UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of
1934
(Amendment No. ___)*
ALLY FINANCIAL
INC.
(Name of Issuer)
Common Stock,
Par Value $0.01 Per Share
(Title of Class of Securities)
02005N100
(CUSIP Number)
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with a copy to
:
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Mr. Stephen Feinberg
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Robert G. Minion, Esq.
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c/o Cerberus Capital Management, L.P.
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Lowenstein Sandler LLP
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875 Third Avenue, 11th Floor
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1251 Avenue of the Americas, 17th Floor
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New York, NY 10022
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New York, NY 10020
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(212) 891-2100
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(646) 414-6930
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(Name, Address and Telephone Number
of Person
Authorized to Receive Notices and Communications)
April 9,
2014
(Date of Event which Requires Filing of this
Statement)
If the filing person has previously filed
a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because
of
§§
240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.
o
Note
: Schedules filed in paper format
shall include a signed original and five copies of the schedule, including all exhibits. See
§
240.13d-7 for other parties to whom copies are to be sent.
*The remainder of this cover page shall be
filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for
any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of
this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934
(“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions
of the Act (however, see the Notes).
1.
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Names
of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only):
Stephen
Feinberg
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2.
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Check the Appropriate Box if a Member of a Group (See Instructions)
:
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(a)
(b)
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Not
Applicable
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3.
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SEC
Use Only
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4.
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Source
of Funds
(See Instructions)
:
WC
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5.
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Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e):
Not
Applicable
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6.
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Citizenship
or Place of Organization:
United States
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person
With
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7.
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Sole Voting Power:
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41,516,297*
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8.
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Shared
Voting Power
:
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41,516,297*
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9.
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Sole Dispositive Power:
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41,516,297*
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10
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Shared Dispositive Power:
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41,516,297*
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11.
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Aggregate Amount Beneficially Owned by Each Reporting Person:
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41,516,297*
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12.
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): [ ]
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13.
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Percent of Class Represented by Amount in
Row (11):
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8.6%*
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14.
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Type of Reporting Person (See Instructions): IA, IN
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* Based upon information set forth in the
Prospectus of Ally Financial Inc., a Delaware corporation (the “
Company
”), filed with the Securities and Exchange
Commission on April 11, 2014, there were 481,500,794 shares of common stock, par value $0.01 per share (the “
Common Stock
”)
of the Company issued and outstanding as of February 28, 2014. As of the filing date of this Schedule 13D, funds and accounts
affiliated with Cerberus Capital Management, L.P. (the “
Cerberus Funds
”) own 41,516,297 shares of the Common
Stock. Stephen Feinberg, through one or more intermediate entities, possesses the sole power to vote and the sole power to direct
the disposition of all securities of the Company beneficially owned by the Cerberus Funds. As a result, as of the filing date
of this Schedule 13D, Stephen Feinberg may be deemed to beneficially own 41,516,297 shares of the Common Stock, or 8.6% of the
shares of the Common Stock issued and outstanding.
Item 1.
Security and Issuer
.
The class of equity securities
to which this Schedule 13D relates is the common stock, par value $0.01 per share (the “
Common Stock
”), of Ally
Financial Inc., a Delaware corporation (the “
Company
”). The principal executive offices of the Company are located
at 200 Renaissance Center, P.O. Box 200, Detroit, Michigan 48265-2000.
Item 2.
Identity and Background
.
The person filing this statement
is Stephen Feinberg, whose business address is 875 Third Avenue, 11th Floor, New York, New York, 10022. Mr. Feinberg is the president,
sole director and sole shareholder of Craig Court, Inc., the managing member of Craig Court GP, LLC, which is the general partner
of Cerberus Capital Management, L.P. (“
CCM
”). CCM, through one or more funds and/or accounts managed by it and/or
its affiliates (collectively, “
Cerberus
”), is engaged in the investment in property of all kinds, including
but not limited to capital stock, depository receipts, subscriptions, warrants, bonds, notes, debentures, options and other securities
and instruments of varying kind and nature.
Mr. Feinberg has never been
convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors), nor has he been a party to any civil
proceeding commenced before a judicial or administrative body of competent jurisdiction as a result of which he was or is now subject
to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws. Mr. Feinberg is a citizen of the United States of
America.
Item 3.
Source and Amount of Funds
or Other Consideration
.
The 41,516,297 shares of the Common
Stock reported in this Schedule 13D were purchased with cash from the assets of funds and accounts affiliated with Cerberus Capital
Management, L.P. (the “
Cerberus Funds
”) for an aggregate amount of $2,050,867,811.07.
Item 4.
Purpose of Transaction
.
The ownership of the securities
set forth in this Schedule 13D is for investment purposes only. At present, neither Mr. Feinberg nor Cerberus has any plans or
proposals which relate to or would result in any of the items for which disclosure is required pursuant to Item 4 of Schedule 13D.
Item 5.
Interest in Securities of the
Issuer
.
Based upon information set
forth in the Prospectus of the Company, filed with the Securities and Exchange Commission on April 11, 2014, there were 481,500,794
shares of the Common Stock of the Company issued and outstanding as of February 28, 2014. As of the filing date of this Schedule
13D, the Cerberus Funds own 41,516,297 shares of the Common Stock. Mr. Feinberg, through one or more intermediate entities, possesses
the sole power to vote and the sole power to direct the disposition of all securities of the Company beneficially owned by the
Cerberus Funds. As a result, as of the filing date of this Schedule 13D, Mr. Feinberg may be deemed to beneficially own 41,516,297
shares of the Common Stock, or 8.6% of the shares of the Common Stock issued and outstanding.
During the period commencing
sixty (60) days prior to April 9, 2014, the date of the event which required the filing of this Schedule 13D, and ending on the
filing date of this Schedule 13D, there were no transactions effected in the shares of the Common Stock, or securities convertible
into, exercisable for or exchangeable for the shares of the Common Stock, by Mr. Feinberg or any person or entity controlled by
him, or any person or entity for which he possesses voting or investment control over the securities thereof.
Item 6.
Contracts,
Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
.
On March 25, 2014, the Company,
FIM Holdings LLC (“
FIM
”), and the United States Department of the Treasury (the “
Treasury
”)
entered into a Stockholders Agreement (the “
Stockholders Agreement
”), which became effective upon the consummation
of the Company’s initial public offering. FIM is one of the Cerberus Funds that holds shares of the Common Stock reported
in this Schedule 13D. The Stockholders Agreement provides, among other things, that for so long as FIM and its affiliates hold
at least five percent (5%) of the shares of the Common Stock, FIM will have the right to designate one nominee to the Company’s
Board of Directors;
provided
, that FIM’s right to designate a nominee will be deemed fulfilled if Mr. Feinberg remains
a member of the Company’s Board of Directors and, with his written consent, is renominated by the Company as a nominee at
each subsequent election of directors. In addition, pursuant to the Stockholders Agreement, for so long as FIM and its affiliates
hold any of the Common Stock, they will be entitled to appoint one non-voting observer to the Company’s Board of Directors.
The Stockholders Agreement will terminate upon the earliest of (i) the date on which the Treasury ceases to hold at least 9.9%
of the Common Stock, (ii) with respect to FIM, the date on which FIM and its affiliates cease to own any of the Common Stock, and
(iii) the agreement of the Company, FIM and the Treasury.
In connection with the Company’s
initial public offering, Mr. Feinberg entered into a Lock-Up Agreement (the “
Feinberg Agreement
”). Under the
terms of the Feinberg Agreement, Mr. Feinberg has agreed, subject to limited exceptions, not to enter into certain transactions
related to the Common Stock for a period of 180 days after the date of the final prospectus filed in connection with the initial
public offering, without the prior written consent of Citigroup Global Markets Inc., the lead underwriter.
In addition, FIM and certain
of its affiliates have also entered into a Lock-Up Agreement (the “
FIM Agreement
” and, together with the Feinberg
Agreement, the “
Lock-Up Agreements
”). Under the terms of the FIM Agreement, FIM has agreed, with respect to
forty percent (40%) of the shares of the Common Stock beneficially owned, directly or indirectly, by FIM or its affiliates (the
“
FIM Lock-Up Shares
”), not to enter into certain transactions related to the FIM Lock-Up Shares for a period
of 120 days after the date of the final prospectus filed in connection with the initial public offering, without the prior written
consent of Citigroup Global Markets Inc. The terms of the FIM Agreement are subject to certain limited exceptions, including, for
example, that sixty (60) days after the Treasury no longer holding any shares of the Common Stock, FIM and its affiliates may engage
in certain limited transactions with respect to the FIM Lock-Up Shares.
The descriptions of the
Stockholders Agreement and the Lock-Up Agreements set forth herein are qualified in their entirety by reference to the complete
Stockholders Agreement, which is incorporated by reference herein as Exhibit 7.1 hereto, and the complete Lock-Up Agreements,
which are filed as Exhibits 7.2 and 7.3 hereto, respectively.
Except as otherwise set forth in this Schedule
13D, there are no contracts, arrangements, understandings or similar relationships existing with respect to the securities of
the Company between Mr. Feinberg or Cerberus and any other person or entity.
Item 7.
Material to be Filed as Exhibits
.
7.1 Form of Stockholders
Agreement, among Ally Financial Inc., FIM Holdings LLC and United States Department of the Treasury (incorporated by reference
from Exhibit 3.4 to the Current Report on Form 8-K filed by Ally Financial Inc. on March 14, 2014).
7.2 Lock-Up
Agreement entered into by Stephen Feinberg.
7.3 Lock-Up
Agreement entered into by FIM Holdings LLC and certain affiliates of FIM Holdings LLC.
Signature
After reasonable inquiry
and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
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April 18, 2014
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/s/ Stephen Feinberg
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Stephen Feinberg, on behalf of Craig Court, Inc., the managing member of Craig Court GP, LLC, the general partner of Cerberus Capital Management, L.P.
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Attention: Intentional misstatements or omissions
of fact constitute Federal criminal violations (See 18 U.S.C. 1001).
Exhibit 7.2
Ally Financial Inc.
Public Offering of Common Stock
_______, 2014
Barclays Capital Inc.
Citigroup Global Markets Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. LLC
As Representatives of the several Underwriters,
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
c/o Citigroup Global Markets
Inc.
388 Greenwich Street
New York, New York 10013
c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282
c/o Morgan Stanley & Co.
LLC
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
This letter is being
delivered to Barclays Capital Inc., Citigroup Global Markets Inc., Goldman, Sachs & Co. and Morgan Stanley & Co. LLC in
connection with the proposed underwriting agreement (the "Underwriting Agreement"), between Ally Financial Inc., a Delaware
corporation (the "Company"), and each of you as representatives (the "Representatives") of a group of Underwriters
named therein, relating to underwritten public offering of Common Stock, $0.01 par value (the "Common Stock") of the
Company. The Common Stock sold in the offering is being sold by the United States Department of the Treasury ("Treasury").
In order to induce
you and the other Underwriters to enter into the Underwriting
Agreement, the undersigned
agrees that, without the prior written consent of the Representatives,
the undersigned will not (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, or file (or participate in the filing of) with
the Securities and Exchange Commission (the "Commission") a registration statement under the Securities Act of 1933,
as amended (the "Act"), relating to, any shares of Common Stock or any
securities
convertible into or exercisable or exchangeable for Common Stock, or (ii) enter into
any swap or other agreement that transfers,
in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into or exercisable
or exchange
able for Common Stock, whether any such transaction described in clause (i) or (ii)
above is to
be settled by delivery of Common Stock or such other securities, in cash or otherwise, in each
case,
for a period of 180 days after the date of the Underwriting Agreement, other than (A)
shares
of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock disposed of as bona fide gift
or gifts, (B) if the undersigned is a natural person,
transfers of shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock to any beneficiary of the undersigned pursuant to a will or other
testamentary
document or applicable laws of descent, (C) if the undersigned is a natural person,
transfers of shares of Common Stock
or any securities convertible into or exercisable or exchangeable for Common Stock to any trust, partnership or limited liability
company for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, (D) distributions of
shares of Common Stock to members, limited partners or stockholders of the undersigned, and (E) transfers of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock to a corporation, partnership, limited liability company
or other business entity that is a controlled or managed affiliate of the undersigned; provided that (1) in the case of any transfer
or distribution pursuant to the foregoing clauses (A) through (E), each such transferee shall execute and deliver to the Representatives
a lock-up letter in the form of this paragraph for the remainder of the 180-day lock-up period, (2) in the case of any transfer
or distribution pursuant to the foregoing clauses (A) and (C) through (E), such transfers are not required to be reported in any
public report or filing with the Commission (other than a filing on Form 5), and (3) in the case of any transfer or distribution
pursuant to the foregoing clauses (A) through (E), the undersigned does not otherwise voluntarily effect any public filing or report
regarding such transfers. In addition, the undersigned will be permitted to transfer shares to, or have shares withheld by, the
Company to satisfy tax withholding obligations arising upon the vesting of equity awards outstanding on the date hereof or granted
hereafter in accordance with the terms of the Company's compensation arrangements described in the Prospectus, provided that such
retention or withholding transaction is eligible to be coded "F" or "D" in column 4 of Form 4, and to file
Form 4's indicating the cash settlement of Deferred Stock Units. As used herein, the term "immediate family" shall mean
any relationship by blood, marriage or adoption, not more remote than first cousin.
In addition, the
restrictions set forth herein shall not prevent the undersigned from entering into a sales plan pursuant to Rule 10b5-1 under the
Exchange Act on or after the date hereof; provided that such plan does not provide for the transfer of Common Stock during the
180-day lock-up period discussed above.
If the undersigned
is an officer or director of the Company, (i) the Representatives
agree that, at least three
business days before the effective date of any release or waiver of the
foregoing restrictions in connection with a transfer
of shares of Common Stock, the Representatives will notify the Company of the impending release or waiver, and (ii) the Company
has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service
at least two business days before the effective date of the release or waiver. Any release or waiver granted by the Representatives
hereunder to any such of
ficer or director shall only be effective two business days after
the publication date of such press
release. The provisions of this paragraph will not apply if (a) the release or waiver
is effected
solely to permit a transfer not for consideration and (b) the transferee has
agreed in writing to be
bound by the same terms described in this Letter Agreement to the extent and for the duration that
such terms remain in effect at the time of the transfer.
If (i) the
Company issues an earnings release or material news, or a material event relating to the Company occurs, during the last 17 days
of the 180-day lock-up period, or (ii) pri
or to the expiration of the 180-day lock-up period,
the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the 180-day
lock-up period, the restrictions imposed by this Letter Agreement shall continue to apply until the expiration
of
the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event, unless
the Representatives waive, in writing, such extension. The undersigned hereby acknowledges that the Company has agreed in the Underwriting
Agreement to provide written notice of any event that would result in an extension of the 180- day lock-up period and agrees that
any such notice properly delivered will be deemed to have
been given to, and received by, the undersigned.
The undersigned
understands that the Company and the Underwriters are relying upon this Letter Agreement in proceeding toward consummation of the
public offerings of the Common Stock. The undersigned further understands that this Letter Agreement is irrevocable and shall be
binding upon the undersigned's heirs, legal representatives, successors and assigns.
Whether or
not the public offerings actually occurs depends on a number of factors, including market conditions. Any public offering will
only be made pursuant to the Underwriting
Agreement, the terms of which are subject to negotiation
between the Company,
Treasury and the Underwriters.
If for any
reason the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof
which survive termination) shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), this Letter
Agreement shall likewise be terminated.
This Letter
Agreement and any claim, controversy or dispute arising under or related to this Letter Agreement shall be governed by an constructed
in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.
[Signature Page Follows]
Yours very truly,
/s/: Stephen A. Feinberg
Name
: Stephen A. Feinberg
Title
: Ally Financial Inc. Director
Address
: c/o Ally Financial Inc.
200 Renaissance Center
MC 482-B09-C82
Detroit, Michigan 48265
Exhibit 7.3
Ally Financial Inc.
Public Offering of Common Stock
March 27, 2014
Citigroup Global Markets Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. LLC
Barclays Capital Inc.
As Representatives of the several Underwriters,
c/o Citigroup Global Markets
Inc.
388 Greenwich Street
New York, New York 10013
c/o Goldman, Sachs & Co.
200 West Street
New York, New York 10282
c/o Morgan Stanley & Co.
LLC
1585 Broadway
New York, New York 10036
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
This letter is
being delivered to Citigroup Global Markets Inc., Goldman, Sachs & Co. and Morgan Stanley & Co. LLC and Barclays Capital
Inc. in connection with the proposed
underwritten public offering of Common Stock, $0.01 par value (the "Common Stock")
of Ally Financial Inc., a Delaware corporation (the "Company") as set forth in the underwriting agreement (the "Underwriting
Agreement") between the Company, and each of you as representatives (the "Representatives") of a group of Underwriters
named therein. The Common Stock sold in the offering is being sold by the United States Department of the Treasury ("Treasury").
The
undersigned agrees that, with respect to a number shares of Common Stock
equal to 40% of shares of Common Stock (the "Lock
Up Shares"), directly or indirectly benefi
cially owned by the undersigned on the date
hereof (which for the avoidance of doubt, on the
date hereof, equal in the aggregate 16,606,518 shares of Common Stock),
the undersigned will
not, without the prior written consent of Citigroup Global Markets
Inc.: (i) offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by actual disposition or effective
economic disposition
due to cash settlement or otherwise) by the undersigned or any affiliate of
the undersigned
or any person in privity with the undersigned or any affiliate of the undersigned) directly or indirectly, including the filing
(or participation in the filing) with the Securities and
Exchange Commission (the "Commission") of a registration
statement with the Commission un
der the Securities Act of 1933, as amended (the "Act")
in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act, any Lock Up Shares or any securities convertible into, or exercisa
ble,
or exchangeable for; shares of Common Stock; or publicly announce an intention to effect
any such transaction, (ii) enter
into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of Lock Up
Shares or any securities con
vertible into or exercisable or exchangeable for Common Stock,
whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Lock Up Shares or such other
securities, in cash or otherwise, or (iii) make any demand for or exercise any right with respect to
the registration of
any Lock Up Shares or any security convertible into or exercisable or exchangeable for Common Stock, in each case, for a period
of 120 days after the date of the Un
derwriting Agreement;
provided
,
however
,
that the undersigned (A) 60 days after the date on which Treasury ceases to hold any Common Stock of the Company, may, sell, transfer
or dispose of Lock Up Shares or any securities convertible into or exercisable or exchangeable for Common Stock pursuant to dribble
out sales in market transactions, either pursuant to Rule 10b5-1 sales
plans or in at-the-market offerings, (B) may transfer
Lock Up Shares or any securities converti
ble into or exercisable or exchangeable for Common
Stock as a bona fide gift or gifts of Lock Up Shares, (C) may distribute Lock Up Shares to members, limited partners or stockholders
of the
undersigned, and (D) may transfer Lock Up Shares or any securities convertible into or exercisable or exchangeable
for Common Stock to a corporation, partnership, limited liability company
or other business
entity that is a controlled or managed affiliate of the undersigned or is under common control with the undersigned; provided
that in the case of any transfer or distribution pursuant to the foregoing clauses (B) through (D), each such transferee shall
execute and deliver
to the Representatives a lock-up letter in the form of this Letter Agreement for the remainder of
the
120-day lock-up period. For the avoidance of doubt this Letter Agreement shall not apply to any Common Stock (other than the Lock-Up
Shares) directly or indirectly beneficially owned by
the undersigned or its affiliates.
If
(i) the Company issues an earnings release or material news, or a material event
relating to the Company occurs, during
the last 17 days of the 120-day lock-up period, or (ii) pri
or to the expiration of the 120-day
lock-up period, the Company announces that it will release
earnings results during the 16-day period beginning on the last
day of the 120-day lock-up peri
od, the restrictions imposed by this Letter Agreement shall
continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence
of the material news or material event, unless Citigroup Global Markets Inc. waives, in writing, such
extension.
The
undersigned understands that the Company and the Underwriters are relying upon this Letter Agreement in proceeding toward consummation
of the public offerings of the
Common Stock. The undersigned further understands that this Letter Agreement is irrevocable
and shall be binding upon the undersigned's heirs, legal representatives, successors and assigns.
Whether or
not the public offerings actually occurs depends on a number of factors, including market conditions. Any public offering will
only be made pursuant to the Un
derwriting Agreement, the terms of which are subject to negotiation
between the Company, Treasury and the Underwriters.
If
for any reason the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), this
Letter
Agreement shall likewise be terminated.
This Letter
Agreement and any claim, controversy or dispute arising under or re
lated to this Letter Agreement
shall be governed by an constructed in accordance with the laws
of the State of New York, without regard to the conflict
of laws principles thereof.
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