exv10w4



 





EXHIBIT 10.4

EXECUTION COPY




EMPLOYMENT AGREEMENT




          EMPLOYMENT AGREEMENT (“Agreement”) dated as of November 30, 2006 by and between GMAC LLC (the
“Company”) and Sanjiv Khattri (the “Executive”) (each a “Party” and together, the “Parties”).




          WHEREAS, the Executive has been employed by General Motors Acceptance Corporation (“GMAC”) as
its Executive Vice President & Chief Financial Officer;




          WHEREAS, a Purchase and Sale Agreement, dated as of April 2, 2006, was entered into between
FIM Holdings LLC (“Holdings”), GMAC, General Motors Corporation, and the other parties thereto (the
“Purchase Agreement”);




          WHEREAS, prior to the Closing Date (as defined in the Purchase Agreement), GMAC shall be
converted into the Company;




          WHEREAS, the Parties desire the Executive to continue employment with the Company upon the
terms set forth herein.




          Accordingly, the Parties agree as follows:




          1. Employment and Acceptance. The Company shall employ the Executive, and the
Executive shall accept employment, subject to the terms of this Agreement, on the Closing Date (the
“Effective Date”).




          2. Term. Subject to earlier termination pursuant to Section 5 of this Agreement, this
Agreement and the employment relationship hereunder shall continue from the Effective Date until
December 31, 2011. As used in this Agreement, the “Term” shall refer to the period beginning on the
Effective Date and ending on the earlier of (i) December 31, 2011 or (ii) the date the Executive’s
employment terminates in accordance with Section 5 below. In the event that the Executive’s
employment with the Company terminates, the Company’s obligation to continue to pay, after the date
of termination, Base Salary (as defined below), Bonus (as defined below) and other unaccrued
benefits shall terminate except as may be provided for in Section 5 below.




          3. Duties and Title.




               3.1 Title. The Company shall employ the Executive to render exclusive and full-time
services to the Company and its subsidiaries. The Executive shall serve in the capacity of
Executive Vice President & Chief Financial Officer, and shall report directly to the Board of
Directors of the Company (the “Board”) and the Chief Executive Officer of the Company.



               3.2 Duties. The Executive will have such authority and responsibilities and will
perform such executive duties customarily performed by an Executive Vice President & Chief
Financial Officer, of a company in similar lines of business as the Company and its subsidiaries or
as may be reasonably assigned to the Executive by the Board.



 









 




The Executive will devote substantially all of his full working-time and attention (other than
due to physical or mental incapacity) to the performance of such duties and to the promotion of the
business and interests of the Company and its subsidiaries. Provided that the following activities
do not materially interfere with the Executive’s duties and responsibilities as Executive Vice
President & Chief Financial Officer (as determined by the Company), the Executive may (i) with the
prior written consent of the Board (which shall not be unreasonably withheld), serve on boards,
committees and commissions of charitable organizations, (ii) manage his personal investments, and
(iii) with the prior written consent of the Board (which shall not be unreasonably withheld), serve
on the boards of directors of other companies.




          4. Compensation and Benefits by the Company. As compensation for all services
rendered pursuant to this Agreement, the Company shall provide the Executive the following during
the Term:




               4.1 Base Salary. The Company will pay to the Executive an annualized base salary of
not less than $700,000, payable in accordance with the customary payroll practices of the Company
(“Base Salary”). The Base Salary shall be reviewed no less frequently than annually for purposes
of increase, such increase, if any, to be determined in the sole discretion of the Board or the
compensation committee of the Board (the “Compensation Committee”).



               4.2 Retention Bonus. The Company will pay to the Executive a retention bonus of
$500,000 (the “Retention Bonus”), payable in four (4) equal quarterly installments, the first of
which to occur three (3) months following the Effective Date, subject to the Executive’s continued
employment with the Company on the date of each installment, except as set forth in Section 5.2.



               4.3 Bonuses. The Executive shall be eligible to receive an annual bonus (“Bonus”)
under a plan established by the Company based upon achievement of performance targets and key
measures determined by the Board or the Compensation Committee. The Executive’s target bonus shall
be $900,000 (the “Target Bonus”), with the actual amount of each Bonus being determined by the
Board or the Compensation Committee in accordance with the applicable plan and formula.



               4.4 Long-Term Incentive Compensation.



                    (a) Subject to the terms of the Company’s Long-Term Phantom Interest Plan (the “Phantom
Interest Plan”) and an award agreement, the Executive shall be granted on, or as soon as
practicable following, the Effective Date an award with an Award Percentage (as defined in the
Phantom Interest Plan) equal to 0.05% payable, subject to the Executive’s continued employment with
the Company (except as set forth in Section 5.2 hereof), as soon as practicable following the third
anniversary of the date of grant (the “Payment Date”). In addition, subject to his continued
employment with the Company (except as set forth in Section 5.2 hereof), on the third anniversary
of the date of grant, or as soon as practicable thereafter, the Executive shall be granted an
additional award with an Award Percentage equal to 0.05% payable, subject to the Executive’s
continued employment with the Company, as soon as practicable following the third anniversary of
the date of the grant of such award.



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                    (b) Subject to the terms and conditions set forth on Exhibit A attached hereto, the
Amended and Restated Limited Liability Company Operating Agreement of the Company, and the GMAC
Management LLC Class C Membership Interest Plan and award agreement, the Executive shall be granted
on, or as soon as practicable following, the Effective Date, directly or indirectly, 0.20% of the
Class C Membership Interests of the Company.



               4.5 Participation in Employee Benefit Plans. The Executive shall be entitled, if and
to the extent eligible, to participate in all of the applicable benefit plans and perquisite
programs of the Company, which may be available to other senior executives of the Company, on the
same terms as such other executives. The Executive shall be entitled to the same perquisites the
Executive was entitled to receive immediately prior to the Effective Date; provided
that such perquisites may be modified or terminated to the same extent modified or
terminated for other senior executives of the Company. The Company may at any time or from time to
time amend, modify, suspend or terminate any employee benefit plan, program or arrangement for any
reason without the Executive’s consent if such amendment, modification, suspension or termination
is consistent with the amendment, modification, suspension or termination for other executives of
the Company.



               4.6 Vacation. The Executive shall be entitled to four (4) weeks of paid vacation.
The Executive shall not be entitled to payment for unused vacation days upon the termination of his
employment except as set forth in Section 5 below. The carry-over and accrual of vacation days
shall be in accordance with Company policy.



               4.7 Expense Reimbursement. The Executive shall be entitled to receive reimbursement
for all appropriate business expenses incurred by him in connection with his duties under this
Agreement in accordance with the policies of the Company as in effect from time to time.



          5. Termination of Employment.




               5.1 By the Company for Cause or by the Executive Without Good Reason or Due to Death or
Disability. If: (i) the Executive’s employment terminates due to his death; (ii) the Company
terminates the Executive’s employment with the Company for Cause (as defined below); (iii) the
Company terminates the Executive’s employment with the Company due to the Executive’s Disability
(as defined below); or (iv) the Executive terminates his employment without Good Reason (as defined
below) the Executive or the Executive’s legal representatives (as appropriate), shall be entitled
to receive the following:



                    (a) the Executive’s accrued but unpaid Base Salary to the date of termination and any employee
benefits that the Executive is entitled to receive pursuant to the employee benefit plans of the
Company and its subsidiaries (other than any severance plans) in accordance with the terms of such
employee benefit plans;



                    (b) the unpaid portion of the Bonus, if any, relating to any calendar year prior to the
calendar year of the Executive’s death, termination due to Disability, termination by the Company
for Cause or by the Executive without Good Reason, payable in accordance with Section 4.3 above;



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                    (c) payment for accrued unused vacation days, payable in accordance with Company policy; and



                    (d) expenses reimbursable under Section 4.6 above incurred but not yet reimbursed to the
Executive to the date of termination.



               For the purposes of this Agreement, “Disability” means a determination by a licensed physician
in accordance with applicable law that as a result of a physical or mental injury or illness, the
Executive is unable to perform the essential functions of his job with or without reasonable
accommodation for a period of (i) one hundred twenty (120) consecutive days or (ii) one hundred
eighty (180) days in any one (1) year period (the “Disability Date”). Either the Executive or the
Company may request that a licensed physician be selected. The licensed physician shall be
mutually and reasonably selected by the Company and the Executive (or his legal representative);
provided, that if a licensed physician is not mutually selected within ten (10) business days
following a request for a licensed physician, the Company shall select a licensed physician in good
faith.



               For the purposes of this Agreement, “Cause” means, as determined by the Board, (i) indictment
of the Executive for a felony; (ii) conduct by the Executive in connection with his employment
duties or responsibilities that is fraudulent or grossly negligent, (iii) willful misconduct on an
ongoing basis after written notice from the Company or any of its subsidiaries to the Executive,
(iv) the Executive’s contravention of specific written lawful directions related to a material duty
or responsibility which is directed to be undertaken from the Board or the person to whom the
Executive reports which is not cured within 20 days of the Executive’s receipt of written notice of
such contravention; (v) breach of the Executive’s covenants set forth in Section 6 below; (vi) any
acts of dishonesty by the Executive resulting or intending to result in personal gain or enrichment
at the expense of the Company, its subsidiaries or affiliates; or (vii) the Executive’s continued
failure to comply with a material policy of the Company, its subsidiaries or affiliates after
receiving notice from the Board or the Chief Executive Officer of the Company of such failure to
comply. An act or failure to act shall not be “willful” if the Executive reasonably believed that
such action or inaction was in the best interests of the Company. A termination for “Cause” shall
be effective immediately (or on such other date set forth by the Board).



               For the purposes of this Agreement, “Good Reason” means, without the Executive’s consent, (i)
a reduction in Base Salary or bonus; provided that, the Company may at any time or
from time to time amend, modify, suspend or terminate any bonus, incentive compensation or other
benefit plan or program provided to the Executive for any reason and without the Executive’s
consent if such modification, suspension or termination (x) is a result of the underperformance of
the Company under its business plan, (y) is consistent with an “across the board” reduction for all
senior executives of the Company, and (z) is undertaken in the Board’s reasonable business judgment
acting in good faith and engaging in fair dealing with the Executive, or (ii) a material diminution
in the Executive’s title, duties or responsibilities below a level consistent with Executive’s
performance and skill level, as determined in good faith by the Board; provided
that, a suspension of the Executive and the requirement that the Executive not report to
work shall not constitute Good Reason if the Executive continues to receive his compensation and
benefits. The Company shall have thirty (30) days after receipt of notice from the Executive in
writing specifying the deficiency to cure the deficiency that would result in Good Reason.



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               5.2 By the Company Without Cause or by the Executive for Good Reason. If during the
Term, the Executive terminates his employment for Good Reason, upon at least thirty (30) days prior
written notice to the Company, or the Company terminates the Executive’s employment without Cause,
and upon execution without revocation of a valid release agreement substantially in the form
attached hereto as Exhibit B (except that the Company shall, in its sole discretion, have
the right to amend the release agreement to take into account changes in law effective subsequent
to the Effective Date), the Executive shall receive the following incremental severance payments
set forth in this Section 5.2 (in addition to the payments upon termination specified in Section
5.1):



                    (a) continued payment of any unpaid installments of the Retention Bonus, if any (the sum of
the unpaid installments, the “Unpaid Retention Bonus”);



                    (b) an amount equal to the excess of (x) the product of (1) the Severance Multiplier (as
defined below) multiplied by (2) the Executive’s Base Salary over (y) the Unpaid Retention Bonus,
such amount payable in equal monthly installments on the last business day of each month over a
number of months following such termination of employment equal to the Severance Multiplier;



                    (c) (x) if such termination occurs on or prior to June 30th, an amount equal to the product of
(1) the Severance Multiplier multiplied by (2) the Severance Bonus Amount (as defined below),
payable in equal monthly installments on the last business day of each month over a number of
months following such termination of employment equal to the Severance Multiplier or (y) if such
termination occurs following June 30th, an amount equal to (1) the Severance Multiplier multiplied
by (2) the Severance Bonus Amount, payable as follows, (A) a lump sum equal to such amount
multiplied by a fraction, the numerator of which is the number of full months following such
termination through the date such amounts are paid to similarly situated employees (the “Lapsed
Months”) and the denominator of which is equal to the Severance Multiplier (such fraction not to
exceed one (1)) and (B) the remaining amount, if any, payable in equal monthly installments for a
number of months equal to the Severance Multiplier minus the number of Lapsed Months;



                    (d) a pro rata bonus for the year of termination, calculated as the product of (x) “Severance
Bonus Amount” and (y) a fraction, the numerator of which is the number of days in the current
calendar year through the date of termination and the denominator of which is 365, payable in the
calendar year following the date of termination when bonuses are paid to similarly situated
employees;



                    (e) a pro rata payment with respect to any award outstanding under the Phantom Interest Plan
equal to the amount that would have been payable to the Executive for the performance period
applicable to such award (determined as of the end of such performance period) multiplied by a
fraction, the numerator of which is the number of full months in the performance period that have
lapsed prior to such termination and the denominator of which is the number of months in the
performance period, payable at the end of such performance period; and



                    (f) reimbursement of the employer portion of the cost (consistent with the Company’s policy
for active employees) of continuation coverage of group health coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as



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amended (“COBRA”) for a number of months equal to the lesser of (x) the Severance
Multiple and (y) eighteen (18), to the extent the Executive elects such continuation coverage and
is eligible for such coverage and subject to the terms of the plan and the law. Notwithstanding
the foregoing, the benefits provided under this Section 5.2(f) shall cease when the Executive is
covered under another group health plan.




          For purposes of this Agreement, (x) the “Severance Multiplier” shall equal the lesser of (A)
two (2) and (B) the quotient of (1) the number of full months remaining in the Term divided by (2)
twelve (12); provided that in no event shall the Severance Multiplier be less than .5 and (y) the “Severance Bonus Amount” shall mean, in the event of a termination (i) on or prior
to June 30th of any calendar year, the Bonus paid to the Executive for the calendar year prior to
the termination or (ii) after June 30th of any calendar year, the Bonus that would have been
payable to the Executive for the calendar year of the termination (determined as of the end of such
calendar year). Notwithstanding the foregoing, the amount payable pursuant to the sum of (b) and
(c) above shall not be less than the excess of (x) the product of the Severance Multiplier
multiplied by $800,000 over (y) the Unpaid Retention Bonus.




          The Company shall have no obligation to provide the benefits set forth above in the event that
the Executive materially breaches the provisions of Section 6.




               5.3 Continued Employment Beyond the Expiration of the Term. Unless the Parties
otherwise agree in writing, continuation of the Executive’s employment with the Company beyond the
expiration of the Term shall be deemed an employment at-will and shall not be deemed to extend any
of the provisions of this Agreement and the Executive’s employment may thereafter be terminated at
will by either the Executive or the Company; provided that the provisions of
Sections 5.6, 6, 7, 8, 9.6, 9.11 and 9.12 of this Agreement shall survive any termination of this
Agreement or the termination of the Executive’s employment hereunder.



               5.4 No Mitigation; No Offset. The Executive shall be under no obligation to seek
other employment after his termination of employment with the Company and the obligations of the
Company to the Executive which arise upon the termination of his employment pursuant to this
Section 5 shall not be subject to mitigation or offset.



               5.5 Removal from any Boards and Position. If the Executive’s employment is terminated
for any reason under this Agreement, he shall be deemed to resign (i) if a member, from the Board
or board of directors of any subsidiary of the Company or any other board to which he has been
appointed or nominated by or on behalf of the Company and (ii) from any position with the Company
or any subsidiary of the Company, including, but not limited to, as an officer of the Company and
any of its subsidiaries.



               5.6 Nondisparagement. The Executive agrees that he will not at any time (whether
during or after the Term) publish or communicate to any person or entity any Disparaging (as
defined below) remarks, comments or statements concerning the Company, its parent, subsidiaries and
affiliates, and their respective present and former members, partners, directors, officers,
shareholders, employees, agents, attorneys, successors and assigns. The Company agrees to instruct
its executive officers and directors to refrain from publishing or communicating to any person or
entity any Disparaging remarks, comments or statements concerning the Executive at any time
(whether during or after the Term), provided that, nothing



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in this Section 5.6 shall prevent the Company from (a) responding in a truthful manner to
inquiries regarding Executive’s employment or the termination thereof, from investors, regulators,
the Company’s auditors or insurers, or as otherwise may be required by applicable law, rules or
regulations, or (b) disclosing information concerning the Executive or the termination of
Executive’s employment to officers of the Company or its affiliates who, at the discretion of the
Company, should know such information. “Disparaging” remarks, comments or statements are those
that impugn the character, honesty, integrity or morality or business acumen or abilities in
connection with any aspect of the operation of business of the individual or entity being
disparaged.



          6. Restrictions and Obligations of the Executive.




               6.1 Confidentiality. (a) During the course of the Executive’s employment by the
Company (prior to and during the Term), the Executive has had and will have access to certain trade
secrets and confidential information relating to the Company and its subsidiaries (the “Protected
Parties”) which is not readily available from sources outside the Company. The confidential and
proprietary information and, in any material respect, trade secrets of the Protected Parties are
among their most valuable assets, including but not limited to, their customer, supplier and vendor
lists, databases, competitive strategies, computer programs, frameworks, or models, their marketing
programs, their sales, financial, marketing, training and technical information, their product
development (and proprietary product data) and any other information, whether communicated orally,
electronically, in writing or in other tangible forms concerning how the Protected Parties create,
develop, acquire or maintain their products and marketing plans, target their potential customers
and operate their retail and other businesses. The Protected Parties invested, and continue to
invest, considerable amounts of time and money in their process, technology, know-how, obtaining
and developing the goodwill of their customers, their other external relationships, their data
systems and data bases, and all the information described above (hereinafter collectively referred
to as “Confidential Information”), and any misappropriation or unauthorized disclosure of
Confidential Information in any form would irreparably harm the Protected Parties. The Executive
acknowledges that such Confidential Information constitutes valuable, highly confidential, special
and unique property of the Protected Parties. The Executive shall hold in a fiduciary capacity for
the benefit of the Protected Parties all Confidential Information relating to the Protected Parties
and their businesses, which shall have been obtained by the Executive during the Executive’s
employment by the Company or its subsidiaries and which shall not be or become public knowledge
(other than by acts by the Executive or representatives of the Executive in violation of this
Agreement). The Executive shall not, during the period the Executive is employed by the Company or
its subsidiaries or at any time thereafter, disclose any Confidential Information, directly or
indirectly, to any person or entity for any reason or purpose whatsoever, nor shall the Executive
use it in any way, except (i) in the course of the Executive’s employment with, and for the benefit
of, the Protected Parties, (ii) to enforce any rights or defend any claims hereunder or under any
other agreement to which the Executive is a party, provided that such disclosure is
relevant to the enforcement of such rights or defense of such claims and is only disclosed in the
formal proceedings related thereto, (iii) when required to do so by a court of law, by any
governmental agency having supervisory authority over the business of the Company or by any
administrative or legislative body (including a committee thereof) with jurisdiction to order him
to divulge, disclose or make accessible such information; provided that the
Executive shall give prompt written notice to the Company of such requirement, disclose no more
information than is so



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required, and cooperate with any attempts by the Company to obtain a protective order or
similar treatment, (iv) as to such Confidential Information that becomes generally known to the
public or trade without his violation of this Section 6.1(a) or (iv) to the Executive’s spouse,
attorney and/or his personal tax and financial advisors as reasonably necessary or appropriate to
advance the Executive’s tax, financial and other personal planning (each an “Exempt Person”),
provided, however, that any disclosure or use of Confidential Information by an
Exempt Person shall be deemed to be a breach of this Section 6.1(a) by the Executive. The
Executive shall take all reasonable steps to safeguard the Confidential Information and to protect
it against disclosure, misuse, espionage, loss and theft. The Executive understands and agrees
that the Executive shall acquire no rights to any such Confidential Information.



          (b) All files, records, documents, drawings, specifications, data, computer programs,
evaluation mechanisms and analytics and similar items relating thereto or to the Business (for the
purposes of this Agreement, “Business” shall be as defined in Section 6.3 hereof), as well as all
customer lists, specific customer information, compilations of product research and marketing
techniques of the Company and its subsidiaries, whether prepared by the Executive or otherwise
coming into the Executive’s possession, shall remain the exclusive property of the Company and its
subsidiaries.




          (c) It is understood that while employed by the Company or its subsidiaries, the Executive
will promptly disclose to it, and assign to it the Executive’s interest in any invention,
improvement or discovery made or conceived by the Executive, either alone or jointly with others,
which arises out of the Executive’s employment. At the Company’s request and expense, the
Executive will assist the Company and its subsidiaries during the period of the Executive’s
employment by the Company or its subsidiaries and thereafter (but subject to reasonable notice and
taking into account the Executive’s schedule) in connection with any controversy or legal
proceeding relating to such invention, improvement or discovery and in obtaining domestic and
foreign patent or other protection covering the same.




          (d) As requested by the Company and at the Company’s expense, from time to time and upon the
termination of the Executive’s employment with the Company for any reason, the Executive will
promptly deliver to the Company and its subsidiaries all copies and embodiments, in whatever form,
of all Confidential Information in the Executive’s possession or within his control (including, but
not limited to, memoranda, records, notes, plans, photographs, manuals, notebooks, documentation,
program listings, flow charts, magnetic media, disks, diskettes, tapes and all other materials
containing any Confidential Information) irrespective of the location or form of such material. If
requested by the Company, the Executive will provide the Company with written confirmation that all
such materials have been delivered to the Company as provided herein.




               6.2 Non-Solicitation or Hire. During the Term and for a period of twelve (12) months
following the termination of the Executive’s employment for any reason, the Executive shall not (a)
directly or indirectly solicit or attempt to solicit or induce, directly or indirectly, (x) any
party who is a customer of the Company or its subsidiaries, who was a customer of the Company or
its subsidiaries at any time during the twelve (12) month period immediately prior to the date the
Executive’s employment terminates or who is a prospective customer that has been identified and
targeted by the Company or its subsidiaries, for the purpose of marketing, selling or providing to
any such party any services or products offered by or available from the Company or its
subsidiaries (provided that if the Executive intends to



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solicit any such party for any other purpose, he shall notify the Company of such intention),
or (y) any supplier to the Company or any subsidiary to terminate, reduce or alter negatively its
relationship with the Company or any subsidiary or in any manner interfere with any agreement or
contract between the Company or any subsidiary and such supplier or (b) directly or indirectly
solicit or attempt to solicit any employee of the Company or any of its subsidiaries (a “Current
Employee”) or any person who was an employee of the Company or any of its subsidiaries during the
twelve (12) month period immediately prior to the date the Executive’s employment terminates (a
“Former Employee”) to terminate such employee’s employment relationship with the Protected Parties
in order, in either case, to enter into a similar relationship with the Executive, or any other
person or any entity or hire any employee or Former Employee, provided, however,
that Current Employees and Former Employees do not include the Executive’s personal assistant(s) or
his administrative support personnel.



               6.3 Non-Competition. During the Term and for a period of six (6) months following the
termination of the Executive’s employment for any reason, the Executive shall not, whether
individually, as a director, manager, member, stockholder, partner, owner, employee, consultant or
agent of any business, or in any other capacity, other than on behalf of the Company or a
subsidiary, organize, establish, own, operate, manage, control, engage in, participate in, invest
in, permit his name to be used by, act as a consultant or advisor to, render services for (alone or
in association with any person, firm, corporation or business organization), or otherwise assist
any person or entity that engages in or owns, invests in, operates, manages or controls any venture
or enterprise which engages or proposes to engage in any business conducted by the Company or any
of its subsidiaries on the date of the Executive’s termination of employment or within twelve (12)
months of the Executive’s termination of employment in the geographic locations where the Company
and its subsidiaries engage or propose to engage in such business (the “Business”).
Notwithstanding the foregoing, nothing in this Agreement shall prevent the Executive from (i)
owning for passive investment purposes not intended to circumvent this Agreement, less than five
percent (5%) of the publicly traded common equity securities of any company engaged in the Business
(so long as the Executive has no power to manage, operate, advise, consult with or control the
competing enterprise and no power, alone or in conjunction with other affiliated parties, to select
a director, manager, general partner, or similar governing official of the competing enterprise
other than in connection with the normal and customary voting powers afforded the Executive in
connection with any permissible equity ownership), (ii) being employed by or otherwise associated
with an organization or entity of which a subsidiary, division, segment, unit, etc. is engaged in
the Business (a “Competing Division”), provided that (x) the Executive has no
direct or indirect responsibilities or involvement with such Competing Division and (y) the
Competing Division does not account for more that five percent (5%) of the gross revenues of such
organization or entity for its prior fiscal year or (iii) being employed by or otherwise associated
with an organization or entity engaged in the Business; provided that the Business
that is competitive with the Company or any of its Subsidiaries does not account for more than five
percent (5%) of the gross revenues of the Company and its Subsidiaries.



               6.4 Property. The Executive acknowledges that all originals and copies of materials,
records and documents generated by him or coming into his possession during his employment by the
Company or its subsidiaries are the sole property of the Company and its subsidiaries (“Company
Property”). During the Term, and at all times thereafter, the Executive shall not remove, or cause
to be removed, from the premises of the Company or its



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subsidiaries, copies of any record, file, memorandum, document, computer related information
or equipment, or any other item relating to the business of the Company or its subsidiaries, except
in furtherance of his duties under the Agreement. When the Executive’s employment with the Company
terminates, or upon request of the Company at any time, the Executive shall promptly deliver to the
Company all copies of Company Property in his possession or control.



          7. Remedies; Specific Performance. The Parties acknowledge and agree that the
Executive’s breach or threatened breach of any of the restrictions set forth in Section 6 will
result in irreparable and continuing damage to the Protected Parties for which there may be no
adequate remedy at law and that the Protected Parties shall be entitled to seek equitable relief,
including specific performance and injunctive relief as remedies for any such breach or threatened
or attempted breach, without requiring the posting of a bond. The Executive hereby consents to the
grant of an injunction (temporary or otherwise) against the Executive or the entry of any other
court order against the Executive prohibiting and enjoining him from violating, or directing him to
comply with any provision of Section 6, if such is determined by a court of competent jurisdiction.
The Executive also agrees that such remedies shall be in addition to any and all remedies,
including damages, available to the Protected Parties against him for such breaches or threatened
or attempted breaches. In addition, without limiting the Protected Parties’ remedies for any
breach of any restriction on the Executive set forth in Section 6, except as required by law, the
Executive shall not be entitled to any payments set forth in Section 5.2 hereof if the Executive
has breached the covenants applicable to the Executive contained in Section 6, the Executive will
immediately return to the Protected Parties any such payments previously received under Section 5.2
upon such a breach, and, in the event of such breach, the Protected Parties will have no obligation
to pay any of the amounts that remain payable by the Company under Section 5.2.




          8. Indemnification. The Company agrees, to the extent permitted by applicable law and
its organizational documents, to indemnify, defend and hold harmless the Executive from and against
any and all losses, suits, actions, causes of action, judgments, damages, liabilities, penalties,
fines, costs or claims of any kind or nature (“Indemnified Claim”), including reasonable legal fees
and related costs incurred by Executive in connection with the preparation for or defense of any
Indemnified Claim, whether or not resulting in any liability, to which the Executive may become
subject or liable or which may be incurred by or assessed against the Executive, relating to or
arising out of his employment by the Company or the services to be performed pursuant to this
Agreement, provided that the Company shall only defend, but not indemnify or hold
the Executive harmless, from and against an Indemnified Claim in the event there is a final,
non-appealable, determination that the Executive’s liability with respect to such Indemnified Claim
resulted from the Executive’s willful misconduct or gross negligence. The Company’s obligations
under this section shall be in addition to any other right, remedy or indemnification that the
Executive may have or be entitled to at common law or otherwise. During the Term and for a period
of six (6) years after the termination of the Executive’s employment, the Company agrees to
continue and maintain a directors and officers’ liability insurance policy covering the Executive
to the extent the Company provides such coverage for its managers, directors and/or other executive
officers.




          9. Other Provisions.




               9.1 Notices. Any notice or other communication required or which may be given
hereunder shall be in writing and shall be delivered personally, telegraphed,



10









 







telexed, sent by facsimile transmission or sent by certified, registered or express mail,
postage prepaid or overnight mail and shall be deemed given when so delivered personally,
telegraphed, telexed, or sent by facsimile transmission or, if mailed, four (4) days after the date
of mailing or one (1) day after overnight mail, as follows:



                    (a) If the Company, to:


GMAC LLC

200 Renaissance Center

Tower 200, 9th Floor

Mail Drop 482-B09-B11

Detroit, MI 48265

Attention: General Counsel

Telephone: (313) 665-6128

Fax: (313) 665-6189



With copies to:



Schulte Roth & Zabel LLP

919 Third Avenue

New York, NY 10022

Attention: Ronald Richman

Telephone: (212) 756-2000

Fax: (212) 593-5955



and



Cerberus Capital Management, L.P.

299 Park Avenue

New York, NY 10171

Attention: Lenard Tessler

Telephone: (212) 891-2100

Fax: (212) 755-3009




                    (b) If the Executive, to the Executive’s home address reflected in the Company’s records and
with copies to:


Michael A. Nemeroff, Esq.

Vedder, Price, Kaufman & Kammholz, P.C.

222 North LaSalle Street

Chicago, IL 60601

Telephone: (312) 609-7500

Fax: (312) 609-5005



and



Stewart Reifler, Esq.

Vedder, Price, Kaufman & Kammholz, P.C.

805 Third Avenue




11









 







New York, NY 10022

Telephone: (212) 407-7700

Fax: (212) 407-7799




               9.2 Entire Agreement. This Agreement contains the entire agreement between the
Parties with respect to the subject matter hereof and supersedes all prior agreements, written or
oral, with respect thereto.



               9.3 Representations and Warranties. The Executive represents and warrants that he is
not a party to or subject to any restrictive covenants, legal restrictions or other agreements in
favor of any entity or person which would in any way preclude, inhibit, impair or limit the
Executive’s ability to perform his obligations under this Agreement, including, but not limited to,
non-competition agreements, non-solicitation agreements or confidentiality agreements. The Company
represents and warrants that it is fully authorized and empowered to enter into this Agreement and
that the performance of its obligations under this Agreement will not violate any agreement between
it and any other person, firm or organization.



               9.4 Waiver and Amendments. This Agreement may be amended, modified, superseded,
canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written
instrument signed by the Parties or, in the case of a waiver, by the party waiving compliance. No
delay on the part of any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any right, power or privilege hereunder,
nor any single or partial exercise of any right, power or privilege hereunder, preclude any other
or further exercise thereof or the exercise of any other right, power or privilege hereunder.



               9.5 Governing Law, Dispute Resolution and Venue.



                    (a) This Agreement shall be governed and construed in accordance with the laws of the State of
New York applicable to agreements made and not to be performed entirely within such state, without
regard to conflicts of laws principles, unless superseded by federal law.



                    (b) The parties agree irrevocably to submit to the exclusive jurisdiction of the federal
courts or, if no federal jurisdiction exists, the state courts, located in the City of New York,
Borough of Manhattan, for the purposes of any suit, action or other proceeding brought by any party
arising out of any breach of any of the provisions of this Agreement and hereby waive, and agree
not to assert by way of motion, as a defense or otherwise, in any such suit, action, or proceeding,
any claim that it is not personally subject to the jurisdiction of the above-named courts, that the
suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action
or proceeding is improper, or that the provisions of this Agreement may not be enforced in or by
such courts. In addition, the parties agree to waive trial by jury.



               9.6 Assignability by Holdings and the Executive. This Agreement, and the rights and
obligations hereunder, may not be assigned by Holdings or the Executive without written consent
signed by the other party; provided that the Company may assign the Agreement to
any successor that continues the business of the Company.



12









 





               9.7 Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original but all of which shall constitute one and the same instrument.



               9.8 Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning of terms contained herein.



               9.9 Severability. If any term, provision, covenant or restriction of this Agreement,
or any part thereof, is held by a court of competent jurisdiction of any foreign, federal, state,
county or local government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any reason, the remainder
of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected or impaired or invalidated. The Executive acknowledges
that the restrictive covenants contained in Section 6 are a condition of this Agreement and are
reasonable and valid in temporal scope and in all other respects.



               9.10 Judicial Modification. If any court determines that any of the covenants in
Section 6, or any part of any of them, is invalid or unenforceable, the remainder of such covenants
and parts thereof shall not thereby be affected and shall be given full effect, without regard to
the invalid portion. If any court determines that any of such covenants, or any part thereof, is
invalid or unenforceable because of the geographic or temporal scope of such provision, such court
shall reduce such scope to the minimum extent necessary to make such covenants valid and
enforceable.



               9.11 Tax Withholding. The Company or other payor is authorized to withhold from any
benefit provided or payment due hereunder, the amount of withholding taxes due any federal, state
or local authority in respect of such benefit or payment and to take such other action as may be
necessary in the opinion of the Board to satisfy all obligations for the payment of such
withholding taxes.



               9.12 Section 409A. Notwithstanding any other provision of this Agreement, if at the
time of the termination of the Executive’s employment the Executive is a “specified employee” (as
defined in Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”)) and any
payments upon such termination under Section 5 hereof will result in additional tax or interest to
the Executive under Section 409A, he will not be entitled to receive such payments until the date
which is six (6) months after the termination of the Executive’s employment for any reason, other
than as a result of the Executive’s death or disability (as such term is defined in Section 409A).
In addition, if any provision of this Agreement would subject the Executive to any additional tax
or interest under Section 409A, then the Company shall reform such provision; provided
that the Company shall (x) maintain, to the maximum extent practicable, the original intent
of the applicable provision without subjecting the Executive to such additional tax or interest and
(y) not incur any additional compensation expense as a result of such reformation.



13









 





          IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have executed
this Agreement as of the day and year first above mentioned.




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	EXECUTIVE	 	 
	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Name: Sanjiv Khattri	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	GMAC LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 






14









 





Exhibit A




Equity Interest Term Sheet




	 	 	 
	Term	 	Provision
	Equity

	 	The Executive will be granted restricted stock in a corporation (the “Management
Corporation”) that holds a profits interest in GMAC, LLC (“GMAC”). As of the Closing Date
(as defined below), GMAC will issue profits interests in the form of units to the
Management Corporation representing an interest in the operating profits and realized
appreciation of GMAC above the value of GMAC as of the Closing Date (derived based on the
purchase price of the equity interest purchased in connection with the acquisition) plus a
10% preferred annual return to the Investors (as defined below) on their common equity
beginning on the Closing Date, compounded annually (the “Hurdle”).
	 
	 	 
	 

	 	With respect to distributions to the Investors (including distributions of preferred equity
in lieu of cash following the Closing Date) on their common equity, a portion of such
distributions equal to the amount of federal, state and local income taxes (net of all tax
credits) that would be payable by a New York City individual resident on all the taxable
income allocated to all Investors for all periods on account of the common equity, as
determined by the Board (as defined below) in good faith, shall be deemed a Tax
Distribution and shall not be applied to the Hurdle, and the amount of such distributions
in excess of the Tax Distribution, if any, shall be applied to the Hurdle.
	 
	 	 
	 

	 	In connection with the grant of the restricted stock, the Executive will make an 83(b)
election. GMAC represents that the fair market value of the restricted stock is
$5,563.0569 per share. GMAC will provide the Executive with a gross-up payment with
respect to all income taxes (including Medicare, but not social security) required to be
paid by the Executive as a result of the 83(b) election.
	 
	 	 
	Vesting

	 	Fifty percent of the restricted shares shall vest based on the Executive’s continued
employment (the “Time-Based Shares”) and fifty percent of the restricted shares shall vest
based on the achievement of performance targets (the “Performance-Based Shares”), as more
fully described below.
	 
	 	 
	 

	 	The Time-Based Shares shall vest with respect to 20% of the Time-Based Shares on the first
anniversary of the date of grant and with respect to an additional 20% on each of the next
four anniversaries thereafter, subject to the Executive’s continued employment with GMAC
and its affiliates.
	 
	 	 
	 

	 	The Performance-Based Shares shall vest with respect to twenty percent (20%) of the
Performance-Based Shares on December 31, 2007 and with respect to an additional twenty
percent (20%) on each of the next four anniversaries of such date (December 31, 2007 and
each such anniversary, a “Performance Vesting Date”), subject to GMAC’s attainment of
performance targets established by the Board for the calendar year in which such
Performance Vesting Date occurs (the “Performance Targets”) and subject to the Executive
remaining employed by GMAC or its subsidiaries on each applicable Performance Vesting Date;
provided, however, that in the event GMAC does not attain the Performance Target for an
applicable calendar year (a “Missed Year”), but achieves the Performance Targets with
respect to a subsequent calendar year, the restricted shares that did not vest with respect
to the Missed Year shall vest as of the Performance Vesting Date applicable to the
subsequent calendar year in which the Performance Targets are achieved. All
Performance-Based Shares that have not vested as of the December 31, 2011, shall terminate.
	 
	 	 
	 

	 	Notwithstanding the foregoing, in the event of a Change in Control (as defined below) or an
IPO of an affiliate of GMAC in which, as of the date of either of such event, the Hurdle
has been achieved, the Time-Based Shares that have not vested (the “Accelerated Shares”),
to the extent not previously forfeited, shall immediately vest; provided, however, that if
the Executive is terminated (x) by GMAC for Cause (other than due to death or disability)
or (y) by the Executive without Good Reason (other than due to death or disability), prior
to the date the Accelerated Shares would otherwise have vested had no IPO or Change in
Control occurred, the Executive shall forfeit the






 









 






	 	 	 
	Term	 	Provision
	 

	 	Accelerated Shares without the payment of
consideration.
	 
	 	 
	Termination of
Employment

	 	Upon a termination of employment, all unvested restricted shares (and the underlying
profits interests) will be forfeited; provided, however, that if the Executive is
terminated (x) by GMAC without Cause (other than due to death or disability) or (y) by the
Executive for Good Reason (other than due to death or disability), the Time-Based Shares
(and the underlying profits interests) that would have vested on the next anniversary of
the date of grant shall immediately vest. In addition, if the Executive is terminated (x)
by GMAC for Cause (other than due to death or disability) or (y) by the Executive without
Good Reason (other than due to death or disability), in each case, prior to the third
anniversary of the Closing Date, all the shares (and the underlying profits interests),
whether vested or unvested, will be forfeited.
	 
	 	 
	Call/Put Rights

	 	At any time within 120 days following the Executive’s termination of employment with GMAC
for any reason, GMAC shall have the right, but not the obligation, to cause the Executive
to sell, or the Management Corporation to redeem, the shares. The purchase price for the
shares shall equal the fair market value of the shares, as determined in good faith by the
Board and pursuant to a consistent methodology (the “Purchase Price”). If GMAC does not
exercise its right to repurchase or cause the Management Corporation to redeem, the
Investors shall have the right, for a period of 30 calendar days after the expiration of
the applicable 120-day period set forth above, to repurchase the shares, upon the terms and
conditions set forth above.
	 
	 	 
	 

	 	To the extent that (i) the Executive is terminated after the fifth anniversary of the
Closing Date, (ii) GMAC or the Investors exercise their right to call the shares or cause
the redemption of the shares, (iii) within 12 months following such termination of
employment, there is (x) an IPO of an affiliate of GMAC or (y) a Change in Control and (iv)
the imputed price per share in connection with such IPO or the imputed purchase price per
share in connection with such Change in Control (either such price, the “IPO/CIC Price”)
exceeds the Purchase Price, then the Executive shall be entitled to an additional cash
payment equal to the product of (x) the excess of the IPO/CIC Price over the Purchase Price
multiplied by (y) the number of shares subject to the call right.
	 
	 	 
	 

	 	If there has not been an IPO or Change in Control, an Executive (or his estate or legal
guardian) shall have the right to sell the shares to GMAC, and, if offered, GMAC or the
Investors shall buy such shares or cause the Management Corporation to redeem such shares
(i) upon the death of the Executive for a period of one year following the Executive’s
death, (ii) two years following a termination of the Executive’s employment due to
Disability for a period of one year following the second anniversary of such termination or
(iii) ten years following the Closing Date for a period of 150 days following such ten year
anniversary. The purchase price per share shall be the fair market value of a share as
determined in good faith by the Board and pursuant to a consistent methodology.
	 
	 	 
	 

	 	Upon the purchase or sale of the shares, the underlying profits interests will be forfeited.
	 
	 	 
	Tax Distributions

	 	GMAC will make tax distributions to Management Corporation in an amount necessary for
Management Corporation to pay income tax on income allocated to it by GMAC. This tax
distribution will be treated as an advance against future distributions payable to
Management Corporation and will reduce the next distributions to Management Corporation
(other than tax distributions) on a dollar for dollar basis.
	 
	 	 
	IPO

	 	In the event of an IPO of an affiliate of GMAC (the “IPO Company”), the shares held by the
Executive will be equitably converted (based on the fair market value of the shares), as
determined by the Board, into shares of the IPO Company registered in connection with such
IPO and such shares shall vest in accordance with their terms, including, if any,
accelerated vesting upon such IPO.
	 
	 	 
	Transfer

	 	No shares may be transferred by the Executive prior to the later to occur of (x) five years
following the Closing Date and (y) two years following the IPO of the IPO Company;
provided, however, that, if such IPO occurs prior to the third anniversary of the Closing
Date, following the second anniversary of the IPO, the Executive may transfer his vested
shares with respect to the same percentage of equity transferred by the Investors.
	 
	 	 
	 

	 	The shares and the underlying profits interest shall be subject to customary tag-along and
drag-along rights.






 









 






	 	 	 
	Term	 	Provision
	Adjustment

	 	In the event of any change in the capitalization of GMAC or the Management Corporation by
reason of any, reorganization, recapitalization, merger, consolidation, spin-off,
combination or any transaction similar to the foregoing, the Board shall make such
substitution or adjustment, if any, as it deems to be equitable, to (i) the number or kind
of restricted shares or underlying profits interests and/or (iii) any other affected terms
of such restricted shares or underlying profits interests.
	 
	 	 
	Definitions

	 	“Board” shall mean the Board of Managers of GMAC.
	 
	 	 
	 

	 	“Change in Control” shall mean (1) if any person (other than an Investor) becomes the
beneficial owner, directly or indirectly, of 50% or more of the combined voting power of
the then issued and outstanding securities of GMAC or (2) the sale, transfer or other
disposition of all or substantially all of the business and assets of GMAC, whether by sale
of assets, merger or otherwise (determined on a consolidated basis) to another person other
than a transaction in which the survivor or transferee is a person controlling, controlled
by, or under common control with, directly or indirectly, the Investors.
	 
	 	 
	 

	 	“Closing Date” shall mean the closing date of the transaction in which General Motors sells
a fifty-one percent (51%) interest in GMAC.
	 
	 	 
	 

	 	“Investors” shall mean all members of GMAC as of the Closing Date.







 









 





Exhibit B




GENERAL RELEASE




     I, ___, in consideration of and subject to the terms and conditions set forth in the
Employment Agreement dated as of November 30, 2006 (the “Employment Agreement”) to which this
General Release is attached, and other good and valuable consideration, do hereby release and
forever discharge GMAC LLC (the “Company”) and its current and former officers, directors,
partners, members, shareholders, investors, employees, attorneys, agents, predecessors, successors,
affiliates, assigns and legal representatives (together, the “Company Released Parties”), from any
and all claims, charges, manner of actions and causes of action, suits, debts, dues, accounts,
bonds, covenants, contracts, agreements, judgments, charges, claims, and demands whatsoever which
I, my heirs, executors, administrators and assigns have, or may hereafter have against the Company
Released Parties arising out of or by reason of any cause, matter or thing whatsoever, whether
known or unknown, from the beginning of the world to the date hereof (“Claims”) in connection with
or relating to, my employment or termination of employment with the Company and its subsidiaries,
the Employment Agreement, all employment-related matters arising under any federal, state or local
statute, rule or regulation or principle of contract law or common law and any claims of employment
discrimination, unlawful harassment or retaliation claims and claims arising under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., the Employee Retirement Income
Security Act of 1974, 29 U.S.C. § 1001 et seq., the Fair Labor Standards Act (to
the extent allowed by law), 29 U.S.C. § 201 et seq., Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621, et seq., the Reconstruction Era Civil
Rights Act, 42 U.S.C. § 1981 et seq., the Americans with Disabilities Act of 1993,
42 U.S.C. § 12900 et seq., the Family and Medical Leave Act of 1990 (to the extent
allowed by law), 42 U.S.C. § 12101, et seq., the New York State Human Rights Law,
N.Y. Exec. Law § 290 et seq., the New York State Labor Law, N.Y. Labor Law § 1
et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107
et seq., provided, that this General Release shall not constitute a release of any
Claims that arise from a breach of Sections 5, 8 and/or 9 of the Employment Agreement.



     I acknowledge that I have been advised to consult with legal counsel. I acknowledge that I
have been provided with the opportunity to review and consider this General Release for twenty-one
(21) days from the date it was provided to me. If I elect to sign before the expiration of the
twenty-one (21) days, I acknowledge that I will have chosen, of my own free will without any
duress, to waive my right to the full twenty-one (21) day period. I understand that I may revoke
this General Release within seven (7) days after my execution by sending a written notice of
revocation to ___ at the Company at ___, received within the seven-day
revocation period.



     I acknowledge that I have not relied on any representations or statements not set forth in the
Employment Agreement or in this General Release. Unless otherwise publicly-filed by the Company, I
will not disclose the contents or substance of this General Release to any third parties, other
than my attorneys, accountants, or as required by law, and I will instruct each of the foregoing
not to disclose the same. I am signing this General Release knowingly, voluntarily and with full
understanding of its terms and effects.



     This General Release will be governed by and construed in accordance with the laws of the
State of [New York]. If any provision in this General Release is held invalid or



 









 







unenforceable for any reason, the remaining provisions shall be construed as if the invalid or
unenforceable provision had not been included.



     In
witness hereof, I have executed this General Release this ___ day of ___, 200_.



	 	 	 	 	 
	 

	 	 

[Executive]