance Agreement, any observer to the Board of Directors appointed pursuant
to and in accordance with the terms of the Governance Agreement shall have the
right to attend all meetings of the Board of Directors and all committees
thereof and receive all information provided to the members of the Board of
Directors in advance of each such meeting in the same manner and at the same
time as the members of the Board of Directors or such committee.
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(b) Any
Director or any member of a committee of the Board of Directors who is present
at a meeting shall be conclusively presumed to have waived notice of such
meeting except when such Director attends for the express purpose of objecting
or abstaining at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened. Such Director
shall be conclusively presumed to have assented to any action taken unless his
or her dissent or abstention shall be entered in the minutes of the meeting or
unless his or her written dissent or abstention to such action shall be filed
with the person acting as the secretary of the meeting before the adjournment
thereof or shall be forwarded by registered mail to the Secretary immediately
after the adjournment of the meeting. Such right to dissent or
abstain shall not apply to any Director who voted in favor of such
action.
Section 7.5 Notice
of Meetings. Written notice
stating the place, day and time of every meeting of the Board of Directors and,
in case of a special meeting, the purpose or purposes for which the meeting is
called, shall be mailed not less than five nor more than thirty calendar days
before the date of the meeting (or if sent by facsimile or email, not less than
three Business Days before the date of the meeting), in each case to each
Director and if applicable, observer, at his or her notice address maintained in
the records of the Company by the Secretary. Such further notice
shall be given as may be required by Law, but meetings may be held without
notice if all the Directors entitled to vote at the meeting are present in
person or by telephone or if notice is waived in writing by those not present,
either before or after the meeting.
Section 7.6 Quorum. Unless otherwise
provided by Law, the Charter or these Bylaws, the presence of Directors
constituting a majority of the voting authority of the whole Board of Directors
shall be necessary to constitute a quorum for the transaction of business; provided, that the
presence of at least two Independent Directors shall be required for a quorum to
exist. If such quorum is not present within sixty minutes after the
time appointed for such meeting, such meeting shall be adjourned and the
President or acting Chairman shall reschedule the meeting to be held not fewer
than two nor more than ten Business Days thereafter. If such meeting
is rescheduled two consecutive times, then those Directors who are present or
represented by proxy at the second such rescheduled meeting shall constitute a
valid quorum for all purposes hereunder; provided that written
notice of any rescheduled meeting shall have been delivered to all Directors at
least two Business Days prior to the date of such rescheduled
meeting. Notwithstanding any provision to the contrary
contained herein, interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
that authorizes any interested party contract or transaction.
Section 7.7 Voting. Each Director shall be entitled to cast one vote with
respect to each matter brought before the Board of Directors (or any committee of the Board of
Directors of which such
Director is a member) for
approval. Except as otherwise provided by these Bylaws, the DGCL,
other Law or the Charter, all policies and other matters to be determined by the
Directors shall be
determined by a majority vote of the members of the Board of
Directors present at a
meeting at which a quorum is present.
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Section
7.8 Action
Without a Meeting; Telephonic Meetings.
(a) On
any matter requiring an approval or consent of Directors under the Charter,
these Bylaws or the DGCL, the Directors may take such action without a meeting,
without prior notice, and without a vote if a consent or consents in writing,
setting forth the action so taken, shall be signed by all of the
Directors.
(b) Directors
may participate in meetings of the Board of Directors by means of conference
telephone or similar communications equipment by means of which all Persons
participating in the meeting can hear each other. Participation in a
telephonic meeting pursuant to this Section 7.8(b) shall
constitute presence at such meeting and shall constitute a waiver of any
deficiency of notice.
Section 7.9 Reserved.
Section 7.10 Reserved.
Section 7.11 Reserved.
Section 7.12 Compensation
of Directors; Expense Reimbursement. Directors that
are also Officers of the Company or employees of any of the Stockholders or
their Affiliates shall not receive any stated fee for services in their capacity
as Directors; provided, however, that nothing
herein contained shall be construed to preclude any Director from serving the
Company or any Subsidiary in any other capacity and receiving compensation
therefor. Directors that are not also Officers of the Company or
employees of any of the Stockholders or their Affiliates may receive a stated
salary for their services as Directors, in each case as determined from time to
time by the Board of Directors. Directors shall be reimbursed by the
Company for any reasonable out-of-pocket expenses related to attendance at each
regular or special meeting of the Board of Directors subject to the Company’s
requirements with respect to reporting and documentation of such
expenses.
Section
7.13 Committees
of the Board of Directors.
(a) The
Board of Directors may by resolution designate one or more committees, each of
which shall be comprised of two or more Directors, and may designate one or more
of the Directors as alternate members of any committee, who may, subject to any
limitations imposed by the Board of Directors, replace absent or disqualified
Directors at any meeting of that committee. At least one Independent
Director shall serve on each committee of the Board of
Directors. Subject to Section 6.10(c), any
decisions to be made by a committee of the Board of Directors shall require the
approval of a majority of the votes of such committee of the Board of
Directors. To the extent not prohibited by Law or stock exchange
listing requirement, any Director or observer appointed pursuant to the
Governance Agreement may attend the meetings of any committee of the Board of
Directors on which he or she does not serve, as a non-voting
observer.
(b) Any
committee of the Board of Directors, to the extent provided in any resolution of
the Board of Directors, shall have and may exercise all of the authority of the
Board of Directors, subject to the limitations set forth in Section 7.13(c) or in
the establishment of such committee. Any committee members may be
removed, or any authority granted thereto may be revoked, at any time for any
reason by a majority of the Board of Directors subject to the limits on
designation of replacement provided above and subject to the limitations in
designation for removal from the Board of Directors set out in these
Bylaws. Each committee of Directors may fix its own rules of
procedure and shall hold its meetings as provided by such rules, except as may
otherwise be provided in the Charter, these Bylaws or by a resolution of the
Board of Directors designating such committee.
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(c) No
committee of the Board of Directors shall have the authority of the Board of
Directors with respect to any matters (i) subject to the approval rights set
forth in Section
6.10, or (ii) otherwise subject to the approval rights of the Common
Holders or the Independent Directors.
(d) There
is hereby established an audit committee of the Board of Directors (the “Audit Committee”)
initially comprised of three Independent Directors consisting of the Independent
Directors; provided, however, that if any
of the Independent Directors is prohibited from serving on the Audit Committee
by any Law or stock exchange listing requirement, then the Audit Committee may
be comprised of fewer than three Independent Directors during the period of such
prohibition, but in no event less than two Independent Directors. The
chairman of the Audit Committee shall be elected by the Board of
Directors. The Audit Committee shall have and may exercise the
powers, authority and responsibilities that are normally appropriate for the
functions of an audit committee. The Audit Committee shall report its
actions, findings and reports to the Board of Directors on a regular
basis.
(e) There
is hereby established the compensation, nominating, and governance committee of
the Board of Directors (the “Compensation
Committee”) initially comprised of at least three Independent Directors,
none of which may be Officers or employees of the Company. The
Compensation Committee shall have and may exercise the powers and authority
delegated or granted to it by the Board of Directors and/or by any incentive
compensation plan for employees of the Company.
Section 7.14 Delegation of
Authority. The Board of
Directors may, from time to time (acting in any applicable case with any
required consent under the Charter or these Bylaws), delegate to any Person
(including any Stockholder, Officer or Director) such authority and powers to
act on behalf of the Company as it shall deem advisable in its discretion,
except with respect to any matters (a) subject to the approval rights set
forth in Section
6.10, and (b) otherwise subject to the approval rights of the Common
Holders or the Independent Directors. Any delegation pursuant to this
Section 7.14
may be revoked at any time and for any reason or no reason by the Board of
Directors.
Section 7.15 Officers.
(a) The
officers of the Company (the “Officers”) shall
consist of a Chief Executive Officer, a Chief Financial Officer, one or more
Presidents, a Secretary and such other Officers as may be appointed in
accordance with the terms of these Bylaws. One Person may hold, and
perform the duties of, any two or more of such offices.
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(b) All
Officers shall be appointed by a majority of the members of the Board of
Directors. Any Officer may be removed, with or without cause, at any
time by the Board of Directors.
(c) No
Officer shall have any rights or powers beyond the rights and powers granted to
such Officers in these Bylaws or by action of the Board of
Directors. The Chief Executive Officer, Presidents, Chief Financial
Officer and Secretary shall have the following duties and
responsibilities:
(i) Chief Executive
Officer. The Chief Executive Officer of the Company (the
“Chief Executive
Officer”) shall be a member of the Board of Directors and shall also
perform such duties as may be assigned to them from time to time by the Board of
Directors. Subject to the direction of the Board of Directors, he or
she shall have, and exercise, direct charge of, and general supervision over,
the business and affairs of the Company. He or she shall from time to
time report to the Board of Directors all matters within his or her knowledge
that the interest of the Company may require to be brought to its notice, and
shall also have such other powers and perform such other duties as may be
specifically assigned to him or her from time to time by the Board of
Directors. The Chief Executive Officer shall see that all resolutions
and orders of the Board of Directors are carried into effect, and in connection
with the foregoing, shall be authorized to delegate to any President and the
other Officers such of his or her powers and such of his or her duties as the
Board of Directors may deem to be advisable.
(ii) Presidents. The
Presidents of the Company (each a “President”) shall
perform such duties as may be assigned to them from time to time by the Board of
Directors or as may be designated by the Chief Executive
Officer. Each President shall have the right, subject to the approval
of the Board of Directors pursuant to Section 7.15(b) and
following consultation with the Chief Executive Officer, to nominate the
Officers who will report to such President or to any Person to whom such
President delegates his or her authority.
(iii) Chief Financial
Officer. The Chief Financial Officer of the Company (the
“Chief Financial
Officer”) shall have the custody of the Company’s funds and securities
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all monies and other valuable effects
in the name and to the credit of the Company, in such depositories as may be
designated by the Board of Directors or by any Officer authorized by the Board
of Directors to make such designation. The Chief Financial Officer
shall exercise such powers and perform such duties as generally pertain or are
necessarily incident to his or her office and shall perform such other duties as
may be specifically assigned to him or her from time to time by the Board of
Directors or the Chief Executive Officer. The Chief Financial Officer
shall have the right, subject to the approval of the Board of Directors pursuant
to Section
7.15(b) and following consultation with the Chief Executive Officer, to
nominate the Officers who will report to him or her or to any Person to whom the
Chief Financial Officer delegates his or her authority.
(iv) Secretary. The
Secretary of the Company (the “Secretary”) shall
attend all meetings of the Stockholders and record all votes and the minutes of
all proceedings in a book to be kept for that purpose and shall perform like
duties for any committee when required. He or she shall give, or
cause to be given, notice of all meetings of the Stockholders and, when
necessary, of the Board of Directors. The Secretary shall exercise
such powers and perform such duties as generally pertain or are necessarily
incident to his or her office, and he or she shall perform such other duties as
may be assigned to him or her from time to time by the Board of Directors or the
Chief Executive Officer. To the greatest extent possible, the
Secretary shall vote, or cause to be voted, all of the Equity Securities of any
Subsidiary of the Company as directed by the Board of Directors.
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Section
7.16 Standard
of Care; Fiduciary Duties; Liability of Directors and Officers.
(a) Any
Director or Officer, in the performance of such Director’s or Officer’s duties,
shall be entitled to rely in good faith on the provisions of the Charter and
these Bylaws and on opinions, reports or statements (including financial
statements, books of account any other financial information, opinions, reports
or statements as to the value or amount of the assets, liabilities, profits or
losses of the Company and its Subsidiaries) of the following other Persons or
groups: (i) one or more Officers or employees of the Company or any
of its Subsidiaries, (ii) any legal counsel, certified public accountants or
other Person employed or engaged by the Board of Directors or the Company or any
of its Subsidiaries, or (iii) any other Person who has been selected with
reasonable care by or on behalf of such Director, Officer or the
Company or any of its Subsidiaries, in each case as to matters which such
relying Person reasonably believes to be within such other Person’s professional
or expert competence. The preceding sentence shall in no way limit
any Person’s right to rely on information to the extent provided in
Section 141 of the DGCL.
(b) On any matter involving a conflict of
interest not provided for in these Bylaws, each Director and Officer shall be
guided by its reasonable judgment as to the best interests of the Company and
its Subsidiaries and shall take such actions as are determined by such Person to
be necessary or appropriate to ameliorate such conflict of
interest.
(c) The Directors and the Officers, in the performance of
their duties as such, shall owe to the Company and its Stockholders duties of
loyalty and due care of the type owed under Law by directors and officers of a
business corporation incorporated under the DGCL.
(d) Except
as required by the DGCL, no individual who is a Stockholder or an Officer, or
any combination of the foregoing, shall be personally liable under any judgment
of a court, or in any other manner, for any debt, obligation or liability of the
Company, whether that liability or obligation arises in contract, tort or
otherwise solely by reason of being a Director or an Officer or any combination
of the foregoing.
(e) No
Director or Officer shall be liable to the Company or any Stockholder for any
act or omission (including any breach of duty (fiduciary or otherwise)),
including any mistake of fact or error in judgment taken, suffered or made by
such Person if such Person acted in good faith and in a manner such Person
reasonably believed to be in or not opposed to the best interests of the Company
and which act or omission was within the scope of authority granted to such
Person; provided that such
act or omission did not constitute fraud, willful misconduct, bad faith or gross
negligence in the conduct of such Person’s office.
32
(f) No Director shall be liable to the
Company or any Stockholder for monetary damages for breach of fiduciary duty as
a Director; provided that the foregoing shall not eliminate
or limit the liability of a Director: (i) for any breach of such
Director’s duty of loyalty to the Company or its Stockholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of Law; or (iii) for any transaction from which such Director derived
an improper personal benefit.
ARTICLE
VIII
TRANSFER OF SHARES OF
STOCK
Section 8.1 Void
Transfers. To the greatest
extent permitted by the DGCL and other Law, any Transfer by any Stockholder of
any shares of capital stock or other interest in the Company in contravention of
the Charter or these Bylaws shall be void and ineffective and shall not bind or
be recognized by the Company or any other Person. In the event of any
Transfer in contravention of the Charter or these Bylaws, to the greatest extent
permitted by the DGCL and other Law, the purported Transferee shall have no
right to any profits, losses or dividends of the Company or any other rights of
a Stockholder.
Section 8.2 Transfer
of Certain Shares of Capital Stock by GM to the U.S. Treasury. Notwithstanding
anything to the contrary in the Charter or these Bylaws, the terms of this Article VIII and the
other provisions of the Charter and these Bylaws that operate as restrictions or
limitations on Transfers of shares of capital stock (including Section 6.10) or that
give non-transferring Stockholders rights in connection with Transfers of shares
of capital stock, shall not apply to any Transfer of shares of capital stock by
GM or any of its Affiliates or the GM Trust to the U.S. Department of the
Treasury or its designee (including any trust or trustee), and GM and its
Affiliates and the GM Trust shall be permitted to Transfer any such shares of
capital stock to the U.S. Department of the Treasury or such
designee.
ARTICLE
IX
DISSOLUTION
Section 9.1 In
General. The Company shall
dissolve and its affairs shall be wound up upon the first to occur of the
following: (a) the approval of the Majority Holders (including at
least two Common Holders); (b) at any time there are no Stockholders of the
Company; or (c) the entry of a decree of judicial dissolution under Section
285 of the DGCL.
Section 9.2 Liquidation
and Termination. On the
dissolution of the Company, the Board of Directors shall act as liquidator or
(in its sole discretion) may appoint one or more representatives, Stockholders
or other Persons as liquidator(s). The liquidators shall proceed
diligently to wind up the affairs of the Company and make final distributions as
provided herein and in the DGCL. The costs of liquidation shall be
borne as a Company expense. Until final distribution, the liquidators
shall continue to operate the Company with all of the power and authority of the
Board of Directors. The steps to be accomplished by the liquidators
are as follows:
(a) the
liquidators shall pay, satisfy or discharge from the Company funds all of the
debts, liabilities and obligations of the Company (including all expenses
incurred in liquidation) or otherwise make adequate provision for payment and
discharge thereof (including the establishment of a cash fund for contingent
liabilities in such amount and for such term as the liquidators may reasonably
determine);
33
(b) after
payment or provision for payment of all of the Company’s liabilities has been
made in accordance with Section 9.2(a), all
remaining assets of the Company shall be distributed to the Stockholders,
subject to the DGCL, in accordance with the procedures set forth in the Charter,
these Bylaws and the DGCL.
Section 9.3 Filing
of Certificate of Dissolution. Immediately
following the completion of the distribution of the Company’s assets as provided
herein, the Board of Directors (or such other Person or Persons as the DGCL may
require or permit) shall file a certificate of dissolution with the Secretary of
State of the State of Delaware, cancel any other filings made pursuant to the
Charter or these Bylaws that are required to be canceled and take such other
actions as may be necessary to terminate the Company. The Company
shall be deemed to continue in existence for all purposes of the Charter and
these Bylaws until it is terminated pursuant to this Section
9.3.
Section 9.4 Reasonable
Time for Winding Up. A
reasonable time shall be allowed for the orderly winding up of the business and
affairs of the Company and the liquidation of its assets pursuant to Section 9.2 to
minimize any losses otherwise attendant upon such winding up.
Section 9.5 Antitrust
Laws. Notwithstanding
any other provision in the Charter or these Bylaws, in the event that any
Antitrust Law is applicable to any Stockholder by reason of the fact that any
assets of the Company shall be distributed to such Stockholder in connection
with the winding up of the Company, such distribution shall not be consummated
until such time as the applicable waiting periods (and extensions thereof) under
such Antitrust Law have expired or otherwise been terminated with respect to
each such Stockholder.
Section 9.6 Other
Remedies. Nothing in this
Article IX
shall limit any Stockholder’s right to enforce any provision of the Charter or
these Bylaws by an action at Law or equity, nor shall an election to dissolve
the Company pursuant to this Article IX relieve
any Stockholder of any liability for any prior or subsequent violation of any
provision of the Charter or these Bylaws or another document referred to
herein.
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ARTICLE
X
OTHER
AGREEMENTS
Section
10.1 Transactions
with Affiliates.
(a) The
Company shall conduct, and shall cause each of its Subsidiaries to conduct, all
transactions with its Affiliates (other than Subsidiaries of the Company),
Stockholders (other than the Class E Preferred Holder) and their respective
Affiliates, current or former officers or directors, or any of their respective
family members on terms that are fair and reasonable and no less favorable to
the Company or such Subsidiary than it would obtain in a comparable arm’s-length
transaction with a Person that is not an Affiliate, a Stockholder, an Affiliate
of a Stockholder, a current or former officer or director, or a family member
and in compliance with all Laws, it being understood and agreed that (i) all
Transaction Documents (including the Project Agreements), (ii) all agreements or
arrangements in effect as of the Effective Date by the Company and its
Subsidiaries, on the one hand, and GM and its Subsidiaries, on the other hand,
set forth on Exhibit
E and (iii) all transactions approved by (A) the Majority Holders
(including at least two Common Holders), as applicable, or (B) the Independent
Directors pursuant to Section 6.10(c)(ii),
in each case, as required by the Charter or these Bylaws, as applicable, shall
each be deemed to be in compliance with this Section
10.1(a). Subject to the terms of the Charter and these Bylaws
and any documents referred to herein, neither the Company nor any of its
Subsidiaries shall be required to purchase products, services or components from
any Stockholder, but may seek quotes for the supply of products, services or
components in its Ordinary Course of Business.
(b) The
Class E Preferred Holder and, subject to Section 6.10(c)(ii)
and Section
10.1(a), the Common Holders and Class A Preferred Holders (and Affiliates
of, and Persons who are otherwise related to, such Stockholders) shall have the
right to contract and otherwise deal with the Company with respect to the sale,
purchase or lease of real and/or personal property, the rendition of services,
the lending of money and for other purposes in arm’s-length transactions, and to
receive the purchase price, costs, fees, commissions, interest, compensation and
other forms of consideration in connection therewith, without being subject to
claims for self-dealing.
Section
10.2 Public
Offering.
(a) In
addition to the other rights of the Board of Directors or the Stockholders to
require the Issuer to consummate an initial Public Offering, each of (i) the
Majority Holders (including at least two Common Holders) and (ii) holders
representing greater than 50% of the outstanding Common Stock on a Fully-Diluted
Basis (the “Fully-Diluted Majority
Holders”), with the consent of a majority of the Independent Directors
(which shall take into account market conditions and tax and regulatory capital
considerations) shall have the right, but not the obligation, to require the
Issuer to consummate an initial Public Offering. Such right shall be
exercisable by the Fully-Diluted Majority Holders at any time; provided that in
connection with any such Public Offering, the UST (to the extent it then holds
Class F-2 Preferred Stock) shall be obligated to convert such amount of
Convertible Securities as may be necessary so that immediately prior to such
Public Offering, the UST holds greater than 50% of the outstanding Common Stock;
provided further, that the UST
shall be entitled to participate in such Public Offering on a priority basis to
the extent necessary to reduce the amount of Common Stock held by UST below 50%
of the outstanding Common Stock immediately following such Public
Offering. Thereafter, UST shall be entitled to participate on a pro
rata basis with other holders of Common Stock.
35
(b) Subject
to Section
10.2(a), in the event that the Board of Directors,
the Majority Holders (including at least two Common Holders) or the
Fully-Diluted Majority Holders, as applicable, approve an initial Public
Offering and sale of securities of the Issuer (including a sale of Equity
Securities, debt securities, income deposit securities or securities of any
other kind or combination) pursuant to a Public Offering, then each Stockholder
(other than the Class F-2 Preferred Holder and the Class E Preferred Holder) and
Director shall take all necessary or desirable actions required or deemed
advisable by the Board of Directors or such Stockholders, as applicable, in
connection with the consummation of such Public Offering, and enter into such
agreement or agreements as are necessary to preserve the rights and obligations
of the Stockholders hereunder as in effect immediately prior to the consummation
of such initial Public Offering. Notwithstanding anything to the
contrary contained herein, in the case of a Public Offering that is required
pursuant to Section
10.2(a), none of the Directors shall have any duty to the Stockholders to
independently evaluate or approve any such action but merely to act in any
necessary or desirable fashion to accommodate the implementation of such
offering as determined by those persons requiring registration.
(c) Subject
to Section
10.2(a), in the event that, subject to the provisions of Section 10.2(b), the
Board of Directors , the Majority Holders (including at least two
Common Holders) or the Fully-Diluted Majority Holders, as applicable, so
determine, each Stockholder (other than the Class F-2 Preferred Holder and the
Class E Preferred Holder) who pursuant to the terms of the Charter or
these Bylaws has any right to vote upon or consent to such
transaction shall be deemed to have consented to and, if required under the
Charter, these Bylaws or Law, shall vote in favor of a recapitalization,
reorganization, conversion, contribution and/or exchange of such Stockholder’s
capital stock into securities that the Board of Directors,
the Majority Holders (including at least two Common Holders) or the
Fully-Diluted Majority Holders, as applicable, find acceptable and shall take
all necessary or desirable actions required or deemed advisable by the Board of
Directors, the Majority Holders (including at least two Common
Holders) or the Fully-Diluted Majority Holders, as applicable, in connection
with the consummation of such recapitalization, reorganization, conversion,
contribution and/or exchange; provided that, if in
any such recapitalization, reorganization, conversion, contribution and/or
exchange, the Issuer provides for each holder of capital stock to receive cash,
securities of the Issuer or other consideration in exchange for or in
satisfaction of such holder’s capital stock, then (i) all holders of the same
class or type of capital stock in the Company shall receive the same form and
proportionate share of consideration as all other holders of such class or type
of interests, and (ii) any consideration payable or otherwise deliverable to the
Stockholders in such recapitalization, reorganization, conversion, contribution
and/or exchange shall be valued by the Board of Directors, the Majority Holders
(including at least two Common Holders) or the Fully-Diluted Majority Holders,
as applicable, in its or their, as applicable, reasonable discretion (which
determination shall be binding, as a matter of contract, on each Stockholder
pursuant to these Bylaws) and shall be distributed among the Stockholders
according to the respective class of capital stock of the Stockholders in the
Company as in effect immediately prior to the consummation of such
recapitalization, reorganization, conversion, contribution and/or exchange as if
such consideration were received by the Company and an amount equal to the value
thereof were distributed to the Stockholders in accordance with the terms of
Section
5.1.
36
Section
10.3 Preemptive
Rights.
(a) The
Company shall not issue, sell or exchange, agree to issue, sell or exchange, or
reserve or set aside for issuance, sale or exchange, any Preemptive Securities
(as defined below) of the Company to any Person unless, in each case, the
Company shall have first offered to sell to each Common Holder and the holders
of any Class F-2 Preferred Stock (each a “Preemptive Holder”)
such Preemptive Holder’s Preemptive Share of the Preemptive Securities, at a
price and on such other terms as shall have been specified by the Company in
writing delivered to each such Preemptive Holder (the “Preemptive Offer”),
which Preemptive Offer shall by its terms remain open and irrevocable for a
period of at least ten calendar days from the date it is delivered by the
Company (the “Preemptive Offer
Period”). Each Preemptive Holder may elect to purchase all or
any portion of such Preemptive Holder’s Preemptive Share of the Preemptive
Securities as specified in the Preemptive Offer at the price and upon the terms
specified therein by delivering written notice of such election to the Company
as soon as practical but in any event within the Preemptive Offer Period;
provided that if the Company is issuing Preemptive Securities together as a unit
with any other Securities, then any Preemptive Holder who elects to purchase the
Preemptive Securities pursuant to this Section 10.3 must
purchase the same proportionate mix of all of such
securities. Notwithstanding anything to the contrary set forth in the
Charter or these Bylaws, a Preemptive Holder may assign all or any portion of
its right to acquire Preemptive Securities to its direct or indirect
equityholders, and upon any such assignment, each such equityholder shall be
deemed a Preemptive Holder for the purposes of this Section
10.3.
“Preemptive
Securities” means, as applicable, (i) Common Stock or other common equity
securities of the Company or
other securities of the Company that vote together with the Common Stock,
(ii) any securities directly or indirectly convertible into or exchangeable for
Common Stock or other common equity securities of the Company or other securities of the Company that
vote together with the Common Stock, (iii) any rights or options directly
or indirectly to subscribe for or to purchase Common Stock or other common
equity securities of the Company or other securities of the Company that
vote together with the Common Stock or to subscribe for or to purchase
any securities directly or indirectly convertible into or exchangeable for
Common Stock or other common equity securities of the Company, or (iv) any
share appreciation rights, phantom share rights, or other similar rights
to the
extent related to Common Stock or other securities of the Company that vote
together with the Common
Stock, or (v) any Preemptive Securities issued or issuable with respect
to the securities referred to in clauses (i) through (iv) above in connection
with a combination of shares, recapitalization, merger, consolidation,
conversion, or other reorganization.
(b) Each
Preemptive Holder’s “Preemptive Share” of
Preemptive Securities shall be determined as follows: the total
number of Preemptive Securities, multiplied by a fraction, (i) the numerator of
which is the number of shares of Common Stock then held, directly or indirectly,
by such Preemptive Holder on a Fully-Diluted Basis, and (ii) the denominator of
which is the number of shares of Common Stock then held by all Preemptive
Holders (including such Preemptive Holder) on a Fully-Diluted
Basis.
37
(c) Upon
the expiration of the Preemptive Offer Period, the Company shall be entitled to
sell such Preemptive Securities which the Preemptive Holders have not elected to
purchase for a period ending on the later to occur of (i) one hundred twenty
calendar days following the expiration of the Preemptive Offer Period, or (ii)
if a definitive agreement to Transfer the Preemptive Securities is entered into
by the Company within such one hundred twenty calendar day period, the date on
which all applicable approvals and consents of Governmental Entities and other
Persons with respect to such proposed Transfer have been obtained and any
applicable waiting periods under Law have expired or been terminated, in each
case on terms and conditions not materially more favorable to the purchasers
thereof than those offered to the Preemptive Holders. Any Preemptive
Securities to be sold by the Company following the expiration of such period
must be reoffered to the Preemptive Holders pursuant to the terms of this Section 10.3if any
such agreement to Transfer is terminated.
(d) The
provisions of this Section 10.3 shall
not apply to the following issuances of Preemptive Securities:
(i) Preemptive
Securities issued to or for the benefit of employees, officers, directors and
other service providers of or to the Company or any of its Subsidiaries in
accordance with the terms hereof or any applicable incentive plan of the
Company;
(ii) securities
issued by the Company in connection with a Public Offering;
(iii) securities
issued as consideration in acquisitions or commercial borrowings or
leasing;
(iv) securities
issued upon conversion of convertible or exchangeable securities of the Company
or any of its Subsidiaries that were outstanding on June 30, 2009 or were not
issued in violation of this Section 10.3;
and,
(v) a
subdivision of shares of capital stock (including any stock dividend or stock
split), any combination of shares of capital stock (including any reverse stock
split) or any recapitalization, reorganization, reclassification or conversion
of the Company or any of its Subsidiaries.
(e) The
preemptive rights granted in this Section 10.3 shall
terminate upon the earlier to occur of the consummation of a Qualified Public
Offering and a Company Sale.
(f) Notwithstanding
the procedural requirements of Sections 10.3(a) and
(c) above, with respect to
any issuance of Preemptive Securities to UST in connection with the Supervisory
Capital Assessment Program, in the event that the Company determines that
it is necessary or advisable, the Company may complete a transaction covered by
Section 10.3(a)
above prior to making a Preemptive Offer to Preemptive Holders, provided that
the Company (x) shall make the Preemptive Offer to Preemptive Holders promptly
following completion of such transaction and (y) Preemptive Holders shall have
no less than 10 calendar days to consider any such Preemptive
Offer.
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Section 10.4 Registration
Rights of Certain Common Holders. The Common
Holders shall have those registration rights attached hereto as Exhibit
F. Exercise of such registration nights shall be subject to
the priority allocation to the UST provided for in Section
10.2(a). Such exhibit is hereby incorporated into and made
part of these Bylaws as if it were set forth fully herein.
ARTICLE
XI
CONFIDENTIALITY
Section 11.1 Non-Disclosure. Each Stockholder
agrees that it will use, and will cause each of its Affiliates, and each of its
and their respective partners, members, managers, stockholders, directors,
officers, employees and agents (collectively, “Agents”) to use, its
commercially reasonable efforts to maintain the confidentiality of all
Confidential Information disclosed to it by the Company by limiting internal
disclosure of any such information to those Persons who have an actual need to
know such information in connection with the business of the Company or such
Stockholder’s investment in the Company and will not, without the prior written
consent of the Company, use such information other than in connection with the
business of the Company or such Stockholder’s investment in the
Company.
Section 11.2 Exceptions. Notwithstanding
Section 11.1, a
Stockholder, its Affiliates and their Agents may disclose any Confidential
Information: (a) to any Governmental Entity in connection with
applications for approval of the transactions contemplated hereby and the other
Transaction Documents (or, in the case of any regulated Affiliate of a
Stockholder, in connection with audits by the applicable Governmental Entities),
(b) to financial institutions in connection with financings of the transactions
contemplated hereby, (c) in the case of any Stockholder, (i) to a bona fide potential
Transferee if such Stockholder desires to undertake any Transfer of its capital
stock permitted by these Bylaws, (ii) to its stockholders, limited
partners, members, trust beneficiaries or other equityholders, as the case may
be, all materials made available to such Stockholder pursuant to the terms of
these Bylaws and (iii) to its indirect stockholders, limited partners, members,
trust beneficiaries or other equityholders, as the case may be, so long as the
Confidential Information disclosed to such Persons is limited to the materials
delivered to such party pursuant to Section 4.4(a), provided that (A) in
the case of subclauses (i), (ii) and (iii) of this clause (c), prior to the
disclosure of any Confidential Information, such Person shall execute an
agreement containing substantially the terms set forth in Section 11.1 and this
Section 11.2,
and (B) in the case of clauses (ii) and (iii) above, the disclosure of
Confidential Information relating to commercial transactions or commercial
relationships of the Company and its Subsidiaries shall be strictly limited to
such Persons who have an actual need to know such information in connection with
the administration of their equity interest in such Stockholder, (d) to any
rating or similar agency in connection with its analysis or review of the
Company or any of its Subsidiaries, (e) in the case of the GM Trust, between
such trust and its trustee and Agents, and (f) to any other Person if such party
becomes compelled by Law (including by deposition, interrogatory, request for
documents, subpoena, civil investigative demand, mandatory provision of Law,
regulation or stock exchange rule) to disclose any of the Confidential
Information. In addition, each Stockholder may report to its
stockholders, limited partners, members, trust beneficiaries or other
equityholders, as the case may be, the general status of such Stockholder’s
investment in the Company (without disclosing specific Confidential
Information). A disclosing Stockholder shall be responsible for a
breach by any third Person to whom such disclosing Stockholder discloses
Confidential Information in accordance with the terms of subclauses (c)(ii) and
(c)(iii) of this Section
11.2. In the case of clause (f) above, the disclosing party
shall (i) provide the other parties hereto with prompt written notice of such
requirement so that such non-disclosing parties may seek a protective order or
other appropriate remedy or waive compliance with the terms of this Article XI
and (ii) take such reasonable legally available steps as the non-disclosing
parties may reasonably request to resist or narrow such requirement (at the
expense of the non-disclosing parties). In the event that such
protective order or remedy is not obtained, or that the non-disclosing parties
waive compliance with the terms hereof, the disclosing party agrees to furnish
only that portion of the Confidential Information that it is advised by counsel
is required to be furnished, and to exercise its commercially reasonable efforts
to obtain assurance that confidential treatment shall be accorded such
Confidential Information.
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ARTICLE
XII
MISCELLANEOUS
PROVISIONS
Section 12.1 Amendments. Except as
otherwise expressly provided herein, including in Section 3.2, these
Bylaws may only be amended, modified or waived by the Board of Directors with
the prior written approval of the Majority Holders; provided, however,
that:
(i) any
provision of these Bylaws that provides for an approval right of the Majority
Holders (including Section 6.10) or any
other specific class of holders of capital stock may only be amended,
modified or waived with the prior written approval of the Majority Holders or
such other specific class of holders;
(ii) if
any such amendment, modification or waiver would adversely affect in any
material respect any Stockholder or group of Stockholders who have comparable
rights under the Charter or these Bylaws disproportionately to the other
Stockholders having such comparable rights (it being understood no amendment
entered into in connection with the compliance by the Company with
its commitments to the UST for purposes of the Company’s participation in the
Troubled Asset Relief Program (including those set forth in the Governance
Agreement) shall be deemed to adversely affect in any material respect any
Stockholder or Stockholders, including the Class F-2 Preferred Holders), such
amendment, modification, or waiver shall also require the written consent of the
Stockholder(s) so adversely affected;
(iii) any
amendment that would require any Stockholder to contribute or loan additional
funds to the Company or impose personal liability upon any Stockholder shall not
be effective against such Stockholder without its prior written
consent;
(iv) no
alteration, repeal or amendment, whether by merger, consolidation, combination,
reclassification or otherwise, of Exhibit F shall be permitted
without the consent of Eligible Holders (as defined in Exhibit F) holding a
majority of the then outstanding Registrable Securities (as defined in Exhibit F) then held
by the Eligible Holders; provided, that, no
such alternation, repeal or amendment shall be effective against an Eligible
Holder without such Eligible Holder’s consent if such alternation, repeal or
amendment reduces or limits (other than in an immaterial respect) the rights of
such Eligible Holder or otherwise disadvantages (other than in an immaterial
respect) such Eligible Holder;
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(v) for
so long as the GM Trust holds at least 2.5% of the then-outstanding Common
Stock, the written consent of the GM Trust shall be required for any amendment,
modification or waiver of Section 4.4(e) in a
manner adverse to the GM Trust;
(vi) no
alteration, repeal or amendment, whether by merger, consolidation, combination,
reclassification or otherwise, of the definition of “Blocker Sub” contained in
these Bylaws shall be permitted if such action would amend, alter or otherwise
affect the rights of any Stockholder in any manner materially adverse to such
Stockholder without the prior written approval of each such affected
Stockholder; and
(vii) no
alteration, repeal or amendment, whether by merger, consolidation, combination,
reclassification or otherwise, of the preceding provisos (i) through this
proviso (v) shall be made without the prior written approval of the threshold of
Stockholders specified in such proviso or those specific Stockholders relevant
to each such proviso. Amendment of this provision (v) shall require
the approval of all Stockholders.
Section 12.2 Remedies. Each Stockholder
shall have all rights and remedies set forth in the Charter and these Bylaws and
all rights and remedies that such Person has been granted at any time under any
other agreement or contract and all of the rights that such Person has under any
Law. Any Person having any rights under any provision of the Charter
and these Bylaws or any other agreements contemplated hereby shall be entitled
to enforce such rights specifically (without posting a bond or other security)
to recover damages by reason of any breach of any provision of the Charter or
these Bylaws and to exercise all other rights granted by Law. Each
Stockholder, on behalf of itself, its Affiliates, successors and assigns, if
any, hereby specifically renounces, waives and forfeits all rights to seek,
bring or maintain any action in any court of law or equity against the Treasury
arising in connection with these Bylaws or the transactions contemplated
hereunder, except in its commercial capacity as a stockholder of the Company and
participant in the transactions contemplated hereunder.
Section 12.3 Notice
Addresses and Notices. All notices, demands, financial
reports, other reports and other communications to be given or delivered under
or by reason of the provisions of these Bylaws shall be in writing and shall be
deemed to have been given or made when (a) delivered personally to the
recipient, (b) sent by facsimile to the recipient (with hard copy sent to
the recipient by reputable overnight courier service (charges prepaid) that same
day) if sent by facsimile before 5:00 p.m. New York time on a Business Day, and
otherwise on the next Business Day, or (c) one Business Day after being
sent to the recipient by reputable overnight courier service (charges
prepaid). Such notices, demands and other communications shall be
sent to the notice address for such recipient set forth on the Stock Register,
or in the Company’s books and records, or to such other notice address or to the
attention of such other person as the recipient party has specified by prior
written notice to the sending party. Any notice to the Board of
Directors or the Company shall be deemed given if received by the Board of
Directors at the principal office of the Company designated pursuant to Section
2.2(b).
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Section 12.4 Reserved.
Section 12.5 Survival. The provisions of
Article XI and
Section 12.5
shall survive and continue in full force in accordance with its terms,
notwithstanding any dissolution of the Company.
Section 12.6 Creditors. Except to the
extent that a creditor of a Stockholder, the Company or any of its Affiliates
becomes a Stockholder hereunder, none of the provisions of these Bylaws shall be
for the benefit of or enforceable by any creditors of the Stockholders, the
Company or any of its Affiliates (other than Indemnified Persons), and no
creditor who makes a loan to any Stockholder, the Company or any of its
Affiliates may have or acquire (except pursuant to the terms of a separate
agreement executed by the Company in favor of such creditor) at any time as a
result of making the loan any direct or indirect interest in Company profits,
losses, dividends, capital or property other than as a secured
creditor.
Section 12.7 Indemnification
and Reimbursement for Payments on Behalf of a Stockholder. If the Company is
required by Law to make any payment to a Governmental Entity that is
specifically attributable to a Stockholder, then such Stockholder other than
Blocker Sub shall indemnify the Company in full for the entire amount paid
(including interest, penalties and related expenses). A Stockholders obligation
to indemnify the Company under this Section 12.7 shall
survive the termination, dissolution, liquidation and winding up of the Company,
and for purposes of this Section 12.7, the
Company shall be treated as continuing in existence. The Company may
pursue and enforce all rights and remedies it may have against each Stockholder
under this Section
12.7, including instituting a lawsuit to collect such indemnification,
with interest calculated at a floating rate equal to the prime rate as published
from time to time in The Wall
Street Journal, plus one percentage point (1%) per annum (but not in excess
of the highest rate per
annum permitted by Law), compounded annually.
Section 12.8 Strict
Construction. The Company and
the Stockholders as of the date hereof have participated collectively in the
negotiation and drafting these Bylaws; accordingly, if any ambiguity or question
of intent or interpretation arises, then it is the intent of the Company and the
Stockholders as of the date hereof that these Bylaws shall be construed as if
drafted collectively by such parties, and it is the intent of such parties that
no presumption or burden of proof shall arise favoring or disfavoring any of
such parties by virtue of the authorship of any provisions of these
Bylaws.
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