Exhibit 2.1
EQUITY COMMITMENT AGREEMENT
AMONG
VISTEON CORPORATION
AND
THE INVESTORS PARTY HERETO
Dated as of May 6, 2010
TABLE OF CONTENTS
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ARTICLE I |
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DEFINITIONS |
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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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Additional Defined Terms |
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14 |
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Section 1.3 |
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Construction |
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16 |
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ARTICLE II |
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RIGHTS OFFERING |
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17 |
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Section 2.1 |
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The Rights Offering |
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17 |
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Section 2.2 |
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Procedure of Rights Offering |
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17 |
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ARTICLE III |
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THE COMMITMENTS |
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20 |
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Section 3.1 |
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The Direct Purchase Commitment |
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20 |
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Section 3.2 |
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The Stock Right Commitment |
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21 |
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Section 3.3 |
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Alternative Financing |
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21 |
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Section 3.4 |
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Notice of Unsubscribed Shares |
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23 |
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Section 3.5 |
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Issuance and Delivery of Investor Shares |
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23 |
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Section 3.6 |
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Transfer, Designation and Assignment Rights |
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23 |
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ARTICLE IV |
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PREMIUMS AND EXPENSES |
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25 |
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Section 4.1 |
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Premiums and Damages Payable by the Company |
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25 |
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Section 4.2 |
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Payment of Premiums and Damages |
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26 |
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Section 4.3 |
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Transaction Expenses |
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26 |
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ARTICLE V |
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REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
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28 |
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Section 5.1 |
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Organization and Qualification |
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29 |
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Section 5.2 |
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Corporate Power and Authority |
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29 |
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Section 5.3 |
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Execution and Delivery; Enforceability |
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30 |
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Section 5.4 |
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Authorized and Issued Capital Stock |
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30 |
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Section 5.5 |
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Issuance |
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31 |
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Section 5.6 |
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No Conflict |
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31 |
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Section 5.7 |
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Consents and Approvals |
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31 |
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Section 5.8 |
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Arms Length |
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32 |
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Section 5.9 |
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Financial Statements |
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32 |
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Section 5.10 |
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Company SEC Documents and Disclosure Statement |
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32 |
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Section 5.11 |
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Absence of Certain Changes |
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33 |
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Section 5.12 |
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No Violation or Default; Compliance with Laws |
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34 |
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Section 5.13 |
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Legal Proceedings |
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34 |
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Section 5.14 |
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Labor Relations |
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34 |
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Section 5.15 |
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Intellectual Property |
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35 |
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Section 5.16 |
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Title to Real and Personal Property |
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36 |
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Section 5.17 |
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No Undisclosed Relationships |
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36 |
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i
TABLE OF CONTENTS
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Section 5.18 |
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Licenses and Permits |
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36 |
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Section 5.19 |
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Compliance With Environmental Laws |
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37 |
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Section 5.20 |
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Tax Matters |
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38 |
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Section 5.21 |
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Company Plans |
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39 |
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Section 5.22 |
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Internal Control Over Financial Reporting |
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41 |
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Section 5.23 |
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Disclosure Controls and Procedures |
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41 |
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Section 5.24 |
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Material Contracts |
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42 |
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Section 5.25 |
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No Unlawful Payments |
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42 |
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Section 5.26 |
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Compliance with Money Laundering Laws |
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42 |
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Section 5.27 |
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Compliance with Sanctions Laws |
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42 |
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Section 5.28 |
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No Broker's Fees |
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43 |
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Section 5.29 |
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No Registration Rights |
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43 |
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Section 5.30 |
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Takeover Statutes |
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43 |
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Section 5.31 |
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No Off-Balance Sheet Liabilities |
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43 |
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ARTICLE VI |
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REPRESENTATIONS AND WARRANTIES OF THE INVESTORS |
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43 |
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Section 6.1 |
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Incorporation |
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43 |
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Section 6.2 |
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Corporate Power and Authority |
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43 |
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Section 6.3 |
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Execution and Delivery |
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44 |
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Section 6.4 |
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No Conflict |
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44 |
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Section 6.5 |
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Consents and Approvals |
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44 |
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Section 6.6 |
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No Registration |
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44 |
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Section 6.7 |
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Purchasing Intent |
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45 |
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Section 6.8 |
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Sophistication; Investigation |
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45 |
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Section 6.9 |
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No Holdings Under the Credit Facility |
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45 |
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Section 6.10 |
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No Brokers Fees |
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45 |
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ARTICLE VII |
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ADDITIONAL COVENANTS |
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45 |
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Section 7.1 |
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Approval Motion and Approval Order |
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45 |
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Section 7.2 |
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Plan, Disclosure Statement and Other Documents |
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46 |
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Section 7.3 |
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Securities Laws |
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47 |
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Section 7.4 |
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Listing |
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47 |
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Section 7.5 |
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Earnings Statement |
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47 |
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Section 7.6 |
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Notification |
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48 |
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Section 7.7 |
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Funding Approval |
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48 |
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Section 7.8 |
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Use of Proceeds |
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48 |
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Section 7.9 |
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Conduct of Business |
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48 |
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Section 7.10 |
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Access to Information |
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51 |
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Section 7.11 |
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Financial Information |
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51 |
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Section 7.12 |
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Takeover Statutes |
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52 |
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TABLE OF CONTENTS
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Section 7.13 |
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Notice of Alternate Transaction |
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52 |
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Section 7.14 |
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Commercially Reasonable Efforts |
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53 |
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Section 7.15 |
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Antitrust Approval |
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53 |
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Section 7.16 |
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Plan Support |
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55 |
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Section 7.17 |
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Exit Financing |
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55 |
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Section 7.18 |
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Ford Agreement |
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55 |
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Section 7.19 |
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VIHI Restructuring |
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56 |
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Section 7.20 |
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UK Pension Notice |
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56 |
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ARTICLE VIII |
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CONDITIONS TO THE OBLIGATIONS OF THE PARTIES |
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56 |
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Section 8.1 |
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Conditions to the Obligation of the Investors |
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56 |
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Section 8.2 |
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Waiver of Conditions to Obligation of Investors |
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60 |
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Section 8.3 |
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Conditions to the Obligation of the Company |
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60 |
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Section 8.4 |
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Failure of Closing Conditions |
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61 |
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Section 8.5 |
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Regulatory Reallocation |
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61 |
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ARTICLE IX |
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INDEMNIFICATION AND CONTRIBUTION |
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62 |
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Section 9.1 |
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Indemnification Obligations |
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62 |
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Section 9.2 |
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Indemnification Procedure |
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62 |
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Section 9.3 |
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Settlement of Indemnified Claims |
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63 |
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Section 9.4 |
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Contribution |
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64 |
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Section 9.5 |
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Treatment of Indemnification Payments |
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64 |
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Section 9.6 |
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Limitation on Liabilities |
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64 |
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Section 9.7 |
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Survival of Representations and Warranties |
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64 |
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ARTICLE X |
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TERMINATION |
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65 |
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Section 10.1 |
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Termination Rights |
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65 |
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Section 10.2 |
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Alternate Transaction Termination |
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67 |
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Section 10.3 |
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Effect of Termination |
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68 |
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ARTICLE XI |
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GENERAL PROVISIONS |
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68 |
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Section 11.1 |
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Notices |
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68 |
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Section 11.2 |
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Assignment; Third Party Beneficiaries |
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70 |
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Section 11.3 |
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Prior Negotiations; Entire Agreement |
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70 |
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Section 11.4 |
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GOVERNING LAW; VENUE |
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71 |
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Section 11.5 |
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WAIVER OF JURY TRIAL |
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71 |
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Section 11.6 |
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Counterparts |
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71 |
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Section 11.7 |
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Waivers and Amendments; Rights Cumulative |
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72 |
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Section 11.8 |
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Headings |
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72 |
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Section 11.9 |
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Specific Performance; Limitations on Remedies |
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73 |
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Section 11.10 |
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Approval by Requisite Receiving Co-Investors |
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74 |
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TABLE OF CONTENTS
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Page |
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Section 11.11 |
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No Reliance |
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75 |
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Section 11.12 |
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Publicity |
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75 |
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Section 11.13 |
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Effectiveness |
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75 |
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SCHEDULES AND EXHIBITS
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Schedule 1
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Equity Commitment, Premium and Damages Allotments* |
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Schedule 2
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Arrangement Premium Allotment* |
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Schedule 3
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Transaction Expenses Estimate |
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Schedule 4
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Consents |
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Schedule 5
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Lead Investors; Notice Information |
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Schedule 6
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Co-Investors; Notice Information |
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Exhibit A
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Form of Approval Motion |
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Exhibit B
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Attached Disclosure Statement |
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Exhibit C
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Attached Plan |
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Exhibit D
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Form of Bylaws |
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Exhibit E
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Form of Certificate of Incorporation |
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Exhibit F
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Form of Commitment Joinder Agreement |
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Exhibit G
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Management Equity Incentive Plan |
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Exhibit H
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Plan Support Agreement |
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Exhibit I
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Form of Registration Rights Agreement |
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Exhibit J
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Rights Offering Procedures |
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Exhibit K
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VIHI Restructuring Term Sheet |
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Exhibit L
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Employee Benefits Term Sheet |
*The
registrant agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission upon request.
iv
EQUITY COMMITMENT AGREEMENT
THIS EQUITY COMMITMENT AGREEMENT (this Agreement), dated as of
May 6, 2010, is made by and among Visteon Corporation (as a debtor in possession and a reorganized
debtor, as applicable, the Company), on the one hand, and the
Investors set forth on Schedule 1 hereto (each referred to herein
individually as an Investor and collectively as the
Investors), on the other hand. The Company and each Investor is
referred to herein as a Party and collectively, the
Parties. Capitalized terms used herein have the meanings ascribed
thereto in Article I.
RECITALS
WHEREAS, on May 28, 2009 (the Petition
Date), the Company and certain of its Subsidiaries and Affiliates (each
individually, a Debtor and collectively, the
Debtors) commenced jointly administered proceedings, styled In re
Visteon Corporation, et al., Case no. 09-11786 (CSS) (the Proceedings)
under Title 11 of the United States Code, 11 U.S.C. §§ 101-1532, as may be amended from time to
time (the Bankruptcy Code) in the United States Bankruptcy Court for
the District of Delaware (the Bankruptcy Court); and
WHEREAS, the Company intends to propose and submit the Plan to the Bankruptcy Court for its
approval; and
WHEREAS, within seven (7) days following the execution of this Agreement, the Company will
file a motion and supporting papers (which shall be in the form of Exhibit
A attached hereto, the Approval Motion) seeking the
entry of an order of the Bankruptcy Court (the Approval Order) (i)
approving and authorizing the Company to enter into this Agreement, and (ii) authorizing the
Company and the other Debtors to perform their respective obligations hereunder, including the
payment, in accordance with, and subject to, the terms and conditions hereof, of the Stock Right
Premium, the Arrangement Premium and Transaction Expenses provided for herein; and
WHEREAS, the Company has requested that the Investors, severally and not jointly, participate
in the Plan, and the Investors are willing to participate in the Plan, on the terms and subject to
the conditions contained in this Agreement and the Plan Support Agreement.
NOW, THEREFORE, in consideration of the mutual promises, agreements, representations,
warranties and covenants contained herein, each of the Parties hereby agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Except as otherwise expressly provided in this
Agreement, or unless the context otherwise requires, whenever used in this Agreement
(including any Exhibits and Schedules hereto), the following terms shall have the respective
meanings specified therefor below.
12.25% Notes means the 12.25% senior unsecured notes due December
31, 2016 issued by the Company under that certain second supplemental indenture dated as of June
18, 2008, by and among the Company, the guarantors party thereto, and the Bank of New York Trust
Company, as trustee in the original amount of two hundred six million, three hundred eighty-six
thousand dollars ($206,386,000).
12.25% Warrants means the warrants to purchase shares of New
Common Stock to be issued pursuant to the Plan to the holders of the 12.25% Notes.
Ad Hoc Group of Noteholders means the informal committee of
Noteholders of the Company.
Ad Hoc Counsel means Akin Gump Strauss Hauer & Feld LLP, acting
in its capacity as counsel to the Ad Hoc Group of Noteholders.
Affiliate has the meaning ascribed to such term in Rule 12b-2
promulgated pursuant to the Exchange Act as in effect on the date hereof.
Aggregate Commitment means, collectively, the sum of (i) the
product of (A) the Purchase Price multiplied by (B) the aggregate number of Shares offered in the
Rights Offering and (ii) the product of (A) the Purchase Price multiplied by (B) the aggregate
number of Direct Subscription Shares.
Allotted Portion means, with respect to any Investor, such
Investors percentage of the Equity Commitment as set forth opposite such Investors name under the
column titled Aggregate Commitment Percentage on Schedule 1 (as it may
be amended from time to time in accordance with this Agreement).
Allowed Senior Notes Claim has the meaning ascribed to such term
in the Plan.
Alternate Transaction means, except for those transactions
contemplated by the VIHI Restructuring, any restructuring, reorganization, merger, consolidation,
share exchange, business combination, recapitalization or similar transaction involving the Company
or its Subsidiaries comprising at least twenty-five percent (25%) of the Companys assets on a
consolidated basis that is inconsistent with the transactions contemplated by this Agreement or the
Rights Offering Sub-Plan; provided, that the Claims Conversion Sub-Plan
shall not be an Alternate Transaction if implemented or consummated pursuant to and substantially
in accordance with the Plan and not in violation of this Agreement.
Antitrust Authorities means the United States Federal Trade
Commission, the Antitrust Division of the United States Department of Justice, the attorneys
general of the several states of the United States, and any other Governmental Entity having
jurisdiction pursuant to the Antitrust Laws and Antitrust Authority means any of them.
Antitrust Laws mean the Sherman Act, as amended, the Clayton Act,
as amended, the HSR Act, the Federal Trade Commission Act, and any other Law governing agreements
in restraint of trade, monopolization, pre-merger notification, the lessening of competition
through merger or acquisition or anti-competitive conduct.
2
Approved Annual Incentive Program means the Annual Incentive
Program of the Company approved by the Bankruptcy Court on February 18, 2010.
Attached Disclosure Statement means the disclosure statement for
the Plan, including any exhibits and schedules thereto, that is attached hereto as of the date
hereof as Exhibit B, and excluding any amendments, supplements, changes
or modifications thereto.
Attached Plan means the chapter 11 plan of reorganization that is
attached hereto as of the date hereof as Exhibit C, and excluding any
amendments, supplements, changes or modifications thereto.
Available Investor Shares means the Investor Shares that any
Investor fails to purchase as a result of an Investor Default by such Investor.
Bankruptcy Rules means the Federal Rules of
Bankruptcy Procedure, as amended from time to time and applicable to the Proceedings, and the
general, local and chambers rules of the Bankruptcy Court.
Board means the board of directors of the Company.
Business Day means any day, other than a Saturday, Sunday or
legal holiday, as defined in Bankruptcy Rule 9006(a).
Business Intellectual Property means all Intellectual Property
(i) owned by the Company or its Subsidiaries or (ii) used by the Company or its Subsidiaries
subject to valid and enforceable rights held by the Company or its Subsidiaries.
Business Plan means the four (4)-year business plan for the
Company and its Subsidiaries, dated March 2010, a copy of which has been made available for review
by the Lead Investors and their respective Representatives.
Bylaws means the amended and restated bylaws of the Company as of
the Effective Date, which shall be in the form attached as Exhibit D
hereto, with only such amendments, supplements, changes and modifications that (i) if not adverse
to any Investor, or if required by the Bankruptcy Court, are reasonably acceptable to Requisite
Investors or (ii) if demonstrated by any Investor to be reasonably likely to be adverse to such
Investor, are acceptable to Requisite Investors in their sole discretion.
Cash Amount has the meaning ascribed to such term in the Plan.
Cash Recovery Backstop Agreement means that certain Cash Recovery
Backstop Agreement, dated as of the date hereof, among the Company and certain of the Investors
party thereto.
Cash Recovery Backstop Amount means an amount in cash equal to
the sum of (i) the Cash Recovery Subscription Equity multiplied by the Purchase Price and (ii) the
aggregate Cash Amount.
3
Cash Recovery Subscription Equity means the aggregate Shares that
the Non-Eligible Recipients would have been entitled to subscribe for pursuant to their Basic
Subscription Rights had such Non-Eligible Recipients been Rights Holders.
Certificate of Incorporation means the amended and restated
certificate of incorporation of the Company as of the Effective Date, which shall be in the form
attached as Exhibit E hereto, with only such amendments, supplements,
changes and modifications that (i) if not adverse to any Investor, or if required by the Bankruptcy
Court, are reasonably acceptable to Requisite Investors or (ii) if demonstrated by any Investor to
be reasonably likely to be adverse to such Investor, are acceptable to Requisite Investors in their
sole discretion.
Change of Recommendation means (i) the Company or the Board or
any committee thereof shall have withdrawn, qualified or modified, in a manner adverse to the
Investors and inconsistent with the obligations of the Company under this Agreement, its approval
or recommendation of this Agreement or the Rights Offering Sub-Plan or the transactions
contemplated hereby or thereby or (ii) the Company or the Board or any committee thereof shall have
approved or recommended, or resolved to approve or recommend (including by filing any pleading or
document with the Bankruptcy Court seeking Bankruptcy Court approval of) any Alternate Transaction
or Alternate Transaction Agreement.
Claim means any claim (as such term is defined in section 101(5)
of the Bankruptcy Code) against any Debtor.
Claims Conversion Sub-Plan has the meaning ascribed to such term
in the Plan.
Class means either, as the case may be, (i) the class of Allowed
12.25% Senior Note Claims or (ii) the class of Allowed 7.00% Senior Note Claims and Allowed 8.25%
Senior Note Claims, taken together as one class (as such terms are defined in the Attached Plan).
Co-Investor means any Investor that is not a Lead Investor or an
Affiliate of a Lead Investor.
Code means the Internal Revenue Code of 1986, as amended, and the
regulations promulgated and the rulings issued thereunder.
Collective Bargaining Agreements means any and all written
agreements, memoranda of understanding, contracts, letters, side letters and contractual
obligations of any kind, nature and description, that have been entered into between or that
involve or apply to any employer and any Employee Representative.
Commitment Joinder Agreement means a joinder agreement
substantially in the form attached as Exhibit F hereto.
Company SEC Documents means all of the reports, schedules, forms,
statements and other documents (including exhibits and other information incorporated therein)
filed with the SEC by the Company on or after the Petition Date.
4
Confirmation Hearing means the hearing before the Bankruptcy
Court pursuant to section 1128 of the Bankruptcy Code.
Confirmation Order means the order entered by the Bankruptcy
Court confirming the Plan, which shall be in such form and substance as is reasonably acceptable to
both the Company and Requisite Investors.
Contract means any binding agreement, contract or instrument,
including any loan, note, bond, mortgage, indenture, guarantee, deed of trust, license, franchise,
commitment, lease, franchise agreement, letter of intent, memorandum of understanding or other
obligation, and any amendments thereto.
Credit Facility means that certain amended and restated credit
agreement, dated as of April 10, 2007, as such may be amended, supplemented, or modified from time
to time to the date hereof, among the Company, as borrower thereunder, the Lenders (as defined
therein) party thereto from time to time, Credit Suisse Securities (USA) LLC and Sumitomo Mitsui
Banking Corporation, as co-documentation agents, Citicorp USA, Inc., as syndication agent and
JPMorgan Chase Bank, N.A., as administrative agent.
DIP Credit Agreement means that certain Senior Secured Super
Priority Priming Debtor In Possession Credit And Guaranty Agreement, dated as of November 18, 2009,
as amended, supplemented, or modified from time to time, by and among the Company and certain of
its Subsidiaries, as guarantors, the lenders party thereto from time to time, and Wilmington Trust
FSB, as administrative agent for such lenders, in the form as approved by the Bankruptcy Court on
November 12, 2009.
DIP Lender means any lender party to the DIP Credit Agreement and
the administrative agent under the DIP Credit Agreement.
Disclosure Statement means a disclosure statement for the Plan,
including all exhibits and schedules thereto, in substantially the form attached as
Exhibit B hereto, with any such amendments, supplements, changes and
modifications thereto, which Disclosure Statement shall be in such form and substance as is
reasonably satisfactory to Requisite Investors and with any changes or modifications required by
the Bankruptcy Court.
Effective Date means the date on which the Rights Offering Sub-Plan becomes
effective in accordance with its terms.
Election Form has the meaning ascribed to such term in the Plan.
Election Form Deadline has the meaning ascribed to such term in
the Plan.
Eligible Recipient means any holder of a Note as of the Rights
Offering Record Date (as defined in the Rights Offering Procedures) that is an accredited
investor within the meaning of Rule 501 of the Securities Act and that timely delivers to the
Subscription Agent a certificate in a form reasonably acceptable to the Company certifying to that
effect in accordance with the Rights Offering Procedures.
5
Equity Commitment means, collectively, the Direct Commitment and
the Stock Right Commitment.
Event means any event, development, occurrence, circumstance or
change.
Excess Shares means Shares offered in the Rights Offering
(including Available Direct Subscription Shares) that are not purchased pursuant to Basic
Subscription Rights, but excluding any Cash Recovery Subscription Equity.
Exchange Act means the Securities Exchange Act of 1934, as
amended, and the rules and regulation of the SEC thereunder.
Excluded Consent Event means any election, decision,
determination, approval, consent, waiver or other action with respect to (i) determinations of
rounding for fractional shares as set forth in the last sentence of Sections
3.1(a) and 3.1(b)(ii) and the first sentence of
Section 3.2, (ii) Section 3.3(a) (Alternative
Financing), (iii) Section 7.9 (Conduct of Business), (iv)
Section 7.18 (Ford Agreement), (v) Section
7.19 (VIHI Restructuring), (vi) Section 8.1(s) (Ford),
(vii) Section 8.5 (Regulatory Reallocations) or (viii) the exercise or
non-exercise of any rights under Section 10.1 (Termination Rights).
Expiration Time means the deadline by which holders of claims or
interests are entitled to vote on the Plan or such later date as the Company may specify in a
notice provided to the Investors before 9:00 a.m. New York City time on the Business Day
immediately prior to the then-effective Expiration Time.
Final Order means an order or judgment of the Bankruptcy Court,
or other court of competent jurisdiction with respect to the subject matter, which has not been
reversed, stayed, modified, or amended, and as to which the time to appeal or seek certiorari has
expired and no appeal or petition for certiorari has been timely taken, or as to which any appeal
that has been taken or any petition for certiorari that has been or may be filed has been resolved
by the highest court to which the order or judgment was appealed or from which certiorari was
sought; provided, however, that the possibility that a motion under Rule 60 of the
Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed
relating to such order shall not prevent such order from being a Final Order; provided,
further, that either the Company or Requisite Investors may waive any appeal period.
GLCA/Sagent Engagement Letter means that certain letter agreement
between the Ad Hoc Group of Noteholders and GLCA/Sagent Advisors dated as of November 1, 2009, as
amended in the form delivered to the Company on April 28, 2010.
GLCA/Sagent Advisors means, collectively, GLC Advisors & Co. LLC
and Sagent Advisors, Inc.
Good Faith Consultation means consultation by the Company and the
Lead Investors (provided, that if the underlying election, decision,
determination, approval, consent, waiver or other action to which any requirement of Good Faith
Consultation is applicable hereunder can be taken unilaterally by Lead Investors constituting
Requisite Investors in accordance herewith (including exercise of the termination rights by Lead
Investors constituting
6
Requisite Investors pursuant to Section
10.1(b)-(c) and waiver by Lead Investors constituting Requisite Investors of conditions pursuant to Section 8.2), the
consultation shall be by such Lead Investors constituting Requisite Investors only) with the Ad Hoc
Counsel acting in good faith, including without limitation: (i) providing a copy to the Ad Hoc
Group of any relevant documents and a reasonable opportunity to review and comment on such
documents prior to such documents being approved or consented to and prior to such documents being
executed or delivered or filed with the Bankruptcy Court, as applicable and (ii) considering, in
good faith, any comments of the Ad Hoc Counsel consistent with this Agreement, and any other
reasonable comments made by the Ad Hoc Counsel on behalf of the Co-Investors;
provided, however, that in no event shall the
failure of the Lead Investors or Requisite Investors, as applicable, to engage in such Good Faith
Consultation in any way (including the actions contemplated in clauses (i) and (ii) above) in and
of itself (w) prevent the Company from relying upon any election, determination, waiver or decision
in connection herewith by the Lead Investors or Requisite Investors or the exercise of the Lead
Investors or Requisite Investors of any their respective rights under this Agreement, (x) relieve
the Lead Investors or Requisite Investors from complying with any of their respective obligations
under this Agreement, (y) affect the validity and enforceability of any approval given by the Lead
Investors or Requisite Investors or (z) cause any election, decision, determination or other action
to be deemed to be a Material Discriminatory Effect; provided,
further, nothing in the preceding proviso shall limit the availability
of the consent rights of the Co-Investors with respect to an Investor Consent Action that has or
would, if implemented, have a Material Discriminatory Effect. The Ad Hoc Counsel shall promptly
notify the Lead Investors or the Company, as the case may be, in writing whenever the Ad Hoc
Counsel believes that such Person or Persons are not complying with any obligation to conduct Good
Faith Consultations.
Governmental Entity means any U.S. or non-U.S. federal, state,
municipal, local, judicial, administrative, legislative or regulatory agency, department,
commission, court, or tribunal of competent jurisdiction (including any branch, department or
official thereof).
Guaranty Equity Amount has the meaning ascribed to such term in
the Plan.
HSR Act means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
Intellectual Property means any of the following, whether foreign
or domestic: (i) trade names, trademarks and service marks, certification marks, trade dress,
internet domain names, corporate names, business names, slogans, logos and all other indicia of
origin, whether registered or unregistered, and all registrations and applications to register any
of the foregoing (including all translations, adaptations, derivations, and combinations of the
foregoing), together with all associated goodwill; (ii) inventions (whether or not patentable or
reduced to practice), issued patents and patent applications and patent disclosures and
improvements thereto together with all reissues, continuations, continuations in part, divisions,
extensions or reexaminations thereof; (iii) copyright registrations, copyright applications, works
of authorship, unregistered copyrights and all associated moral rights; (iv) Trade Secrets; (v)
computer software (including source code and object code), data, databases and documentation
thereof; (vi) rights of privacy and publicity; (vii) all other intellectual property and
proprietary rights; (viii) rights to sue for past, present and future infringement or
misappropriation of the foregoing; and (ix) all proceeds
7
of any of the forgoing including license
royalties and other income and damages and other proceeds of suit.
Investor Consent Event means an election, decision,
determination, approval, consent, waiver or other action that this Agreement expressly requires to
be taken or made by (i) all of the Lead Investors and is expressly specified in this Agreement as
subject to a Material Discriminatory Effect qualification or (ii) Requisite Investors;
provided, that in no event shall any Excluded Consent Event be deemed to
be an Investor Consent Event.
Investor Default means the failure by any Investor to purchase
any Investor Shares that such Investor is obligated to purchase under this Agreement.
Investor Shares means, collectively, (i) the Unsubscribed Shares
and (ii) the Direct Subscription Shares.
IRS means the United States Internal Revenue Service.
Joint Venture means, with respect to any Person, any corporation,
partnership, joint venture or other legal entity of which such Person (either alone or through or
together with any other subsidiary) owns, directly or indirectly, fifty percent (50%) of the stock
or other equity interests.
Knowledge of the Company means the actual knowledge, after a
reasonable inquiry of their direct reports, of the chief executive officer, chief financial officer
and general counsel of the Company.
Last Trading Price means, as of any time of determination, with
respect to shares of common stock of the Company the closing price as quoted by OTCQX on the
immediately previous trading day.
Law means any law (statutory or common), statute, regulation,
rule, code or ordinance enacted, adopted, issued or promulgated by any Governmental Entity.
Lead Investor means an Investor set forth on Schedule 5; provided,
that such Investor shall cease to be a Lead Investor and shall be deemed to be a Co-Investor for
all purposes of this Agreement if such Investor and its Affiliates, in the aggregate, hold less
than fifty percent (50%) of the Allotted Portions, measured as of the date hereof, of the Equity
Commitment of such Investor and its Affiliates.
Lien means any lease, lien, adverse claim, charge, option, right
of first refusal, servitude, security interest, mortgage, pledge, deed of trust, easement,
encumbrance, restriction on transfer, conditional sale or other title retention agreement, defect
in title or other restrictions of a similar kind.
Management Agreements means, collectively, the (i) Change In
Control Agreement, (ii) Executive Officer Change In Control Agreement and (iii) Employment
Agreement to be entered into with Donald J. Stebbins, in each case, (x) in the form delivered by
Kirkland & Ellis LLP, in its capacity as counsel to the Company, to White & Case LLP, as
8
counsel to
the Lead Investors, and attached to a letter dated the date hereof and (y) with only such
amendments, supplements, changes and modifications that are acceptable to Requisite Investors in
their sole discretion.
Management Equity Incentive Plan means the post-Effective Date
management equity incentive program as set forth in Exhibit G attached
hereto.
Material Adverse Effect means a material adverse effect on (i)
the business, assets, liabilities, properties, results of operations or financial condition of the
Company and its Subsidiaries, taken as a whole, or (ii) the ability of the Company, subject to
receipt of the consents, approvals and other authorizations set forth in Section
5.7, to consummate the transactions contemplated by this Agreement or the Rights
Offering Sub-Plan; provided, that the following shall not constitute a
Material Adverse Effect and shall not be taken into account in determining whether or not there has
been, or would reasonably be expected to be, a Material Adverse Effect: (A) any change in general
economic or political conditions or conditions generally affecting the industries in which the
Company and its Subsidiaries operate (including those resulting from acts of terrorism or war
(whether or not declared) or other calamity, crisis or geopolitical Event); (B) any change or
prospective change in any Law or GAAP, or any interpretation thereof; (C) any change in currency,
exchange or interest rates or the financial or securities markets generally; (D) any matter
identified or described in (1) the Company SEC Documents (excluding any risk factor disclosure and
disclosure included in any forward-looking statements disclaimer or other statements included in
such Company SEC Documents that are predictive, forward-looking, non-specific or primarily
cautionary in nature (but including any specific factual information contained therein)) filed with
the SEC prior to the date hereof, (2) the Disclosure Letter or (3) the Attached Disclosure
Statement (excluding any risk factor disclosure and disclosure included in any forward-looking
statements disclaimer or other statements included in the Attached Disclosure Statement that are
predictive, forward-looking, non-specific or primarily cautionary in nature (but including any
specific factual information contained therein)) (but not including any amendments, supplements,
changes or modifications thereto), in each case to the extent that the effect or potential effect
on the Company and its Subsidiaries of such disclosed matter is reasonably apparent on its face,
(E) any change in the market price or trading volume of the common stock
of the Company or the Notes, as the case may be; provided, that any Event that caused
or contributed to such change in market price or trading volume shall not be excluded; (F) any
change to the extent resulting from the announcement or pendency of the transactions contemplated
by this Agreement; and (G) any change resulting from actions of the Company or its Subsidiaries
expressly agreed to or requested in writing by Requisite Investors; except in the cases of (A)
through (C) to the extent such change or Event is disproportionately adverse with respect to the
Company and its Subsidiaries when compared to other companies in the industry in which the Company
and its Subsidiaries operate.
Material Discriminatory Effect means an effect that is material
and discriminatorily adverse to the Co-Investors, as a group, relative to the Lead Investors, as a
group; provided, that in no event shall any Excluded Consent Event be
deemed to have a Material Discriminatory Effect.
9
New Common Stock means the common stock of the Company as a
reorganized debtor, par value $0.01 per share.
Non-Eligible Recipient means any holder of a Note that is not an
Eligible Recipient.
Notes means, collectively, (i) the 8.25% senior unsecured notes
due August 1, 2010 issued by the Company under that certain indenture dated as of June 23, 2000, by
and between the Company and Bank One Trust Company, N.A., as trustee, in the original amount of
seven hundred million dollars ($700,000,000), (ii) the 7.0% senior unsecured notes due March 10,
2014 issued by the Company under that certain supplemental indenture dated as of March 10, 2004, by
and between the Company and J.P. Morgan Trust Company, as trustee, in the original amount of four
hundred fifty million dollars ($450,000,000) and (iii) the 12.25% Notes.
Order means any judgment, order, award, injunction, writ, permit,
license or decree of any Governmental Entity or arbitrator.
Owned Real Property means all real property owned, in whole or in
part, directly or indirectly by the Company, except to the extent such real property is residential
real property that is not material to the Company.
Pension Protection Fund means the statutory fund established
under the UK Pensions Act 2004, as amended.
Permitted Liens means (i) real estate taxes, assessments, and
other governmental levies, fees or charges imposed with respect to any Owned Real Property that (A)
are not due and payable or (B) are being contested in good faith by appropriate proceedings and for
which adequate reserves have been made with respect thereto; (ii) mechanics liens and similar liens
for labor, materials or supplies provided with respect to any Owned Real Property or personal
property incurred in the ordinary course of business, consistent with past practice and as
otherwise not prohibited under this Agreement, for amounts that (A) do not materially detract from
the value of, or materially impair the use of, any of the Owned Real Property or personal property
of the Company or any of its Subsidiaries or (B) are being contested in good faith by
appropriate proceedings; (iii) zoning, building codes and other land use Laws regulating the
use or occupancy of any Owned Real Property or the activities conducted thereon that are imposed by
any Governmental Entity having jurisdiction over such real property;
provided, that no such zoning, building codes and other land use Laws
prohibit the use or occupancy of such Owned Real Property; (iv) easements, covenants, conditions,
restrictions and other similar matters affecting title to any Owned Real Property and other title
defects that do not or would not materially impair the use or occupancy of such real property or
the operation of the Companys or any of its Subsidiaries business; and (v) Liens that, pursuant
to the Confirmation Order, will not survive beyond the Effective Date.
Person means an individual, firm, corporation (including any
non-profit corporation), partnership, limited liability company, joint venture, associate, trust,
Governmental Entity or other entity or organization.
10
Plan means the chapter 11 plan of reorganization, including all
exhibits, schedules and annexes, attached as Exhibit C hereto, with only
such amendments, supplements (including any Plan Supplement), changes and modifications that (i) if
not adverse to any Investor, or if submitted by the Company in accordance with Section 7.1(f) of
the Plan Support Agreement, or if required by the Bankruptcy Court, are reasonably acceptable to
Requisite Investors; (ii) if constituting a change or modification to the manner in which the
Claims of holders of Notes belonging to any specific Class are treated under either the Rights
Offering Sub-Plan (including the terms and conditions of the Guaranty Equity Amount) or the Claims
Conversion Sub-Plan, are acceptable to Lead Investors holding at least sixty-six and two-thirds
percent (66 2/3%) of the aggregate Allotted Portions held by those Lead Investors holding Claims that
are of the affected Class after Good Faith Consultation; provided, that to the extent Lead
Investors cease to hold at least fifteen percent (15%) of the aggregate amount of Notes in such
Class (as per the most recent updated holdings information provided pursuant to the Plan Support
Agreement, or as requested by the Debtors pursuant thereto), such change or modification must be
acceptable to Investors holding more than fifty percent (50%) of the Notes held by those Investors
holding Claims in that Class; or (iii) if otherwise demonstrated by any Investor to be reasonably
likely to be adverse to such Investor, are acceptable to Requisite Investors in their sole
discretion (it being agreed that any amendment, supplement, change or modification which provides
for a distribution to any stakeholder junior to the holders of Notes, including existing interests
in the Company, shall be deemed adverse without any such demonstration being required to be made;
provided, that without limiting the rights and obligations of the
Parties hereunder, it is acknowledged that nothing in this parenthetical shall derogate the
Companys fiduciary obligations); provided,
further, that notwithstanding anything to the contrary contained herein,
no change or modification may be made to the treatment of Claims of holders of Notes belonging to
any specific Class under either the Rights Offering Sub-Plan (including the terms and conditions of
the Guaranty Equity Amount) or the Claims Conversion Sub-Plan, which disproportionately affects the
recoveries of claimholders in such Class as compared to any other noteholder Class, without the
reasonable consent of Investors holding more than fifty percent (50%) of the Notes (as per the most
recent updated holdings information provided pursuant to the Plan Support Agreement or as requested
by the Debtors pursuant thereto) held by those Investors holding Claims in any such
disproportionately affected Class.
Plan Supplement has the meaning ascribed to such term in the
Plan, and shall be reasonably acceptable to Requisite Investors. For the purposes of this
Agreement, the term Plan Supplement does not include any document attached as an Exhibit to this
Agreement.
Plan Support Agreement means the agreement among the Company and
each Investor to support the Plan, attached as Exhibit H hereto.
Priority Oversubscription Right means the priority right of the
Investors with respect to oversubscription of Excess Shares described in Section
2.2(e).
Proposal Letter means that certain letter, dated February 1,
2010, from certain of the Investors to the Company and executed by such Investors.
Real Property Leases means those leases, subleases, licenses,
concessions and other agreements, as amended, modified or restated, pursuant to which the Company
or one of its
11
Subsidiaries or Joint Ventures holds a leasehold or subleasehold estate in, or is
granted the right to use or occupy, any land, buildings, structures, improvements, fixtures or
other interest in real property used in the Companys or its Subsidiaries or Joint Ventures
business.
Receiving Co-Investor means a Co-Investor, at the time of
determination with respect to a specific Investor Consent Event, for whom, following prior written
request, the Ad Hoc Counsel promptly certifies in writing to the Company and the Lead Investors
based upon information provided by such Co-Investor acting in good faith, (i) does not hold (A)
Term Loan Facility Claims (as defined in the Plan) in an aggregate principal amount in excess of
ten million dollars ($10,000,000) or (B) a number of shares of common stock of the Company that
when multiplied by the Last Trading Price results in a product in excess of ten percent (10%) of
the principal amount of the Notes held by such Co-Investor as of the time of the determination, and
(ii) has either (A) agreed as of the time of determination to receive all relevant information
regarding either (1) the specific Investor Consent Event being considered or (2) Investor Consent
Events generally or (B) arranged to have a Representative of such Co-Investor (which may include,
for the avoidance of doubt, the Ad Hoc Counsel) review such information on its behalf.
Registration Rights Agreement means a registration rights
agreement among the Company and the Investors, their Related Purchasers and Ultimate Purchasers, in
the form attached as Exhibit I hereto, with only such amendments,
supplements, changes and modifications that (i) if not adverse to any Investor, or if required by
the Bankruptcy Court, are reasonably acceptable to Requisite Investors or (ii) if demonstrated by
any Investor to be reasonably likely to be adverse to such Investor, are acceptable to Requisite
Investors in their sole discretion.
Related Party means, with respect to any Person, (i) any former,
current or future director, officer, agent, Affiliate, employee, general or limited partner,
member, manager or stockholder of such Person and (ii) any former, current or future director,
officer,
agent, Affiliate, employee, general or limited partner, member, manager or stockholder of any
of the foregoing.
Representatives means, with respect to any Person, such Persons
directors, officers, employees, investment bankers, attorneys, accountants or other advisors,
collectively.
Requisite Investors means Lead Investors holding at least
sixty-six and two-thirds percent (66 2/3%) of the aggregate Allotted Portions held by the Lead
Investors; provided, that with respect to any Investor Consent Event
that has or would, if implemented, have a Material Discriminatory Effect, Requisite Investors
also requires Requisite Receiving Co-Investor Approval in accordance with Section
11.10; provided, further, that
in no event shall (i) any Investor Consent Event that has the same effect on the Allotted Portions
and the rights and obligations derived therefrom held on the one hand by the Lead Investors and on
the other hand by the Co-Investors or (ii) any Excluded Consent Event, in either case, be deemed to
have a Material Discriminatory Effect; provided,
further, that for purposes of this definition, each Investor shall be
deemed to hold the Allotted Portions held by such Investors Related Purchasers. Moreover, the
amount originally paid by any Co-Investor to acquire its individual Notes shall not, under any
circumstance, provide an independent basis for the assertion of a Material Discriminatory Effect.
12
Rights Holder means an Eligible Recipient that is the holder of a
Right.
Rights Offering Sub-Plan has the meaning ascribed to such term in
the Plan.
Rights Offering Procedures means the procedures for conducting
the Rights Offering attached as Exhibit J hereto, with only such
amendments, supplements, changes and modifications that (i) if not adverse to any Investor, or if
required by the Bankruptcy Court, are reasonably acceptable to Requisite Investors or (ii) if
demonstrated by any Investor to be reasonably likely to be adverse to such Investor, are acceptable
to Requisite Investors in their sole discretion.
SEC means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder.
Signatory Default means the failure of any Investor to purchase
any Available Distributable Securities that such Investor is obligated to purchase under the Cash
Recovery Backstop Agreement.
Significant Subsidiary means a Subsidiary that satisfies the
definition contained in Article 1, Rule 1-02 of Regulation S-X promulgated pursuant to the
Securities Act.
Subscription Agent means a subscription agent reasonably
acceptable to both the Company and Requisite Investors.
Subsidiary means, with respect to any Person, any corporation,
partnership, joint venture or other legal entity of which such Person (either alone or through or
together with any other subsidiary), (i) owns, directly or indirectly, more than fifty percent
(50%) of the stock or other equity interests, (ii) has the power to elect a majority of the board
of directors or similar governing body or (iii) has the power to direct the business and policies.
Superior Transaction means an Alternate Transaction, which the
Board, after consultation with its outside legal counsel and its independent financial advisors,
determines in good faith to be more favorable to the bankruptcy estate of the Company and the
estates of the other Debtors than the transactions contemplated by this Agreement and the Rights
Offering Sub-Plan, taking into account all aspects of such Alternate Transaction and the Boards
good-faith estimation of the likelihood of consummating the Alternate Transaction.
Taxes means all taxes, assessments, charges, duties, fees, levies
or other governmental charges, including all federal, state, local, foreign and other income,
franchise, profits, gross receipts, capital gains, capital stock, transfer, property, sales, use,
value-added, occupation, excise, severance, windfall profits, stamp, license, payroll, social
security, withholding and other taxes, assessments, charges, duties, fees, levies or other
governmental charges of any kind whatsoever (whether payable directly or by withholding and whether
or not requiring the filing of a Tax Return), all estimated taxes, deficiency assessments,
additions to tax, penalties and interest and shall include any liability for such amounts as a
result either of being a
13
member of a combined, consolidated, unitary or affiliated group or of a
contractual obligation to indemnify any Person, and any liability therefor as a transferee,
successor or otherwise.
Trade Secret means any and all trade secrets or other proprietary
and confidential information, which are subject to reasonable efforts to maintain its secrecy from
third parties, including ideas, formulas, compositions, unpatented inventions (whether patentable
or unpatentable and whether or not reduced to practice), invention disclosures, financial and
accounting data, technical data, personal information, customer lists, supplier lists, business
plans, know-how, formulae, methods (whether or not patentable), designs, processes, merchandising
processes, procedures, source code, object code, and techniques, research and development
information, industry analyses, drawings, data collections and related information.
Transfer means sell, transfer, assign, pledge, hypothecate,
participate, donate or otherwise encumber or dispose of.
UK Pension Plan means any Company Plan which is a retirement
benefit scheme administered in the UK.
UK Pensions Regulator means the body corporate by that name
established under Part 1 of the UK Pensions Act 2004 (as amended).
Unsubscribed Shares means the Shares, other than (i) the Shares
issuable pursuant to the Rights that were properly exercised by the Rights Holders during the
Rights Exercise Period pursuant to the Basic Subscription Right and the Oversubscription Right (but
excluding any Available Direct Subscription Shares) and (ii) Cash Recovery Subscription Equity.
VIHI Restructuring means the reorganizations and other
transactions involving Subsidiaries and Joint Ventures of the Company that may be undertaken on or
prior to the Effective Date in the manner set forth in Exhibit K
attached hereto.
Section 1.2 Additional Defined Terms. In addition to the terms defined in
Section 1.1, additional defined terms used herein shall have the
respective meanings assigned thereto in the Sections indicated in the table below.
|
|
|
Defined Term |
|
Section |
Additional Investor Agreements
|
|
Section 3.6(b) |
Agreement
|
|
Preamble |
Alternate Transaction Agreement
|
|
Section 8.1(d) |
Alternate Transaction Damages
|
|
Section 10.2(a) |
Alternative Financing
|
|
Section 3.3(a) |
Approval Conditions
|
|
Section 10.1(b)(iii) |
Approval Motion
|
|
Recitals |
Approval Order
|
|
Recitals |
Arrangement Premium
|
|
Section 4.1(b) |
Available Direct Subscription Shares
|
|
Section 3.1(b)(ii) |
Bankruptcy Code
|
|
Recitals |
Bankruptcy Court
|
|
Recitals |
14
|
|
|
Defined Term |
|
Section |
Basic Subscription Right
|
|
Section 2.2(b) |
Breaching Investor
|
|
Section 9.1(b) |
Company
|
|
Preamble |
Company Plans
|
|
Section 5.21(a) |
Confirmed Plan
|
|
Section 8.1(b) |
Debtor
|
|
Recitals |
Determination Date
|
|
Section 2.2(f) |
Direct Commitment
|
|
Section 3.1(a) |
Direct Subscription Shares
|
|
Section 3.1(a) |
Disclosure Letter
|
|
Article V |
Discrimination Notice
|
|
Section 11.10 |
Dispute Notice
|
|
Section 11.10 |
Employee Representatives
|
|
Section 5.14(a) |
Environmental Laws
|
|
Section 5.19(a) |
ERISA
|
|
Section 5.21(a) |
Exit Financing.
|
|
Section 7.17 |
Expedited Proceedings
|
|
Section 11.10 |
Filing Party
|
|
Section 7.15(b) |
Financial Reports
|
|
Section 7.11(a) |
Financial Statements
|
|
Section 5.9 |
Ford
|
|
Section 7.18 |
Ford Agreement
|
|
Section 7.18 |
Fully Exercising Holder
|
|
Section 2.2(c) |
Funding Approval Certificate
|
|
Section 7.7 |
GAAP
|
|
Section 5.9 |
Indemnified Claim
|
|
Section 9.2 |
Indemnified Person
|
|
Section 9.2 |
Indemnifying Party
|
|
Section 9.2 |
Investor
|
|
Preamble |
Joint Filing Party
|
|
Section 7.15(c) |
Legal Proceedings
|
|
Section 5.13 |
Losses
|
|
Section 9.1(a) |
Material Contracts
|
|
Section 5.24 |
Money Laundering Laws
|
|
Section 5.26 |
Multiemployer Plans
|
|
Section 5.21(b) |
Offered Direct Subscription Shares
|
|
Section 3.1(b) |
Offering Investor
|
|
Section 3.1(b) |
OPEB Order
|
|
Section 5.11(f) |
Outside Date
|
|
Section 10.1(b)(iii) |
Over-Allotted Investor
|
|
Section 8.5 |
Over-Subscribed Shares
|
|
Section 2.2(e) |
Oversubscription Right
|
|
Section 2.2(c) |
Party
|
|
Preamble |
Petition Date
|
|
Recitals |
Pre-Closing Period
|
|
Section 7.9 |
15
|
|
|
Defined Term |
|
Section |
Proceedings
|
|
Recitals |
Purchase Notice
|
|
Section 2.2(f) |
Purchase Price
|
|
Section 2.1 |
Regulatory Cure
|
|
Section 8.5 |
Regulatory Reallocation
|
|
Section 8.5 |
Related Purchaser
|
|
Section 3.6(a) |
Removed Allotted Portion
|
|
Section 8.5 |
Requisite Receiving Co-Investor Approval
|
|
Section 11.10 |
Right
|
|
Section 2.1 |
Rights Distribution Date
|
|
Section 2.2(b) |
Rights Exercise Period
|
|
Section 2.2(d) |
Rights Offering
|
|
Section 2.1 |
ROFR Investors
|
|
Section 3.6(c) |
Share
|
|
Section 2.1 |
Stock Right Commitment
|
|
Section 3.2 |
Stock Right Deposit
|
|
Section 4.2 |
Stock Right Premium
|
|
Section 4.1(a) |
Takeover Statute
|
|
Section 5.30 |
Tax Return
|
|
Section 5.20(a) |
Transaction Agreements
|
|
Section 5.2(a) |
Transaction Expenses
|
|
Section 4.3(a) |
Transfer Notice
|
|
Section 3.6(c) |
Transferring Investor
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Section 3.6(c) |
Ultimate Purchaser
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Section 3.6(b) |
Section 1.3 Construction. In this Agreement, unless the context otherwise
requires:
(a) references to Articles, Sections, Exhibits and Schedules are references to the articles
and sections or subsections of, and the exhibits and schedules attached to, this Agreement;
(b) the descriptive headings of the Articles and Sections of this Agreement are inserted for
convenience only, do not constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement;
(c) references in this Agreement to writing or comparable expressions include a reference to
a written document transmitted by means of electronic mail in portable document format (.pdf),
facsimile transmission or comparable means of communication;
(d) words expressed in the singular number shall include the plural and vice versa; words
expressed in the masculine shall include the feminine and neuter gender and vice versa;
(e) the words hereof, herein, hereto and hereunder, and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole, including
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all Exhibits and
Schedules attached to this Agreement, and not to any provision of this Agreement;
(f) the term this Agreement shall be construed as a reference to this Agreement as the same
may have been, or may from time to time be, amended, modified, varied, novated or supplemented;
(g) include, includes and including are deemed to be followed by without limitation
whether or not they are in fact followed by such words;
(h) references to day or days are to calendar days;
(i) references to the date hereof means as of the date of this Agreement;
(j) unless otherwise specified, references to a statute means such statute as amended from
time to time and includes any successor legislation thereto and any regulations promulgated
thereunder in effect on the date of this Agreement; and
(k) references to dollars or $ are to United States of America dollars.
ARTICLE II
RIGHTS OFFERING
Section 2.1 The Rights Offering. The Company proposes to offer and sell
shares of New Common Stock pursuant to a rights offering (the Rights
Offering) whereby the Company will distribute to each Eligible Recipient, including,
to
the extent applicable, the Investors, that number of rights (each, a
Right) that will enable Rights Holders to purchase an aggregate of up
to the sum of (i) thirty-four million three hundred ten thousand two hundred (34,310,200) shares of
New Common Stock (each, a Share), minus (ii) the Cash Recovery
Subscription Equity and plus (iii) as applicable, Available Direct Subscription Shares, in each
case, at a purchase price of twenty-seven dollars and sixty-nine cents ($27.69) per share (the
Purchase Price). The Company will conduct the Rights Offering in
accordance with this Agreement, the Rights Offering Sub-Plan and the Rights Offering Procedures in
all material respects.
Section 2.2 Procedure of Rights Offering. The Rights Offering will be
conducted as follows:
(a) On the terms and subject to the conditions of this Agreement (including Bankruptcy Court
approval) and pursuant to the Rights Offering Procedures, the Company shall offer the Shares (less
the Cash Recovery Subscription Equity) for subscription by Rights Holders.
(b) The Company shall, no later than ten (10) days after the Bankruptcy Court has entered an
order approving the Disclosure Statement, mail Election Forms to all holders of Allowed Senior
Notes Claims as of the Rights Offering Record Date to determine whether or not such holders of
Allowed Senior Notes Claims are Eligible Recipients. As soon as practicable
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after the approval by
the Bankruptcy Court of the Disclosure Statement, the Company shall distribute the ballot form(s)
in connection with the solicitation of acceptances of the Plan. As soon as practicable after the
Election Form Deadline, the Company shall issue to each Eligible Recipient (the date of such
issuance, the Rights Distribution Date) sufficient Rights to purchase
its pro rata share (based on the Allowed Senior Notes Claims held by such Eligible Recipient in
relation to the aggregate amount of Allowed Senior Notes Claims held by all holders of Allowed
Senior Notes Claims) of thirty-four million three hundred ten thousand two hundred (34,310,200)
Shares in the aggregate (the Basic Subscription Right). The Company
will be responsible for effecting the distribution of the Election Forms and any related materials
to each holder of an Allowed Senior Notes Claim. Each holder of Allowed Senior Notes Claims as of
the Rights Offering Record Date that properly delivers a completed Election Form to the
Subscription Agent shall, (i) if such holder properly certifies that it is an Eligible Recipient,
be permitted to participate in the Rights Offering and shall receive the Rights Offering
Procedures, a subscription form and any related materials and (ii) if such holder properly
certifies that it is not an Eligible Recipient, have the right to receive a distribution in
accordance with the Plan.
(c) Subject to the Priority Oversubscription Right set forth in Section
2.2(e), each Rights Holder that exercises in full its Basic Subscription Right (a
Fully Exercising Holder) shall be entitled to subscribe for Excess
Shares on the same terms as the Basic Subscription Right, to the extent that any Excess Shares are
available for purchase (the Oversubscription Right).
(d) The Rights may be exercised during a period (the Rights Exercise
Period) commencing on the Rights Distribution Date and ending at the Expiration
Time. Subject to the approval of this Agreement by the Bankruptcy Court, the Rights Offering Sub-
Plan shall provide that to exercise a Right, a Rights Holder shall, during the Rights Exercise
Period, (i) return a duly executed subscription document to the Subscription Agent (A) electing to
exercise all or a portion of the Rights held by such Rights Holder and (B) if such Rights Holder is
a Fully Exercising Holder, indicating the number of Excess Shares, if any, such Fully Exercising
Holder desires to purchase pursuant to its Oversubscription Right and (ii) pay an amount equal to
the aggregate Purchase Price for the number of Shares and Excess Shares that such Rights Holder
elects to purchase pursuant to its Basic Subscription Right and Oversubscription Right by wire
transfer of immediately available funds to an escrow account established by the Company for the
Rights Offering.
(e) As promptly as reasonably practicable following the Expiration Time, the Company shall
determine the aggregate number of Excess Shares that the Fully Exercising Holders elected to
purchase pursuant to their Oversubscription Rights (the Over-Subscribed
Shares) and the number of Excess Shares that were available for purchase. Subject
to Section 3.1(b), if the number of Over-Subscribed Shares exceeds the
number of Excess Shares, then the Company shall apportion, pro rata relative to the number of
Excess Shares each Fully Exercising Holder elected to purchase pursuant to its Oversubscription
Right, the number of Excess Shares (i) first, to the Lead Investors and their Related Purchasers
(other than any Lead Investor and Related Purchaser that elected to include Available Direct
Subscription Shares in the Rights Offering pursuant to Section 3.1(b))
and their respective Affiliates that are Fully Exercising Holders (ii) second, to the Co-Investors
and their Related Purchasers (other than any Co-Investor and Related Purchaser that elected to
include Available Direct Subscription Shares
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in the Rights Offering pursuant to
Section 3.1(b)) and their respective Affiliates that are Fully
Exercising Holders and (iii) last, to all other Fully Exercising Holders, in each case pursuant to
its Oversubscription Right such that the aggregate number of Excess Shares the Fully Exercising
Holders shall receive pursuant to their Oversubscription Rights shall equal the number of Excess
Shares available. As promptly as practicable after such adjustment, the Company shall notify each
affected Fully Exercising Holder of such adjustment and remit, by wire transfer of immediately
available funds, an amount equal to the aggregate Purchase Price for the shares such Fully
Exercising Holder shall not be allowed to purchase pursuant to this Section
2.2(e).
(f) No later than the fifth (5th) Business Day following the date on which the Expiration Time
occurs (the Determination Date), the Company shall deliver to each
Investor a written certification by an executive officer of the Company of (i) the number of Shares
elected to be purchased by Rights Holders pursuant to the Basic Subscription Right and the
aggregate Purchase Price therefor, (ii) the number of Shares elected to be purchased by Rights
Holders pursuant to the Oversubscription Rights and the aggregate Purchase Price therefor, (iii)
any Available Direct Subscription Shares not purchased pursuant to the Oversubscription Rights and
(iv) the number of Unsubscribed Shares, if any, and the aggregate Purchase Price therefor (a
Purchase Notice). The Company shall promptly provide any written
backup, information and documentation relating to the information contained in the Purchase Notice
as any Investor may reasonably request in writing.
(g) On the Effective Date, the Company will issue (and deliver as promptly as reasonably
practicable thereafter) to each Rights Holder that validly exercised Rights the number of Shares
and, if applicable, Excess Shares to which such Rights Holder is entitled based on such
exercise. All such Shares and, if applicable, Excess Shares will be delivered with all issue,
stamp, transfer, sales and use, or similar Taxes or duties that are due and payable (if any) in
connection with such delivery duly paid by the Company.
(h) All funds paid by the Rights Holders to the Company in connection with the exercise of
their rights pursuant to the Rights Offering shall be held for the benefit of the Rights Holders in
an escrow account established by the Company with an escrow agent reasonably acceptable to
Requisite Investors. The escrow agreement establishing such escrow account shall be on market
terms reasonably acceptable to both the Company and Requisite Investors and shall provide for all
fees and expenses in connection therewith to be paid by the Company. The funds held in such escrow
account shall only be released to the Company upon the occurrence of the Effective Date and
contemporaneously with the issuance of the Shares by the Company to the Rights Holders. If this
Agreement is terminated in accordance with its terms, the Company shall cause the escrow agent to,
as promptly as practicable following such termination, return all such funds (and any interest or
other income earned thereon) by wire transfer of immediately available funds to the Rights Holders.
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ARTICLE III
THE COMMITMENTS
Section 3.1 The Direct Purchase Commitment.
(a) On the terms and subject to the conditions set forth in this Agreement, each Investor
agrees, severally and not jointly, to subscribe for and purchase, or cause one or more Related
Purchasers to subscribe for and purchase, and the Company agrees to sell and issue to such Investor
and its Related Purchasers, if applicable, on the Effective Date for the Purchase Price per share,
such Investors Allotted Portion of ten million eight hundred thirty-four thousand eight hundred
(10,834,800) shares of New Common Stock (the Direct Subscription
Shares), rounded among the Investors solely to avoid fractional shares as Requisite
Investors may determine in their sole discretion (such obligation to purchase the Direct
Subscription Shares, the Direct Commitment).
(b) Each Investor may elect to request that the Company first offer all or any portion of the
Direct Subscription Shares that such Investor has committed to purchase pursuant to
Section 3.1(a) in the Rights Offering for purchase by Rights Holders.
Such election must be made by providing written notice to the Company and each other Investor at
least five (5) Business Days prior to the Rights Distribution Date specifying the number of Direct
Subscription Shares (the Offered Direct Subscription Shares) such
Investor (the Offering Investor) elects to cause the Company to offer
in the Rights Offering and the identity of the Offering Investor.
(i) Each Lead Investor and its Related Purchasers (other than any Offering Investor or
any of its Related Purchasers) may elect, upon written notice to the Company and the
Offering Investor at least two (2) Business Days prior to the Rights Distribution Date, to
assume the obligation to purchase all or any portion of the Offered Direct Subscription
Shares from the Offering Investor; provided, that if Lead
Investors and their Related Purchasers in the aggregate elect to assume more than the
number of Offered Direct Subscription Shares available, the Offered Direct Subscription
Shares shall be allocated by the Company among the electing Lead Investors and Related
Purchasers pro rata relative to the number of Offered Direct Subscription Shares each Lead
Investor and Related Purchaser elected to assume the obligation to purchase, such that the
aggregate number of Direct Subscription Shares the electing Lead Investors and Related
Purchasers shall assume the obligation to purchase shall equal the number of Offered Direct
Subscription Shares made available by the Offering Investor. Any Offered Direct
Subscription Shares that Lead Investors and their Related Purchasers have elected to
purchase pursuant to this Section 3.1(b)(i) shall be purchased by
such electing Lead Investors and Related Purchasers on the terms and subject to the
conditions of this Agreement and shall not be offered for issuance in the Rights Offering.
The Company shall distribute to the Lead Investors and their Related Purchasers a revised
Schedule 1 accurately reflecting the changes to the allocated
amounts of Direct Subscription Shares required by the transactions contemplated by this
Section 3.1(b)(i).
(ii) Any Offered Direct Subscription Shares that the Lead Investors and their Related
Purchasers do not elect to assume the obligation to purchase pursuant to
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Section 3.1(b)(i) shall be included in the Rights Offering and
shall be available for purchase by Rights Holders (such included Offered Direct Subscription
Shares, the Available Direct Subscription Shares). The
Investors acknowledge and agree that (A) Available Direct Subscription Shares may be
purchased by Rights Holders pursuant to the exercise of their Rights only if all Shares
offered in the Rights Offering (other than Available Direct Subscription Shares) are first
purchased in the Rights Offering pursuant to the exercise of the Basic Subscription Rights
or the Oversubscription Rights and (B) that if more than one (1) Offering Investor includes
Available Direct Subscription Shares in the Rights Offering, then the number of Direct
Subscription Shares each such Offering Investor is obligated to purchase pursuant to this
Agreement shall be reduced by such Offering Investors pro rata portion of the Available
Direct Subscription Shares actually purchased pursuant to the exercise of Oversubscription
Rights based on the number of Available Direct Subscription Shares such Offering Investor
included in the Rights Offering relative to the total number of Available Direct
Subscription Shares all such Offering Investors included in the Rights Offering, which pro
rata portion shall be rounded by Requisite Investors in their sole discretion solely to
avoid fractional shares.
(iii) Notwithstanding anything to the contrary contained in this Agreement, the
election of an Investor to enable the Company to offer Direct Subscription Shares in the
Rights Offering shall not release such Investor from its obligation hereunder to purchase
such Direct Subscription Shares unless, and only to the extent that, (A) the obligation to
purchase such Direct Subscription Shares is assumed by Lead Investors and their Related
Purchasers pursuant to Section 3.1(b)(i) and such Direct
Subscription Shares are actually purchased by such Investor(s) or (B) such Direct
Subscription Shares are validly purchased by Fully Exercising Holders pursuant to their
Oversubscription Rights.
Section 3.2 The Stock Right Commitment. On the terms and subject to the
conditions set forth in this Agreement, each Investor agrees, severally and not jointly, to
purchase or cause one or more Related Purchasers to purchase, and the Company agrees to sell to
such Investor or its designated Related Purchasers, if applicable, on the Effective Date for the
Purchase Price per Share, such Investors Allotted Portion of the Unsubscribed Shares, rounded
among the Investors solely to avoid fractional shares as Requisite Investors may determine in their
sole discretion; provided, that Requisite Investors notify the Company
of any such rounding prior to or on the Effective Date (such obligation to purchase the
Unsubscribed Shares, the Stock Right Commitment). For the avoidance
of doubt, Unsubscribed Shares shall not, under any circumstances, include any Available Direct
Subscription Shares, and any Investor that included Available Direct Subscription Shares in the
Rights Offering shall remain obligated to purchase such Available Direct Subscription Shares to the
extent not purchased by Rights Holders pursuant to their Oversubscription Rights. Notwithstanding
anything in this Agreement to the contrary, no Investor shall have any obligation under this
Agreement to purchase any Cash Recovery Subscription Equity.
Section 3.3 Alternative Financing.
(a) Upon the occurrence of an Investor Default or a Signatory Default, the Lead Investors
(other than any Lead Investor whose breach is the cause of such Investor Default
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or Signatory
Default) shall have the right, but shall not be obligated to, within five (5) Business Days after
receipt of written notice from the Company to all Lead Investors on behalf of the Investors of such
Investor Default or Signatory Default to make arrangements for one or more of such Lead Investors,
their Related Purchasers, Ultimate Purchasers or any combination thereof to purchase all or any
portion of the Available Investor Shares or Cash Recovery Subscription Equity, as the case may be,
on the terms and subject to the conditions set forth in this Agreement and in such amounts as may
be agreed upon by such Lead Investors; provided, that if such Lead
Investors, Related Purchasers and Ultimate Purchasers do not, in the aggregate, agree to purchase
all of the Available Investor Shares or Cash Recovery Subscription Equity, as the case may be, on
the terms and subject to the conditions of this Agreement or the Cash Recovery Backstop Agreement,
as the case may be, the Co-Investors (other than any Co-Investor whose breach is the cause of such
Investor Default or Signatory Default) shall have the right, but shall not be obligated to, within
two (2) Business Days after the expiration of such five (5) Business Day period, to make
arrangements for one or more of such Co-Investors, their Related Purchasers, Ultimate Purchasers or
any combination thereof to purchase all or any portion of the remaining Available Investor Shares
or Cash Recovery Subscription Equity, as the case may be, on the terms and subject to the
conditions set forth in this Agreement and in such amounts as may be agreed upon by such
Co-Investors and any Lead Investors participating in the Alternative Financing (such arrangement
pursuant to which all Available Investor Shares or all of the Cash Recovery Subscription Equity, as
the case may be, are purchased, an Alternative Financing). If an
Investor Default or Signatory Default occurs, the Effective Date and the Outside Date shall each be
delayed only to the extent necessary to allow for an Alternative Financing to be completed within
the time frame established in this Section 3.3(a);
provided, that in no event shall the Effective Date or the Outside Date
be delayed more than eight (8) Business Days without the prior written consent of the Company and
all Lead Investors (other than any Investor whose breach is the cause of such Investor Default or
Signatory Default). Notwithstanding anything to the contrary contained herein, (i) if the Investor
Default or Signatory Default occurs on the date that would have been the Effective Date, then
each condition set forth in Section 8.1 that was satisfied as of such
date (including any condition that had been waived by Requisite Investors) shall be deemed to be
satisfied at all times after the date of such Investor Default or Signatory Default, and (ii) in
the event that an Alternative Financing has not been consummated prior to the expiration of the
eight (8) Business Day period (or such longer period as agreed among the Company and the Investors)
set forth in the preceding sentence, the Company shall be entitled to terminate this agreement
pursuant to Section 10.1(d)(i).
(b) Each Investor agrees that if such Investor causes an Investor Default or Signatory
Default, such Investor shall, within two (2) Business Days of receiving written notice by the
Company that an Alternative Financing has been consummated, repay its Allotted Portion of the Stock
Right Premium to the extent received from the Company by wire transfer of immediately available
funds to the non-defaulting Investors pro rata based on their Allotted Portions whether or not the
Effective Date occurs.
(c) Nothing in this Agreement shall be deemed to require an Investor to purchase more than its
Allotted Portion of (i) the Direct Subscription Shares and (ii) the Unsubscribed Shares.
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Section 3.4 Notice of Unsubscribed Shares. On the Determination Date, the
Company will provide a Purchase Notice to each Investor as provided in Section
2.2(f), setting forth a true and accurate determination of the aggregate number of
Unsubscribed Shares, if any.
Section 3.5 Issuance and Delivery of Investor Shares.
(a) Issuance of the Investor Shares will be made by the Company to the account of each
Investor (or to such other accounts as any Investor may designate in accordance with this
Agreement) at 10:00 a.m., New York City time, on the Effective Date, or such other date and time as
the Company and Requisite Investors may agree in writing, contemporaneously against payment on the
Effective Date of the aggregate Purchase Price for the Investor Shares by wire transfer of
immediately available funds in U.S. dollars to the account specified by the Company to the
Investors in writing at least five (5) days prior to the Effective Date, and such Investor Shares
shall be delivered on the Effective Date or as promptly as reasonably practicable thereafter.
(b) All Investor Shares will be delivered with all issue, stamp, transfer, sales and use, or
similar Taxes or duties that are due and payable (if any) in connection with such delivery duly
paid by the Company.
(c) The documents to be delivered on the Effective Date by or on behalf of the Parties and the
Investor Shares will be delivered at the offices of Kirkland & Ellis LLP, 601 Lexington Avenue, New
York, New York 10022 on the Effective Date. Notwithstanding the previous sentence, unless an
Investor (on behalf of itself or its Related Purchasers or Ultimate Purchasers) requests in writing
delivery of a physical stock certificate, the entry of any Investor Shares to be delivered pursuant
to Section 3.5(a) into the account of an Investor
pursuant to the Companys book entry procedures shall be deemed delivery of such Investor
Shares for purposes of this Agreement. The Company shall use its commercially reasonable efforts
to make all shares of New Common Stock issued pursuant to the Plan (including Shares and Investor
Shares) Depository Trust Company eligible as of the Effective Date.
Section 3.6 Transfer, Designation and Assignment Rights.
(a) Each Investor shall have the right to designate by written notice to the Company no later
than five (5) Business Days prior to the Effective Date that some or all of its Investor Shares be
issued in the name of and delivered to, one or more of its Affiliates (each a Related
Purchaser) upon receipt by the Company of payment therefor in accordance with the
terms hereof, which notice of designation shall (i) be addressed to the Company and signed by such
Investor and each Related Purchaser, (ii) specify the number of Investor Shares to be delivered to
or issued in the name of such Related Purchaser and (iii) contain a confirmation by such Related
Purchaser of the accuracy of the representations set forth in Sections
6.6 through 6.8 as applied to such Related Purchaser;
provided, that no such designation pursuant to this Section
3.6(a) shall relieve such Investor from its obligations under this Agreement.
Additionally, each Investor may assign all or any portion of its Allotted Portion of the Equity
Commitment to a Related Purchaser who agrees in writing to be bound by this Agreement by executing
and delivering to the Company and each other Investor a Commitment Joinder Agreement, including a
revised Schedule 1 to reflect such assignment;
provided, that no such
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assignment pursuant to this Section
3.6(a) shall relieve such Investor from its obligations under this Agreement without
giving effect to such revised Schedule 1;
provided, further, that such Investor shall
provide written notice to the Company and each other Investor in advance of such assignment and no
later than five (5) Business Days prior to the Effective Date.
(b) The Company acknowledges and agrees that certain of the Investors may enter into one or
more additional agreements (the Additional Investor Agreements) with
one or more Persons (other than Related Purchasers) (each an Ultimate
Purchaser) pursuant to which (subject to Section 3.6(c))
the Ultimate Purchasers agree to purchase all or any portion of an Investors Investor Shares
and/or Allotted Portion of the Equity Commitment and may designate by written notice to the Company
that some or all of its Investor Shares be issued in the name of and delivered directly to, such
Ultimate Purchasers; provided, that no such Additional Investor
Agreement shall relieve such Investor from its obligations under this Agreement;
provided, further, that such Investor shall
provide written notice to the Company and each other Investor a copy of such Additional Investor
Agreement no later than three (3) Business Days prior to the Effective Date and each such
Additional Investor Agreement shall contain such Ultimate Purchasers representations and
warranties as to itself to the effect set forth in Sections 6.6 through
6.8 and such Ultimate Purchasers agreement to be bound by the covenants
contained in Section 7.16.
(c) Each Investor and its Related Purchasers, severally and not jointly, agrees that, from the
date hereof until the Effective Date, prior to entering into any Additional Investor Agreement with
an Ultimate Purchaser pursuant to Section 3.6(b), such Investor and its
Related Purchasers (the Transferring Investor) shall provide to all
other Investors and
their Related Purchasers (the ROFR Investors) a written notice (a
Transfer Notice) specifying (i) the number of Investor Shares or
amount of the Allotted Portion of the Equity Commitment, as the case may be, that the Transferring
Investor is proposing to Transfer to an Ultimate Purchaser and (ii) the material terms and
conditions of such transfer, including the consideration to be paid for such Investor Shares or
Allotted Portion, as the case may be. Each ROFR Investor may elect, by giving written notice to
the Transferring Investor and the other ROFR Investors within three (3) Business Days after the
delivery of the Transfer Notice, to assume the obligation to purchase all or any portion of such
Investor Shares or such Allotted Portion, as the case may be, subject to the conditions and on the
terms set forth in the Transfer Notice. If the ROFR Investors in the aggregate elect to assume
more than the Investor Shares or Allotted Portion, as the case may be, specified in the Transfer
Notice, such Investor Shares or Allotted Portion, as the case may be, shall be allocated among the
electing ROFR Investors as follows: (x) first, among the electing ROFR Investors that are also Lead
Investors or Related Purchasers of Lead Investors pro rata relative to the number of Investor
Shares or amount of the Allotted Portion, as the case may be, that each ROFR Investor that is also
a Lead Investor or a Related Purchaser of a Lead Investor elected to assume the obligation to
purchase, and (y) second, among the electing ROFR Investors that are also Co-Investors or Related
Purchasers of Co-Investors pro rata relative to the number of Investor Shares or amount of the
Allotted Portion, as the case may be, that each ROFR Investor that is also a Co-Investor or a
Related Purchaser of a Co-Investor elected to assume the obligation to purchase, such that the
aggregate number of Investor Shares or amount of the Allotted Portion, as the case may be, that the
electing ROFR Investors assume the obligation to purchase shall equal the number of Investor Shares
or the Allotted Portion, as the case may be, specified in the Transfer Notice. If, within the
three (3) Business Day election period referred to
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above, the ROFR Investors in the aggregate elect
to assume less than all of the Investor Shares or Allotted Portion, as the case may be, specified
in the Transfer Notice, then all such elections shall be void and the Transferring Investor shall
have the right, during the thirty (30) day period immediately following the expiration of such
three (3) Business Day election period (but in no event after the date that is three (3) Business
Days prior to the Effective Date), to enter into Additional Investor Agreements to Transfer all,
but not less than all, of the Investors Shares or Allotted Portion, as the case may be, specified
in the Transfer Notice to one or more Ultimate Purchasers on terms and conditions not less
favorable to the Transferring Investor than those set forth in the Transfer Notice and in any event
in accordance with Section 3.6(b). The Company and the Investors agree
that in the event that both (i) the ROFR Investors in the aggregate elect to assume all of the
Investor Shares or Allotted Portion, as the case may be, specified in a Transfer Notice, and (ii)
each electing ROFR Investor delivers a Funding Approval Certificate to the Company for the
aggregate amount of such ROFR Investors Allotted Portion (including the amount of the Transferring
Investors Allotted Portion assumed by such ROFR Investor pursuant to this Section
3.6(c)) either simultaneously with such Transfer or in accordance with
Section 7.7, (x) the Transferring Investor shall be relieved of its
obligations hereunder with respect to such Investor Shares or Allotted Portion, as the case may be,
and the electing ROFR Investors shall assume such obligations in the proportions that such Investor
Shares or Allotted Portion, as the case may be, were allocated amongst the ROFR Investors and (y)
the Investors shall provide written notice to the Company containing a revised
Schedule 1 accurately reflecting any changes required by the
transactions contemplated by this Section 3.6(c).
(d) Each Investor, severally and not jointly, agrees that it will not, directly or indirectly,
assign, at any time prior to the Effective Date or earlier termination of this Agreement in
accordance with its terms, its rights and obligations under this Agreement or to Investor Shares or
any interest or participation therein to any Person other than in accordance with this
Section 3.6. Each Investor, severally and not jointly, agrees that with
respect to any offer or Transfer to an Ultimate Purchaser prior to the Effective Date, it has not
offered and shall not offer any Investor Shares to, and it has not entered into and shall not enter
into an Additional Investor Agreement or Commitment Joinder Agreement with any Person that is not
an accredited investor within the meaning of Rule 501(a) of the Securities Act;
provided, that nothing in this Agreement shall limit or restrict in any
way any Investors ability to Transfer any of its Investor Shares or any interest therein after the
Effective Date pursuant to an effective registration statement under the Securities Act or an
exemption from the registration requirements thereunder and pursuant to applicable state securities
Laws.
ARTICLE IV
PREMIUMS AND EXPENSES
Section 4.1 Premiums and Damages Payable by the Company. The Company shall
pay to the Investors the following premiums and damages, in accordance with and subject to
Sections 4.2 and 10.2, in the following
manner:
(a) a nonrefundable (except as set forth in Section 4.2) aggregate
premium in an amount equal to forty-three million seven hundred fifty thousand dollars
($43,750,000), in accordance with Section 4.2, to the Investors in the
proportions set forth in Schedule 1 to
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compensate the Investors for
their agreement to purchase the Investor Shares (the Stock Right
Premium); and
(b) a nonrefundable aggregate arrangement premium in an amount equal to sixteen million six
hundred twenty-five thousand dollars ($16,625,000), in accordance with Section
4.2, to those Persons set forth in Schedule 2 in the
proportions set forth therein to compensate such Persons for arranging the transactions
contemplated hereby (the Arrangement Premium); and
(c) in the event that this Agreement is terminated, the Alternate Transaction Damages, if any,
which shall be paid by the Company to the Investors as provided in Section
10.2.
Section 4.2 Payment of Premiums and Damages. (a) Twenty-five percent (25%)
of the Stock Right Premium (the Stock Right Deposit) shall be earned
by the Investors and paid by the Company to the Investors in the proportions set forth on
Schedule 1 on the first (1st) Business Day following the date on which
the Approval Order is entered and (b) the remainder of the Stock Right Premium and the Arrangement
Premium shall become earned by the Persons specified in Sections 4.1(a)
and 4.1(b) and paid by the Company simultaneously with the delivery of
the Investor Shares on the Effective Date. Payment of the Stock Right Premium, the Arrangement
Premium and the Alternate Transaction Damages, if any, will be made by wire transfer of immediately
available funds in U.S. dollars to the account specified by each Investor to the Company in
writing at least five (5) Business Days prior to such payment. The Stock Right Premium, the
Arrangement Premium and the Alternate Transaction Damages, if any, will be nonrefundable and
non-avoidable when paid; provided, that in the event that this Agreement
is terminated pursuant to Section 10.1(d)(i), each Investor shall refund
such Investors portion of the Stock Right Deposit received by it pursuant to this
Section 4.2 to the Company by wire transfer of immediately available
funds in U.S. dollars to the account specified by the Company in the Companys notice of such
termination.
Section 4.3 Transaction Expenses.
(a) The Company will reimburse or pay, as the case may be, the documented out-of-pocket costs
and expenses reasonably incurred by each of the Investors and their respective Affiliates, so long
as such Investor is obligated, under the Plan Support Agreement, to support the Plan and has not
breached such obligation, in connection with (w) the exploration and discussion of the Proposal
Letter, this Agreement and the Plan and the transactions contemplated hereby (including any
expenses related to obtaining required consents of Governmental Entities and other Persons), (x)
any due diligence related to this Agreement and the transactions contemplated hereby, (y) the
preparation and negotiation of the Proposal Letter, this Agreement, the Plan (and related
documents) and the proposed documentation of the transactions contemplated hereby and thereby and
(z) the implementation of the transactions contemplated by this Agreement and the Plan (including
any legal proceedings (A) in connection with the confirmation of the Plan and approval of the
Disclosure Statement, and objections thereto (other than objections of any Investor or any
Affiliate of an Investor), and any other actions in the Proceedings related thereto and (B) to
enforce the Investors rights against the Company (but not against any other Investor, any Related
Purchaser or any Ultimate Purchaser)
26
under this Agreement, the Plan and any Transaction Agreement,
but only to the extent such Investor prevails on the merits of their underlying claim in such
proceedings) and any other judicial and regulatory proceedings in furtherance of this Agreement,
the Plan and any Transaction Agreement, including, in each case, the reasonable fees, costs, and
expenses of (1) the individual outside counsel of each Lead Investor (as well as White & Case LLP,
as counsel to all the Lead Investors), (2) the Ad Hoc Counsel (but not any fees, costs or expenses
of any counsel for any Co-Investors (except to the extent provided in Section
4.3(a)(iv)) other than the Ad Hoc Counsel and (3) any other professionals reasonably
retained by any Investor (including GLCA/Sagent Advisors, OHorizons LLC and Conway MacKenzie,
Inc.), but specifically excluding any fees, costs, or expenses of any Co-Investor incurred or
required to be paid in connection with any filings required to be made by such Co-Investor or its
Affiliates under the HSR Act or any other Antitrust Laws (collectively, Transaction
Expenses) in the following manner:
(i) to the extent Transaction Expenses (including any monthly fees and reasonable
expenses paid or payable to GLCA/Sagent Advisors pursuant to the terms of the GLCA/Sagent
Engagement Letter, but excluding any success or transaction fee) are or were incurred prior
to the date of this Agreement, and the Investors have delivered, at least three (3) Business
Days prior to the date hereof, a good faith estimate, with reasonably detailed support, of
such Transaction Expenses, which estimate shall be
attached hereto as Schedule 3, such Transaction Expenses
shall be paid by the Company promptly upon the Bankruptcy Courts entry of the Approval
Order;
(ii) to the extent Transaction Expenses (including any monthly fees and reasonable
expenses paid or payable to GLCA/Sagent Advisors pursuant to the terms of the GLCA/Sagent
Engagement Letter, but excluding any success or transaction fee (any such fee to be payable
only in accordance with clause (iii) below)) are incurred on or after the date of this
Agreement, such Transaction Expenses shall be paid upon submission to the Company of summary
statements therefor within fifteen (15) days of the submission of such statements, in each
case, without (A) the need to file an application or notice with the Bankruptcy Court, (B)
Bankruptcy Court (or any other Persons) review or (C) further Bankruptcy Court order,
whether or not the transactions contemplated hereby are consummated;
provided, that no such statements may be submitted until the
Approval Order has been entered;
(iii) to the extent any success or transaction fee is payable to GLCA/Sagent under the
terms of the GLCA/Sagent Engagement Letter, such success or transaction fee shall be paid
only upon the effective date of the Plan;
(iv) the fees and expenses of counsel for any Co-Investor whose Allotted Portion of the
Aggregate Commitment (including, for this purpose, the Allotted Portions held by such
Co-Investors Related Purchasers) exceeds fifty million dollars ($50,000,000) shall be
included as Transaction Expenses; provided, that the Company
shall not be required to reimburse or pay any such fees and expenses pursuant to this
Section 4.3(a)(iv) in excess of two hundred thousand dollars
($200,000) in the aggregate for all Co-Investors; and
27
(v) the filing fee, if any, required to be paid in connection with any filings required
to be made by any Lead Investor or its Affiliates under the HSR Act or any other Antitrust
Laws shall be paid by the Company on behalf of the Lead Investors when filings under the HSR
Act or any other Antitrust Laws are made, together with all expenses of the Lead Investors
incurred to comply therewith.
(b) The obligation of the Company to pay Transaction Expenses shall not be conditioned or
contingent upon the consummation of the transactions contemplated by this Agreement or the Plan.
(c) The provision for the payment of Transaction Expenses is (and the Approval Order should so
provide that payment of Transaction Expenses is) an integral part of the transactions contemplated
by this Agreement and without this provision the Investors would not have entered into this
Agreement and such Transaction Expenses shall constitute an allowed administrative expense of the
Company under sections 503(b)(1) and 507(a)(2) of the Bankruptcy Code.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in (i) the disclosure letter delivered by the Company to the Lead
Investors and the Ad Hoc Counsel on the date hereof (the Disclosure
Letter), (ii) the Company SEC Documents filed prior to the date hereof (excluding
any risk factor disclosure and disclosure included in any forward-looking statements disclaimer
or other statements included in such Company SEC Documents that are predictive, forward-looking,
non-specific or primarily cautionary in nature (but including any specific factual information
contained therein)) or (iii) in the Attached Disclosure Statement (excluding (A) any risk factor
disclosure and disclosure of risks included in any forward-looking statements disclaimer or other
statements included in the Attached Disclosure Statement that are predictive, forward-looking,
non-specific or primarily cautionary in nature (but including any specific factual information
contained therein) and (B) any amendments, updates or modifications thereto), the Company
represents and warrants to, and agrees with, each of the Investors as set forth below. Any
disclosure in the Company SEC Documents or the Attached Disclosure Statement that is deemed to
qualify a representation or warranty shall only so qualify a representation or warranty to the
extent that it is made in such a way as to make the relevance of such disclosure to these
representations and warranties reasonably apparent on its face. Any item disclosed in a section of
the Disclosure Letter shall be deemed disclosed for purposes of all other Sections of this
Article V to the extent the relevance of such disclosure or item to such
Section of this Article V is reasonably apparent on its face. Except
for representations, warranties and agreements that are expressly limited as to their date, each
representation, warranty and agreement shall be deemed made as of the date hereof and as of the
Effective Date. For the purposes of this Article V, references to
Subsidiaries (other than such references in Sections 5.2(b),
5.3(a) and 5.16(b), and for purposes of
Section 7.9(j), other than Section 5.11) are also deemed to include
Joint Ventures; provided, that the representations and warranties
contained in this Article V made with respect to any aspect of the Joint
Ventures (including their Real Property Leases or other assets, operations or condition) are made
only as to the Knowledge of the Company.
28
Section 5.1 Organization and Qualification. The Company and each of its
Subsidiaries is a legal entity duly organized, validly existing and in good standing (or the
equivalent thereof) under the Laws of its respective jurisdiction of incorporation or organization
and, subject to any necessary authority from the Bankruptcy Court, has all requisite power and
authority to own, lease and operate its properties and to carry on its business as currently
conducted. Each of the Company and its Subsidiaries is duly qualified or licensed to do business
and is in good standing (or the equivalent thereof) under the Laws of each other jurisdiction in
which it owns, leases or operates properties or conducts any business, in each case except to the
extent that the failure to be so qualified or licensed or be in good standing has not had and would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 5.2 Corporate Power and Authority.
(a) The Company has or, to the extent executed in the future, shall have when executed the
requisite corporate power and authority to enter into, execute and deliver this
Agreement and the Plan Supplement and other agreements to which it will be a party as
contemplated by this Agreement and the Plan (this Agreement and the Plan Supplement and other
agreements collectively, the Transaction Agreements) and, subject to
entry of the Confirmation Order and the expiration, or waiver by the Bankruptcy Court, of the
fourteen (14)-day period set forth in Bankruptcy Rules 6004(h) and 3020(e), respectively, to
perform its obligations hereunder and thereunder, including the issuance of the Rights, the Shares
and the Investor Shares. The Company has or, to the extent executed in the future, shall have when
executed, taken all necessary corporate action required for the due authorization, execution,
delivery and performance by it of this Agreement, including the issuance of the Rights, the Shares
and the Investor Shares.
(b) Each of the Companys Subsidiaries has or, to the extent executed in the future, shall
have when executed the requisite power and authority (corporate or otherwise) to enter into,
execute and deliver each Transaction Agreement to which such Subsidiary is a party and, subject to
entry of the Confirmation Order and the expiration, or waiver by the Bankruptcy Court, of the
fourteen (14)-day period set forth in Bankruptcy Rules 6004(h) and 3020(e), respectively, to
perform its obligations thereunder. Each of the Companys Subsidiaries has or, to the extent
executed in the future, shall have when executed, taken all necessary corporate action required for
the due authorization, execution, delivery and performance by it of each Transaction Agreement to
which such Subsidiary is a party.
(c) Prior to the execution by the Company and filing with the Bankruptcy Court of the Plan,
the Company and each of the other Debtors executing the Plan will have the requisite power and
authority (corporate or otherwise) to execute the Plan and to file the Plan with the Bankruptcy
Court and, subject to entry of the Confirmation Order and the expiration, or waiver by the
Bankruptcy Court, of the fourteen (14)-day period set forth in Bankruptcy Rule 3020(e), to perform
its obligations thereunder, and will have taken all necessary actions (corporate or otherwise)
required for the due authorization, execution, delivery and performance by it of the Plan.
29
Section 5.3 Execution and Delivery; Enforceability.
(a) This Agreement and each Transaction Agreement has been, or prior to its execution and
delivery will be, duly and validly executed and delivered by the Company and each of its
Subsidiaries party thereto, and, upon the entry of the Approval Order and the expiration, or waiver
by the Bankruptcy Court, of the fourteen (14)-day period set forth in Bankruptcy Rule 6004(h), each
such document will constitute the valid and binding obligations of the Company and each of its
Subsidiaries party thereto, enforceable against the Company and each of its Subsidiaries party
thereto in accordance with their respective terms.
(b) The Plan will be duly and validly filed with the Bankruptcy Court by the Company and each
of the other Debtors executing the Plan and, upon the entry of the Confirmation Order and the
expiration, or waiver by the Bankruptcy Court, of the fourteen (14)-day period set forth in
Bankruptcy Rule 3020(e), will constitute the valid and binding obligation of the Company and such
Debtors, enforceable against the Company and such Debtors in accordance with its terms.
Section 5.4 Authorized and Issued Capital Stock.
(a) As of the Effective Date, the authorized capital stock of the Company will consist of two
hundred fifty million (250,000,000) shares of New Common Stock and fifty million (50,000,000)
shares of preferred stock, par value $0.01 per share. As of the Effective Date, (i) forty-nine
million three hundred eleven thousand six hundred sixty-seven (49,311,667) shares of New Common
Stock will be issued and outstanding, (ii) no shares of the preferred stock will be issued and
outstanding, (iii) other than the 12.25% Warrants, no warrants to purchase shares of New Common
Stock will be issued and outstanding, (iv) no shares of New Common Stock will be held by the
Company in its treasury, (v) three million eight hundred eighty-eight thousand eight hundred
eighty-nine (3,888,889) shares of New Common Stock will be reserved for issuance upon exercise of
stock options and other rights to purchase or acquire shares of New Common Stock granted under any
Company Plan, and (vi) other than shares of New Common Stock reserved for issuance upon the
exercise of the 12.25% Warrants, no shares of New Common Stock will be reserved for issuance upon
the exercise of warrants to purchase shares of New Common Stock.
(b) As of the Effective Date, all issued and outstanding shares of capital stock of the
Company and each of its Subsidiaries will have been duly authorized and validly issued and will be
fully paid and non-assessable, and will not be subject to any preemptive rights.
(c) Except as set forth in this Section 5.4, as of the Effective
Date, no shares of capital stock or other equity securities or voting interest in the Company will
have been issued, reserved for issuance or outstanding.
(d) Except as described in this Section 5.4, and except as required
by the Plan, as of the Effective Date, neither the Company nor any of its Subsidiaries will be
party to or otherwise bound by or subject to any outstanding option, warrant, call, right,
security, commitment, contract, arrangement or undertaking (including any preemptive right) that
(i) obligates the Company or any of its Subsidiaries to issue, deliver, sell or transfer, or
30
repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or
repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or
voting interests in, the Company or any of its Subsidiaries or any security convertible or
exercisable for or exchangeable into any capital stock of, or other equity or voting interest in,
the Company or any of its Subsidiaries, (ii) obligates the Company or any of its Subsidiaries to
issue, grant, extend or enter into any such option, warrant, call, right, security, commitment,
contract, arrangement or undertaking, (iii) restricts the transfer of any shares of capital stock
of the Company or any of its Subsidiaries or (iv) relates to the voting of any shares of capital
stock of the Company or any of its Subsidiaries.
Section 5.5 Issuance. The Investor Shares and the Shares to be issued and
sold by the Company to the Investors and the Rights Holders hereunder, respectively, when such
Investor Shares and Shares are issued and delivered against payment therefor by the Investors and
the Rights Holders in accordance with this Agreement, the Plan and the subscription documents
contemplated hereby and thereby, respectively, shall have been duly and validly authorized, issued
and delivered and shall be fully paid and non-assessable, and free and
clear of all Taxes, Liens, preemptive rights, subscription and similar rights, other than any
rights set forth in the Certificate of Incorporation.
Section 5.6 No Conflict. Provided that the consents described in
Section 5.7 are obtained, the execution and delivery by the Company and,
to the extent relevant, its Subsidiaries of this Agreement, the Plan and the Transaction
Agreements, the compliance by the Company and, to the extent relevant, its Subsidiaries with all of
the provisions hereof and thereof and the consummation of the transactions contemplated herein and
therein (including compliance by each Investor with its obligations hereunder and thereunder) (a)
will not conflict with, or result in a breach or violation of, any of the terms or provisions of,
or constitute a default under (with or without notice or lapse of time, or both), or result, except
to the extent specified in the Attached Plan, in the acceleration of, or the creation of any Lien
under, any Contract to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, (b) will not result in any violation of the
provisions of the certificate of incorporation or bylaws (or comparable constituent documents) of
the Company or any of its Subsidiaries or the Certificate of Incorporation or Bylaws and (c) will
not result in any material violation of any Law or Order applicable to the Company or any of its
Subsidiaries or any of their properties, except in any such case described in clause (a) for any
conflict, breach, violation, default, acceleration or Lien which has not had and would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 5.7 Consents and Approvals. No consent, approval, authorization,
order, registration or qualification of or with any Governmental Entity having jurisdiction over
the Company or any of its Subsidiaries or any of their properties is required for the execution and
delivery by the Company and, to the extent relevant, its Subsidiaries of this Agreement, the Plan
and the Transaction Agreements, the compliance by the Company and, to the extent relevant, its
Subsidiaries with all of the provisions hereof and thereof and the consummation of the transactions
contemplated herein and therein (including compliance by each Investor with its obligations
hereunder and thereunder), except (a) the approval by the Bankruptcy Court of the Companys
authority to enter into and implement this Agreement, (b) the entry of the
31
Confirmation Order and
the expiration, or waiver by the Bankruptcy Court, of the fourteen (14)-day period set forth in
Bankruptcy Rules 6004(h) and 3020(e), as applicable, (c) filings, if any, pursuant to the HSR Act
and the expiration or termination of all applicable waiting periods thereunder or any applicable
notification, authorization, approval or consent under any other Antitrust Laws in connection with
the transactions contemplated by this Agreement, (d) the filing with the Secretary of State of the
State of Delaware of the Certificate of Incorporation to be applicable to the Company from and
after the Effective Date and (e) such consents, approvals, authorizations, registrations or
qualifications (i) if applicable, as may be required under the rules and regulations of the New
York Stock Exchange or the Nasdaq Stock Exchange to consummate the transactions contemplated herein
or (ii) as may be required under state securities or Blue Sky laws in connection with the purchase
of the Investor Shares by the Investors and the issuance of the Rights and the Shares pursuant to
the exercise of the Rights.
Section 5.8 Arms Length. The Company acknowledges and agrees that (a)
each of the Investors is acting solely in the capacity of an arms length contractual counterparty
to the Company with respect to the transactions contemplated hereby (including in
connection with determining the terms of the Rights Offering) and not as a financial advisor
or a fiduciary to, or an agent of, the Company or any of its Subsidiaries and (b) no Investor is
advising the Company or any of its Subsidiaries as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction.
Section 5.9 Financial Statements. The consolidated financial statements of
the Company included or incorporated by reference in the Company SEC Documents, and to be included
or incorporated by reference in the Disclosure Statement (collectively, the Financial
Statements), comply or will comply, as the case may be, in all material respects
with the applicable requirements of the Securities Act, the Exchange Act and the Bankruptcy Code,
and present fairly and will present fairly in all material respects the financial position, results
of operations and cash flows of the Company and its consolidated subsidiaries, taken as a whole, as
of the dates indicated and for the periods specified. The Financial Statements have been prepared
in conformity with U.S. generally accepted accounting principles
(GAAP) applied on a consistent basis throughout the periods covered
thereby, subject to (a) in the case of any unaudited Financial Statements, the absence of footnote
disclosures and (b) in the case of any Financial Statements other than year-end Financial
Statements, changes resulting from normal period-ending adjustment.
Section 5.10 Company SEC Documents and Disclosure Statement. Since the
Petition Date, the Company has filed all material required reports, schedules, forms and statements
with the SEC. As of their respective dates, and giving effect to any amendments or supplements
thereto filed prior to the date of this Agreement, each of the Company SEC Documents complied in
all material respects with the requirements of the Securities Act or the Exchange Act applicable to
such Company SEC Documents. The Company has filed with the SEC all material contracts (as such
term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act) that are required to
be filed as exhibits to the Company SEC Documents. No Company SEC Document, after giving effect to
any amendments or supplements thereto, and to any subsequently filed Company SEC Documents, in each
case filed prior to the date of this Agreement, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the
32
circumstances under which they were made, not misleading. The
Attached Disclosure Statement conforms in all material respects to the requirements of the
Bankruptcy Code and complies in all material respects with section 1125 of the Bankruptcy Code;
provided, that any amendments, supplements, changes or modifications to
the Attached Disclosure Statement that are incorporated into the Disclosure Statement shall not, in
and of themselves, constitute a presumption that the Attached Disclosure Statement does not conform
in all material respects to the requirements of the Bankruptcy Code or comply in all material
respects with section 1125 of the Bankruptcy Code. The Disclosure Statement, when submitted to the
Bankruptcy Court, when approved thereby and upon confirmation and effectiveness, will conform in
all material respects to the requirements of the Bankruptcy Code and will comply in all material
respects with section 1125 of the Bankruptcy Code.
Section 5.11 Absence of Certain Changes. Since December 31, 2009, except
for actions required to be taken pursuant to this Agreement or the Rights Offering Sub-Plan:
(a) no Event has occurred or exists which has had or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has amended its certificate of
incorporation, bylaws or comparable constituent documents;
(c) the Company has not made any material changes with respect to its accounting policies or
procedures, except as required by Law or changes in GAAP;
(d) neither the Company nor any of its Subsidiaries has (i) made, changed or revoked any
material Tax election, (ii) entered into any settlement or compromise of any material Tax
liability, (iii) filed any amended Tax Return with respect to any material Tax, (iv) changed any
annual Tax accounting period, (v) entered into any closing agreement relating to any material Tax
or (vi) made material changes to their Tax accounting methods or principles;
(e) other than in the ordinary course of business in compliance with all applicable Laws,
neither the Company nor any of its Subsidiaries has entered into any transaction or engaged in
layoffs or employment terminations which would trigger application of the Worker Adjustment and
Retraining Notification Act of 1988 (or any similar foreign, state or local Law) or would be
considered as a collective dismissal, mass termination or reduction in force under applicable
foreign Law;
(f) other than (i) the approval of the Approved Annual Incentive Program, (ii) in accordance
with the Approved Annual Incentive Program, or (iii) relating to the Bankruptcy Courts December
22, 2009 order granting in part Certain Debtors Motion for Order Authorizing Them to Amend or
Terminate Post-Employment Health Care and Life Insurance Benefits for Certain Employees and
Retirees and Their Surviving Spouses, Spouses, Domestic Partners and Dependents (the
OPEB Order), there has not been (A) any increase in the compensation
payable or to become payable to any officer or employee of the Company or any of its Subsidiaries
with annual base compensation in excess of two hundred fifty thousand dollars ($250,000) (except
for compensation increases in the ordinary course of business and consistent with past practice),
(B) any establishment, adoption, renewal, entry into or material amendment
33
or supplement of any
bonus, profit sharing, thrift, compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of (1) any individual officer or
employee with annual base compensation in excess of two hundred fifty thousand dollars ($250,000)
or (2) any director or (C) any establishment, adoption, renewal, entry into or material amendment
or supplement of any Collective Bargaining Agreement; and
(g) neither the Company nor any of its Subsidiaries have sold, transferred, leased, licensed
or otherwise disposed of any assets or properties material to the Company and its Subsidiaries,
taken as a whole, except for (i) sales of inventory in the ordinary course of business consistent
with past practice and (ii) leases or licenses entered into in the ordinary course of business
consistent with past practice that do not, individually, require annual payments by or to the
Company or any of its Subsidiaries in excess of ten million dollars ($10,000,000) and (iii)
dispositions approved by the Bankruptcy Court or in which the aggregate consideration received did
not exceed ten million dollars ($10,000,000).
Section 5.12 No Violation or Default; Compliance with Laws. The Company is
not in violation of its charter or bylaws and none of the Companys Subsidiaries are in violation
of their respective charters or bylaws or similar organizational documents in any material respect.
Neither the Company nor any of its Subsidiaries are, except as a result of the Proceedings, in
default, and no Event has occurred or exists that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or condition
contained in any Contract to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, except for any such default that has not had and
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect. Neither the Company nor any of its Subsidiaries is or has been at any time since January
1, 2008 in violation of any Law or Order, except for any such violation that has not had and would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
There is and since January 1, 2008 has been no failure on the part of the Company to comply in all
material respects with the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations
promulgated by the SEC thereunder.
Section 5.13 Legal Proceedings. There are no legal, governmental or
regulatory investigations, actions, suits, arbitrations or proceedings (Legal
Proceedings) pending to which the Company or any of its Subsidiaries is a party or
to which any property of the Company or any of its Subsidiaries is the subject that, individually
or in the aggregate, has had or would reasonably be expected to have, a Material Adverse Effect,
and, to the Knowledge of the Company, no such Legal Proceedings are either (a) threatened or
contemplated by any Governmental Entity or (b) threatened by any other Person.
Section 5.14 Labor Relations.
(a) There is no labor or employment-related audit, inspection or Legal Proceeding pending or
threatened between the Company or any of its Subsidiaries and any of their respective employees or
such employees labor organization, works council, European Works Council, workers committee,
union representatives or any other type of employees
34
representatives appointed for collective
bargaining purposes (collectively Employee Representatives) that would
reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any
Collective Bargaining Agreement applicable to persons employed by the Company or any of its
Subsidiaries, and to the Knowledge of the Company, no union organizing efforts or Employee
Representatives elections are underway with respect to any such employees. There is no strike,
slowdown, work stoppage, lockout or, to the Knowledge of the Company, threat thereof, by or with
respect to any employees of the Company or any of its Subsidiaries.
(c) The Company and each of its Subsidiaries has complied in all respects with its payment
obligations to all employees of the Company, its Subsidiaries in respect of all wages, salaries,
fees, commissions, bonuses, overtime pay, holiday pay, sick pay, benefits and all other
compensation, remuneration and emoluments due and payable to such employees under any Company or
Subsidiary policy, practice, agreement, plan, program or any applicable Collective Bargaining
Agreement or Law, except to the extent that any noncompliance has not
had and would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
Section 5.15 Intellectual Property.
(a) Except as has not resulted in and would not reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect, (i) the Company and its Subsidiaries
own or possess valid and enforceable rights, free and clear of all Liens (except for Permitted
Liens), to use all Intellectual Property necessary for the conduct of their respective businesses
as currently conducted and (ii) there is no Intellectual Property other than the Business
Intellectual Property that is necessary for the conduct of the businesses of the Company and its
Subsidiaries as currently conducted.
(b) All registrations with and applications to Governmental Entities in respect of material
Business Intellectual Property owned by the Company are valid and in full force and effect, have
not lapsed, expired (other than expirations in accordance with their statutory terms) or been
abandoned (subject to the vulnerability of a registration for trademarks to cancellation for lack
of use) and are not the subject of any opposition filed with the United States Patent and Trademark
Office or any other applicable Intellectual Property registry, except where such lapse, expiration,
abandonment or opposition would not have or reasonably be expected to have a Material Adverse
Effect. The consummation of the transactions contemplated by this Agreement and by the Plan will
not (i) result in the loss or impairment of any rights to use any material Business Intellectual
Property or (ii) obligate any of the Investors to pay any royalties or other amounts to any third
party in excess of the amounts that would have been payable by Company and its Subsidiaries absent
the consummation of such transactions.
(c) To the Knowledge of the Company, the Company and its Subsidiaries are not in default (or
with the giving of notice or lapse of time or both, would be in default) under any Contract
relating to any material Business Intellectual Property. To the Knowledge of the Company, (i) no
material Business Intellectual Property rights owned by the Company or its Subsidiaries are being
infringed by any other Person and (ii) the conduct of the businesses of the
35
Company and its
Subsidiaries as presently conducted does not violate, infringe or misappropriate any Intellectual
Property rights of other Persons, except to the extent such conflict, infringement or
misappropriation has not had and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
Section 5.16 Title to Real and Personal Property.
(a) Real Property. The Company or one of its Subsidiaries, as the
case may be, has good title in fee simple to each Owned Real Property, free and clear of all Liens,
except (i) Liens that are described in the Company SEC Documents filed prior to the date hereof,
the Attached Plan or the Attached Disclosure Statement or (ii) Permitted Liens. All Real Property
Leases are valid, binding and enforceable by and against the Company or its relevant Subsidiary
(except (A) those which are cancelled, rescinded or terminated after the date of this Agreement in
accordance with their terms and this Agreement and (B) as may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors
rights generally and general principles of equity), except where the
failure to be valid, binding or enforceable has not had and would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, and no written notice to
terminate, in whole or part, any Real Property Lease has been delivered to the Company or any of
its Subsidiaries (nor, to the Knowledge of the Company, has there been any indication that any such
notice of termination will be served). Other than as a result of the filing of the Proceedings,
neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other
party to any Real Property Lease is in default or breach under the terms thereof except for such
instances of default or breach that have not had and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect.
(b) Personal Property. The Company or one of its Subsidiaries has
good title or, in the case of leased assets, a valid leasehold interest, free and clear of all
Liens, to all of the tangible and intangible personal property and assets that are material to the
business of the Company and its Subsidiaries, except (i) Liens that are described in the Company
SEC Documents filed prior to the date hereof, the Attached Plan or the Attached Disclosure
Statement or (ii) Permitted Liens.
Section 5.17 No Undisclosed Relationships. As of the date hereof, no
relationship, direct or indirect, exists between or among the Company or any of its Subsidiaries,
on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company
or any of its Subsidiaries, on the other, that is required by the Exchange Act to be described in
the Company SEC Documents and that are not so described in the Company SEC Documents filed prior to
the date hereof, except for the transactions contemplated by this Agreement.
Section 5.18 Licenses and Permits. The Company and its Subsidiaries
possess all licenses, certificates, permits and other authorizations issued by, and have made all
declarations and filings with, the appropriate Governmental Entities that are necessary for the
ownership or lease of their respective properties or the conduct of their respective businesses as
described in the Company SEC Documents filed prior to the date hereof, in each case, except as,
individually or in the aggregate, has not had and would not reasonably be expected to have a
Material Adverse Effect. Except as, individually and in the aggregate, has not had and would not
36
reasonably be expected to have a Material Adverse Effect, neither the Company nor any of its
Subsidiaries (i) has received notice of any revocation or modification of any such license,
certificate, permit or authorization or (ii) has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course.
Section 5.19 Compliance With Environmental Laws.
(a) The Company and its Subsidiaries have complied and are in compliance with all applicable
Laws relating to the protection of the environment or to the management, use, transportation,
storage or disposal of hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, Environmental Laws), except for such noncompliance that
would not reasonably be expected to have a Material Adverse Effect;
(b) the Company and its Subsidiaries (i) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses, (ii) are not subject to any action to revoke,
terminate, cancel, limit, amend or appeal any such permits, licenses or approvals, and (iii)
have paid all fees, assessments or expenses due under any such permits, licenses or approvals
except for such failures to receive and comply with permits, licenses or approvals, or any such
actions, or failure to pay any such fees, assessments or expenses that would not reasonably be
expected to have a Material Adverse Effect;
(c) except with respect to matters that have been settled or resolved, the Company and its
Subsidiaries have not received written notice of any actual or potential liability of the Company
for the investigation or remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, or for any violation of Environmental Laws, where such
investigation or remediation would reasonably be expected to have a Material Adverse Effect;
(d) there are no facts, circumstances or conditions relating to the past or present business
or operations of the Company, its Subsidiaries or any of their predecessors (including the disposal
of any hazardous or toxic substances or wastes, pollutants or contaminants), or to any real
property currently or formerly owned, leased or operated by the Company, its Subsidiaries or any of
their predecessors, that would reasonably be expected to give rise to any claim, proceeding or
action, or to any liability, under any Environmental Law, where such claim, proceeding, action or
liability would reasonably be expected to have a Material Adverse Effect;
(e) neither the Company nor any of its Subsidiaries has agreed by Contract to assume or accept
responsibility for any liability of any other Person under Environmental Laws, where such
assumption or acceptance of responsibility would reasonably be expected to have a Material Adverse
Effect;
(f) to the Knowledge of the Company, none of the transactions contemplated under this
Agreement will give rise to any obligations to obtain the consent of or provide notice to any
Governmental Entity under any Environmental Laws; and
37
(g) neither the Company nor any of its Subsidiaries has manufactured, distributed or sold
asbestos or any products containing asbestos, except as would not reasonably be expected to have a
Material Adverse Effect.
Section 5.20 Tax Matters.
(a) The Company has timely filed or caused to be timely filed (taking into account any
applicable extension of time within which to file) with the appropriate taxing authorities all
income and other material tax returns, statements, forms and reports (including elections,
declarations, disclosures, schedules, estimates and information Tax Returns) for Taxes
(Tax Returns) that are required to be filed by, or with respect to,
the Company and its Subsidiaries. The Tax Returns accurately reflect all material liability for
Taxes of the Company and its Subsidiaries for the periods covered thereby.
(b) All material Taxes and Tax liabilities due by or with respect to the income, assets or
operations of the Company and its Subsidiaries for all taxable years or other taxable
periods that end on or before the Effective Date have been paid in full or will be paid in
full pursuant to the Plan or, to the extent not yet due, accrued and fully provided for in
accordance with GAAP on the financial statements of the Company included in the Company SEC
Documents.
(c) Neither the Company nor any of its Subsidiaries has received any written notices from any
taxing authority relating to any issue that could materially affect the Tax liability of the
Company or any of its Subsidiaries.
(d) All material Taxes that the Company and each of its Subsidiaries is (or was) required by
Law to withhold or collect in connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder or other third party have been duly withheld or collected, and
have been timely paid to the proper authorities to the extent due and payable.
(e) Neither the Company nor any of its Subsidiaries has been included in any consolidated,
unitary or combined Tax Return provided for under any Law with respect to Taxes for any taxable
period for which the statute of limitations has not expired (other than a group of which the
Company and/or its Subsidiaries are the only members).
(f) There are no tax sharing, allocation, indemnification or similar agreements in effect as
between the Company or any of its Subsidiaries or any predecessor or Affiliate thereof and any
other party (including any predecessors or Affiliates thereof) under which the Company or any of
its Subsidiaries could be liable for any material Taxes or other claims of any party.
(g) The Company has not been a United States real property holding corporation within the
meaning of Section 897(c)(2) of the Code at any time during the five (5)-year period ending on the
date hereof.
(h) Neither the Company nor any of its Subsidiaries is a party to any agreement that would
require the Company or any of its Subsidiaries or any of their respective
38
Affiliates to make any
material payment that would constitute an excess parachute payment for purposes of Sections 280G
and 4999 of the Code.
(i) Neither the Company nor any of its Subsidiaries has (A) engaged in a listed transaction
within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or (B) engaged in a reportable
transaction within the meaning of Treasury Regulation Section 1.6011-4(b) for tax years prior to
2009.
Section 5.21 Company Plans.
(a) Correct and complete copies of the following documents, with respect to all material
domestic and foreign benefit and compensation plans, programs, contracts, commitments, practices,
policies, arrangements and agreements, whether written or oral, including, but not limited to,
employee benefit plans within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (ERISA), whether or not subject to
ERISA, arrangements for the provision of pension, lump sum or other benefits
payable on, in anticipation of, or following retirement, death, reaching a particular age,
illness or disability, or in similar circumstances, and employment, deferred compensation (whether
qualified or nonqualified), stock option, stock purchase, restricted stock, stock appreciation
rights, stock based, incentive and bonus plans and agreements, that are currently maintained or
contributed to (or with respect to which an obligation to contribute has been undertaken) or with
respect to which the Company or any of its Subsidiaries has liability or any potential liability
(the Company Plans), have been delivered upon request or made
available to the Investors by the Company, to the extent applicable: (i) all Company Plan documents
currently in effect, together with all amendments and attachments thereto (including, in the case
of any Company Plan not set forth in writing, a written description thereof); (ii) all trust
documents, declarations of trust and other documents establishing other funding arrangements
currently in effect, and all amendments thereto currently in effect and the latest financial
statements thereof; (iii) the annual report on IRS Form 5500 for each of the past three (3) years
and all schedules (other than Schedule SSA) thereto; (iv) the most recent IRS determination letter;
(v) summary plan descriptions and summaries of material modifications currently in effect; and (vi)
the two (2) most recently prepared actuarial valuation reports.
(b) Except as has not resulted in and would not reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect: (i) each Company Plan, other than any
multiemployer plans within the meaning of Section 3(37) of ERISA (Multiemployer
Plans), is in compliance with ERISA, the Code, other applicable Laws and its
governing documents; (ii) each Company Plan that is intended to be a qualified plan under Section
401(a) of the Code has received a favorable determination letter from the IRS covering all Tax law
changes prior to the Economic Growth and Tax Relief Reconciliation Act of 2001 or has applied to
the IRS for such favorable determination within the applicable remedial amendment period under
Section 401(b) of the Code, and, to the Knowledge of the Company, nothing has occurred that is
reasonably likely to result in the loss of the qualification of such Company Plan under Section
401(a) of the Code; (iii) no Company Plan (other than any Multiemployer Plan, the Visteon Pension
Plan and the Visteon Systems Connersville and Bedford Pension Plan) subject to Section 412 of the
Code or Section
39
302 of ERISA has failed to satisfy the minimum funding standard within the meaning
of Section 412 of the Code or Section 302 of ERISA, or obtained a waiver of any minimum funding
standard or an extension of any amortization period under Section 412 of the Code or Section 303 or
304 of ERISA; (iv) no Company Plan covered by Title IV of ERISA has been terminated and no
proceedings have been instituted to terminate or appoint a trustee under Title IV of ERISA to
administer any such Company Plan; (v) neither the Company nor any of its Subsidiaries have incurred
any unsatisfied liability under Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA by reason of being treated as a single employer together with any other person under Section
4001 of ERISA or Section 414 of the Code; (vi) the projected benefit obligations (whether or not
vested) under each Company Plan that is a pension plan (within the meaning of Section 3(2) of
ERISA) as of the close of its most recent plan year did not exceed the market value of the assets
allocable thereto by more than, as applicable, (A) the amount shown in the most recent actuarial
valuation report for such Company Plan provided or made available to Investors pursuant to
Section 5.21(a)(vi) hereof or (B) the amount shown in the Attached Plan
or Attached Disclosure Statement; (vii) the Company and its Subsidiaries have not incurred any
withdrawal liability with respect to a Multiemployer Plan under Subtitle E of Title IV of ERISA
other than (A) with respect to the Central States, Southeast and Southwest Areas Pension Plan and
the Teamsters
Pension Trust Fund of Philadelphia and Vicinity, as set forth in the Attached Plan or Attached
Disclosure Statement, or (B) that has not been satisfied in full, and no condition or circumstance
exists that presents a reasonable risk of the occurrence of any other withdrawal from or, to the
Knowledge of the Company, the partition, termination, reorganization or insolvency of any such
Multiemployer Plan; (viii) the aggregate liabilities of the Company and its Subsidiaries to any
Multiemployer Plans not described in Section 5.21(b)(vii)(A) in the
event of a complete withdrawal by the Company and its Subsidiaries therefrom, as of the close of
the most recent fiscal year of each Multiemployer Plan ended prior to the date hereof, would not
exceed fifty thousand dollars ($50,000); (ix) no reportable event, within the meaning of Section
4043 of ERISA has occurred or is expected to occur for any Company Plan covered by Title IV of
ERISA other than as a result of the Proceedings; (x) all contributions required to be made under
the terms of any Company Plan have been timely made or have been (A) reflected in the financial
statements of the Company included in the Company SEC Reports filed prior to the date hereof or (B)
described in the Attached Plan or Attached Disclosure Statement; (xi) there has been no amendment
to, announcement by the Company or any of its Subsidiaries relating to, or change in employee
participation or coverage under, any Company Plan which would increase the expense of maintaining
such plan above the level of the expense incurred therefor for the most recent fiscal year; (xii)
no Company Plan provides for post-employment or retiree health, life insurance or other welfare
benefits, except for (A) death benefits or retirement benefits under any employee pension benefit
plan (as such term is defined in Section 3(2) of ERISA), (B) benefits required by Section 4980B of
the Code or similar Law, (C) benefits for which the covered individual pays the full premium cost,
or (D) benefits described in the documents filed with the Bankruptcy Court in connection with the
OPEB Order; (xiii) neither the Company nor any of its Subsidiaries, nor any of their respective
directors, officers or employees, nor, to the Knowledge of the Company, any other disqualified
person or party in interest (as defined in Section 4975(e)(2) of the Code and Section 3(14) of
ERISA, respectively) has engaged in any transaction, act or omission to act in connection with any
Company Plan that would reasonably be expected to result in the imposition of a material penalty or
fine to the Company or any of its Subsidiaries pursuant to Section 502 of ERISA, damages to the
Company or any of its Subsidiaries pursuant to Section 409 of ERISA or a tax to the Company or any
of its Subsidiaries
40
pursuant to Section 4975 of the Code; (xiv) no liability, claim, action,
litigation, audit, examination, investigation or administrative proceeding has been made, commenced
or, to the Knowledge of the Company, threatened with respect to any Company Plan (other than (A)
routine claims for benefits payable in the ordinary course, (B) in relation to the OPEB Order, (C)
otherwise in relation to the Proceedings or (D) any that, individually, could not reasonably be
expected to result in a liability of the Company or any of its Subsidiaries in excess of fifty
thousand dollars ($50,000)); (xv) each Company Plan that is a nonqualified deferred compensation
plan (within the meaning of Section 409A of the Code) has been operated and administered since
January 1, 2005 in good faith compliance with Section 409A of the Code, and is currently in
compliance with Section 409A of the Code; (xvi) neither the execution of this Agreement,
stockholder approval of this Agreement nor the consummation of the transactions contemplated hereby
will (A) entitle any employees of the Company or any of its Subsidiaries to severance pay or any
increase in severance pay upon any termination of employment after the date hereof, (B) accelerate
the time of payment or vesting or result in any payment or funding (through a grantor trust or
otherwise) of compensation or benefits under, increase the amount payable or result in any other
material obligation pursuant to, any of the Company Plans, or (C)
limit or restrict the right of the Company to merge, amend or terminate any of the Company
Plans; (xvii) except as required to maintain the tax-qualified status of any Company Plan intended
to qualify under Section 401(a) of the Code, no condition or circumstance exists that would prevent
the amendment or termination of any Company Plan other than a Company Plan between the Company or
any of its Subsidiaries, on the one hand, and an individual employee or director thereof on the
other; and (xviii) the UK Pensions Regulator, as of the date of this Agreement, has not issued any
of the following: (A) an improvement notice under section 13 of the UK Pensions Act 2004 (as
amended); (B) third party notice under section 14 of the UK Pensions Act 2004 (as amended); (C) a
contribution notice under section 38 or section 47 of the UK Pensions Act 2004 (as amended); (D) a
financial support direction under section 43 of the UK Pensions Act 2004 (as amended); (E) a
restoration order under section 52 of the UK Pensions Act 2004 (as amended); or (F) a warning
notice in relation to any of clauses (A), (B), (C), (D) or (E) above.
Section 5.22 Internal Control Over Financial Reporting. The Company
maintains, and has maintained since January 1, 2008, a system of internal control over financial
reporting (as such term is defined in Rule 13a-15 under the Exchange Act) that (a) complies in all
material respects with the requirements of the Exchange Act, (b) has been designed by the Companys
principal executive officer and principal financial officer (or under their supervision) to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting
principles, and (c) is effected by the Board and the Companys management and other personnel to
provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted accounting
principles. The Company is not aware of any material weaknesses in its internal control over
financial reporting.
Section 5.23 Disclosure Controls and Procedures. The Company maintains
disclosure controls and procedures required by Rule 13a-15(e) or 15d-15(e) under the Exchange Act.
Such disclosure controls and procedures have been designed to ensure that information required to
be disclosed by the Company is recorded, processed, summarized and reported on a
41
timely basis to
the individuals responsible for the preparation of the Companys filings with the SEC and other
public disclosure documents.
Section 5.24 Material Contracts. All Contracts that are material
contracts (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC as applied to
the Company on a consolidated basis) to which the Company or any of its Subsidiaries is a party or
is bound (the Material Contracts) are valid, binding and enforceable
by and against the Company or its relevant Subsidiary (except those which are cancelled, rescinded
or terminated after the date of this Agreement in accordance with their terms and this Agreement
and as may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws affecting creditors rights generally and general principles of equity),
except where the failure to be valid, binding or enforceable has not had and would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect, and no written
notice to terminate, in whole or part, any Material Contract has been delivered to the Company or
any of its Subsidiaries except where such termination has not had and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
Other than as a result of the filing of the Proceedings, neither the Company nor any of its
Subsidiaries nor, to the Knowledge of the Company, any other party to any Material Contract, is in
default or breach under the terms thereof except, in each case, for such instances of default or
breach that have not had and would not be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect.
Section 5.25 No Unlawful Payments. Since January 1, 2008, neither the
Company nor any of its Subsidiaries nor any of their respective directors, officers or employees
nor, to the Knowledge of the Company, any agent or other Person acting on behalf of the Company or
any of its Subsidiaries, has: (a) used any funds of the Company or any of its Subsidiaries for any
unlawful contribution, gift, entertainment or other unlawful expense, in each case relating to
political activity; (b) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (c) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or (d) made any bribe, rebate, payoff,
influence payment, kickback or other similar unlawful payment.
Section 5.26 Compliance with Money Laundering Laws. The operations of the
Company and its Subsidiaries are, and since January 1, 2008 have been at all times, conducted in
compliance in all material respects with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or
similar Laws (collectively, the Money Laundering Laws) and no action,
suit or proceeding by or before any Governmental Entity or any arbitrator involving the Company or
any of its Subsidiaries with respect to Money Laundering Laws is pending or, to the Knowledge of
the Company, threatened.
Section 5.27 Compliance with Sanctions Laws. Neither the Company nor any
of its Subsidiaries nor any of their respective directors, officers or employees nor, to the
Knowledge of the Company, any agent or other Person acting on behalf of the Company or any of its
Subsidiaries, is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department. The Company will not directly or indirectly use
the proceeds of the Rights Offering or the sale of the Investor Shares, or lend,
42
contribute or
otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person,
for the purpose of financing the activities of any Person that, to the Knowledge of the Company, is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department.
Section 5.28 No Brokers Fees. Neither the Company nor any of its
Subsidiaries is a party to any Contract with any Person (other than this Agreement) that would give
rise to a valid claim against the Investors for a brokerage commission, finders fee or like
payment in connection with the Rights Offering or the sale of the Investor Shares.
Section 5.29 No Registration Rights. Except as provided for pursuant to
the Registration Rights Agreement, no Person has the right to require the Company or any of its
Subsidiaries to register any securities for sale under the Securities Act.
Section 5.30 Takeover Statutes. The Board has taken all such action
necessary to render the restrictions contained in Section 203 of the General Corporation Law of the
State of Delaware inapplicable to the sale and issuance of New Common Stock to the Investors in
accordance with the Plan. Except for Section 203 of the General Corporation Law of the State of
Delaware (which has been rendered inapplicable), no other fair price, moratorium, control
share acquisition, business combination or other similar anti-takeover statute or regulation (a
Takeover Statute) is applicable to the Company, the New Common Stock,
the Shares, the sale and issuance of New Common Stock in accordance with the Plan.
Section 5.31 No Off-Balance Sheet Liabilities. Except for liabilities
incurred in the ordinary course of business, since December 31, 2009, neither the Company nor any
of its Subsidiaries has any material off balance sheet liabilities, except as set forth in (a) the
statement of financial affairs filed by the Debtors with the Bankruptcy Court on August 26, 2009,
(b) the amended schedule of assets and liabilities filed by the Debtors with the Bankruptcy Court
on November 16, 2009, (c) the Debtors monthly operating report filed with the Bankruptcy Court on
February 26, 2010, (d) the Financial Statements or (e) the Company SEC Documents filed prior to the
date hereof.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each Investor represents and warrants (except with respect to the representations and
warranties contained in Section 6.9, as to which only the Lead Investors
represent and warrant) as to itself only, and agrees with, as of the date hereof, the Company,
severally and not jointly, as set forth below.
Section 6.1 Incorporation. Such Investor is a legal entity duly organized,
validly existing and, if applicable, in good standing (or the equivalent thereof) under the laws of
its jurisdiction of incorporation or organization.
Section 6.2 Corporate Power and Authority. Such Investor has the requisite
corporate, limited partnership or limited liability company power and authority to enter into,
execute and deliver this Agreement and to perform its obligations hereunder and has taken all
43
necessary corporate, limited partnership or limited liability company action required for the due
authorization, execution, delivery and performance by it of this Agreement.
Section 6.3 Execution and Delivery. This Agreement and each Transaction
Agreement to which such Investor is a party (a) has been, or prior to its execution and delivery
will be, duly and validly executed and delivered by such Investor and (b) upon the entry of the
Approval Order and the expiration, or waiver by the Bankruptcy Court of the fourteen (14)-day
period set forth in Bankruptcy Rule 6004(h), will constitute the valid and binding obligations of
such Investor, enforceable against such Investor in accordance with their respective terms.
Section 6.4 No Conflict. Provided that the consents, approvals and
authorizations described in Section 6.5 are obtained, the execution and
delivery by such Investor of this Agreement, the Plan and, to the extent applicable, the
Transaction Agreements, the compliance by such Investor with all of the provisions hereof and
thereof and the consummation of the transactions contemplated herein and therein (including
compliance by each other Party with its obligations hereunder and thereunder) (a) will not conflict
with, or result in a breach or violation of, any of the terms or provisions of, or constitute a
default under (with or without notice or lapse of time, or both), or result in the acceleration of,
or the creation of any Lien under, any Contract to which such Investor is a party or by which such
Investor is bound or to which any of the property or assets of such Investor is subject, (b) will
not result in any violation of the provisions of the certificate of incorporation or bylaws (or
comparable constituent documents) of such Investor and (c) will not result in any material
violation of any Law or Order applicable to such Investor or any of its properties, except in any
such case described in clause (a) for any conflict, breach, violation, default, acceleration or
Lien which has not and would not reasonably be expected, individually or in the aggregate, to
prohibit, materially delay or materially and adversely impact such Investors performance of its
obligations under this Agreement, the Plan and, to the extent applicable, the Transaction
Agreements.
Section 6.5 Consents and Approvals. No consent, approval, authorization,
order, registration or qualification of or with any Governmental Entity having jurisdiction over
such Investor or any of its properties is required for the execution and delivery by such Investor
of this Agreement, the Plan and, to the extent applicable, the Transaction Agreements, the
compliance by such Investor with all of the provisions hereof and thereof and the consummation of
the transactions (including the purchase by such Investor of its Allocated Portion of the Investor
Shares) contemplated herein and therein (including compliance by each other Party with its
obligations hereunder and thereunder), except (a) filings, if any, pursuant to the HSR Act and the
expiration or termination of all applicable waiting periods thereunder or any applicable
notification, authorization, approval or consent under any other Antitrust Laws in connection with
the transactions contemplated by this Agreement, and (b) any consent, approval, authorization,
order, registration or qualification which, if not made or obtained, has not and would not
reasonably be expected, individually or in the aggregate, to prohibit, materially delay or
materially and adversely impact such Investors performance of its obligations under this
Agreement, the Plan and, to the extent applicable, the Transaction Agreements.
Section 6.6 No Registration. Such Investor understands that the Investor
Shares have not been registered under the Securities Act by reason of a specific exemption from the
registration provisions of the Securities Act, the availability of which depends on, among
44
other
things, the bona fide nature of the investment intent and the accuracy of such Investors
representations as expressed herein or otherwise made pursuant hereto.
Section 6.7 Purchasing Intent. Such Investor is acquiring the Investor
Shares for its own account, not as a nominee or agent, and not with the view to, or for resale in
connection with, any distribution thereof not in compliance with applicable securities Laws, and
such Investor has no present intention of selling, granting any participation in, or otherwise
distributing the same, except in compliance with applicable securities Laws.
Section 6.8 Sophistication; Investigation. Such Investor has such
knowledge and experience in financial and business matters that it is capable of evaluating the
merits and risks of its investment in the Investor Shares being acquired hereunder. Such Investor
is an accredited investor within the meaning of Rule 501(a) of the Securities Act. Such Investor
understands and is able to bear any economic risks associated with such investment (including the
necessity of holding the Investor Shares for an indefinite period of time). Such Investor has
conducted and relied on its own independent investigation of, and judgment with respect to, the
Company and its Subsidiaries and Joint Ventures and the advice of its own legal, tax, economic, and
other advisors.
Section 6.9 No Holdings Under the Credit Facility. Such Lead Investor and
each of its Affiliates (a) is not a Lender (as such term is defined in the Credit Facility) or a
Participant (as such term is defined in the Credit Facility) or an Affiliate thereof and (b) is not
an assignee under any Assignment and Assumption (as such term is defined in the Credit Facility)
that as of the date hereof is not yet effective. There are no Obligations (as such term is defined
in the Credit Facility) owing to such Lead Investor or any of its Affiliates and such Lead Investor
and its Affiliates do not hold any right or option to acquire or purchase any Obligations (as such
term is defined in the Credit Facility). Notwithstanding anything to the contrary contained
herein, (i) Deutsche Bank Securities Inc. is only making the representations contained in this
Section 6.9 with respect to, and Section 6.9
shall only apply to, the Distressed Products Group of Deutsche Bank Securities Inc., and not to any
other business or Affiliate of Deutsche Bank Securities Inc. and (ii) Goldman, Sachs & Co. is only
making the representations contained in this Section 6.9 with respect
to, and Section 6.9 shall only apply to, the High Yield Distressed
Investing Group of Goldman, Sachs & Co., and not to any other business or Affiliate of Goldman,
Sachs & Co.
Section 6.10 No Brokers Fees. Such Investor is not a party to any
Contract with any Person (other than this Agreement) that would give rise to a valid claim against
the Company, other than pursuant to Section 4.3, for a brokerage
commission, finders fee or like payment in connection with the Rights Offering or the sale of the
Investor Shares.
ARTICLE VII
ADDITIONAL COVENANTS
Section 7.1 Approval Motion and Approval Order. The
Company agrees that it shall use commercially reasonable efforts to (a) obtain the entry of the
Approval Order (including filing supporting affidavits on behalf of the Company and its financial
advisor) and
45
(b) cause the Approval Order to become a Final Order (including by requesting that
such Approval Order be a Final Order immediately upon its entry by the Bankruptcy Court pursuant to
a waiver of Bankruptcy Rule 6004(h)), in each case as soon as practicable following the filing of
the Approval Motion.
Section 7.2 Plan, Disclosure Statement and Other Documents.
(a) The Company shall authorize, execute and file with the Bankruptcy Court the Disclosure
Statement and the Plan, and shall seek approval of the Disclosure Statement and seek confirmation
of the Plan.
(b) The Company shall use commercially reasonable efforts to, and shall cause the other
Debtors to use commercially reasonable efforts to:
(i) file a motion seeking entry of the Approval Order on or before 5:00 pm (New York
time) on May 13, 2010;
(ii) obtain from the Bankruptcy Court the Approval Order on or before 5:00 pm (New York
time) on June 20, 2010;
(iii) file the Disclosure Statement on or before 5:00 pm (New York time) on May 21,
2010;
(iv) obtain from the Bankruptcy Court an order approving the Disclosure Statement on or
before 5:00 pm (New York time) on June 20, 2010;
(v) file the Plan on or before 5:00 pm (New York time) on May 26, 2010; and
(vi) obtain from the Bankruptcy Court the Confirmation Order on or before 5:00 pm (New
York time) on September 3, 2010.
(c) The Company shall (i) provide to the Lead Investors and the Ad Hoc Counsel a copy of (A)
any proposed amendments, supplements, changes or modifications to the Plan, the Disclosure
Statement, the Certificate of Incorporation, the Bylaws, the Registration Rights Agreement and the
Rights Offering Procedures and (B) the proposed form of Confirmation Order, the proposed form of
any Plan Supplement and any proposed amendments, supplements, changes or modifications to any of
the foregoing, (ii) provide a reasonable opportunity to the Lead Investors and the Ad Hoc Counsel
to review and comment on such documents prior to authorizing, agreeing to, entering into,
implementing, executing or, if applicable, filing with the Bankruptcy Court or seeking Bankruptcy
Court approval or confirmation of, any such documents, and (iii) consider, in good faith, any
comments consistent with this Agreement and the Plan, and any other reasonable comments of the Lead
Investors, their respective counsel and the Ad Hoc Counsel. Notwithstanding anything to the
contrary contained in this Agreement, at all times prior to the Effective Date the Company shall
not: authorize, approve, agree to, enter into, implement, execute or, if applicable, file with the
Bankruptcy Court or seek Bankruptcy Court approval or confirmation of (w) any plan of
reorganization for any Debtor, disclosure statement, confirmation order, certificate of
46
incorporation or bylaws of the Company, registration rights agreement, rights offering procedures
or Plan Supplement other than a Plan, Disclosure Statement, Confirmation Order, Certificate of
Incorporation, Bylaws, Registration Rights Agreement, Rights Offering Procedures or Plan Supplement
which conforms with the requirements therefor set forth in Section 1.1;
(x) any management equity incentive program that is inconsistent with or does not
conform with the requirements and criteria set forth in Exhibit G
as attached hereto as of the date hereof; (y) any incentive program, non-qualified benefit program
or severance program that is inconsistent with or does not conform with the requirements and
criteria under the headings Incentive Programs, Non-Qualified Benefit Programs and Severance
Programs in Exhibit L as attached hereto as of the date hereof, subject
to adjustments only for changes in seniority level of participating employees and arrival of new
employees and departure of current employees; provided, that such
changes shall not result in a change in the aggregate amount of payments to be paid under such
program or the performance metrics, as applicable, of such program; and (z) any employment
agreement with Donald J. Stebbins or any change in control agreement with any employee other than
a Management Agreement that conforms with the requirements therefor set forth in
Section 1.1.
(d) If at any time prior to the Expiration Time, to the Knowledge of the Company, any Event
occurs as a result of which the Disclosure Statement, as then amended or supplemented, would not
meet the requirements of section 1125 of the Bankruptcy Code, or if it shall be necessary to amend
or supplement the Disclosure Statement to comply with applicable Law, the Company will promptly
notify the Investors of any such Event and prepare an amendment or supplement to the Disclosure
Statement that is reasonably acceptable in form and substance to Requisite Investors that will
correct such statement or omission or effect such compliance.
Section 7.3 Securities Laws. The Company shall use its commercially
reasonable efforts to take all action as may be necessary or advisable so that the Rights Offering
and the issuance and sale of the Investor Shares and the other transactions contemplated by this
Agreement will be effected in accordance with this Agreement, the Rights Offering Sub-Plan, the
Securities Act, the Exchange Act and any state or foreign securities or Blue Sky laws. The Company
shall use commercially reasonable efforts to, and shall cause the other Debtors to use commercially
reasonable efforts to, commence the Rights Offering on or before the date that is ten (10) days
after the Bankruptcy Court has entered an order approving the Disclosure Statement.
Section 7.4 Listing. The Company shall not, until the earlier of the date
that (a) is the three (3) month anniversary of the Effective Date and (b) the SEC declares
effective the Shelf Registration Statement (as defined in the Registration Rights Agreement), list
the New Common Stock on the New York Stock Exchange, the Nasdaq Stock Market or any other national
securities exchange; provided, that until such date, the Company shall,
upon the written request of Requisite Investors, use commercially reasonable effort to list and
maintain the listing of the New Common Stock on the New York Stock Exchange, the Nasdaq Stock
Market or any other national securities exchange as requested by Requisite Investors.
Section 7.5 Earnings Statement. The Company shall, until the first
anniversary of the Effective Date, timely file such reports pursuant to the Exchange Act as are
necessary to
47
make generally available to its security holders as soon as practicable an earnings
statement complying with Section 11(a) of the Securities Act and the rules and regulations
thereunder (including, at the option of the Company, Rule 158 under the Securities Act);
provided that the Companys obligation under this Section
7.5 shall be
deemed satisfied by the Companys filing of its annual report on Form 10-K pursuant to the
Exchange Act within the time periods permitted thereunder.
Section 7.6 Notification. The Company shall notify, or cause the
Subscription Agent to notify the Investors, on each Friday during the Rights Exercise Period and on
each Business Day during the five (5) Business Days prior to the Expiration Time (and any
extensions thereto), or more frequently if reasonably requested by any of the Investors, of the
aggregate number of Rights known by the Company to have been exercised pursuant to the Rights
Offering as of the close of business on the preceding Business Day or the most recent practicable
time before such request, as the case may be.
Section 7.7 Funding Approval. Each Investor shall deliver to the Company,
on the later of the date that is (x) ten (10) Business Days prior to the date scheduled for the
Confirmation Hearing and (y) five (5) Business Days after delivery of the Purchase Notice by the
Company to the Investors, a certificate (a Funding Approval
Certificate) from an officer or a duly authorized agent of such Investor certifying
that (a) such Investors credit committee (or such similar governing entity that is responsible for
approving such matters in accordance with such Investors normal operations) has approved, subject
only to the terms and conditions of this Agreement and the Plan, the funding by such Investor of an
amount equal to the sum of (i) such Investors Allotted Portion of the amount by which the
Aggregate Commitment exceeds the sum of (A) the aggregate amount of payments received by the
Company in respect of Direct Commitment purchase obligations as of such date, (B) the aggregate
amount of payments received by the Company or deposited into an escrow account for subsequent
delivery to the Company as of such date for exercised Rights and (C) the Cash Recovery Backstop
Amount plus (ii) for each Investor that is party to the Cash Recovery Backstop Agreement, an amount
equal to such Investors Distributable Commitment Percentage (as defined in the Cash Recovery
Backstop Agreement) of the aggregate Cash Recovery Backstop Amount and (b) such Investor is not
aware, as of the date of such Funding Approval Certificate, of any breaches of any representations,
warranties, or covenants of this Agreement that would cause any condition under
Section 8.1 to not be satisfied; provided,
that notwithstanding anything to the contrary contained in this Agreement, no Investor shall be
required to make the certification set forth in clause (b) above unless the Company simultaneously
delivers to each Investor a certificate from the chief executive officer or the chief financial
officer of the Company certifying that the Company is not aware, as of the date of delivery of such
certificate, of any breaches of any representations, warranties, or covenants of this Agreement
that would cause any condition under Section 8.3 to not be satisfied.
Section 7.8 Use of Proceeds. The Company will apply the net proceeds from
the exercise of the Rights and the sale of the Investor Shares to effect the Plan as provided in
the Plan.
Section 7.9 Conduct of Business. Except as otherwise (v) required by Law,
(w) disclosed in the Attached Disclosure Statement, but only to the extent that the relevance of
48
such disclosure to these covenants is reasonably apparent on its face, (x) required by this
Agreement or the Plan, (y) necessary to implement the VIHI Restructuring or (z) consented to in
writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or
conditioned), during the period from the date of this Agreement to the earlier of the
Effective Date and the date on which this Agreement is terminated in accordance with its terms (the
Pre-Closing Period) (except as otherwise expressly provided or
permitted by the terms of this Agreement, including the Disclosure Letter), the Company and its
Subsidiaries shall use their respective commercially reasonable best efforts to carry on their
businesses in the usual, regular and ordinary course in substantially the same manner as conducted
at the date of this Agreement, but only to the extent consistent with the Business Plan, and, to
the extent consistent therewith, use commercially reasonable efforts to (i) preserve intact their
current business organizations, (ii) keep available the services of their current officers and
(iii) preserve their relationships with material customers, suppliers, distributors and others
having material business dealings with the Company or its Subsidiaries or Joint Ventures, in each
case consistent with past practice as conducted prior to the date of this Agreement. Without
limiting the generality of the foregoing, except as set forth in the Disclosure Letter, as
otherwise expressly provided or permitted by this Agreement, or as otherwise required by Law
(including, for the avoidance of doubt, any Law relating to fiduciary duties), during the
Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries not to, without the
prior written consent of Requisite Investors (not to be unreasonably withheld, delayed or
conditioned):
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect
of, any of its capital stock other than dividends and distributions in respect of the capital stock
of any direct or indirect Subsidiary of the Company to the Company or another Subsidiary not in
excess of twenty five million dollars ($25,000,000) in the aggregate during the Pre-Closing Period
or (ii) purchase, redeem or otherwise acquire, except in connection with the Plan, any shares of
capital stock of the Company or any other securities thereof or any rights, warrants or options to
acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital
stock or any securities convertible into, or any rights, warrants or options to acquire, any such
capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a
substantial portion of the stock, or other ownership interests in, or substantial portion of assets
of, or by any other manner, any business or any corporation, partnership, association, joint
venture, limited liability company or other entity or division thereof, except for any acquisition
of any interest in a joint venture in an amount not to exceed five million dollars ($5,000,000) for
any individual acquisition or twenty million dollars ($20,000,000) in the aggregate during the
Pre-Closing Period or (ii) any assets in excess of ten million dollars ($10,000,000) in any
individual transaction or twenty million dollars ($20,000,000) in the aggregate during the
Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of
business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of
another individual or entity, issue or sell any debt securities or warrants or other rights to
acquire any debt securities of the Company, guarantee any debt securities of another
49
individual or
entity, enter into any keep well or other agreement to maintain any financial statement condition
of another Person or enter into any arrangement having the economic effect of any of the foregoing,
except for (A) borrowings and increases in letters of credit permitted
under the DIP Credit Agreement and (B) indebtedness existing solely between the Company and
its wholly owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or
capital contributions to, or investments in, any other individual or entity, except for (A) loans,
advances or capital contributions (1) between the Company and its Subsidiaries, (2) between such
Subsidiaries, or (3) by the Company or any of its Subsidiaries to any joint venture in an amount
not to exceed five million dollars ($5,000,000) for any individual loan, advance, contribution, or
investment or twenty million dollars ($20,000,000) in the aggregate during the Pre-Closing Period
and (B) customary immaterial advances in the ordinary course of business consistent with past
practice;
(e) other than as set forth in the Business Plan or in connection with the repair or
replacement of the plant and equipment at the manufacturing facilities of the Company or its
Subsidiaries in the ordinary course of business consistent with past practice, make or incur any
capital expenditure involving the expenditure of no more than five million dollars ($5,000,000) in
any individual expenditure or fifteen million dollars ($15,000,000) in the aggregate during the
Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, except elections that are
consistent with past practice, settle or compromise any material Tax liability for an amount
greater than the amount reserved for such liability on the most recent Financial Statements, or
amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing,
Collective Bargaining Agreement;
(h) fail to comply in any material respect with any information, consultation, or bargaining
obligations to the extent relating to the transactions contemplated by this Agreement and required
under any applicable Law or Collective Bargaining Agreement;
(i) enter into any new, or amend or terminate (other than amendments required to maintain the
tax qualified status of such plans under the Code in the ordinary course of business consistent
with past practices) any existing, Company Plans, arrangements or programs, severance agreement,
deferred compensation arrangement or employment agreement with any officers, directors or employees
or in accordance with the OPEB Order, the Plan or the Attached Disclosure Statement, (ii) take any
other action in connection with the UK Pensions Plans which may materially prejudice the issuance
of a transfer notice by the Pension Protection Fund under section 161(1) of the UK Pensions Act
2004 (as amended), (iii) grant any increases in employee compensation, other than in the ordinary
course or pursuant to promotions, in each case consistent with past practice (which shall include
normal individual periodic performance reviews and related compensation and benefit increases and
bonus payments consistent with past practices), (iv) grant any stock options or stock awards or (v)
make any annual or long-term incentive awards, other than, in the case of clauses (iv) and (v), in
accordance with the Approved Annual Incentive Program; or
50
(j) take any action that, if taken prior to the date hereof, would have constituted a breach
of the Companys representations and warranties in Section 5.11.
Section 7.10 Access to Information. Subject to applicable Law, upon
reasonable notice, the Company shall (and shall cause its Subsidiaries to) afford (i) the Lead
Investors and their Representatives and (ii) the Ad Hoc Counsel and any Co-Investors and/or their
Representatives that sign a customary confidentiality agreement with the Company on terms
reasonably acceptable to the Company and such party, reasonable access, during normal business
hours and without unreasonable disruption or interference with the Companys and its Subsidiaries
business or operations, throughout the Pre-Closing Period, to the Companys and its Subsidiaries
senior managers, properties, books, contracts and records and, during the Pre-Closing Period, the
Company shall (and shall cause its Subsidiaries to) furnish promptly to such parties all
information concerning the Companys and its Subsidiaries business, properties and personnel as
may reasonably be requested by any such party, provided, that the
foregoing shall not require the Company (a) to permit any inspection, or to disclose any
information, that in the reasonable judgment of the Company would cause the Company to violate any
of its obligations with respect to confidentiality to a third party if the Company shall have used
its commercially reasonable efforts to obtain, but failed to obtain, the consent of such third
party to such inspection or disclosure, (b) to disclose any legally privileged information of the
Company or any of its Subsidiaries or (c) to violate any Laws; provided,
further, that the Company shall deliver to the Lead Investors, the Ad
Hoc Counsel and any Co-Investors and/or their Representatives that sign a customary confidentiality
agreement with the Company on terms reasonably acceptable to the Company and such party, a schedule
setting forth a description of any information not provided to the Lead Investors, the Ad Hoc
Counsel, any Co-Investors and their Representatives that sign a customary confidentiality agreement
with the Company pursuant to clauses (a) through (c) above (in the case of clause (a), to the
extent not prohibited from doing so). All requests for information and access made pursuant to
this Section 7.10 shall be directed to an executive officer of the
Company or such person as may be designated by the Companys executive officers. All information
acquired by any Investor or its Representatives pursuant to this Section
7.10 shall be subject to any confidentiality agreement between the Company and such
Investor.
Section 7.11 Financial Information.
(a) At all times prior to the Effective Date, the Company shall deliver to (i) GLCA/Sagent
Advisors as financial advisors to the Lead Investors and the Co-Investors and (ii) the Ad Hoc
Counsel, all statements and reports the Company is required to deliver to any DIP Lender pursuant
to Sections 5.2(a) and 5.2(b) of the DIP Credit Agreement (the Financial
Reports) in accordance with the terms thereof (as in effect on the date hereof).
From and after the Effective Date, during any time that the Company is not subject to the periodic
reporting requirement under Section 13(a) or 15(d) of the Exchange Act, the Company shall deliver
the Financial Reports to GLCA/Sagent Advisors and the Ad Hoc Counsel as if the DIP Credit Facility
was still in effect (whether or not it actually is in effect). Neither any waiver by the DIP
Lenders of their right to receive the Financial Reports nor any amendment or termination of the DIP
Credit Agreement shall affect the Companys obligation to deliver the Financial Reports to
GLCA/Sagent Advisors and the Ad Hoc Counsel in accordance with the terms of this Agreement and the
DIP Credit Agreement (as in effect on the date hereof).
51
(b) All Financial Reports shall be complete and correct in all material respects and shall be
prepared in accordance with GAAP applied (except as approved by such
accountants or officer, as the case may be, and disclosed in reasonable detail therein)
consistently throughout the periods reflected therein and with prior periods. Information required
to be delivered pursuant to Section 5.2(b) of the DIP Credit Agreement (as in effect on the date
hereof) shall be deemed to have been delivered in accordance with Section
7.11(a) on the date on which the Company provides written notice to (i) GLCA/Sagent
Advisors as financial advisors to the Lead Investors and the Co-Investors and (ii) the Ad Hoc
Counsel that such information has been posted on the Companys website on the internet at
http://www.visteon.com or is available via the EDGAR system of the SEC on the internet (to the
extent such information has been posted or is available as described in such notice).
Notwithstanding anything to the contrary contained herein, any breach of the first sentence of this
Section 7.11(b) shall be deemed a breach of a representation and
warranty, and not a breach of a covenant, for purposes of Section 8.1.
Section 7.12 Takeover Statutes. The Company and the Board shall (a) take
all reasonable action to prevent a Takeover Statute from becoming applicable to this Agreement or
the sale or issuance of New Common Stock to Investors in accordance with the Plan and (b) if any
Takeover Statute is or would reasonably be expected to become applicable to the sale or issuance of
New Common Stock to Investors in accordance with the Plan, the Company and the Board shall grant
such approvals and take such actions as are necessary so that such transactions may be consummated
as promptly as practicable on the terms contemplated by this Agreement and the Plan and otherwise
act to eliminate or minimize the effects of such statute or regulation on such transactions.
Section 7.13 Notice of Alternate Transaction.
(a) The Company shall notify the Lead Investors and the Ad Hoc Counsel promptly (but in any
event within two (2) Business Days) of any bona fide, written proposals or offers received after
the date of this Agreement by the Company, any of its Subsidiaries or any of their respective
Representatives, relating to any Alternate Transaction, which such notice shall indicate the
identity of such Person and contain a summary of the material terms of such proposal or offer for
an Alternate Transaction. The Company shall keep the Lead Investors and the Ad Hoc Counsel
informed, on a reasonably prompt basis, of the status and material terms of any such proposals or
offers and the status of any material developments in respect of any such discussions or
negotiations.
(b) The Company, in response to an unsolicited, bona fide written third party proposal or
offer for an Alternate Transaction that is made after the date of this Agreement shall be permitted
to: (i) provide access to non-public information to the Person making such proposal or offer
pursuant to and in accordance with an executed confidentiality agreement
(provided, that such agreement shall not contain terms which prevent the
Company from complying with its obligations under this Section 7.13);
provided, that all such information provided to such Person has
previously been provided to the Investors or is provided to the Investors prior to or substantially
concurrent with the time it is provided to such Person; and (ii) participate in discussions or
negotiations with respect to such proposal or offering with the Person making such proposal or
offer if the Board has determined in good faith after consultation with its
52
financial advisors and
outside counsel that such proposal or offer could reasonably be expected to result in a Superior
Transaction.
Section 7.14 Commercially Reasonable Efforts.
(a) Without in any way limiting any other respective obligation of the Company or any Investor
in this Agreement, the Company shall use (and shall cause its Subsidiaries to use), and each
Investor shall use, commercially reasonable efforts to take or cause to be taken all actions, and
do or cause to be done all things, reasonably necessary, proper or advisable in order to consummate
and make effective the transactions contemplated by this Agreement and the Rights Offering
Sub-Plan, including using commercially reasonable efforts in:
(i) timely preparing and filing all documentation reasonably necessary to effect all
necessary notices, reports and other filings of such party and to obtain as promptly as
practicable all consents, registrations, approvals, permits and authorizations necessary or
advisable to be obtained from any third party or Governmental Entity; and
(ii) defending any Legal Proceedings challenging this Agreement, the Rights Offering
Sub-Plan or any Transaction Agreement or the consummation of the transactions contemplated
hereby and thereby, including seeking to have any stay or temporary restraining order
entered by any Governmental Entity vacated or reversed.
(b) Subject to applicable Laws relating to the exchange of information, the Investors and the
Company shall have the right to review in advance, and to the extent practicable each will consult
with the other on all of the information relating to Investors or the Company, as the case may be,
and any of their respective Subsidiaries, that appears in any filing made with, or written
materials submitted to, any third party and/or any Governmental Entity in connection with the
transactions contemplated by this Agreement or the Rights Offering Sub-Plan. In exercising the
foregoing rights, each of the Company and the Investors shall act reasonably and as promptly as
practicable.
(c) Nothing contained herein this Section 7.14 shall limit the
ability of any Investor to consult with the Debtors, to appear and be heard, or to file objections,
concerning any matter arising in the Proceedings, so long as such consultation, appearance or
objection is not inconsistent with (i) such Investors obligations hereunder or (ii) the terms of
the Rights Offering Sub-Plan and the other transactions contemplated by and in accordance with this
Agreement and the Rights Offering Sub-Plan.
Section 7.15 Antitrust Approval.
(a) Each Party agrees to use commercially reasonable efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary to consummate and make effective
the transactions contemplated by this Agreement, the other Transaction Agreements and the Rights
Offering Sub-Plan, including (i) if applicable, filing, or causing to be filed, the Notification
and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this
Agreement with the Antitrust Division of the United States Department of Justice and the United
States Federal Trade Commission and any filings under any other
53
Antitrust Laws that are necessary
to consummate and make effective the transactions contemplated by this Agreement as soon as
reasonably practicable following the date on which
the Approval Order is entered and (ii) promptly furnishing documents or information requested
by any Antitrust Authority.
(b) The Company and each Investor subject to an obligation pursuant to the Antitrust Laws to
notify any transaction contemplated by this Agreement, the Rights Offering Sub-Plan or the
Transaction Agreements that has notified the Company in writing of such obligation (each such
Investor, a Filing Party) agree to reasonably cooperate with each
other as to the appropriate time of filing such notification and its content. The Company and each
Filing Party shall, to the extent permitted by applicable Law: (i) promptly notify each other of,
and if in writing, furnish each other with copies of (or, in the case of material oral
communications, advise each other orally of) any communications from or with an Antitrust
Authority; (ii) not participate in any meeting with an Antitrust Authority unless it consults with
each other Filing Party and the Company, as applicable, in advance and, to the extent permitted by
the Antitrust Authority and applicable Law, give each other Filing Party and the Company, as
applicable, a reasonable opportunity to attend and participate thereat; (iii) furnish each other
Filing Party and the Company, as applicable, with copies of all correspondence, filings and
communications between such Filing Party or the Company and the Antitrust Authority; (iv) furnish
each other Filing Party with such necessary information and reasonable assistance as may be
reasonably necessary in connection with the preparation of necessary filings or submission of
information to the Antitrust Authority; and (v) not withdraw its filing, if any, under the HSR Act
without the prior written consent of Requisite Investors and the Company.
(c) Should a Filing Party be subject to an obligation under the Antitrust Laws to jointly
notify with one or more other Filing Parties (each, a Joint Filing
Party) a transaction contemplated by this Agreement, the Rights Offering Sub-Plan or
the Transaction Agreements, such Joint Filing Party shall promptly notify each other Joint Filing
Party of, and if in writing, furnish each other Joint Filing Party with copies of (or, in the case
of material oral communications, advise each other Joint Filing Party orally of) any communications
from or with an Antitrust Authority.
(d) The Company and each Filing Party shall use commercially reasonable efforts to cause the
waiting periods under the applicable Antitrust Laws to terminate or expire at the earliest possible
date after the date of filing. The communications contemplated by this Section
7.15 may be made by the Company or a Filing Party on an outside counsel-only basis or
subject to other agreed upon confidentiality safeguards. The obligations in this
Section 7.15 shall not apply to filings, correspondence, communications
or meetings with Antitrust Authorities unrelated to the transactions contemplated by this
Agreement, the Rights Offering Sub-Plan and the Transaction Agreements.
(e) Notwithstanding anything in this Agreement to the contrary, nothing shall require the
Company, any Investor or any of their respective Affiliates to (i) dispose of, license or hold
separate any of its or its Subsidiaries or Affiliates assets or the Companys or its
Subsidiaries assets, (ii) limit its freedom of action with respect to any of its or its
Subsidiaries businesses, the Companys or its Subsidiaries businesses or make any other
behavioral commitments, (iii) divest any of its Subsidiaries, its Affiliates or any of the
Companys
54
Subsidiaries, or (iv) commit or agree to any of the foregoing. Without the prior written
consent of Requisite Investors (such consent not to be unreasonably withheld, conditioned or
delayed),
neither the Company nor any of its Subsidiaries shall commit or agree to (i) dispose of,
license or hold separate any of its assets or (ii) limit its freedom of action with respect to any
of its businesses or commit or agree to any of the foregoing, in each case, in order to secure any
necessary consent or approvals for the transactions contemplated hereby under the Antitrust Laws.
Notwithstanding anything to the contrary herein, neither the Investors, nor any of their
Affiliates, nor the Company or any of its Subsidiaries, shall be required as a result of this
Agreement, to initiate any legal action against, or defend any litigation brought by, the United
States Department of Justice, the United States Federal Trade Commission, or any other Governmental
Entity in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary
restraining order or other order in any suit or proceeding which would otherwise have the effect of
preventing or materially delaying the transactions contemplated hereby, or which may require any
undertaking or condition set forth in the preceding sentence.
Section 7.16 Plan Support. Each Investor and the Company shall be
obligated to support the Plan as required by and in accordance with and subject to the terms and
conditions of the Plan Support Agreement. For the avoidance of doubt, nothing in this Agreement
shall restrict or prohibit any Investor from Transferring its Notes in accordance with the Plan
Support Agreement.
Section 7.17 Exit Financing. The Lead Investors (after Good Faith
Consultation) shall use their commercially reasonable efforts to work with Rothschild Inc. in its
efforts to obtain for and on behalf of the Company debt financing from financing sources reasonably
acceptable to the Lead Investors and the Company after Good Faith Consultation providing for
proceeds to be funded to the Company on or prior to the Effective Date in an aggregate amount of
not less than four hundred fifty million dollars ($450,000,000), such debt financing to be on
then-prevailing market terms that are reasonably acceptable to the Lead Investors and the Company
after Good Faith Consultation (the Exit Financing). The Company shall
reasonably cooperate with the Lead Investors in connection with arranging and obtaining of the Exit
Financing, including by (a) participating in a reasonable number of meetings, due diligence
sessions, management presentations and rating agency sessions, (b) assisting the Lead Investors
with preparation of materials required in connection with the Exit Financing and (c) executing and
delivering any customary and reasonable commitment letters, underwriting or placement agreements,
registration statements, pledge and security documents, other customary and reasonable definitive
financing documents, or requested certificates or documents reasonably necessary or desirable to
obtain the Exit Financing, in each case, after Good Faith Consultation. The Company agrees that
under no circumstances shall the execution of this Agreement or any act of the Lead Investors
pursuant to this Section 7.17 commit or be deemed a commitment by any of
the Lead Investors (or any their Affiliates) or any Co-Investor (or any of their Affiliates) to
provide or arrange the Exit Financing.
Section 7.18 Ford Agreement. The Company shall use its commercially
reasonable efforts to enter into an agreement (the Ford Agreement)
among the Company, Ford Motor Company (Ford) and their respective
Subsidiaries with respect to (a) any claims (i) held by Ford and its Subsidiaries against the
Company and any of its Subsidiaries and (ii) held by the Company and its Subsidiaries against Ford
and any of its Subsidiaries and (b) the relationships
55
and business arrangements that will be in
place after the Effective Date between the Company and its Subsidiaries, on the one hand, and Ford
and its
Subsidiaries, on the other hand, that is consistent with the Rights Offering Sub-Plan and
reasonably acceptable to Requisite Investors. The Company will (x) provide to the Lead Investors,
their respective counsel and the Ad Hoc Counsel a copy of the Ford Agreement and a reasonable
opportunity to review and comment on such documents prior to such documents being executed or
delivered or filed with the Bankruptcy Court, and (y) consider, in good faith, any comments
consistent with this Agreement, and any other reasonable comments of Requisite Investors, their
respective counsel and the Ad Hoc Counsel. Other than the Ford Agreement, neither the Company nor
any of its Subsidiaries has entered into, or will enter into, any material written agreements
between or among the Company or any of its Subsidiaries and Ford or any of its Subsidiaries
directly relating to the Plan, this Agreement or the Ford Agreement. Notwithstanding the
foregoing, the Company and its Subsidiaries may enter into, modify, or amend its commercial
agreements with Ford in the ordinary course of business.
Section 7.19 VIHI Restructuring. The Company and the Lead Investors agree
to reasonably cooperate, following Good Faith Consultation, with each other to structure and
implement the VIHI Restructuring in a commercially reasonable manner advantageous to the Company
and the Investors. The Company (a) shall provide to the Lead Investors, their respective counsel
and the Ad Hoc Counsel any proposed changes to the VIHI Restructuring and shall provide to the Lead
Investors a reasonable opportunity to review and comment on such proposed changes prior to
implementing such changes, (b) shall consider, in good faith, any reasonable changes proposed by
and suggestions of the Lead Investors, their respective counsel and the Ad Hoc Counsel with respect
to the VIHI Restructuring and (c) shall not make any amendments, supplements, changes or
modifications to the VIHI Restructuring as set forth in Exhibit K unless
such amendments, supplements, changes or modifications are reasonably acceptable to Requisite
Investors, in each case, after Good Faith Consultation.
Section 7.20 UK Pension Notice. To the extent that the UK Pensions
Regulator issues any notices and/or directions and/or orders as set out in clauses (A) through (F)
of Section 5.21(b)(xviii) during the Pre-Closing Period, the Company
shall notify the Investors promptly and shall cooperate by allowing the counsel for the Lead
Investors and the Ad Hoc Counsel an opportunity to review and comment on the preparation of any
responses to, or inquiries with, the UK Pensions Regulator regarding any such notices and/or
directions and/or orders.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
Section 8.1 Conditions to the Obligation of the Investors. Subject to
Section 8.2, the obligations of each of the Investors hereunder to
consummate the transactions contemplated hereby shall be subject to (unless waived by Requisite
Investors in accordance with Section 8.2) the satisfaction on or prior
to the Effective Date of each of the following conditions:
56
(a) Approval Order and Confirmation Order. The Approval Order and
the Confirmation Order shall each have become a Final Order.
(b) Bankruptcy Approval of Plan and Disclosure Statement. The
Disclosure Statement shall have been approved by the Bankruptcy Court, which Disclosure Statement,
and the Order approving it, shall be in form and substance reasonably acceptable to Requisite
Investors. The Plan confirmed by the Bankruptcy Court in the Confirmation Order (the
Confirmed Plan) and any amendments, supplements, changes and
modifications thereto shall, in each case, meet the requirements set forth in the definition of the
Plan in Section 1.1. The Confirmation Order and the Orders entered by
the Bankruptcy Court for any amendments, supplements, changes or modifications to the Confirmed
Plan shall be in form and substance reasonably acceptable to Requisite Investors;
provided, that Requisite Investors shall have the same approval rights
over any amendments, supplements, changes or modifications to the Confirmed Plan that Requisite
Investors have with respect to the Plan as set forth in the definition of the Plan in
Section 1.1. The Orders entered by the Bankruptcy Court referred to
above approving the Disclosure Statement and any amendments, supplements, changes and modifications
to the Confirmed Plan shall, in each case, have become Final Orders.
(c) Plan of Reorganization. The Company and all of the other
Debtors shall have complied in all material respects with the terms and conditions of the Rights
Offering Sub-Plan that are to be performed by the Company and the other Debtors prior to the
Effective Date.
(d) Alternate Transaction. Neither the Company nor any of its
Subsidiaries shall have entered into any Contract or written agreement in principle providing for
the consummation of any Alternate Transaction (an Alternate Transaction
Agreement) (or proposed or resolved to do so, which proposal or resolution has not
been withdrawn or terminated).
(e) Change of Recommendation. There shall not have been a Change
of Recommendation.
(f) Conditions to Plan. The conditions to the occurrence of the
Effective Date of the Rights Offering Sub-Plan as set forth in the Confirmed Plan shall have been
satisfied or waived in accordance with the Plan.
(g) Rights Offering. The Rights Offering shall have been conducted
in all material respects in accordance with this Agreement and the Rights Offering Sub-Plan, and
the Expiration Time shall have occurred.
(h) Antitrust Approvals. All terminations or expirations of
waiting periods imposed by any Governmental Entity necessary for the consummation of the
transactions contemplated by this Agreement, including under the HSR Act and any other Antitrust
Laws, shall have occurred and all other notifications, consents, authorizations and approvals
required to be made or obtained from any Governmental Entity under any Antitrust Law shall have
been made or obtained for the transactions contemplated by this Agreement.
(i) Consents. All governmental and third party notifications,
filings, consents, waivers and approvals set forth on Schedule 4 and
required for the
consummation of
57
the transactions contemplated by this Agreement and the Rights Offering
Sub-Plan shall have been made or received.
(j) No Legal Impediment to Issuance. No Law or Order shall have
been enacted, adopted or issued by any Governmental Entity that prohibits the implementation of the
Rights Offering Sub-Plan or the transactions contemplated by this Agreement.
(k) Good Standing. The Investors shall have received on and as of
a date no earlier than ten (10) Business Days prior to the Effective Date satisfactory evidence of
the good standing of the Company and its Significant Subsidiaries in their respective jurisdictions
of incorporation or organization, in each case in writing or any standard form of telecommunication
from the appropriate Governmental Entity of such jurisdictions.
(l) Representations and Warranties.
(i) The representations and warranties in Sections 5.3
(Execution and Delivery; Enforceability), 5.4 (Authorized and
Issued Capital Stock), 5.11(a) (No Material Adverse Effect) and
5.30 (Takeover Statutes) shall be true and correct in all
respects as of the date hereof and at and as of the Effective Date with the same effect as
if made on and as of the Effective Date (except for such representations and warranties made
as of a specified date, which shall be true and correct only as of the specified date).
(ii) The other representations and warranties of the Company contained in this
Agreement shall be true and correct (disregarding all materiality or Material Adverse Effect
qualifiers) (A) as of the date hereof and (B) at and as of the Effective Date with the same
effect as if made on and as of the Effective Date (except for such representations and
warranties made as of a specified date, which shall be true and correct only as of the
specified date), except, in the case of (A) and (B), where the failure to be so true and
correct, individually or in the aggregate, has not had and would not reasonably be expected
to have a Material Adverse Effect.
(iii) The representations and warranties of each Investor (other than the Investor
asserting the failure of this condition) contained in this Agreement and in any other
Transaction Agreement shall be true and correct (disregarding all materiality or Material
Adverse Effect qualifiers) as of the date hereof and at and as of the Effective Date with
the same effect as if made on and as of the Effective Date (except for such representations
and warranties made as of a specified date, which shall be true and correct only as of the
specified date), except where the failure to be so true and correct, individually or in the
aggregate, has not and would not reasonably be expected to prohibit, materially delay or
materially and adversely impact such Investors performance of its obligations under this
Agreement, the Rights Offering Sub-Plan and, to the extent applicable, the Transaction
Agreements.
(m) Covenants. The Company and each Investor (other than the
Investor asserting the failure of this condition) shall have performed and complied with all of its
respective covenants and agreements contained in this Agreement that contemplate, by their
terms, performance or compliance prior to the Effective Date, in all material respects.
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(n) Officers Certificate. The Investors shall have received on
and as of the Effective Date a certificate of the chief financial officer or chief accounting
officer of the Company confirming (without personal liability) that the conditions set forth in
Sections 8.1(l)(i) and (l)(ii),
(m), (o), (q) and
(r) have been satisfied, other than any such conditions in
Section 8.1(m) relating to the Investors.
(o) No Material Adverse Effect. There shall not have occurred
after the date of this Agreement any Event that, individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect.
(p) Certificate and Bylaws. The Company shall have (i) adopted the
Certificate of Incorporation and the Bylaws and (ii) entered into the Registration Rights
Agreement.
(q) Consolidated Net Cash. The amount of the Companys actual
consolidated cash and cash equivalents, including restricted cash, less foreign indebtedness, in
each case determined in accordance with GAAP, shall be no less than five hundred million dollars
($500,000,000) as of June 30, 2010; provided, that the Company shall not
have drawn any available amounts under the DIP Credit Agreement in excess of or incremental to the
seventy-five million dollars ($75,000,000) drawn and outstanding under the DIP Credit Agreement as
of the date hereof, and the proceeds of any such draw shall not be considered in calculating the
amount of cash and cash equivalents for this purpose.
(r) Consolidated Net Sales and Adjusted EBITDA Forecasts.
(i) No more than three (3) days prior to the Effective Date, the Company shall have
provided guidance, in a manner that is compliant with Regulation FD, with respect to
consolidated net sales for each of the years ending December 31, 2010 and December 31, 2011
that is consistent with the forecasts for consolidated net sales contained in the Attached
Disclosure Statement, and in no event shall the consolidated net sales guidance be more than
three hundred fifty million dollars ($350,000,000) lower, in either such year, than the
consolidated net sales set forth in the Attached Disclosure Statement. The calculation of
such consolidated net sales shall be in accordance with GAAP and consistent with the
methodology used by the Company to calculate consolidated net sales set forth in the
Attached Disclosure Statement.
(ii) No more than three (3) days prior to the Effective Date, the Company shall have
provided guidance, in a manner that is compliant with Regulation FD, which discloses the
Companys forecasted consolidated adjusted EBITDA for each of the years ending December 31,
2010 and December 31, 2011, which shall be consistent with the forecasts for consolidated
adjusted EBITDA for such years contained in the Business Plan, and in no event shall the
consolidated adjusted EBITDA guidance in either such year be more than seventy-five million
dollars ($75,000,000) lower than
the consolidated adjusted EBITDA for such year set forth in the Business Plan. The
calculation of such consolidated adjusted EBITDA shall be consistent with the methodology
used by the Company to calculate consolidated adjusted EBITDA as disclosed in the Company
SEC Documents filed on or after January 1, 2009.
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(s) Ford. The Ford Agreement shall be reasonably acceptable to
Requisite Investors, and nothing in the Ford Agreement shall be inconsistent with this Agreement or
the Rights Offering Sub-Plan. The Ford Agreement shall remain in full force and effect and shall
not have been rescinded, terminated, challenged or repudiated by any party thereto and shall not
have been amended or modified in any material respect. None of the parties to the Ford Agreement
shall have been in material breach of any of their respective covenants and agreements contained in
the Ford Agreement.
Section 8.2 Waiver of Conditions to Obligation of Investors. All or any of
the conditions set forth in Section 8.1 may only be waived in whole or
in part with respect to all Investors by a written instrument executed by Requisite Investors in
their sole discretion and if so waived, all Investors shall be bound by such waiver;
provided, that with respect to the condition set forth in
Section 8.1(b), if any amendment, supplement, change or modification to
the Plan or the Confirmed Plan requires the approval of Investors of any particular Class as set
forth in the definition of Plan in Section 1.1, then any waiver of
Section 8.1(b) shall require the prior written consent of Investors of
such Class as set forth in the definition of Plan.
Section 8.3 Conditions to the Obligation of the Company. The obligation of
the Company to consummate the transactions contemplated hereby is subject to (unless waived by the
Company) the satisfaction on or prior to the Effective Date of each of the following conditions:
(a) Approval Order and Confirmation Order. The Approval Order and
the Confirmation Order shall each have become a Final Order.
(b) Bankruptcy Approval of Plan and Disclosure Statement. The
Disclosure Statement shall have been approved by the Bankruptcy Court. The Confirmation Order and
the Order entered by the Bankruptcy Court approving the Disclosure Statement shall, in each case,
have become Final Orders.
(c) Conditions to Plan. The conditions to the occurrence of the
Effective Date of the Confirmed Plan shall have been satisfied or waived in accordance with the
Plan.
(d) Antitrust Approvals. All terminations or expirations of
waiting periods imposed by any Governmental Entity necessary for the consummation of the
transactions contemplated by this Agreement, including under the HSR Act and any other Antitrust
Laws, shall have occurred and all other notifications, consents, authorizations and approvals
required to be made or obtained from any Governmental Entity under any Antitrust Law shall have
been made or obtained for the transactions contemplated by this Agreement.
(e) No Legal Impediment to Issuance. No Law or Order shall have
been enacted, adopted or issued by any Governmental Entity that prohibits the implementation of the
Rights Offering Sub-Plan or the transactions contemplated by this Agreement.
(f) Representations and Warranties. The representations and
warranties of each Investor contained in this Agreement shall be true and correct (disregarding all
materiality qualifiers) as of the date hereof and at and as of the Effective Date with the same
effect as if made on and as of the Effective Date (except for such representations and warranties
made as of
60
a specified date, which shall be true and correct only as of the specified date), except
where the failure to be so true and correct, individually or in the aggregate, has not and would
not reasonably be expected to prohibit, materially delay or materially and adversely impact such
Investors performance of its obligations under this Agreement, the Rights Offering Sub-Plan and,
to the extent applicable, the Transaction Agreements.
(g) Covenants. Each Investor shall have performed and complied
with all of its covenants and agreements contained in this Agreement and in any other document
delivered pursuant to this Agreement (including in any Transaction Agreement) in all material
respects.
(h) Cash Recovery Backstop Agreement. The Company shall have
received the full proceeds of the sale of Cash Recovery Subscription Equity pursuant to the Cash
Recovery Backstop Agreement in accordance with its terms in an amount equal to the aggregate Cash
Recovery Backstop Amount.
Section 8.4 Failure of Closing Conditions. No Party may rely on the
failure of any condition set forth in Section 8.1 or
Section 8.3, as applicable, to be satisfied, and such condition shall be
deemed to be satisfied with respect to such Party if such failure was caused by such Partys
failure, to act in good faith or fulfill any of its obligations contained in this Agreement.
Section 8.5 Regulatory Reallocation. If (a) an Investor (an
Over-Allotted Investor) is required to obtain any consent, waiver or
approval of a Governmental Entity (pursuant to Antitrust Laws or otherwise) for the Approval
Conditions to be satisfied and such Investor has not obtained such consent, waiver or approval
prior to the entry of the Confirmation Order and (b) Requisite Investors determine (after Good
Faith Consultation to the extent the Over-Allotted Investor is a Co-Investor) that a reduction or
elimination of such Investors Allotted Portion would either obviate the need for such Investor to
obtain such consent, waiver or approval or result in such consent, waiver or approval being
obtained (a Regulatory Cure), the Lead Investors (other than the
Over-Allotted Investor) shall have the right, but shall not be obligated, to, prior to the date
that is five (5) Business Days before the Effective Date, (x) reduce the Over-Allotted Investors
Allotted Portion only to the extent necessary (in such Lead Investors good-faith judgment) to
achieve a Regulatory Cure (the amount by which the Over-Allotted Investors Allotted Portion is
reduced, the Removed Allotted Portion) and (y) to make arrangements
for one or more of the Lead Investors (other than any Over-Allotted Investors) to assume all of the
Removed Allotted Portion on the terms and subject to the conditions set forth in this Agreement and
in such amounts as may be agreed upon by such Lead Investors (but in no event less than the total
Removed Allotted Portion, such that the Aggregate Commitment of the Investors is not reduced)
(such arrangement, a Regulatory Reallocation). Notwithstanding
anything to the contrary contained in this Agreement, a reduction and reallocation of an
Over-Allotted Investors Allotted Portion of the Equity Commitment (and revision of
Schedule 1 to reflect such reduction and reallocation) pursuant to a
Regulatory Reallocation in accordance with this Section 8.5 shall not
require the consent of such Over-Allotted Investor.
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ARTICLE IX
INDEMNIFICATION AND CONTRIBUTION
Section 9.1 Indemnification Obligations.
(a) Indemnification by the Company. Subject to the entry of the
Approval Order by the Bankruptcy Court, following the date hereof, the Company shall indemnify and
hold harmless each Investor, their respective Affiliates, shareholders, general partners, members,
managers, equity holders and their respective Representatives, agents and controlling persons from
and against any and all losses, claims, damages, liabilities and reasonable expenses (including any
legal or other expenses reasonably incurred in connection with defending or investigating any
action or claim as to which it is entitled to indemnification hereunder as such expenses are
incurred), joint or several (collectively, Losses) that such Person
incurred arising out of or in connection with any third party claim (not including, for the
avoidance of doubt, any claim by any other Investor, any Related Purchaser, any Ultimate Purchaser
or any of their respective Affiliates, but including, for the avoidance of doubt, any claim by any
Affiliate of the Company other than any of the foregoing) against any such Person (in every case,
other than any third party claim arising out of or in connection with any action taken by any
Investor in opposition to (x) the Plan or (y) the Companys pursuit of the Claims Conversion
Sub-Plan) in connection with (a) the Rights Offering, this Agreement, any amendment, supplement,
change or modification hereto or the transactions contemplated by the Rights Offering or this
Agreement, (b) the failure of any representation or warranty made by the Company in this Agreement
to be true and correct as of the date of this Agreement and as of the Effective Date, or (c) any
breach by the Company of any covenant or agreement contained in this Agreement, in each case,
whether or not the Rights Offering, the Plan or the other transactions contemplated by this
Agreement or the Plan are consummated or this Agreement is terminated. Notwithstanding the
foregoing, the Company shall not be obligated to indemnify any Investor pursuant to this
Section 9.1(a) that has breached its obligations under the Plan Support
Agreement.
(b) Indemnification by the Investors. Subject to the entry of the
Approval Order by the Bankruptcy Court, following the date hereof, each Investor (the
Breaching Investor) shall indemnify and hold harmless the other
Investors and their respective Affiliates, shareholders, general partners, members, managers,
equity holders and their respective Representatives, agents and controlling persons from and
against any and all Losses that such Person incurred arising out of or in connection with any third
party claim (not including, for the avoidance of doubt, any claim by any other Investor, any
Related Purchaser, any Ultimate Purchaser or any of their respective Affiliates) against any such
Person in connection with (a) the failure of any representation or warranty made by the Breaching
Investor
in this Agreement to be true and correct as of the date of this Agreement and as of the
Effective Date, or (b) any breach by the Breaching Investor of any covenant or agreement contained
in this Agreement, in each case, whether or not the Rights Offering, the Plan or the other
transactions contemplated by this Agreement or the Plan are consummated or this Agreement is
terminated.
Section 9.2 Indemnification Procedure. Promptly after receipt by a Person
entitled to indemnification under Section 9.1 (such Person, an
Indemnified
Person) of notice of the commencement of any claim,
litigation, investigation or proceeding (an Indemnified
62
Claim) by any
Person other than the Party obligated to provide indemnification under Section
9.1 (such Person, the Indemnifying Party), such
Indemnified Person will, if a claim is to be made hereunder against the Indemnifying Party in
respect thereof, notify the Indemnifying Party in writing of the commencement thereof;
provided, that the omission to so notify the Indemnifying Party will not
relieve the Indemnifying Party from any liability that it may have hereunder except to the extent
it has been materially prejudiced by such failure. In case any such Indemnified Claims are brought
against any Indemnified Person and it notifies the Indemnifying Party of the commencement thereof,
the Indemnifying Party will be entitled to participate therein, and, to the extent that it may
elect by written notice delivered to such Indemnified Person, to assume the defense thereof, with
counsel reasonably acceptable to such Indemnified Person; provided, that
if the parties (including any impleaded parties) to any such Indemnified Claims include both such
Indemnified Person and the Indemnifying Party and based on advice of such Indemnified Persons
counsel there are legal defenses available to such Indemnified Person that are different from or
additional to those available to the Indemnifying Party, such Indemnified Person shall have the
right to select separate counsel to assert such legal defenses and to otherwise participate in the
defense of such Indemnified Claims on behalf of such Indemnified Person. Upon receipt of notice
from the Indemnifying Party to such Indemnified Person of its election so to assume the defense of
such Indemnified Claims with counsel reasonably acceptable to the Indemnified Person, the
Indemnifying Party shall not be liable to such Indemnified Person for expenses incurred by such
Indemnified Person in connection with the defense thereof (other than reasonable costs of
investigation) unless (w) such Indemnified Person shall have employed separate counsel (in addition
to any local counsel) in connection with the assertion of legal defenses in accordance with the
proviso to the immediately preceding sentence (it being understood, however, that the Indemnifying
Party shall not be liable for the expenses of more than one separate counsel representing the
Indemnified Persons who are parties to such Indemnified Claims (in addition to one local counsel in
each jurisdiction in which local counsel is required) and that all such expenses shall be
reimbursed as they occur), (x) the Indemnifying Party shall not have employed counsel reasonably
acceptable to such Indemnified Person to represent such Indemnified Person within a reasonable time
after notice of commencement of the Indemnified Claims, (y) the Indemnifying Party shall have
failed or is failing to defend such claim, and is provided written notice of such failure by the
Indemnified Person and such failure is not reasonably cured within fifteen (15) Business Days of
receipt of such notice, or (z) the Indemnifying Party shall have authorized in writing the
employment of counsel for such Indemnified Person.
Section 9.3 Settlement of Indemnified Claims. The Indemnifying Party shall
not be liable for any settlement of any Indemnified Claims effected without its written consent.
If any settlement of any Indemnified Claims is consummated with the written consent
of the Indemnifying Party or if there is a final judgment for the plaintiff in any such
Indemnified Claims, the Indemnifying Party agrees to indemnify and hold harmless each Indemnified
Person from and against any and all Losses by reason of such settlement or judgment to the extent
such Losses are otherwise subject to indemnification by the Indemnifying Party hereunder in
accordance with, and subject to the limitations of, the provisions of this Article
IX. Notwithstanding anything in this Article IX to the
contrary, if at any time an Indemnified Person shall have requested the Indemnifying Party to
reimburse such Indemnified Person for legal or other expenses in excess of fifty thousand dollars
($50,000) connection with investigating, responding to or defending any Indemnified Claims as
contemplated by this Article IX, the
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Indemnifying Party shall be liable
for any settlement of any Indemnified Claims effected without its written consent if (a) such
settlement is entered into more than (i) sixty (60) days after receipt by the Indemnifying Party of
such request for reimbursement and (ii) thirty (30) days after receipt by the Indemnified Party of
the material terms of such settlement and (b) the Indemnifying Party shall not have reimbursed such
Indemnified Person in accordance with such request prior to the date of such settlement. The
Indemnifying Party shall not, without the prior written consent of an Indemnified Person, effect
any settlement of any pending or threatened Indemnified Claims in respect of which indemnity or
contribution has been sought hereunder by such Indemnified Person unless such settlement (x)
includes an unconditional release of such Indemnified Person in form and substance satisfactory to
such Indemnified Person from all liability on the claims that are the subject matter of such
Indemnified Claims and (y) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.
Section 9.4 Contribution. If for any reason the foregoing indemnification
is unavailable to any Indemnified Person or insufficient to hold it harmless from Losses that are
subject to Indemnification pursuant to Section 9.1, then the
Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Person as a
result of such Loss in such proportion as is appropriate to reflect not only the relative benefits
received by the Indemnifying Party on the one hand and such Indemnified Person on the other hand
but also the relative fault of the Indemnifying Party, on the one hand, and such Indemnified
Person, on the other hand, as well as any relevant equitable considerations. It is hereby agreed
that the relative benefits to the Indemnifying Party on the one hand and all Indemnified Persons on
the other hand shall be deemed to be in the same proportion as (a) the total value received or
proposed to be received by the Company pursuant to the sale of Investor Shares and Shares in the
Rights Offering contemplated by this Agreement bears to (b) the Stock Right Premium and/or
Arrangement Premium paid or proposed to be paid to the Investors.
Section 9.5 Treatment of Indemnification Payments. All amounts paid by the
Indemnifying Party to an Indemnified Person under this Article IX shall,
to the extent permitted by applicable Law, be treated as adjustments to Purchase Price for all Tax
purposes.
Section 9.6 Limitation on Liabilities. Notwithstanding anything to the
contrary contained in this Agreement, the indemnification provided in this Article
IX will not, as to any Indemnified Person, apply to Losses to the extent that they
are finally judicially determined to have resulted from (a) any material breach of this Agreement
by such Indemnified Person; or (b) the willful misconduct or gross negligence of such Indemnified
Person.
Section 9.7 Survival of Representations and Warranties. Notwithstanding
any investigation at any time made by or on behalf of any Party, all representations, warranties
and agreements made in this Agreement will survive the execution and delivery of this Agreement,
except that the representations made in Sections 5.6 through
5.31 will survive only for a period of two (2) years after the Effective
Date.
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ARTICLE X
TERMINATION
Section 10.1 Termination Rights. This Agreement may be
terminated and the transactions contemplated hereby may be abandoned at any time prior to the
Effective Date:
(a) by mutual written consent of the Company and Requisite Investors;
(b) by the Company by written notice to each Investor or by Requisite Investors by written
notice to the Company if:
(i) any Law or Order shall have been enacted, adopted or issued by any Governmental
Entity, that prohibits the implementation of the Rights Offering Sub-Plan or the Rights
Offering or the transactions contemplated by this Agreement;
(ii) the Bankruptcy Court shall determine not to approve the Rights Offering Sub-Plan;
(iii) the Effective Date has not occurred by 11:59 p.m., New York City time on the date
that is thirty (30) days after the entry of the Confirmation Order by the Bankruptcy Court
or, if such Confirmation Order is stayed (other than pursuant to Rule 6004(h) of the
Bankruptcy Rules), by 11:59 p.m. New York City time on the date that is thirty (30) days,
less that number of days that elapsed during the period after the Confirmation Order was
entered and before such Confirmation Order was stayed, but in no event less than five (5)
Business Days following the date that such stay is vacated (the Outside
Date); provided, that (A) the Outside Date may be
extended in accordance with Section 3.3(a) in connection with an
Alternative Financing and (B) if (1) all of the conditions set forth in
Sections 8.1(h), 8.1(i) and
8.1(j) (collectively, the Approval
Conditions) have not been satisfied but still could be satisfied and (2) the
Requisite Investors deliver to the Company a written request for an extension of the Outside
Date to satisfy the Approval Conditions, the Outside Date may be extended until 11:59 p.m.,
New York City time on the date that is sixty (60) days after the entry of the Confirmation
Order by the Bankruptcy Court or, if such Confirmation Order is stayed (other than pursuant
to Rule 6004(h) of the Bankruptcy Rules), until 11:59 p.m. New York City time on the date
that is sixty (60) days, less that number of days that elapsed during the period after the
Confirmation Order was entered and before such Confirmation Order was stayed, but in no
event less than five (5) Business Days following the date that such stay is vacated;
(iv) any of the Proceedings shall have been dismissed or converted to a case under
chapter 7 of the Bankruptcy Code, or the Bankruptcy Court has entered an order in any of the
Proceedings appointing an examiner with expanded powers or a trustee under chapter 7 or
chapter 11 of the Bankruptcy Code; provided, however, that the appointment
of an examiner pursuant to the motion of that certain ad hoc committee of equityholders as
filed with the Bankruptcy Court on April 2, 2010 shall not give rise to a right to terminate
this Agreement;
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(v) (A) the Exit Financing is not consummated and the proceeds thereof have not been
received by the Company by the Outside Date and (B) all of the conditions set forth in
Section 8.1 and Section 8.3 (except
for those conditions that by their nature are intended to be fulfilled on the Effective
Date) have been either satisfied or waived in accordance with the provisions of
Article VIII; or
(vi) subject to the right of the Investors to arrange Alternative Financing in
accordance with Section 3.3, any Investor shall have breached its
obligation under the Cash Recovery Backstop Agreement to purchase shares of New Common Stock
in accordance with the terms thereof or otherwise pay to the Company such Investors
Distributable Commitment Percentage (as defined in the Cash Recovery Backstop Agreement) of
Cash Recovery Backstop Amount;
(c) by Requisite Investors upon written notice to the Company (other than clause (iv) below
which may be excused by action of all non-breaching Investors):
(i) if the Bankruptcy Court has not entered the Approval Order on or before 5:00 pm
(New York time) on the date that is thirty (30) days after the date hereof;
provided, that the Requisite Investors shall not be entitled to
terminate this Agreement pursuant to this Section 10.1(c)(i) at
any time after the entry of the Approval Order;
(ii) if the Bankruptcy Court has not entered an order approving the Disclosure
Statement on or before 5:00 pm (New York time) on the date that is thirty (30) days after
the date hereof; provided, that the Requisite Investors shall not
be entitled to terminate this Agreement pursuant to this Section
10.1(c)(ii) at any time after the entry of such order by the Bankruptcy Court;
(iii) if the Election Forms are not mailed to the holders of Allowed Senior Notes
Claims within ten (10) days after the Bankruptcy Court has entered an order approving the
Disclosure Statement; provided, that the Requisite Investors
shall not be entitled to terminate this Agreement pursuant to this Section
10.1(c)(iii) at any time after such Election Forms have been mailed to the
holders of Allowed Senior Notes Claims;
(iv) if the Company or any Investor shall have breached any provision of this
Agreement, which breach would cause the failure of any condition set forth in
Section 8.1(l) or 8.1(m) to be
satisfied, which failure cannot be or has not been cured on the earlier of (A) the tenth
(10th) Business Day after the giving of written notice thereof to the Company or such
Investor by any Investor and (B) the third (3rd) Business Day prior to the Outside Date;
provided, that the right to terminate this Agreement under this
Section 10.1(c)(iv) shall not be available to any Investor whose
breach is the cause of the failure of the condition in Section
8.1(l) or 8.1(m) to be satisfied;
(v) if the Bankruptcy Court terminates the Debtors exclusive right to propose a plan
of reorganization;
(vi) there shall have been a Change of Recommendation, or the Company shall have
entered into an Alternate Transaction Agreement;
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(vii) at any time after the date which is one hundred sixty (160) days after the date
of this Agreement;
(viii) the Plan Support Agreement is terminated pursuant to Section
7.1(c)(2), 7.1(c)(4) or
7.1(f) thereof; or
(ix) the Company shall have breached its obligation under the Cash Recovery Backstop
Agreement to issue shares of New Common Stock in accordance with the terms thereof;
(d) by the Company upon written notice to each Investor:
(i) subject to the right of the Investors to arrange Alternative Financing in
accordance with Section 3.3, if any Investor shall have breached
any provision of this Agreement, which breach would cause the failure of any condition set
forth in Section 8.3(f) or 8.3(g) to
be satisfied, which failure cannot be or has not been cured on the earlier of (A) the tenth
(10th) Business Day after the giving of written notice thereof to the Company or such
Investor by any Investor and (B) the third (3rd) Business Day prior to the Outside Date;
(ii) if the Company enters into any Alternate Transaction Agreement;
provided, that the Company may only terminate this Agreement
under the circumstances set forth in this Section 10.1(d)(ii) if:
(A) the Board has determined in good faith, after having consulted with its outside legal
counsel and its independent financial advisors, that such Alternate Transaction is a
Superior Transaction and the failure to enter into such an Alternate Transaction Agreement
would be reasonably likely to result in a breach of the applicable fiduciary duties of the
Board; or
(iii) subject to the rights of the Investors to arrange Alternative Financing in
accordance with Section 3.3, upon any breach of
Section 7.7 (Funding Approvals).
Section 10.2 Alternate Transaction Termination.
(a) If this Agreement is terminated pursuant to Section 10.1(c)(vi)
or Section 10.1(d)(ii), the Company, subject to the approval of the
Bankruptcy Court (which approval the Company shall seek at the earliest date following such
termination), shall pay liquidated damages for the destruction of a capital asset in an amount
equal to forty-three million, seven hundred fifty thousand dollars ($43,750,000) (the
Alternate Transaction Damages) to the Investors in such proportions as
are set forth on Schedule 1, and, in any case, the Company shall pay to
the Investors any Transaction Expenses incurred prior to such termination that are due and payable
hereunder that have not been paid theretofore.
(b) If this Agreement is terminated pursuant to Section 10.1(c)(iv)
as a result of a willful and knowing breach of this Agreement by the Company, and if within the
period ending one (1) year after the date such termination becomes effective the Company (i) enters
into an Alternate Transaction Agreement or (ii) approves or consummates an Alternate Transaction,
to the extent the Alternate Transaction Damages were not already paid in accordance with
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Section 10.2(a), the Company, subject to the approval of the Bankruptcy
Court (which approval the Company shall seek at the earliest date following such termination),
shall pay the Alternate Transaction Damages to the Investors in such proportions as are set forth
on Schedule 1 and, in any case, the Company shall pay to the Investors
any Transaction Expenses that have not been paid theretofore.
(c) Payment of the Alternate Transaction Damages due under this Section
10.2 will be made no later than the close of business on the next Business Day
following approval by the Bankruptcy Court of such payment, which approval shall be sought (i) at
the earliest date following such termination in the case of a termination by Requisite Investors
pursuant to Section 10.1(c)(vi) or in the case of a termination by the
Company pursuant to Section 10.1(d)(ii) or (ii) as specified in
Section 10.2(b) in the circumstances described in Section
10.2(b). The provision for the payment of the Alternate Transaction Damages is an
integral part of the transactions contemplated by this Agreement and without such provision the
Investors would not have entered into this Agreement, and the Alternate Transaction Damages shall,
subject to Bankruptcy Court approval and to the extent payable in accordance herewith, constitute
an allowed administrative expense of the Company.
Section 10.3 Effect of Termination. Upon termination under this
Article X, all rights and obligations of the Parties shall terminate
without any liability of any Party to any other Party except that the provisions of the covenants
and agreements made by the Parties herein under Article IV,
Section 7.16, this Article X and
Article XI will survive indefinitely in accordance with their terms.
ARTICLE XI
GENERAL PROVISIONS
Section 11.1 Notices. All notices and other
communications in connection with this Agreement will be in writing and will be deemed given (and
will be deemed to have been duly given upon receipt) if delivered personally, sent via electronic
facsimile (with confirmation), mailed by registered or certified mail (return receipt requested) or
delivered by an express courier (with confirmation) to the Parties at the following addresses (or
at such other address for a Party as will be specified by like notice):
(a) If to the Company:
Visteon Corporation
One Village Center Drive
Van Buren Township, Michigan 48111
Facsimile: (734) 710-7112
Attention: Chief Financial Officer
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with a copy (which shall not constitute notice) to:
Pachulski Stang Ziehl & Jones LLP
919 North Market Street, 17th Floor
Wilmington, Delaware 19899-8705
Facsimile: (302) 652-4400
Attention: Laura Davis Jones
James E. ONeill
Mark M. Billion
and
Kirkland & Ellis LLP
300 North LaSalle
Chicago, Illinois 60654
Facsimile: (312) 862-2200
Attention: James H. M. Sprayregen, P.C.
James J. Mazza, Jr.
Gerald T. Nowak, P.C.
Howard Norber
and
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Facsimile: (212) 446-4900
Attention: Marc Kieselstein, P.C.
Brian S. Lennon
(b) If to any Lead Investor:
To the address set forth opposite such Investors name on Schedule 5
with a copy (which shall not constitute notice) to:
White & Case LLP
Wachovia Financial Center
200 South Biscayne Boulevard
Suite 4900
Miami, Florida 33131
Attention: Thomas E Lauria
Facsimile: (305) 358-5744
69
and
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Facsimile: (212) 354-8113
Attention: Gerard Uzzi
Gregory Pryor
(c) If to any Co-Investor:
To the address set forth opposite such Co-Investors name on Schedule 6
with a copy (which shall not constitute notice) to:
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036
Attention: Michael Stamer
Arik Preis
Tony Feuerstein
Facsimile: (212) 872-1002
(d) If to the Ad Hoc Counsel:
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036
Attention: Michael Stamer
Arik Preis
Tony Feuerstein
Facsimile: (212) 872-1002
Section 11.2 Assignment; Third Party Beneficiaries. Neither this Agreement
nor any of the rights, interests or obligations under this Agreement shall be assigned by any Party
(whether by operation of Law or otherwise) without the prior written consent of the Company and
Requisite Investors, other than an assignment by an Investor in accordance with
Section 3.6. Except as provided in Article
XI with respect to the Indemnified Persons, this Agreement (including the documents
and instruments referred to in this Agreement) is not intended to and does not confer upon any
Person other than the Parties any rights or remedies under this Agreement.
Section 11.3 Prior Negotiations; Entire Agreement.
(a) This Agreement (including the agreements attached as Exhibits to and the documents and
instruments referred to in this Agreement) constitutes the entire agreement of the Parties and
supersedes all prior agreements, arrangements or understandings, whether written or
70
oral, among the
Parties with respect to the subject matter of this Agreement, except that the Parties hereto
acknowledge that any confidentiality agreements heretofore executed among the Parties will continue
in full force and effect.
(b) Notwithstanding anything to the contrary in the Plan (including any amendments,
supplements or modifications thereto) or the Confirmation Order (and any amendments, supplements or
modifications thereto) or an affirmative vote to accept the Plan submitted by any Investor, nothing
contained in the Plan (including any amendments, supplements or modifications thereto) or
Confirmation Order (including any amendments, supplements or modifications thereto) shall alter,
amend or modify the rights of the Investors under this Agreement unless such alteration, amendment
or modification has been agreed to in writing by Requisite Investors to the extent required under
the definition of Plan in Section 1.1 or by such portion of the
Investors as required pursuant to clause (ii) thereunder to the extent such clause (ii) is
applicable.
Section 11.4 GOVERNING LAW; VENUE. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICT OF
LAWS RULES THEREOF. THE PARTIES CONSENT AND AGREE THAT ANY ACTION TO ENFORCE THIS AGREEMENT OR ANY
DISPUTE, WHETHER SUCH DISPUTES ARISE IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT
AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY SHALL BE BROUGHT EXCLUSIVELY IN
THE BANKRUPTCY COURT. THE PARTIES CONSENT TO AND AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF
THE BANKRUPTCY COURT. EACH OF THE PARTIES HEREBY WAIVES AND AGREES NOT TO ASSERT IN ANY SUCH
DISPUTE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (I) SUCH PARTY IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF THE BANKRUPTCY COURT, (II) SUCH PARTY AND SUCH PARTYS
PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY THE BANKRUPTCY COURT OR (III) ANY LITIGATION OR
OTHER PROCEEDING COMMENCED IN THE BANKRUPTCY COURT IS BROUGHT IN AN INCONVENIENT FORUM. THE
PARTIES HEREBY AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR
PROCEEDING TO AN ADDRESS PROVIDED IN WRITING BY THE RECIPIENT OF SUCH MAILING, OR IN SUCH OTHER
MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE
ANY OBJECTIONS TO SERVICE ACCOMPLISHED IN THE MANNER HEREIN PROVIDED.
Section 11.5 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ALL RIGHTS TO
TRIAL BY JURY IN ANY JURISDICTION IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE
AMONG THE PARTIES UNDER THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
Section 11.6 Counterparts. This Agreement may be executed in any number of
counterparts, all of which will be considered one and the same agreement and will become effective
when counterparts have been signed by each of the Parties and delivered to each other
71
Party
(including via facsimile or other electronic transmission), it being understood that each Party
need not sign the same counterpart.
Section 11.7 Waivers and Amendments; Rights Cumulative. This Agreement may
be amended, modified, superseded, cancelled, renewed or extended only by a written instrument
signed by (a) the Company and all of the Lead Investors following, in each case, Good Faith
Consultation, or (b) to the extent such action has a Material Discriminatory Effect, the Company,
all of the Lead Investors and all of the Receiving Co-Investors, and subject in each case, to the
extent required, to the approval of the Bankruptcy Court; provided, that
Section 11.3, this Section 11.7,
Section 11.10, Schedule 1 and the definitions
of Excluded Consent Event, Good Faith Consultation, Investor Consent Event, Material
Discriminatory Effect, Plan, Receiving Co-Investors, Requisite Investors, Requisite
Receiving Co-Investor Approval and Last Trading Price may be amended or modified only by a
written instrument signed by all Investors affected by such amendment or modification. The terms
and conditions of this Agreement (other than the conditions set forth in Sections
8.1 and 8.3, the waiver of which shall be governed solely
by Article VIII) may be waived (x) by the Company only by a written
instrument executed by the Company and (y) by the Investors only by a written instrument executed
by (1) all of the Lead Investors or (2) to the extent such waiver has a Material Discriminatory
Effect, all of the Lead Investors and all of the Receiving Co-Investors, and subject in each case,
to the extent required, to the approval of the Bankruptcy Court;
provided, however, with respect to any waiver
of the terms or conditions of Section 11.3, this Section
11.7, Section 11.10, Schedule 1
or the definition of Excluded Consent Event, Good Faith Consultation, Investor Consent Event,
Material Discriminatory Effect, Plan, Receiving Co-Investors, Requisite Investors,
Requisite Receiving Co-Investor Approval or Last Trading Price, such waiver must be by a
written instrument signed by all Investors affected by such waiver. Notwithstanding anything to
the contrary contained in this Agreement, the Investors may agree, among themselves, to reallocate
their Allotted Portions, without any consent or approval of any other Party;
provided, however, for the avoidance of doubt
any such agreement among the Investors (other than pursuant to a Regulatory Reallocation) shall
require the consent or approval of all Investors affected by such reallocation. No delay on the
part of any Party in exercising any right, power or privilege pursuant to this Agreement will
operate as a waiver thereof, nor will any waiver on the part of any Party of any right, power or
privilege pursuant to this Agreement, nor will any single or partial exercise of any right, power
or privilege pursuant to this Agreement, preclude any other or further exercise thereof or the
exercise of any other right, power or privilege pursuant to this Agreement. Except as otherwise
provided in this Agreement (including Section 11.9), the rights and
remedies provided
pursuant to this Agreement are cumulative and are not exclusive of any rights or remedies
which any Party otherwise may have at law or in equity. Notwithstanding anything to the contrary
contained in this Agreement, any amendment, modification, revision or reallocation of
Schedule 1 pursuant to a Regulatory Reallocation shall not require the
approval or consent by the Over-Allotted Investor or any other Investor other than the Lead
Investors arranging the Regulatory Reallocation and any Investor whose Allotted Portion is affected
thereby (other than the Over-Allotted Investor).
Section 11.8 Headings. The headings in this Agreement are for reference
purposes only and will not in any way affect the meaning or interpretation of this Agreement.
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Section 11.9 Specific Performance; Limitations on Remedies.
(a) The Company and each Investor acknowledges and agrees that, in the event any provision of
this Agreement is not performed by the Company in accordance with its specific terms or is
otherwise breached by the Company (including any provision requiring the payment of all or a
portion of the Stock Right Premium, the Arrangement Premium, the Alternative Transaction Damages
and/or Transaction Expenses), (i) the Investors may not have an adequate remedy at law in the form
of money damages and (ii) in addition to any other rights and remedies existing in its favor, the
Investors shall have the right to bring an action to enforce specifically the terms and provisions
of this Agreement and to obtain an injunction, injunctions or any form of equitable relief to
prevent breaches of this Agreement.
(b) The Company hereby (i) waives, on behalf of itself and its Affiliates, any and all common
law, statutory or other remedies the Company or any of its Affiliates may have against any Investor
in respect of any claims or causes of actions arising out of or relating to the Rights Offering,
this Agreement and any of the transactions contemplated thereby and hereby, except for the remedy
expressly set forth in Section 11.9(c)(ii), which the Company agrees
shall be its sole and exclusive remedy for any such claims or causes of action and (ii) agrees
that, to the extent it or any of its Affiliates incur Losses arising from or in connection with a
breach by any Investor of its representations, warranties, covenants and agreements contained in
this Agreement, in no event shall the Company or its Affiliates seek to recover any money damages
from (or seek any other remedy based on any legal, contractual or equitable theory against) such
Investor or any of its Affiliates except as otherwise expressly provided in Section
11.9(c)(ii). Notwithstanding anything to the contrary contained in this Agreement,
the Company acknowledges and agrees that (i) the liability of the Investors under this Agreement
shall be several and not joint and (ii) under no circumstance shall the Investors and their
respective Affiliates be liable for any punitive, special, indirect or consequential damages.
(c) Each of the Company and the Investors hereby agree that:
(i) the sole and exclusive remedy available to any Investor against the Company or any
of its Subsidiaries or Affiliates under this Agreement or in connection with the
transactions contemplated hereby shall be (A) the remedy set forth in
Section 11.9(a), (B) pursuant to Article
IX and (C) as specifically provided for in the Plan Support Agreement;
(ii) the sole and exclusive remedy available to the Company against the Investors or
any of their respective Affiliates under this Agreement or in connection with the
transactions contemplated hereby shall be (A) enforcement of the last sentence of
Section 4.2 and (B) as specifically provided for in the Plan
Support Agreement;
(iii) the sole and exclusive remedy available to any Investor against any other
Investor or any of their respective Affiliates under this Agreement or in connection with
the transactions contemplated hereby shall be pursuant to Article
IX; and
(iv) in the event any provision of this Agreement is not performed by any Investor in
accordance with its specific terms or is otherwise breached, (A) the
73
remedy set forth in
Section 11.9(c)(ii) will provide the Company with an adequate
remedy and (B) no Party or any of its Affiliates shall have any right to enforce
specifically with respect to any Investor the terms and provisions of this Agreement and
shall not be entitled to an injunction, injunctions or any form of equitable relief to
prevent breaches by any Investor of this Agreement.
(d) Notwithstanding anything to the contrary contained in this Agreement, the Company
acknowledges and agrees that no Person other than the Investors and their permitted assignees shall
have any obligation under this Agreement and that, notwithstanding that the Investors (or any of
their permitted assignees) may be a partnership or limited liability company, no recourse under
this Agreement (other than with respect to the return of the Stock Right Deposit to the extent
required under Section 4.2), the Plan or any documents or instruments
delivered in connection herewith or therewith shall be had against any Related Party of the
Investors (or any of their permitted assignees) based upon the relationship of such Related Party
to any Investor, whether by or through attempted piercing of the corporate (or limited liability
company or limited liability partnership) veil the enforcement of any assessment or by any legal or
equitable proceeding, or by virtue of any applicable Law, or otherwise, it being expressly agreed
and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise
be incurred by any such Related Party, as such, for any obligations of the Investors (or any of
their permitted assignees) under this Agreement, the Plan or any documents or instruments delivered
in connection herewith or therewith or for any claim based on, in respect of, or by reason of such
obligation or their creation.
Section 11.10 Approval by Requisite Receiving Co-Investors. Any Investor
Consent Event with respect to which Lead Investors (and their Related Purchasers) constituting at
least sixty-six and two-thirds percent (66 2/3%) of the aggregate Allotted Portions of the Lead
Investors (and their Related Purchasers) is required in order to take action shall be deemed not to
have a Material Discriminatory Effect to the extent the Ad Hoc Counsel (following Good Faith
Consultation with respect to such Investor Consent Event) (a) does not deliver a written notice (at
the direction of the Receiving Co-Investors) to the Lead Investors and the Company asserting that
the relevant Investor Consent Event has or, if implemented, would have a Material Discriminatory
Effect (a Discrimination Notice) within three (3)
Business Days following receipt of a written request from the Company or any Lead Investor to
determine whether it believes the Investor Consent Event has a Material Discriminatory Effect, or
(b) withdraws such Discrimination Notice (at the direction of the Receiving Co-Investors). In the
event an Investor Consent Event has or would, if implemented, have a Material Discriminatory
Effect, such Investor Consent Event shall require the written approval of Receiving Co-Investors
holding, as of the time of the determination, at least sixty-six and two-thirds percent (66 2/3%) of
the aggregate Allotted Portions held by the Receiving Co-Investors (such approval of the Receiving
Co-Investors being referred to as a Requisite Receiving Co-Investor
Approval). If the Ad Hoc Counsel delivers a Discrimination Notice to the Company
and the Lead Investors, either the Company or Lead Investors (and their Related Purchasers)
constituting at least sixty-six and two-thirds percent (66 2/3%) of the aggregate Allotted Portions
of the Lead Investors (and their Related Purchasers) shall have three (3) Business Days to provide
notice (such notice, the Dispute Notice) to the Ad Hoc Counsel and the
Receiving Co-Investors of their intent to commence expedited proceedings in the Bankruptcy Court to
determine whether an Investor Consent Event has or would have, if implemented, a Material
Discriminatory Effect (the
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Expedited Proceedings). The Co-Investors
hereby agree to consent to the commencement of the Expedited Proceedings upon receipt of a Dispute
Note with respect to an Investor Consent Notice and the Company and the Lead Investors agree not to
implement the Investor Consent Event until either (i) a Final Order has been entered determining
that such Investor Consent does not have and would not, if implemented, have a Material
Discriminatory Effect or (ii) the Requisite Receiving Co-Investor Approval has been received.
Section 11.11 No Reliance. No Investor or any of its Related Parties shall
have any duties or obligations to the other Investors in respect of this Agreement, the Plan or the
transactions contemplated hereby or thereby, except those expressly set forth herein. Without
limiting the generality of the foregoing, (a) no Investor or any of its Related Parties shall be
subject to any fiduciary or other implied duties to the other Investors, (b) no Investor or any of
its Related Parties shall have any duty to take any discretionary action or exercise any
discretionary powers on behalf of any other Investor, (c) (i) no Investor or any of its Related
Parties shall have any duty to the other Investors to obtain, through the exercise of diligence or
otherwise, to investigate, confirm, or disclose to the other Investors any information relating to
the Company or any of its Subsidiaries or Joint Ventures that may have been communicated to or
obtained by such Investor or any of its Affiliates in any capacity and (ii) no Investor may rely,
and confirms that it has not relied, on any due diligence investigation that any other Investor or
any Person acting on behalf of such other Investor may have conducted with respect to the Company
or any of its Affiliates or any of their respective securities and (d) each Investor acknowledges
that no other Investor is acting as a placement agent, initial purchaser, underwriter, broker or
finder with respect to its Investor Shares or Allotted Portion of its Equity Commitment.
Section 11.12 Publicity. At all times prior to the Effective Date or the
earlier termination of this Agreement in accordance with its terms, the Company and Requisite
Investors shall consult with each other prior to issuing any press releases (and provide each other
a reasonable opportunity to review and comment upon such release) or otherwise making public
announcements with respect to the transactions contemplated by this Agreement and the Plan.
Section 11.13 Effectiveness. This Agreement is expressly contingent on,
and shall automatically become effective on such date as both (a) the Approval Order has been
entered by the Bankruptcy Court and (b) each Party to this Agreement has executed this Agreement;
provided, that no Party has rejected, terminated or repudiated this
Agreement prior to the entry of the Approval Order by the Bankruptcy Court;
provided, further, that the Companys
obligations under Sections 7.1, 7.2(b)(i) and
7.2(b)(ii) shall be effective and in full force and effect upon the
execution of this Agreement by the Parties.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first
above written.
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VISTEON CORPORATION
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By: |
/s/ William G. Quigley
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Name: |
William G. Quigley |
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Title: |
EVP and CFO |
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[Company Signature Page]
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CQS CONVERTIBLE AND QUANTITATIVE STRATEGIES
MASTER FUND LIMITED
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By: |
/s/ Kevin Jones
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Name: |
Kevin Jones |
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Title: |
Authorized Signatory |
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[Lead Investor Signature Page]
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CQS DIRECTIONAL OPPORTUNITIES MASTER FUND
LIMITED
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By: |
/s/ Kevin Jones
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Name: |
Kevin Jones |
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Title: |
Authorized Signatory |
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[Lead Investor Signature Page]
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DEUTSCHE BANK SECURITIES INC.
(Solely with Respect to the Distressed Products
Group)
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By: |
/s/ Ray Costa
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Name: |
Ray Costa |
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Title: |
Managing Director |
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By: |
/s/ C. J. Lanktree
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Name: |
Charles J. Lanktree |
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Title: |
Managing Director |
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[Lead Investor Signature Page]
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ELLIOTT INTERNATIONAL, L.P.
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By: |
Elliott International Capital Advisors Inc., as Attorney-in-Fact
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By: |
/s/ Elliot Greenberg
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Name: |
Elliot Greenberg |
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Title: |
Vice President |
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[Lead Investor Signature Page]
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GOLDMAN, SACHS & CO.,
solely with respect to the
High Yield Distressed Investing Group
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By: |
/s/ Justin Slatky
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Name: |
Justin Slatky |
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Title: |
Managing Director |
|
|
[Lead Investor Signature Page]
|
|
|
|
|
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KIVU INVESTMENT FUND LIMITED
|
|
|
By: |
/s/ Peter M. Fletcher
|
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|
|
Name: |
Peter M. Fletcher |
|
|
|
Title: |
Director |
|
|
[Lead Investor Signature Page]
|
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|
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MONARCH MASTER FUNDING LTD
|
|
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By: |
MONARCH ALTERNATIVE CAPITAL LP, its investment advisor
|
|
|
|
|
|
By: |
/s/ Christopher Santana
|
|
|
|
Name: |
Christopher Santana |
|
|
|
Title: |
Managing Principal |
|
|
[Lead Investor Signature Page]
|
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|
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OAK HILL ADVISORS, L.P., on behalf of
certain private funds and separate accounts
that it manages
|
|
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By: |
/s/ Scott D. Krase
|
|
|
|
Name: |
Scott D. Krase |
|
|
|
Title: |
Authorized Signatory |
|
|
[Lead Investor Signature Page]
|
|
|
|
|
|
SOLUS ALTERNATIVE ASSET MANAGEMENT LP, as
investment advisor to its private funds
|
|
|
By: |
/s/ Chris Pucillo
|
|
|
|
Name: |
Chris Pucillo |
|
|
|
Title: |
Authorized Signatory |
|
|
[Lead Investor Signature Page]
|
|
|
|
|
|
THE LIVERPOOL LIMITED PARTNERSHIP
|
|
|
By: |
Liverpool Associates, Ltd., as General Partner
|
|
|
|
|
|
By: |
/s/ Elliot Greenberg
|
|
|
|
Name: |
Elliot Greenberg |
|
|
|
Title: |
Vice President |
|
|
[Lead Investor Signature Page]
|
|
|
|
|
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ALDEN GLOBAL DISTRESSED OPPORTUNITIES FUND, L.P.
|
|
|
By: |
Alden Global Distressed Opportunities Fund GP, LLC, its general partner
|
|
|
|
|
|
By: |
/s/ Jim Plohg
|
|
|
|
Name: |
Jim Plohg |
|
|
|
Title: |
Vice President |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
ALLEN ARBITRAGE, L.P.
|
|
|
By: |
/s/ Tal Gurion
|
|
|
|
Name: |
Tal Gurion |
|
|
|
Title: |
Managing Director of Investment Manager |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
ALLEN ARBITRAGE OFFSHORE
|
|
|
By: |
/s/ Tal Gurion
|
|
|
|
Name: |
Tal Gurion |
|
|
|
Title: |
Managing Director of Investment Manager |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
ARMORY ADVISORS LLC
Investment Manager of
Armory Master Fund, Ltd.
And separately Managed Accounts
|
|
|
By: |
/s/ Jay Burnham
|
|
|
|
Name: |
Jay Burnham |
|
|
|
Title: |
Manager |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
ARMORY MASTER FUND LTD.
|
|
|
By: |
Armory Advisors LLC, its Investment Manager
|
|
|
|
|
|
By: |
/s/ Jay Burnham
|
|
|
|
Name: |
Jay Burnham |
|
|
|
Title: |
Manager |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
THE SEAPORT GROUP LLC PROFIT SHARING PLAN
|
|
|
By: |
Armory Advisors LLC, its Investment Advisor
|
|
|
|
|
|
By: |
/s/ Jay Burnham
|
|
|
|
Name: |
Jay Burnham |
|
|
|
Title: |
Manager |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CAPITAL VENTURES INTERNATIONAL
|
|
|
By: |
Susquehanna Advisors Group, Inc., its authorized agent
|
|
|
|
|
|
By: |
/s/ Joel Greenberg
|
|
|
|
Name: |
Joel Greenberg |
|
|
|
Title: |
Vice President |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CASPIAN CAPITAL PARTNERS, L.P.
|
|
|
By: |
Mariner Investment Group, as Investment Advisor
|
|
|
|
|
|
By: |
/s/ David Corleto
|
|
|
|
Name: |
David Corleto |
|
|
|
Title: |
Principal |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CASPIAN SELECT CREDIT MASTER FUND, LTD.
|
|
|
By: |
Mariner Investment Group, as Investment Advisor
|
|
|
|
|
|
By: |
/s/ David Corleto
|
|
|
|
Name: |
David Corleto |
|
|
|
Title: |
Principal |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CITADEL SECURITIES LLC
|
|
|
By: |
/s/ Toby Buchanan
|
|
|
|
Name: |
Toby Buchanan |
|
|
|
Title: |
Authorized Signatory |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CSS, LLC
|
|
|
By: |
/s/ Jerry White
|
|
|
|
Name: |
Jerry White |
|
|
|
Title: |
Partner |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CUMBERLAND PARTNERS
|
|
|
By: |
CUMBERLAND GP LLC, its General Partner
|
|
|
|
|
|
By: |
/s/ Barry Konig
|
|
|
|
Name: |
Barry Konig |
|
|
|
Title: |
Member |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CUMBERLAND BENCHMARKED PARTNERS, L.P.
|
|
|
By: |
CUMBERLAND BENCHMARKED GP LLC, its General Partner
|
|
|
|
|
|
By: |
/s/ Barry Konig
|
|
|
|
Name: |
Barry Konig |
|
|
|
Title: |
Member |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
LONGVIEW PARTNERS B, L.P.
|
|
|
By: |
LONGVIEW B GP LLC, its General Partner
|
|
|
|
|
|
By: |
/s/ Barry Konig
|
|
|
|
Name: |
Barry Konig |
|
|
|
Title: |
Member |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CUMBER INTERNATIONAL S.A.
|
|
|
By: |
CUMBERLAND ASSOCIATES LLC, as Investment Adviser
|
|
|
|
|
|
By: |
/s/ Barry Konig
|
|
|
|
Name: |
Barry Konig |
|
|
|
Title: |
Member |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CYRUS EUROPE MASTER FUND LTD.
|
|
|
By: |
Cyrus Capital Partners, L.P. as Investment Manager
|
|
|
|
|
|
By: |
/s/ David A. Milich
|
|
|
|
Name: |
David A. Milich |
|
|
|
Title: |
Chief Operating Officer |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CYRUS SELECT OPPORTUNITIES MASTER FUND, LTD.
|
|
|
By: |
Cyrus Capital Partners, LP as Investment Manager
|
|
|
|
|
|
By: |
/s/ David A. Milich
|
|
|
|
Name: |
David A. Milich |
|
|
|
Title: |
Chief Operating Officer |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CRESCENT 1 L.P.
|
|
|
By: |
Cyrus Capital Partners, L.P. as Investment Manager
|
|
|
|
|
|
By: |
/s/ David A. Milich
|
|
|
|
Name: |
David A. Milich |
|
|
|
Title: |
Chief Operating Officer |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CRS FUND LTD.
|
|
|
By: |
Cyrus Capital Partners, L.P. as Investment Manager
|
|
|
|
|
|
By: |
/s/ David A. Milich
|
|
|
|
Name: |
David A. Milich |
|
|
|
Title: |
Chief Operating Officer |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
CYRUS OPPORTUNITIES MASTER FUND II, LTD.
|
|
|
By: |
Cyrus Capital Partners, L.P. as Investment Manager
|
|
|
|
|
|
By: |
/s/ David A. Milich
|
|
|
|
Name: |
David A. Milich |
|
|
|
Title: |
Chief Operating Officer |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
HALBIS DISTRESSED OPPORTUNITIES MASTER FUND, LTD.
|
|
|
By: |
/s/ Peter Sakon
|
|
|
|
Name: |
Peter Sakon |
|
|
|
Title: |
VP |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
MARINER LDC
|
|
|
By: |
Mariner Investment Group, as Investment Advisor
|
|
|
|
|
|
By: |
/s/ David Corleto
|
|
|
|
Name: |
David Corleto |
|
|
|
Title: |
Principal |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
MARINER LDC
|
|
|
By: |
Riva Ridge Capital Management LP, as Investment Manager
|
|
|
|
|
|
By: |
Riva Ridge GP LLC, GP to the Investment Manager
|
|
|
|
|
|
By: |
/s/ Stephen Golden
|
|
|
|
Name: |
Stephen Golden |
|
|
|
Title: |
Managing Member |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
MERCED PARTNERS LIMITED PARTNERSHIP
|
|
|
By: |
Global Capital Management, Inc., General Partner
|
|
|
|
|
|
By: |
/s/ Thomas G. Rock
|
|
|
|
Name: |
Thomas G. Rock |
|
|
|
Title: |
Authorized Representative |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
MERCED PARTNERS II, L.P.
|
|
|
By: |
Lydiard Partners, L.P., General Partner
|
|
|
|
|
|
By: |
Tanglewood Capital Management, Inc., General Partner
|
|
|
|
|
|
By: |
/s/ Thomas G. Rock
|
|
|
|
Name: |
Thomas G. Rock |
|
|
|
Title: |
Authorized Representative |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
NEWFINANCE ALDEN SPV
|
|
|
By: |
Alden Global Capital, its Trading Advisor
|
|
|
|
|
|
By: |
/s/ Jim Plohg
|
|
|
|
Name: |
Jim Plohg |
|
|
|
Title: |
Vice President |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
QVT FUND LP
|
|
|
By: |
QVT Associates GP LLC, its general partner
|
|
|
|
|
|
By: |
/s/ Nick Brumm
|
|
|
|
Name: |
Nick Brumm |
|
|
|
Title: |
Managing Member |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
QUINTESSENCE FUND L.P.
|
|
|
By: |
QVT Associates GP LLC, its general partner
|
|
|
|
|
|
By: |
/s/ Nick Brumm
|
|
|
|
Name: |
Nick Brumm |
|
|
|
Title: |
Managing Member |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
RIVA RIDGE MASTER FUND, LTD.
|
|
|
By: |
Riva Ridge Capital Management LP, as Investment Manager
|
|
|
|
|
|
By: |
Riva Ridge GP LLC, GP to the Investment Manager
|
|
|
|
|
|
By: |
/s/ Stephen Golden
|
|
|
|
Name: |
Stephen Golden |
|
|
|
Title: |
Managing Member |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
SENECA CAPITAL, L.P.
|
|
|
By: |
/s/ Mike Anastasio
|
|
|
|
Name: |
Mike Anastasio |
|
|
|
Title: |
CFO |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
SILVER POINT CAPITAL, L.P. on behalf of its
affiliates and related funds
|
|
|
By: |
/s/ Michael Gatto
|
|
|
|
Name: |
Michael Gatto |
|
|
|
Title: |
Authorized Person |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
SPECTRUM INVESTMENT PARTNERS, L.P.
|
|
|
By: |
Spectrum Group Management LLC, its general partner
|
|
|
|
|
|
By: |
/s/ Jeffrey A. Schaffer
|
|
|
|
Name: |
Jeffrey A. Schaffer |
|
|
|
Title: |
Managing Member |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
SIPI MASTER LTD.
|
|
|
By: |
Spectrum Investment Management LLC, its investment manager
|
|
|
|
|
|
By: |
/s/ Jeffrey A. Schaffer
|
|
|
|
Name: |
Jeffrey A. Schaffer |
|
|
|
Title: |
Managing Member |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
STARK CRITERION MASTER FUND LTD.
|
|
|
By: |
Stark Criterion Management LLC
|
|
|
Its: |
Investment Manager |
|
|
|
|
|
By: |
/s/ Donald T. Bobbs
|
|
|
|
Name: |
Donald T. Bobbs |
|
|
|
Title: |
Authorized Signatory |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
STARK MASTER FUND LTD.
|
|
|
By: |
Stark Offshore Management LLC
|
|
|
Its: |
Investment Manager |
|
|
|
|
|
By: |
/s/ Donald T. Bobbs
|
|
|
|
Name: |
Donald T. Bobbs |
|
|
|
Title: |
Authorized Signatory |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
UBS SECURITIES LLC (solely with respect to the
Distressed Debt Grading Group)
|
|
|
By: |
/s/ Daniel S. Frommer
|
|
|
|
Name: |
Daniel S. Frommer |
|
|
|
Title: |
Managing Director |
|
|
|
UBS SECURITIES LLC (solely with respect to the
Distressed Debt Trading Group)
|
|
|
By: |
/s/ Jeffrey Teach
|
|
|
|
Name: |
Jeffrey Teach |
|
|
|
Title: |
MD |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
VENOR CAPITAL MASTER FUND LTD.
|
|
|
By: |
/s/ Michael Wartell
|
|
|
|
Name: |
Michael Wartell |
|
|
|
Title: |
Authorized Signatory |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
WHITEBOX HEDGED HIGH YIELD PARTNERS, L.P.
|
|
|
By: |
Whitebox Hedged High Yield Advisors, LLC, its General Partner
|
|
|
|
|
|
By: |
Whitebox Advisors, LLC, its Managing Member
|
|
|
|
|
|
By: |
/s/ Jonathan Wood
|
|
|
|
Name: |
Jonathan Wood |
|
|
|
Title: |
COO/CFO |
|
|
[Co-Investor Signature Page]
|
|
|
|
|
|
WHITEBOX COMBINED PARTNERS, L.P.
|
|
|
By: |
Whitebox Combined Advisors, LLC, its General Partner
|
|
|
|
|
|
By: |
Whitebox Advisors, LLC, its Managing Member
|
|
|
|
|
|
By: |
/s/ Jonathan Wood
|
|
|
|
Name: |
Jonathan Wood |
|
|
|
Title: |
COO/CFO |
|
|
[Co-Investor Signature Page]
SCHEDULE 3
TRANSACTIONS EXPENSES ESTIMATE
|
|
|
|
|
Deutsche Bank |
|
$ |
0.00 |
|
Goldman Sachs |
|
$ |
385,000.00 |
|
Solus LP |
|
$ |
381,000.00 |
|
Monarch Capital |
|
$ |
0.00 |
|
Elliott Management |
|
$ |
50,000.00 |
|
Oak Hill |
|
$ |
10,000.00 |
|
CQS |
|
$ |
1,000.00 |
|
White & Case LLP |
|
$ |
4,250,000.00 |
|
OHorizons |
|
$ |
1,580,000.00 |
|
Conway MacKenzie |
|
$ |
1,400,000.00 |
|
Sagent/GLC |
|
$ |
1,125,000.00 |
|
Akin Gump |
|
$ |
1,250,000.00 |
|
SCHEDULE 4
CONSENTS
None.
SCHEDULE 5
LEAD INVESTORS; NOTICE INFORMATION
|
|
|
Lead Investor |
|
Notice Information |
CQS Convertible and Quantitative
Strategies Master Fund Limited
CQS Directional Opportunities Master
Fund Limited
Kivu Investment Fund Limited
|
|
c/o CQS (US), LLC
152 West 57th Street, 41st Floor
New York, NY 10019
Facsimile: (917) 206-4099
Attention: Mark Unferth
Tim McArdle |
|
|
|
Deutsche Bank Securities Inc.
(solely with respect to the
Distressed Products Group)
|
|
60 Wall Street
New York, NY 10005
Facsimile: (212) 797-4666
Attention: Tom Higbie
Philip Giordano
James MacInnis |
|
|
|
Elliott International, L.P.
The Liverpool Limited Partnership
|
|
c/o Elliott Management Corporation
712 Fifth Avenue
35th Floor
New York, NY 10019
Facsimile: (888) 341-0656
Attention: Kimberly A. Reinhardt-Gonzales
Ross Rosen |
|
|
|
Goldman, Sachs & Co.
(solely with respect to the High
Yield Distressed
Investing Group)
|
|
200 West Street, 6th Floor
New York, NY 10282
Facsimile: (646) 576-3388
Attention: Ned Oakley |
|
|
|
Monarch Master Funding Ltd
|
|
Monarch Alternative Capital LP
535 Madison Avenue
New York, NY 10022
Facsimile: (866) 401-0532
Attention: Robert Burns, General Counsel |
|
|
|
Oak Hill Advisors, L.P.
|
|
1114 Avenue of the Americas
27th Floor
New York, NY 10036
Facsimile: (212) 735-5287
Attention: Jeffrey Kirt
Gregg Rubin |
|
|
|
Solus Alternative Asset Management LP
|
|
430 Park Avenue
New York, NY 10022
Facsimile: (212) 284-4320
Attention: Arthur Kaz |
-i-
SCHEDULE 6
CO-INVESTORS; NOTICE INFORMATION
|
|
|
Co-Investor |
|
Notice Information |
Alden Global Distressed Opportunities
Fund, L.P.
NewFinance Alden SPV
|
|
c/o Alden Global Capital
885 Third Avenue, 34th Floor
New York, NY 10022
Facsimile: (212) 702-0145
Attention: General Counsel |
|
|
|
Allen Arbitrage, L.P.
Allen Arbitrage Offshore
|
|
Allen & Company LLC
711 Fifth Avenue
New York, NY 10022
Facsimile: (212) 508-5839
Attention: Tal Gurion |
|
|
|
Armory Master Fund Ltd.
The Seaport Group LLC Profit Sharing
Plan
|
|
Armory Advisors
999 Fifth Ave., Suite 450
San Rafael, CA 94901
Facsimile: (415) 259-2745
Attention: Jay Burnham |
|
|
|
Capital Ventures International
|
|
c/o Susquehanna Advisors Group, Inc.
401 City Avenue, Suite 220
Bala Cynwyd, PA 19004
Facsimile: (610) 747-2132
(610)617-3850
Attention: Legal Department |
|
|
|
Caspian Capital Partners, L.P.
Caspian Select Credit Master Fund, Ltd.
Mariner LDC
|
|
500 Mamaroneck Ave, Suite 101
Harrison, NY 10528
Facsimile: (914) 798-4210
Attention: Chris Gebhardt |
|
|
|
Citadel Securities LLC
|
|
Citadel Securities LLC
601 Lexington Avenue, 45th Floor
New York, NY 10022
Facsimile: (312) 267-7577
Attention: Neal Jhaveri
Toby Buchanan |
|
|
|
CSS, LLC
|
|
CSS, LLC
175 W Jackson Blvd Suite 440
Chicago, IL 60604
Facsimile: (312) 542-8500
Attention: Jerry White
Mike Moran |
-1-
SCHEDULE 6
|
|
|
Co-Investor |
|
Notice Information |
Cumberland Partners
Cumberland Benchmarked Partners, L.P.
LongView Partners B, L.P.
Cumber International S.A.
|
|
Cumberland Associates LLC
1114 Avenue of the Americas, 38th Floor
New York, NY 10036
Facsimile: (212) 703-1450
Attention: Barry Konig |
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Cyrus Europe Master Fund Ltd.
Cyrus Select Opportunities
Master Fund, Ltd.
Crescent 1 L.P.
CRS Fund Ltd.
Cyrus Opportunities Master Fund II, Ltd.
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Cyrus Capital Partners, L.P.
399 Park Avenue, 39th Floor
New York, NY 10022
Facsimile: 212-380-5915
Attention: Stephon Barnes
Anthony Scire |
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Halbis Distressed Opportunities
Master Fund, Ltd.
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HSBC Global Asset Management
452 Fifth Avenue, 18th Floor
New York, NY 10018
Facsimile: (212) 525-2380
Attention: Rick W. Liu, CFA, Vice President
Gene Loughlin |
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Merced Partners Limited Partnership
Merced Partners II, L.P.
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c/o EBF & Associates, L.P.
601 Carlson Parkway, Suite 200
Minnetonka, MN 55305
Facsimile: (952) 476-7201
Attention: Thomas G. Rock
Stuart Brown |
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QVT Fund LP
Quintessence Fund L.P.
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c/o QVT Financial LP
1177 Avenue of the Americas, 9th Floor
New York, NY 10036
Facsimile: (212) 705-8801
Attention: Michael Rosenthal |
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Riva Ridge Master Fund, Ltd.
Mariner LDC
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c/o Riva Ridge Capital Management LP
55 Fifth Avenue, 18th Floor
New York, NY 10003
Facsimile: (646) 284-9919
Attention: Dennis Parks |
-2-
SCHEDULE 6
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Co-Investor |
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Notice Information |
Seneca Capital, L.P.
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Seneca Capital L.P.
590 Madison Avenue 9th floor
New York, NY 10022
Facsimile: (212) 826-1108
Attention: Eric Feingold
Tracy Sigal |
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Silver Point Capital, L.P.
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Silver Point Capital, L.P.
2 Greenwich Plaza, 1st Floor
Greenwich, CT 06830
Facsimile: (203) 542-4141
Attention: Jeff Forlizzi |
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Spectrum Investment Partners, L.P.
SIPI Master Ltd.
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c/o Spectrum Group Management LLC
1250 Broadway, Suite 810
New York, NY 10001
Facsimile: (212) 983-2322
Attention: Jeffrey A. Schaffer
David D.R. Bullock |
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With a copy to:
Spectrum Group Management LLC
1250 Broadway, Suite 810
New York, NY 10001
Facsimile: (212) 983-2322
Attention: Stephen C. Jacobs |
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Stark Criterion Master Fund Ltd.
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c/o Stark Criterion Management LLC
3600 S. Lake Drive
St. Francis, WI 53235
Facsimile: (414) 294-7700
Attention: Don Bobbs |
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Stark Master Fund Ltd.
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c/o Stark Offshore Management LLC
3600 S. Lake Drive
St. Francis, WI 53235
Facsimile: (414) 294-7700
Attention: Don Bobbs |
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UBS Securities LLC
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UBS Securities LLC
677 Washington Boulevard
Stamford, CT 06901
Facsimile: (203) 719-0680
Attention: Fixed Income Legal |
-3-
SCHEDULE 6
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Co-Investor |
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Notice Information |
Venor Capital Master Fund Ltd.
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Venor Capital Management LP
Times Square Tower
7 Times Square, Suite 3505
New York, NY 10036
Facsimile: (212) 703-2111
Attention: Michael Scott |
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Whitebox Hedged High Yield
Partners, L.P.
Whitebox Combined Partners, L.P.
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Whitebox Advisors
3033 Excelsior Blvd, Suite 300
Minneapolis, MN 55416
Facsimile: (612) 253-6151
Attention: Pete Wiley |
-4-
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re: |
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Chapter 11 |
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VISTEON CORPORATION, et al.,1 |
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Case No. 09-11786 (CSS) |
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Debtors. |
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Jointly Administered |
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Hearing Date: To be requested |
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Objection Date: To be requested |
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DEBTORS MOTION FOR AN ORDER AUTHORIZING THE DEBTORS
TO ENTER INTO: (A) A PLAN SUPPORT AGREEMENT; (B) AN EQUITY
COMMITMENT AGREEMENT AND TO PAY CERTAIN FEES IN CONNECTION
THEREWITH; AND (C) A CASH RECOVERY BACKSTOP AGREEMENT
The above-captioned debtors and debtors in possession (collectively, Visteon, or the
Debtors,) hereby file this motion (the Motion) for entry of an order,
substantially in the form attached hereto as Exhibit A (the Order), authorizing
the Debtors to: (a) enter into that certain plan support agreement, dated as of May 6, 2010, by and
among the Debtors and certain holders representing more than two-thirds in amount of Visteons
prepetition unsecured notes (the Consenting Senior Note Holders), a copy of which is
attached hereto as Exhibit B (the Plan Support Agreement); (b)(i) enter into that
certain equity commitment agreement dated as of
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1 |
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The Debtors in these chapter 11 cases, along with the
last four digits of each Debtors federal tax identification number, are:
Visteon Corporation (9512); ARS, Inc. (3590); Fairlane Holdings, Inc. (8091);
GCM/Visteon Automotive Leasing Systems, LLC (4060); GCM/Visteon Automotive
Systems, LLC (7103); Infinitive Speech Systems Corp. (7099); MIG-Visteon
Automotive Systems, LLC (5828); SunGlas, LLC (0711); The Visteon Fund (6029);
Tyler Road Investments, LLC (9284); VC Aviation Services, LLC (2712); VC
Regional Assembly & Manufacturing, LLC (3058); Visteon AC Holdings Corp.
(9371); Visteon Asia Holdings, Inc. (0050); Visteon Automotive Holdings, LLC
(8898); Visteon Caribbean, Inc. (7397); Visteon Climate Control Systems Limited
(1946); Visteon Domestic Holdings, LLC (5664); Visteon Electronics Corporation
(9060); Visteon European Holdings Corporation (5152); Visteon Financial
Corporation (9834); Visteon Global Technologies, Inc. (9322); Visteon Global
Treasury, Inc. (5591); Visteon Holdings, LLC (8897); Visteon International
Business Development, Inc. (1875); Visteon International Holdings, Inc. (4928);
Visteon LA Holdings Corp. (9369); Visteon Remanufacturing Incorporated (3237);
Visteon Systems, LLC (1903); Visteon Technologies, LLC (5291). The location of
the Debtors corporate headquarters and the service address for all the Debtors
is: One Village Center Drive, Van Buren Township, Michigan 48111. |
May 6, 2010, by and among Visteon Corporation and a subset of the Consenting Senior Note
Holders backstopping the rights offering (collectively, the Investors), a copy of which
is attached hereto as Exhibit C (the Equity Commitment Agreement) and (ii) to pay
certain fees and expenses in connection therewith; and (c) enter into that certain cash recovery
backstop agreement dated as of May 6, 2010, by and among Visteon Corporation and certain Investors
that are signatories to that agreement (the Signatories) a copy of which is attached
hereto as Exhibit D (the Cash Recovery Backstop Agreement). In support of this
Motion, the Debtors state as follows:2
Preliminary Statement
1. From the outset of these cases, Visteon has made clear that an expeditious exit from
bankruptcy with a deleveraged capital structure supported by its OEM customers was its primary
goal. To the end, Visteon has worked determinedly with its creditor constituents to develop a
consensual plan of reorganization with all voting classes that would address its reorganization
goals for the last several months. As a result of these efforts, Visteon has reached a milestone
in putting forth a toggle plan of reorganization, filed contemporaneously with this Motion, that
Visteon believes represents the best path toward a successful conclusion of these cases.3
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To the extent that the following summaries or
descriptions and the terms of the Plan Support Agreement, the Equity Commitment
Agreement, or the Cash Recovery Backstop Agreement differ from the terms of the
agreements themselves, the terms of the Plan Support Agreement, the Equity
Commitment Agreement, or the Cash Recovery Backstop Agreement, respectively,
shall control. Any defined terms used but not defined herein shall have the
meanings ascribed to them in the Plan, the Plan Support Agreement, the Equity
Commitment Agreement, and/or the Cash Recovery Backstop Agreement, as
applicable. |
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See Second Amended Joint Plan of
Reorganization of Visteon Corporation and its Affiliated Debtors Pursuant to
Chapter 11 of the United States Code [Docket No. _____] (as it may be amended
or modified, the Plan). |
2
2. The Plan is comprised of two mutually exclusive sub plansa rights offering plan (the
Rights Offering Sub Plan), pursuant to which the holders of Visteons prepetition
unsecured notes who are eligible to participate in the rights offering4 would have the
opportunity to purchase 95% of the equity in reorganized Visteon in exchange for $1.25 billion in
cash raised through a fully backstopped rights offering; and a claims conversion plan (the
Claims Conversion Sub Plan), which is similar to the plan filed on March 15, 2010 in that
the holders of Visteons term loan debt would receive approximately 85% of the equity in
reorganized Visteon and unsecured note holders would receive approximately 15% of the equity in
reorganized Visteon, while other general unsecured creditors would receive a cash payout. The
fundamental tenet of the Plan is that if the note holders deliver $1.25 billion in cash plus an
exit financing facility to pay the term lenders in full, the Debtors will move forward with the
Rights Offering Sub Plan; while if the note holders do not deliver the capital, they will be
required to support a toggle to the Claims Conversion Sub Plan pursuant to the terms of the Plan
Support Agreement and Equity Commitment Agreement, except under very narrow circumstances that the
Debtors largely control. In the Debtors view, the toggle plan offers the cleanest path to
confirmation that would avoid a costly four-sided cram down fight and would localize and simplify a
valuation fight to one between old equity, on the one hand, and everyone else, on the other. The
toggle plan construct allows note holders to truly put their money where their
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The holders of Visteons unsecured notes who are
Accredited Investors as defined in Rule 501 of Regulation D promulgated under
the Securities Act will be eligible to participate in the rights offering under
the Rights Offering Sub Plan (the Eligible Holders). The holders of
Visteons unsecured notes who are not Accredited Investors as defined in Rule
501 of Regulation D promulgated under the Securities Act will not be eligible
to participate in the rights offering (the Non-Eligible Holders) and
instead will receive a substantial cash distribution to compensate such holders
for the value of the rights to participate in the rights offering that would
have been distributed to the Non-Eligible Holders, had they been Eligible
Holders. |
3
mouth is, while minimizing the Debtors risk of being left at the confirmation altar without a
confirmable plan if the note holders do not live up to their promise to deliver capital. The Plan
also avoids what would be costly and protracted cram down litigation with the Debtors note holders
and resolves disputes over valuation among all parties other than out of the money equity holders
who will dispute any valuation that does not provide them with a recovery.
3. The Plan is fully supported by note holders holding more than two-thirds in amount of
Visteons prepetition unsecured notes and the Debtors continue to work towards obtaining the
support of the official committee of unsecured creditors, a proxy for the general unsecured
creditor class. While the term lenders have not yet indicated a willingness to support the Plan,
Visteon notes that the term lenders would receive the same, or an equivalent recovery, to which
they would have recovered under the March 15, 2010 plan. Specifically, the term lenders would be
paid in full, in cash, including accrued prepetition and postpetition interest, and therefore would
be unimpaired, and without voting rights, under the Rights Offering Sub Plan and would receive
virtually the same treatment under the Claims Conversion Sub Plan as was contemplated by the
Debtors March 15, 2010 plan, for which they previously provided their support. Thus, the Debtors
believe that the term lenders ultimately will support the Plan.5 Lastly, while the
Debtors expect equity holders to oppose the Plan, such holders are deemed to reject the Plan and
will not be entitled to votemaking their support irrelevant to Plan confirmation.6
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The Debtors have engaged the term lenders in
extensive discussions regarding the toggle Plan and have shared numerous
drafts of the Plan-related documents with them as negotiations have evolved to
keep them fully apprised of developments. |
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The equity holders will nonetheless have their day
in court at a confirmation hearing on the Plan and the Debtors have already
shared a protective order and discovery schedule with equity holders. |
4
4. This Motion seeks approval of three agreements, which collectively serve as the backbone of
the Plan. The agreements are: (a) the Equity Commitment Agreement; (b) the Plan Support
Agreement; and (c) the Cash Recovery Backstop Agreement. The general terms of those agreements are
described below.
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Equity Commitment Agreement: The Equity Commitment Agreement governs the
terms and conditions of the Investors backstop equity commitment and obligations to
deliver equity financing. Specifically, pursuant to the Equity Commitment Agreement,
the Investors will provide a $300 million direct purchase commitment and a $950 million
backstop of the rights offering to Eligible Holders, subject to the satisfaction of
limited conditions to closing.. In exchange for the Investors agreement to enter into
the Equity Commitment Agreement, the Debtors will pay the Investors certain fees,
described below, subject to this Courts approval. |
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Plan Support Agreement: The Plan Support Agreement enforces the toggle
principal upon which the Plan is based. Pursuant to the agreement, the Consenting
Senior Note Holders are obligated to support the Planunder both the Rights Offering
Sub Plan and Claims Conversion Sub Plan scenarios absent certain termination events
largely tied to the Equity Commitment Agreement. Generally speaking, the ability of
the Consenting Senior Note Holders to terminate the Plan Support Agreement and contest
the Claims Conversion Sub Plan is limited mostly to circumstances the Debtors control,
such as the Debtors breach of their representations and warranties to the level of a
material adverse effect or failure to comply with the covenants of the Equity
Commitment Agreement in a material respect. Further, to the extent that the Plan is
amended to treat individual Consenting Senior Note Holders in a materially adverse
manner, the Consenting Senior Note Holders will be free to withdraw from the Plan
Support Agreement and vote to reject the Plan. Lastly, the Debtors may terminate their
obligations under the Plan Support Agreement if their continued support of the Plan is
not in the best interests of their estates or if the Debtors receive a proposal for an
alternative plan, and reasonably determine that their continued support of the Plan
would be inconsistent with their fiduciary obligations (i.e., a fiduciary out
clause). |
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Cash Recovery Backstop Agreement: Pursuant to the Cash Recovery Backstop
Agreement, the Signatories shall fund, on a several but not joint liability basis, cash
distributions to Non-Eligible Holders under the Rights Offering Sub Plan in exchange
for Visteon issuing to the Signatories the rights to participate in the rights offering
that would have been distributed to such Non-Eligible Holders, had they been Eligible
Holders. |
5. In consideration for the Equity Commitment Agreement, Visteon has agreed to pay to the
Investors certain fees, which the Debtors believe are well within the reasonable range
5
of fees typically paid for as part of capital contributions of this size. Specifically,
Visteon has agreed to pay the following fees and expenses to the Investors:
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$43,750,000 in connection with the $300 million direct purchase commitment and the
Investors commitment to backstop the rights offering (the Stock Right
Premium), 25% of which shall be payable upon entry of the order approving the
Equity Commitment Agreement, with the balance payable only upon closing of the Equity
Commitment Agreement; |
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$16,625,000 for arranging the transactions contemplated by the Equity Commitment
Agreement (the Arrangement Premium), paid to certain of the Investors and
their advisors; and |
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out of pocket costs and expenses reasonably incurred in the ordinary course of
business by each of the Investors in connection with the Equity Commitment Agreement
(the Transaction Expenses), estimated to be approximately $10.4 million in
aggregate related to the pre-Equity Commitment Agreement approval Transaction Expenses.
However, given the consensual nature of the Investors entry into the Equity
Commitment Agreement and the Plan Support Agreement, Visteon expects the Investors
post-Equity Commitment Agreement Transaction Expenses to be significantly reduced.7 |
6. Critically, almost all of these fees are payable only upon a successful closing of the
transactions contemplated under the Rights Offering Sub Plan, in which case the Investors will be
Visteons new owners. Even the 25% of the Stock Right Premium, payable upon approval of the Equity
Commitment Agreement, would be clawed back if the Investors breach and fail to close the Equity
Commitment Agreement. Notably, no fees are payable under the Cash Recovery Backstop Agreement.
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In addition, Visteon has agreed to support the
Investors request for payment of Alternate Transaction Damages in
the event, generally, that Visteon enters into an agreement in connection with,
or approves or seeks Court approval of, an alternative transaction, as such
term is used in the Equity Commitment Agreement. Alternate Transaction Damages
would also arise if Visteons approval of the Rights Offering Sub Plan were
withdrawn, qualified, or modified in a manner adverse to the Investors and
inconsistent with its obligations under the Equity Commitment Agreement. To be
clear, this Motion does not seek approval of what amounts to a break-up fee.
The Debtors will file a separate motion for approval of payment of any
Alternate Transaction Damages pursuant to section 10.2 of the Equity Commitment
Agreement. |
6
7. The Equity Commitment Agreement, in conjunction with the Plan Support Agreement, contains
an outside date concept to ensure that the closing of the rights offering must occur in a
timeframe acceptable to the Debtors. See Equity Commitment Agreement §
10.1(b)(iii). Specifically, if confirmation of the Rights Offering Sub Plan is denied, Consenting
Senior Note Holders will be provided an opportunity to cure a confirmation defect within the
parameters described in section 7.1(e)(4) of the Plan Support Agreement. If the Rights Offering
Sub Plan is confirmed (on the Debtors first attempt or after a confirmation defect is cured), and
if the Investors do not close within 30 days after the entry of the Courts order confirming the
Plan and have not otherwise terminated the Equity Commitment Agreement under 7.1(e) of the Plan
Support Agreement, unless either: (a) the Investors elect to cure an Investor default through an
Alternative Financing (See Equity Commitment Agreement § 3.3(a)), in which case the
outside date may be extended for eight business days or (b) certain third-party and governmental
approvals required for closing have not been obtained, in which case the outside date may be
extended for an additional 60 days, then the Debtors will have the ability to terminate the Equity
Commitment Agreement and proceed with confirmation the Claims Conversion Sub Plan, which the
Consenting Senior Note Holders will be bound to support under the terms of the Plan Support
Agreement.
8. The Equity Commitment Agreement also provides for certain indemnifications and limitations
on remedies that are integral to the agreement of the Investors, on the one hand, and the Debtors,
on the other hand, to support and eventually consummate the Rights Offering Sub Plan. The Debtors
have agreed to indemnify each of the Investors from third party claims (other than third party
claims in connection with any action taken by any Investor in opposition
7
to the Plan or the Debtors pursuit of the Claims Conversion Sub Plan) in connection with the
rights offering or the Equity Commitment Agreement.
9. In exchange for the Investors agreement to support the toggle as set forth in the Plan
Support Agreement, the Debtors have agreed that the Debtors sole and exclusive remedy for an
Investor breach of the Equity Commitment Agreement will be to require the Investors to return the
Stock Right Deposit (See Equity Commitment Agreement § 4.2) and hold the Investors
to their obligations under the Plan Support Agreement to support the Claims Conversion Sub Plan.
In connection therewith, the Debtors have waived all statutory, common law, or other remedies that
the Debtors may otherwise have against the Investors with respect to any claims or causes of action
arising out of the Rights Offering, the Equity Commitment Agreement or any transaction contemplated
thereunder. To ensure the integrity of the toggle, in the event of a breach by the Debtors, the
Debtors and Investors have agreed that the Investors shall be entitled to specifically enforce the
terms and provisions of the Equity Commitment Agreement and that such right shall be the Investors
sole and exclusive remedy under the Equity Commitment Agreement.
10. The mechanics of the Equity Commitment Agreement and Plan Support Agreement described
above are intended to give primacy to the Rights Offering Sub Plan by affording the note holders a
full and fair opportunity to have the Rights Offering Sub Plan consummated. These mechanics also
ensure an expeditious path toward the Debtors exit from chapter 11 by allowing the Debtors to
toggle to the Claims Conversion Sub Plan with the continued support of the Consenting Senior Note
Holders in the event the Rights Offering Sub Plan is not consummated prior to the outside date.
8
11. The Plan Support Agreement, the Equity Commitment Agreement, and the Cash Recovery
Backstop Agreement are key components of the Plan and critical to the Debtors efforts to secure as
expeditious an exit from chapter 11 as possible. For this reason, and those stated below, the
Motion should be approved.
Jurisdiction
12. This Court has jurisdiction pursuant to 28 U.S.C. § 1334. This matter is a core
proceeding within the meaning of 28 U.S.C. § 157(b)(2).
13. Venue is proper in this district pursuant to 28 U.S.C. §§ 1408.
14. The statutory basis for the relief requested herein is section 363(b) of title 11 of the
United States Code, 11 U.S.C. §§ 101-1532 (the Bankruptcy Code).
Relief Requested
15. Visteon seeks entry of the Order authorizing Visteon to enter into: (a) the Plan Support
Agreement; (b) the Equity Commitment Agreement and to pay the fees and expenses associated
therewith and described herein (with the exception of the Alternate Transaction Damages); and (c)
the Cash Recovery Backstop Agreement.
Basis for Relief
A. |
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Entering Into the Plan Support Agreement, Equity Commitment Agreement, and Cash Recovery
Backstop Agreement Are Exercises of Visteons Sound Business Judgment |
16. Section 363(b) of the Bankruptcy Code provides, in relevant part, that a debtor, after
notice and a hearing, may use, sell, or lease, other than in the ordinary course of business,
property of the estate. 11 U.S.C. § 363(b)(1). In the Third Circuit, courts have authorized the
use or sale of property of the estate outside the ordinary course of business when such use or sale
is grounded upon a sound business purpose and is proposed in good faith. See In re
Del. &
9
Hudson Ry. Co., 124 B.R. 169, 176 (D. Del. 1991); Myers v. Martin (In re
Martin), 91 F.3d 389, 395 (3d Cir. 1996); Dai-Ichi Kango Bank, Ltd. v. Montgomery Ward
Holding Corp. (In re Montgomery Ward Holding Corp.), 242 B.R. 147, 153 (D. Del. 1999);
In re Decora Indus., Inc., No. 00-4459, 2002 WL 32332749, at * 7 (D. Del. May 20, 2002);
In re Exaeris, Inc., 380 B.R. 741 (Bankr. D. Del. 2008).
17. Once a debtor articulates a valid business justification under section 363 of the
Bankruptcy Code, a presumption arises that the debtors decision was made on an informed basis, in
good faith, and in the honest belief the action was in the best interest of the company.
See Official Comm. of Subordinated Bondholdrs v. Integrated Res., Inc. (In re
Integrated Res., Inc.), 147 B.R. 650, 656 (S.D.N.Y. 1992) (quoting Smith v. Van Gorkom,
488 A.2d 858, 872 (Del. 1985)); see also Bridgeport Holdings, Inc. Liquidating Trust v.
Boyer (In re Bridgeport Holdings, Inc.), 388 B.R. 548, 567 (Bankr. D. Del. 2008).
Further, once the debtor articulates a reasonable basis for its business decisions (as distinct
from a decision made arbitrarily or capriciously), courts will generally not entertain objections
to the debtors conduct. Comm. of Asbestos-Related Litigants v. Johns-Manville Corp.,
(In re Johns-Manville Corp.), 60 B.R. 612, 616 (Bankr. S.D.N.Y. 1986). The business
judgment rule has vitality in chapter 11 cases and shields a debtors management from judicial
second-guessing. See Integrated Res., 147 B.R. at 656; Johns-Manville, 60
B.R. at 615-16 ([T]he Code favors the continued operation of a business by a debtor and a
presumption of reasonableness attaches to a debtors management decisions.). Thus, if a debtors
actions satisfy the business judgment rule, then the transaction in question should be approved
under section 363(b)(1) of the Bankruptcy Code.
18. Here, Visteon engaged in substantial negotiations with its key constituents and their
advisors to arrive at the terms of the Plan and, along with the Plan, the Plan Support
10
Agreement, the Equity Commitment Agreement, and the Cash Recovery Backstop Agreement. These
agreements are necessary to confirm and consummate the Plan, a plan which will allow Visteon to
expeditiously exit from bankruptcy, thus preserving the value of these estates.
19. Specifically, the Equity Commitment Agreement provides the Debtors with a firm commitment
for a $1.25 billion equity infusion and an exit financing facility, which will allow the Debtors to
pay their ABL facility lenders and the term lenders in full in cash while providing the Eligible
Note Holders with 95% of the equity in reorganized Visteon. With respect to the Cash Recovery
Backstop Agreement, the Signatories will fund cash recoveries for Non-Eligible Holders to
compensate such holders for the rights they would have received had they been eligible to
participate in the rights offering. The Debtors estates will not fund the cash recovery of the
Non-Eligible Holders under the Rights Offering Sub Plan, but rather the Signatories to the Cash
Recovery Backstop Agreement shall provide such funding. The Plan Support Agreement enforces these
agreements by requiring the Consenting Senior Note Holders to support a toggle to the Claims
Conversion Sub Plan if the agreements are breached by the note holders.
20. In sum, the Plan Support
Agreement, the Equity Commitment Agreement, and the Cash Recovery
Backstop Agreement will enable Visteon to substantially reduce the cram down litigation costs that
would otherwise be incurred if Visteon did not have the support of the Consenting Senior Note
Holders.8 Also, the expeditious exit from chapter 11 facilitated by the
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Visteon still expects a contested confirmation
hearing given certain equity holders stated positions on valuation. |
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Plan Support Agreement is a substantial factor in reducing the attrition of Visteons customer
contracts post-emergence, which is critical to Visteons successful rehabilitation.9
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The Fees and Expenses to be Paid to the Investors Under the Equity Commitment
Agreement are Reasonable |
21. The Debtors also submit that the fees and expenses to be paid to the Investors under the
Equity Commitment Agreement are reasonable. The Investors will be paid 75% of the Stock Right
Premium and all of the Arrangement Premium under the Equity Commitment Agreement only if they
successfully raise at least $950 million through the rights offering, $300.0 million through a
direct purchase commitment, and an exit financing facility, at which point in time, in effect, the
Investors will be Visteons new owners. Only approximately $10.9 million in fees25% of the Stock
Right Premiumwill be paid before the effective date, and this amount is subject to claw back if
the transactions under the Equity Commitment Agreement do not close as a result of the Investors
failure to satisfy their obligations to bring in junior capital. Moreover, the Investors have
indicated to Visteon that payment of each of the Stock Right Premium and Arrangement Premium is a
requirement for their entry into the Equity Commitment Agreement and the Consenting Senior Note
Holders support of the Plan.
22. Visteon has determined in the exercise of its reasonable business judgment that its
obligation to pay these fees is an effective, commonplace, and necessary means to secure the
Investors commitment and that the amounts contemplated thereby are reasonable by market standards.
Indeed, courts in this and other districts have approved similar fees and premiums as a reasonable
use of assets in other recent chapter 11 cases. See e.g.,In re Cooper-Standard
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At the March 16, 2010 omnibus hearing, counsel for
Ford Motor Company stated: Ford knows from having participated in any number
of the supplier cases [that]...the duration that a company remains in bankruptcy
is almost always a bad thing. Omnibus Hrg Tr. 40:10-12, Mar. 16, 2010. |
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Holdings Inc., No. 09-12743 (Bankr. D. Del. Mar. 26, 2010) (approving a commitment fee
equal to 3.5% of the rights offering amount); In re Spansion Inc., No. 09-10690 (Bankr. D.
Del. Jan. 7, 2010) (approving a success fee of 4.1% of the backstop commitment amount); In re
Hayes Lemmerz Intl, Inc., No. 09-11655 (Bankr. D. Del. Nov. 3, 2009) (approving commitment fee
of 3.0%); In re RathGibson, Inc., No. 09-12452 (Bankr. D. Del. Sept. 2. 2009) (authorizing
a commitment fee of 5.0% paid in new common shares); In re Magnachip Semiconductor Fin.
Co., No. 09-12008 (Bankr. D. Del. Aug. 2, 2009) (approving commitment fee of 10.0% paid in new
common units); In re Landsource Cmtys. Dev. LLC, No. 08-11111 (Bankr. D. Del. June 2, 2009)
(approving a commitment fee equal to 5.0% of the rights offering amount); In re Motor Coach
Indus. Intl, Inc., No. 08-12136 (Bankr. D. Del. Oct. 29, 2008) (authorizing a commitment fee
of 5.0% paid in preferred stock); In re Dura Auto. Sys., Inc., No. 06-11202 (Bankr. D. Del.
Aug. 17, 2007) (approving a commitment fee equal to 4.0% of the rights offering amount); In re
Delphi Corp., No. 05-44481 (Bankr. S.D.N.Y. Aug. 2. 2007) (approving total commitment fee of
2.5%); In re Bally Total Fitness of Greater NY Inc., No. 07-12395 (Bankr. S.D.N.Y. Aug. 1,
2007) (approving a commitment fee equal to 4.0% of the rights offering amount); In re J.L.
French Auto. Castings, Inc., No. 06-10119 (Bankr. D. Del. Mar. 29, 2006) (approving a
commitment fee equal to 3.0% of the backstop commitment) (where applicable, commitment fees stated
in dollars in the corresponding court filings have been converted to percentages for presentation
purposes here). Also, as applied in the cases cited here, section 363(b) of the Bankruptcy Code is
ubiquitously applied to grant debtors authority to enter into agreements similar to the Equity
Commitment Agreement.
23. The Investors undertaking of over three months of extensive diligence efforts and
good-faith negotiations required to achieve consensus on the Plan and Equity Commitment
13
Agreement more than warrant payment of the Investors expenses in connection with devising and
consummating the transactions contemplated thereby. Indeed, Visteon considers the Transaction
Expenses to be justified in light of the costs avoided with potential cram down litigation with
unsecured note holders and lost long-term revenues as a result of a delayed exit from chapter 11.
Moreover, Visteon believes that the Transaction Expenses are also reasonable when compared to those
contained in other similar equity commitment agreements approved by courts in this and other
districts.10
24. In addition, the indemnification and release of the Investors under the Equity
Commitment Agreement is appropriate in Visteons business judgment as such releases and
indemnification were required to obtain the Investors consent to the Equity Commitment Agreement.
25. Finally, while Visteon has agreed to the concept of Alternate Transaction Damages under
the Equity Commitment Agreement, it is not currently seeking approval of such costs. Instead, any
Alternate Transaction Damages would require Court approval if and when Visteon determines to pursue
an Alternate Transaction, and so Visteon is not presently bound to pay any such costs. Indeed,
Visteon believes that Alternate Transaction Damages would only realistically be incurred if Visteon
were to be presented with a higher and better offer than the offer currently on the tablewhich
seems highly unlikely considering the abundant opportunity for such a deal to have already
materialized in these cases. However, if such a transaction were to be presented to Visteon, then,
consistent with its fiduciary duties, Visteon would pursue the
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10 |
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See, e.g., Cooper-Standard
(approving expense reimbursement); Landsource(same); In re Bally
Total Fitness of Greater NY Inc., No. 07-12395 (Bankr. S.D.N.Y. Aug. 21,
2007) (approving expense reimbursement capped at $5.0 million subject to
certain conditions in a $90 million rights offering); Delphi Corp.
(approving expense reimbursement capped at $5.0 million subject to certain
conditions). |
14
superior offer and seek approval of the Alternate Transaction Damages to compensate the
Investors for acting as a stalking horse.11
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2. |
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Entry Into the Cash Recovery Backstop Agreement is Within the Sound Business
Judgment of the Debtors |
26. Under the Cash Recovery Backstop Agreement, the Signatories will be severally and not
jointly liable to fund the cash amounts provided to Non-Eligible Holders in exchange for Visteon
allowing the Signatories to purchase the shares such holders would have been able to purchase, had
they been Eligible Holders. Thus, providing such recovery to the Non-Eligible Holders will not
impact the Debtors cash reserves. If the Signatories do not fund the cash recovery, such failure
will allow the Debtors to terminate the Equity Commitment Agreement and the parties shall remain
bound by the terms of the Plan Support Agreement to support the Claims Conversion Sub Plan.
Further, the indemnification of the Signatories under the Cash Recovery Backstop Agreement is
appropriate in Visteons business judgment as such indemnification was required to obtain the
Signatories consent to the agreement.
27. In sum, the Plan, the Plan Support Agreement, the Equity Commitment Agreement, and the
Cash Recovery Backstop Agreement were each heavily negotiated amongst Visteon and its bondholder
constituents. Moreover, Visteons support of and entry into these documents reflects Visteons
comprehensive due diligence, operating, and financing needs as well as these cases confirmation
dynamics. Accordingly, Visteon has determined in its business judgment that the relief requested
herein is in the best interests of its estates and its creditors.
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11 |
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The Plan Support Agreement provides for a fiduciary
out to allow Visteon to enter into a transaction superior to that represented
by the Plan. |
15
B. |
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The Plan Support Agreement Complies with Section 1125 of the Bankruptcy Code |
28. Visteon submits that the Plan Support Agreement complies with the requirements of section
1125 of the Bankruptcy Code.12 Section 1125(b) provides that [a]n acceptance or
rejection of a plan may not be solicited after the commencement of the case under this title . . .
unless, at the time of or before such solicitation, there is transmitted . . . a written disclosure
statement approved, after notice and a hearing, by the court as containing adequate information.
11 U.S.C. § 1125(b).
29. Courts considering both prepetition and postpetition plan support agreements have held
that such agreements are not solicitations if they permit a party to the agreement to later vote
to reject a plan if there are any material deviations from the representations made at the time of
signing the plan support agreement. See In re Intermet Corp., No. 08-11859 (Bankr.
D. Del. June 4, 2009) (approving a postpetition plan support agreement pursuant to which creditor
agreed to vote in favor of plan provided there were no material modifications to the agreed upon
plan); In re Owens Corning, No. 00-03837 (Bankr. D. Del. June 29, 2006) (same); In re
Heritage Organization, L.L.C., 376 B.R. 783, 789-95 (Bankr. N.D. Tex. 2007) (finding that an
agreement to vote for a plan in a term sheet did not constitute a solicitation for an official
vote); In re Kellogg Square Pship, 160 B.R. 336 (Bankr. D. Minn. 1993) (holding that
secured creditors agreement to vote for plan prior to approval of disclosure statement did not
violate statutory restrictions on solicitation); Trans World Airlines, Inc. v. Texaco, Inc.
(In re Texaco, Inc.), 81 B.R. 813 (Bankr. S.D.N.Y. 1988) (holding that parties agreement
to use best efforts to obtain
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12 |
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The Plan Support Agreement is binding and effective
with respect to the Consenting Senior Note Holders, who have executed it, while
the Debtors obligations under the Plan Support Agreement are subject to the
Courts entry of an order approving the agreement. |
16
confirmation of chapter 11 plan did not violate statutory restrictions on solicitation of
votes for the plan).
30. Under the terms of the Plan Support Agreement, the support of the Consenting Senior Note
Holders is conditioned upon the Court approved disclosure statement being in substantially the form
attached to the Plan Support Agreement.13 See Plan Support Agreement § 2.1(a)(3).
Thus, the votes of the Consenting Senior Note Holders will not be secured unless and until a Court
approved disclosure statement is transmitted to the parties, in compliance with section 1125 of the
Bankruptcy Code.
31. Section 7.1(e) of the Plan Support Agreement also contains a number of termination events,
tied to the Equity Commitment Agreement, that trigger automatic termination of the Plan Support
Agreement if the Investors, or the Debtors, breach certain terms of the Equity Commitment
Agreement. For example, section 7.1(e)(2) provides for automatic termination of the Plan Support
Agreement if the Debtors were to breach their representations and warranties under the Equity
Commitment Agreement to the level of a material adverse effect or fail to comply with the covenants
of the Equity Commitment Agreement in a material respect and the Investors have exercised their
right to terminate the Equity Commitment Agreement. Further, to the extent that the Plan is
amended to treat an individual Consenting Senior Note Holder in a materially adverse manner, such
Consenting Senior Note Holder will be free to withdraw from the Plan Support Agreement and vote to
reject the Plan on an individual basis.
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13 |
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Although bankruptcy courts have generally rejected
a broad reading of solicitation, see, e.g., Century Glove, Inc.
v. First Am. Bank of NY, 860 F.2d 94, 101 (3d Cir. 1988) (solicitation
must be read narrowly), the Debtors recognize there is case law in this
district that stands for the proposition that postpetition plan support
agreements with specific enforcement provisions violate section 1125(b) by
improperly binding parties to a single reorganization structure. See
In re Stations Holding Co., No. 02-10882, 2002 WL 31947022 (Bankr. D.
Del. Sept. 30, 2002); In re NII Holdings, Inc., 288 B.R. 356 (Bankr. D.
Del. 2002). |
17
Lastly, the Debtors may terminate their obligations under the Plan Support Agreement if their
continued support of the Plan is not in the best interests of their estates or if the Debtors
receive a proposal for an alternative plan, and reasonably determine that their continued support
of the Plan would be inconsistent with their fiduciary obligations.
32. Given such flexibility, Visteon does not believe that entry into the Plan Support
Agreement constitutes solicitation of the Consenting Senior Note Holders votes. Accordingly,
Visteon submits that entering into the Plan Support Agreement does not violate section 1125(b) of
the Bankruptcy Code.
33. Finally, the parties have agreed that, in the interest of caution, the automatic stay set
forth in section 362 of the Bankruptcy Code, to the extent applicable, should be lifted to permit
the delivery of notice and termination of the agreements pursuant to their terms.
Notice
14
34. Notice of this Motion has been given to the following parties or, in lieu thereof, to
their counsel, if known: (a) the Office of the United States Trustee; (b) counsel to the ad
hoc group of lenders for the Debtors senior secured term loan facility; (c) counsel for
the administrative agent for the Debtors senior secured term loan facility; (d) counsel for the
administrative agent for the Debtors revolving senior secured credit facility (e) counsel for the
agent under the Debtors debtor-in-possession financing facility; (f) the indenture trustee for
each of the Debtors outstanding unsecured bond issuances; (g) counsel for the Investors; (h)
counsel for the Consenting Senior Note Holders; (i) counsel for the Signatories; (j) the official
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14 |
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The Debtors have also filed Motion to Shorten
Notice and Objection Periods for Debtors Motion for an Order Authorizing the
Debtors to Enter Into: (a) a Plan Support Agreement; (b) an Equity Commitment
Agreement and to pay Certain Fees in Connection Therewith; and (c) a Cash
Recovery Backstop Agreement contemporaneously herewith. |
18
committee of unsecured creditors; and (k) those persons who have requested notice pursuant to
Bankruptcy Rule 2002. The Debtors submit that, in light of the nature of the relief requested, no
other or further notice need be given.
Waiver of Bankruptcy Rule 6004(h)
35. Bankruptcy Rule 6004(h) provides that an order authorizing the use, sale, or lease of
property...is stayed until the expiration of 14 days after entry of the order, unless the court
orders otherwise. Fed. R. Bankr. P. 6004(h). However, a court may waive this stay period if a
sufficient business reason exists to do so. See e.g., In re Boscovs, Inc., No.
08-11637, 2008 WL 4975882, at *2 (Bankr. D. Del. Nov. 21, 2008) (court may reduce or waive the stay
period to accommodate a sufficient business need).
No Prior Request
36. No prior motion for the relief requested herein has been made to this or any other court.
19
WHEREFORE, for the reasons set forth herein, the Debtors respectfully request that the Court
enter the Order, substantially in the form attached hereto as Exhibit A.
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Dated: |
PACHULSKI STANG ZIEHL & JONES LLP
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Laura Davis Jones (DE Bar No. 2436)
James E. ONeill (DE Bar No. 4042)
Mark M. Billion (DE Bar No. 5263)
919 North Market Street, 17th Floor
Wilmington, Delaware 19899-8705
Telephone: (302) 652-4100
Facsimile: (302) 652-4400
E-mail: ljones@pszjlaw.com
joneill@pszjlaw.com
mbillion@pszjlaw.com
and
KIRKLAND & ELLIS LLP
James H. M. Sprayregen, P.C. (IL 6190206)
Marc Kieselstein, P.C. (IL 6199255)
James J. Mazza, Jr. (IL 6275474)
300 North LaSalle
Chicago, Illinois 60654
Telephone: (312) 862-2000
Facsimile: (312) 862-2200
E-mail: james.sprayregen@kirkland.com
marc.kieselstein@kirkland.com
james.mazza@kirkland.com
Attorneys for the Debtors and Debtors in Possession
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20
EXHIBIT B
[Filed
as Exhibit 99.2 to the Current Report on Form 8-K of Visteon
Corporation dated as of May 12, 2010.]
EXHIBIT C
[Filed
as Exhibit 99.1 to the Current Report on Form 8-K of Visteon
Corporation dated as of May 12, 2010.]
EXHIBIT D
SECOND AMENDED AND RESTATED
BYLAWS
of
VISTEON CORPORATION
A Delaware Corporation
TABLE OF CONTENTS
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Page |
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ARTICLE I OFFICES |
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1 |
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Section 1.
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Registered Office
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1 |
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Section 2.
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Other Offices
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1 |
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ARTICLE II MEETINGS OF STOCKHOLDERS |
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1 |
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Section 1.
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Place of Meetings
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1 |
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Section 2.
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Annual Meetings
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1 |
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Section 3.
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Special Meetings
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2 |
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Section 4.
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Notice of Meetings; Postponement or Cancellation
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3 |
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Section 5.
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Conduct of Meetings
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5 |
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Section 6.
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Quorum
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5 |
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Section 7.
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Proxies
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6 |
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Section 8.
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Voting
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7 |
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Section 9.
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Nature of Business at Meetings of Stockholders
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8 |
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Section 10.
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List of Stockholders Entitled to Vote
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13 |
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Section 11.
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Stock Ledger
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13 |
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Section 12.
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Record Date
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13 |
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Section 13.
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Inspectors of Election
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14 |
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ARTICLE III DIRECTORS |
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15 |
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Section 1.
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Number and Election of Directors
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15 |
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Section 2.
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Nomination of Directors
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15 |
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Section 3.
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Vacancies
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19 |
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Section 4.
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Duties and Powers
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20 |
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Section 5.
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Organization
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20 |
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Section 6.
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Resignations and Removals of Directors
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20 |
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Section 7.
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Meetings
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21 |
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Section 8.
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Quorum
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22 |
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Section 9.
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Actions of Board
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22 |
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Section 10.
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Meetings by Means of Conference Telephone
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22 |
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Section 11.
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Committees
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23 |
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Section 12.
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Compensation
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23 |
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Section 13.
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Interested Directors
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23 |
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ARTICLE IV OFFICERS |
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24 |
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Section 1.
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General
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24 |
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Section 2.
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Election
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25 |
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Section 3.
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Voting Securities Owned by the Corporation
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25 |
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Section 4.
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Chairman of the Board of Directors
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25 |
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Section 5.
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President
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26 |
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Section 6.
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Vice Presidents
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26 |
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Section 7.
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Secretary
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27 |
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Section 8.
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Treasurer
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28 |
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Section 9.
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Assistant Secretaries
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28 |
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Section 10.
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Assistant Treasurers
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28 |
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Section 11.
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Other Officers
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29 |
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ARTICLE V STOCK |
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29 |
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Section 1.
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Uncertificated Stock; Form of Certificates
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29 |
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Section 2.
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Signatures
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30 |
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Section 3.
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Lost, Destroyed, Stolen or Mutilated Certificates
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30 |
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Section 4.
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Transfers
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30 |
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Section 5.
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Transfer and Registry Agents
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31 |
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Section 6.
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Beneficial Owners
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31 |
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ARTICLE VI NOTICES |
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32 |
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Section 1.
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Notices
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32 |
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Section 2.
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Waivers of Notice
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32 |
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ARTICLE VII GENERAL PROVISIONS |
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33 |
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Section 1.
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Dividends
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33 |
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Section 2.
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Disbursements
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34 |
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Section 3.
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Fiscal Year
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34 |
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Section 4.
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Corporate Seal
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34 |
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Section 5.
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Form of Records
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34 |
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ARTICLE VIII INDEMNIFICATION |
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34 |
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Section 1.
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Power to Indemnify in Actions, Suits or Proceedings
Other than Those by or in the Right of the Corporation
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34 |
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Section 2.
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Power to Indemnify in Actions, Suits or Proceedings by
or in the Right of the Corporation
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36 |
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Section 3.
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Authorization of Indemnification
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37 |
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Section 4.
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Good Faith Defined
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37 |
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Section 5.
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Indemnification by a Court
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38 |
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Section 6.
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Expenses Payable in Advance
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39 |
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Section 7.
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Nonexclusivity of Indemnification and Advancement of
Expenses
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39 |
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Section 8.
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Insurance
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39 |
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Section 9.
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Certain Definitions
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40 |
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Section 10.
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Survival of Indemnification and Advancement of
Expenses
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40 |
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Section 11.
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Limitation on Indemnification
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41 |
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Section 12.
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Indemnification of Agents
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41 |
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ARTICLE IX AMENDMENTS |
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41 |
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Section 1.
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Amendments
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41 |
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Section 2.
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Entire Board of Directors
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42 |
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ii
SECOND AMENDED AND RESTATED
BYLAWS
OF
VISTEON CORPORATION
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, either within or
without the State of Delaware, or solely by means of remote communication, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meetings of stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which meetings the stockholders shall elect directors,
and
1
transact such other business as may properly be brought before the meeting. Written notice of
the annual meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
Section 3. Special Meetings. (a) Unless otherwise prescribed by law or by
the certificate of incorporation of the Corporation, as amended and restated from time to time (the
Certificate of Incorporation), special meetings of stockholders, for any purpose or purposes, may
be called only (i) by the Chairman of the Board of Directors, (ii) by the President, (iii) by the
Board of Directors, pursuant to a resolution approved by the Board of Directors, or (iv) by the
Secretary of the Corporation, following his or her receipt of one or more written demands to call a
special meeting of the stockholders in accordance with, and subject to, this Section 3 from
stockholders of record who hold, in the aggregate, at least twenty (20) percent of the voting power
of all shares of capital stock of the Corporation entitled generally to vote on the election of
directors (without reference to any terms of any preferred stock providing for special voting
rights or restrictions with respect to particular matters) then outstanding (the Voting Stock).
Any stockholder seeking to call a special meeting of stockholders shall comply with the notice,
administrative and other requirements of Section 9 of Article II in addition to the other
requirements set forth in this Article II. The provisions set forth in this Section 3 may not be
repealed or amended in any respect or in any manner, including by any merger or consolidation of
the Corporation with any other corporation (other than a Non-Affiliated Transaction), unless the
surviving corporations certificate of incorporation or bylaws contains a provision to the same
effect as this Section 3, except by the affirmative vote of the holders of a majority of the Voting
Stock, subject to the terms of any series of preferred stock that may at the time be outstanding.
For the purpose of these Second Amended and
2
Restated Bylaws, a Non-Affiliated Transaction shall mean a merger or consolidation with a
person or entity that is not an Affiliate (as such term is defined in Section 12b-2 of the
Securities and Exchange Act of 1934, as amended) of the Corporation and which results in either (i)
the Voting Stock of the Corporation outstanding immediately prior thereto representing immediately
thereafter (either by remaining outstanding or by being converted into voting securities of the
surviving or acquiring entity) less than a majority of the combined voting power of the Voting
Stock of the Corporation or such surviving, acquiring or resulting entity outstanding immediately
after such transaction or (ii) a majority of the Corporations directors ceasing to be directors of
the surviving, acquiring or resulting entity after the completion of such transaction.
Section 4. Notice of Meetings; Postponement or Cancellation. Written notice of a
meeting of stockholders, stating the place, if any, day and hour of the meeting, the means of
remote communications, if any, by which stockholders and proxy holders may be deemed to be present
in person and vote at such meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called, shall be given, either personally or by mail, by the Corporation
not less than ten (10) calendar days nor more than sixty (60) calendar days before the date of the
meeting to each stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be given when deposited in the United States mail with postage thereon prepaid,
addressed to the stockholder at such persons address as it appears on the stock transfer books of
the Corporation. Without limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the Corporation under applicable law, the
Certificate of Incorporation or these Second Amended and Restated By-Laws shall be effective if
given by a form of electronic transmission if consented to by the stockholder to whom the notice is
given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such
3
consent shall be deemed to be revoked if (a) the Corporation is
unable to deliver by electronic transmission two (2) consecutive notices by the Corporation in
accordance with such consent and (b) such inability becomes known to the Secretary or Assistant
Secretary of the Corporation or to the transfer agent, or other person responsible for the giving
of notice; provided, however, that the inadvertent failure to treat such inability
as a revocation shall not invalidate any meeting or other action. Notice given by electronic
transmission, as described above, shall be deemed given: (i) if by facsimile telecommunication,
when directed to a number at which the stockholder has consented to receive notice; (ii) if by
electronic mail, when directed to an electronic mail address at which the stockholder has consented
to receive notice; (iii) if by a posting on an electronic network, together with separate notice to
the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of
such separate notice; and (iv) if by any other form of electronic transmission, when directed to
the stockholder. Only such business shall be conducted at a special meeting of stockholders of
which notice (or any supplement thereto) shall have been given in accordance herewith. Any proper
matter for stockholder action may be brought before any meeting of stockholders. Meetings may be
held without notice if all stockholders entitled to vote are present, or if notice is waived in
accordance with Section 2 of Article VI by those not present or not provided notice. Any meeting
of the stockholders of the Corporation, other than a special meeting called at the request of
holders of shares of the Corporation in accordance with Section 3 of this Article II, may be
postponed or cancelled by resolution of the Board of Directors upon public notice given prior to
the date previously scheduled for such meeting of stockholders. A meeting of the stockholders
called at the request of holders of shares in the Corporation in accordance with Section 3, may not
be postponed or cancelled, except with the written consent of the holders of shares requesting such
meeting.
4
Section 5. Conduct of Meetings. The Board of Directors may adopt by resolution
such rules and regulations for the conduct of any meeting of the stockholders as it shall deem
appropriate, which rules and regulations shall not be inconsistent with the Certificate of
Incorporation or these Second Amended and Restated By-Laws. Except to the extent inconsistent with
such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of the
stockholders shall have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the chairman of the meeting, may include, without limitation, the
following: (a) the establishment of an agenda or order of business for the meeting; (b) the
determination of when the polls shall open and close for any given matter to be voted on at the
meeting; (c) rules and procedures for maintaining order at the meeting and the safety of those
present; (d) limitations on attendance at or participation in the meeting to stockholders of record
of the Corporation, their duly authorized and constituted proxies or such other persons as the
chairman of the meeting shall determine; (e) restrictions on entry to the meeting after the time
fixed for the commencement thereof; and (f) limitations on the time allotted to questions or
comments by participants. If the Chairman of the Board of Directors (or, in his absence, the
President) is unable to attend any meeting of stockholders (or if there be no Chairman of the Board
of Directors (or, in his absence, the President)), the stockholders of the Corporation present in
person or by proxy at such meeting shall appoint a chairman for such meeting.
Section 6. Quorum. Except as otherwise required by law or by the Certificate
of Incorporation, the holders of a majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of
5
the stockholders for the transaction of business. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder entitled to vote at the meeting not less than ten (10) nor more
than sixty (60) days before the date of the meeting.
Section 7. Proxies. Any stockholder entitled to vote may do so in person or
by his or her proxy appointed by an instrument in writing subscribed by such stockholder or by his
or her attorney thereunto authorized, delivered to the Secretary of the meeting; provided, however,
that no proxy shall be voted or acted upon after three years from its date, unless said proxy
provides for a longer period. Without limiting the manner in which a stockholder may authorize
another person or persons to act for him or her as proxy, either of the following shall constitute
a valid means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another person or persons to act
for him or her as proxy. Execution may be accomplished by the stockholder or his or her
authorized officer, director, employee or agent signing such writing or causing his or her
signature to be affixed to such writing by any reasonable means, including, but not limited
to, by facsimile signature.
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(ii) A stockholder may authorize another person or persons to act for him or her as
proxy by transmitting or authorizing the transmission of a telegram or other means of
electronic transmission to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly authorized by the
person who will be the holder of the proxy to receive such transmission, provided that any
such telegram or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the telegram or other
electronic transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission
authorizing another person or persons to act as proxy for a stockholder may be substituted or used
in lieu of the original writing or transmission for any and all purposes for which the original
writing or transmission could be used; provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire original writing or transmission.
Section 8. Voting.
(a) At all meetings of the stockholders at which a quorum is present, except as otherwise
required by law, the Certificate of Incorporation or these Second Amended and Restated Bylaws, any
other question brought before any meeting of stockholders (except with respect to the vote for the
election of directors which shall be governed by Section 1 of Article III) shall be decided by the
affirmative vote of the holders of a majority of the total number of votes of the capital stock
present in person or represented by proxy and entitled to vote on such question, voting as a single
class.
7
(b) The Board of Directors, in its discretion, or the chairman of the meeting of stockholders,
in his or her discretion, may require that any votes cast at such meeting shall be cast by written
ballot, which may be deemed satisfied by a ballot submitted by electronic transmission.
Section 9. Nature of Business at Meetings of Stockholders. (a) At any meeting
of the stockholders, only such business shall be conducted as shall have been properly brought
before the meeting. To be properly brought before a meeting, business must be (i) brought before
the meeting by the Corporation and specified in the notice of meeting given by or at the direction
of the Board of Directors, (ii) brought before the meeting by or at the direction of the Board of
Directors, or (iii) otherwise properly brought before the meeting by a stockholder who (A) was a
stockholder of record (and, with respect to any beneficial owner, if different, on whose behalf
such business is proposed, only if such beneficial owner was the beneficial owner of shares of the
Corporation) both at the time of giving the notice provided for in this Section 9 and at the time
of the meeting, (B) is entitled to vote at the meeting, and (C) has complied with this Section 9 as
to such business. Except for proposals properly made in accordance with Rule 14a-8 under the
Exchange Act, and included in the notice of meeting given by or at the direction of the Board of
Directors, the foregoing clause (iii) shall be the exclusive means for a stockholder to propose
business to be brought before any meeting of the stockholders. Stockholders seeking to nominate
persons for election to the Board must comply with Section 2 of Article III and this Section 9
shall not be applicable to nominations except as expressly provided in Section 2 of Article III.
(b) Without qualification, for business to be properly brought before an annual meeting by a
stockholder, the stockholder must (i) provide Timely Notice (as defined below) thereof in writing
and in proper form to the Secretary of the Corporation, and (ii) provide any updates or supplements
to such notice at the times and in the forms required by this Section 9. To be timely, a
8
stockholders notice must be delivered to, or mailed and received at, the principal executive
offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120)
days prior to the one-year anniversary of the preceding years annual meeting; provided,
however, that if the date of the annual meeting is more than thirty (30) days before or
more than thirty (30) days after such anniversary date, notice by the stockholder to be timely must
be so delivered, or mailed and received, not later than the ninetieth (90th) day prior
to such meeting or, if later, the tenth (10th) day following the day on which public
disclosure of the date of such meeting was first made (such notice within such time periods,
Timely Notice). Notwithstanding the preceding sentence, for purposes of determining whether a
stockholders notice is Timely Noticed, for the annual meeting of stockholders in 2011, the
stockholders notice must have been received no later than March 1, 2011. Subject to the
information requirements of this Section 9, any special meeting called by stockholders pursuant to
Section 3 shall be preceded by a notice of such stockholders to the Secretary, which shall be
delivered to, or mailed and received at, the principal executive offices of the Corporation not
less than ninety (90) days or more than one hundred twenty (120) days prior to the date specified
in such notice for such special meeting. The date for such stockholder-called special meeting
shall be as specified in such notice and the location shall be as determined by the Board of
Directors. In no event shall any adjournment of a meeting or the announcement thereof commence a
new time period for the giving of Timely Notice as described above.
(c) To be in proper form for purposes of this Section 9, a stockholders notice to the
Secretary shall set forth:
(i) As to each Proposing Person (as defined below), (A) the name and address of such
Proposing Person (including, if applicable, the name and address that appear on the
Corporations books and records); and (B) the class or series and number of shares of
9
the Corporation that are, directly or indirectly, owned of record or beneficially owned
(within the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Persons (the
disclosures to be made pursuant to the foregoing clauses (A) and (B) are referred to as
Stockholder Information);
(ii) As to each Proposing Person, any information relating to such Proposing Person
that would be required to be disclosed in a proxy statement or other filing required to be
made in connection with solicitations of proxies or consents by such Proposing Person in
support of the business proposed to be brought before the meeting pursuant to Section 14(a)
of the Exchange Act (the disclosures to be made pursuant to the foregoing clause are
referred to as Disclosable Interests); provided, however, that Disclosable Interests shall
not include any such disclosures with respect to the ordinary course business activities of
any broker, dealer, commercial bank, trust company or other nominee who is a Proposing
Person solely as a result of being the stockholder directed to prepare and submit the notice
required by these Second Amended and Restated Bylaws on behalf of a beneficial owner;
(iii) As to each item of business that the stockholder proposes to bring before the
meeting, (A) a reasonably brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and any material interest
in such business of each Proposing Person, (B) the text of the proposal or business
(including the text of any resolutions proposed for consideration), and (C) a reasonably
detailed description of all agreements, arrangements and understandings (x) between or among
any of the Proposing Persons or (y) between or among any Proposing Person and any
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other person or entity (including their names) in connection with the proposal of such
business by such stockholder; and
(iv) As to each Proposing Person, a representation that such Proposing Person intends
to appear in person or by proxy at the meeting to bring such business before the meeting.
For purposes of this Section 9, the term Proposing Person shall mean (i) the stockholder
providing the notice of business proposed to be brought before a meeting and (ii) the beneficial
owner or beneficial owners, if different, on whose behalf the notice of the business proposed to be
brought before the meeting is made.
(d) A stockholder providing notice of business proposed to be brought before a meeting shall
further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 9 shall be true and correct as of
the record date for the meeting and as of the date that is ten (10) business days prior to the
meeting or any adjournment or postponement thereof, and such update and supplement shall be
delivered to, or mailed and received by, the Secretary at the principal executive offices of the
Corporation not later than five (5) business days after the record date for the meeting (in the
case of the update and supplement required to be made as of the record date), and not later than
eight (8) business days prior to the date for the meeting, if practicable (or, if not practicable,
on the first practicable date prior to) any adjournment or postponement thereof (in the case of the
update and supplement required to be made as of ten (10) business days prior to the meeting or any
adjournment or postponement thereof).
(e) Notwithstanding anything in these Second Amended and Restated Bylaws to the contrary, no
business shall be conducted at any meeting except in accordance with this Section 9;
11
provided, however, that once business has been properly brought before a meeting, nothing in
this Section 9 shall be deemed to preclude discussion by any stockholder of such business. The
chairman of the meeting shall, if the facts warrant, determine that the business was not properly
brought before the meeting in accordance with this Section 9, and if he or she should so determine,
he or she shall so declare to the meeting and any such business not properly brought before the
meeting shall not be transacted; provided, that any stockholder proposing to bring any such
business before any such meeting is informed of any deficiency in such procedures as soon as
practicable and given a reasonably opportunity to cure any such deficiency.
(f) This Section 9 is expressly intended to apply to any business proposed to be brought
before any meeting of stockholders other than any proposal made pursuant to Rule 14a-8 under the
Exchange Act. In addition to the requirements of this Section 9 with respect to any business
proposed to be brought before a meeting, each Proposing Person shall comply with all applicable
requirements of the Exchange Act with respect to any such business. Nothing in this Section 9
shall be deemed to affect the rights of stockholders to request inclusion of proposals in the
Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(g) For purposes of these Second Amended and Restated Bylaws, public disclosure shall mean
disclosure in a press release reported by a national news service or in a document publicly filed
by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d)
of the Exchange Act.
(h) The provisions set forth in this Section 9 may not be repealed or amended in any respect
or in any manner, including by any merger or consolidation of the Corporation with any other
corporation (other than a Non-Affiliated Transaction), unless the surviving corporations
certificate of incorporation or bylaws contains a provision to the same effect as this Section 9,
except
12
by the affirmative vote of the holders of a majority of the Voting Stock, subject to the terms
of any series of preferred stock that may at the time be outstanding.
Section 10. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting, for a period of at
least ten (10) days prior to the meeting: (a) on a reasonably accessible electronic network,
provided that the information required to gain access to such list is provided with the notice of
meeting. The list shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder of the Corporation who is present.
Section 11. Stock Ledger. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 9 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders
Section 12. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors and which record date: (1) in the case of determination of
stockholders
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entitled to vote at any meeting of stockholders or adjournment thereof, shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting; and (2) in the case of any
other action, shall not be more than sixty (60) days prior to such other action. If no record date
is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held; and (2) the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 13. Inspectors of Election. In advance of any meeting of
stockholders, the Board by resolution or the Chairman or President shall appoint one or more
inspectors of election to act at the meeting and make a written report thereof. One or more other
persons may be designated as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is present, ready and willing to act at a meeting of stockholders, the
Chairman of the meeting shall appoint one or more inspectors to act at the meeting. Unless
otherwise required by law, inspectors may be officers, employees or agents of the Corporation.
Each inspector, before entering upon the discharge of his or her duties, shall take and sign an
oath faithfully to execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspector shall have the duties prescribed by law and shall take
charge of the polls and, when the vote is completed, shall make a certificate of the result of the
vote taken and of such other facts as may be required by law.
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ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. (a) The Board of Directors shall
consist of not less than three (3) nor more than fifteen (15) members, the exact number of which
shall be determined from time to time by resolution adopted by the Board of Directors; provided,
however, that the number of directors initially shall be nine (9) and shall consist of the nine (9)
individuals (such individuals comprising the Initial Board) identified in the Joint Plan of
Reorganization of the Corporation filed on [DATE] in the United States Bankruptcy Court for the
District of Delaware (as may be amended, supplemented or otherwise modified from time to time, the
Plan). Except as provided in Section 3 of this Article III, directors shall be elected by the
stockholders at the annual meeting of stockholders or at a special meeting of stockholders called
for such purpose. A plurality of the votes cast in favor of a nominee at any such meeting shall be
required for, and sufficient to, elect a director. Directors need not be stockholders.
(b) Each director on the Initial Board (and any directors elected to fill vacancies or newly
created directorships following the effective date of the Plan and prior to the annual meeting of
stockholders of the Corporation to be held in 2011) shall serve until the annual meeting of
stockholders of the Corporation to be held in 2011 (which shall be held not later than June 30,
2011), subject to such directors earlier death, resignation or removal. At each annual meeting of
stockholders thereafter, all directors shall be elected for terms expiring at the next annual
meeting of stockholders and until such directors successors shall have been elected and qualified.
Section 2. Nomination of Directors. (a) Nominations of any person for
election to the Board of Directors at an annual meeting or at a special meeting (but only if the
election of directors is a matter specified in the notice of meeting given by or at the direction
of the
15
person calling such special meeting) may be made at such meeting only (i) by or at the
direction of the Board of Directors, including by any committee or persons appointed by the Board
of Directors, or (ii) by a stockholder who (A) was a stockholder of record (and, with respect to
any beneficial owner, if different, on whose behalf such nomination is proposed to be made, only if
such beneficial owner was the beneficial owner of shares of the Corporation) both at the time of
giving the notice provided for in this Section 2 and at the time of the meeting, (B) is entitled to
vote at the meeting, and (C) has complied with this Section 2 as to such nomination. The foregoing
clause (ii) shall be the exclusive means for a stockholder to make any nomination of a person or
persons for election to the Board of Directors at an annual meeting or special meeting.
(b) Without qualification, if the election of directors is a matter specified in the notice of
meeting given by or at the direction of the person calling such meeting, then for a stockholder to
make any nomination of a person or persons for election to the Board of Directors at a meeting, the
stockholder must (i) provide timely notice thereof in writing and in proper form to the Secretary
of the Corporation at the principal executive offices of the Corporation, and (ii) provide any
updates or supplements to such notice at the times and in the forms required by this Section 2. To
be timely, a stockholders notice for nominations to be made at a meeting must be delivered to, or
mailed and received at, the principal executive offices of the Corporation not earlier than the one
hundred twentieth (120th) day prior to such meeting and not later than the ninetieth
(90th) day prior to such meeting or, if later, the tenth (10th) day following
the day on which public disclosure (as defined in Section 9 of Article II) of the date of such
meeting was first made. In no event shall any adjournment of a meeting or the announcement thereof
commence a new time period for the giving of a stockholders notice as described above.
16
(c) To be in proper form for purposes of this Section 2, a stockholders notice to the
Secretary shall set forth the following:
(i) As to each Nominating Person (as defined below), the Stockholder Information (as
defined in Section 9(c)(i) of Article II, except that for purposes of this Section 2 the
term Nominating Person shall be substituted for the term Proposing Person in all places
it appears in Section 9(c)(i) of Article II);
(ii) As to each Nominating Person, any Disclosable Interests (as defined in Section
9(c)(ii) of Article II, except that for purposes of this Section 2 the term
Nominating Person shall be substituted for the term Proposing Person in all
places it appears in Section 9(c)(ii) of Article II ); and
(iii) As to each person whom a Nominating Person proposes to nominate for election as a
director, (A) all information with respect to such proposed nominee that would be required
to be set forth in a stockholders notice pursuant to this Section 2 if such proposed
nominee were a Nominating Person, (B) all information relating to such proposed nominee that
is required to be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors in a contested election
pursuant to Section 14(a) under the Exchange Act (including such proposed nominees written
consent to being named in the proxy statement as a nominee and to serving as a director if
elected) and (C) a description of all direct and indirect compensation and other material
monetary agreements, arrangements and understandings during the past three years, and any
other material relationships, between or among any Nominating Person, on the one hand, and
each proposed nominee, his or her respective affiliates and associates, on the other hand,
including, without limitation, all information that would be required to be
17
disclosed pursuant to Item 404 under Regulation S-K if such Nominating Person were the
registrant for purposes of such rule and the proposed nominee were a director or executive
officer of such registrant.
For purposes of this Section 2, the term Nominating Person shall mean (i) the stockholder
providing the notice of the nomination proposed to be made at the meeting and (ii) the beneficial
owner or beneficial owners, if different, on whose behalf the notice of the nomination proposed to
be made at the meeting is made.
(d) A stockholder providing notice of any nomination proposed to be made at a meeting shall
further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 2 shall be true and correct as of
the record date for the meeting and as of the date that is ten (10) business days prior to the
meeting or any adjournment or postponement thereof, and such update and supplement shall be
delivered to, or mailed and received by, the Secretary at the principal executive offices of the
Corporation not later than five (5) business days after the record date for the meeting (in the
case of the update and supplement required to be made as of the record date), and not later than
eight (8) business days prior to the date for the meeting, if practicable (or, if not practicable,
on the first practicable date prior to) any adjournment or postponement thereof (in the case of the
update and supplement required to be made as often (10) business days prior to the meeting or any
adjournment or postponement thereof).
(e) Notwithstanding anything in these Second Amended and Restated Bylaws to the contrary, no
person shall be eligible for election as a director of the Corporation unless nominated in
accordance with this Section 2. The chairman of the meeting shall, if the facts warrant, determine
that a nomination was not properly made in accordance with this Section 2, and if he or
18
she should so determine, he or she shall so declare such determination to the meeting and the
defective nomination shall be disregarded; provided, that any Nominating Person is informed of any
deficiency in such nomination procedures as soon as practicable and given a reasonably opportunity
to cure any such deficiency.
(f) To be eligible to be a nominee for election as a director of the Corporation, the proposed
nominee must deliver (in accordance with the time periods prescribed for delivery of notice under
this Section 2) to the Secretary at the principal executive offices of the Corporation a written
consent to being named as a nominee and to serve as a director if elected.
(g) In addition to the requirements of this Section 2 with respect to any nomination proposed
to be made at a meeting, each Nominating Person shall comply with all applicable requirements of
the Exchange Act with respect to any such nominations.
(h) The provisions set forth in this Section 2 may not be repealed or amended in any respect
or in any manner, including by any merger or consolidation of the Corporation with any other
corporation (other than a Non-Affiliated Transaction), unless the surviving corporations
certificate of incorporation or bylaws contains a provision to the same effect as this Section 2,
except by the affirmative vote of the holders of a majority of the Voting Stock, subject to the
terms of any series of preferred stock that may at the time be outstanding.
Section 3. Vacancies. Subject to the terms of any one or more classes or
series of preferred stock, any vacancy on the Board of Directors that results from an increase in
the number of directors may be filled by a majority of the directors then in office, provided that
a quorum is present, and any other vacancy occurring on the Board of Directors that is not filled
by stockholders in accordance with Section 6 of this Article III may be filled by a majority of the
Board of Directors then in office, even if less than a quorum, or by a sole remaining director.
19
Notwithstanding the foregoing, whenever the holders of any one or more class or classes or
series of preferred stock of the Corporation shall have the right, voting separately as a class, to
elect directors at an annual or special meeting of stockholders, the election, term of office,
removal, filling of vacancies and other features of such directorships shall be governed by the
Certificate of Incorporation.
Section 4. Duties and Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Second Amended and Restated Bylaws required to be exercised or done by
the stockholders.
Section 5. Organization. At each meeting of the Board of Directors, the
Chairman of the Board of Directors, or, in his or her absence, a director chosen by a majority of
the directors present, shall act as Chairman. The Secretary of the Corporation shall act as
Secretary at each meeting of the Board of Directors. In case the Secretary shall be absent from
any meeting of the Board of Directors, an Assistant Secretary shall perform the duties of Secretary
at such meeting; and in the absence from any such meeting of the Secretary and all the Assistant
Secretaries, the Chairman of the meeting may appoint any person to act as Secretary of the meeting.
Section 6. Resignations and Removals of Directors. Any director of the
Corporation may resign at any time, by giving written notice to the Chairman of the Board of
Directors, the President or the Secretary of the Corporation. Such resignation shall take effect
at the time therein specified or, if no time is specified, immediately; and, unless otherwise
specified in such notice, the acceptance of such resignation shall not be necessary to make it
effective. Except as otherwise required by law and subject to the rights, if any, of the holders
of shares of preferred stock
20
then outstanding, any director or the entire Board of Directors may be removed from office at
any time, with or without cause. Except as otherwise prohibited by laws, the stockholders may
remove any director and fill any vacancy on the Board of Directors created by such removal;
provided, that whenever any director shall have been elected by the holders of any class or series
of stock of the Corporation voting separately as a class or series under the provisions of the
Certificate of Incorporation, such director may be removed and the vacancy filled only by the
holders of that class or series of stock. The provisions set forth in this Section 6 may not be
repealed or amended in any respect or in any manner, including by any merger or consolidation of
the Corporation with any other corporation (other than a Non-Affiliated Transaction), unless the
surviving corporations certificate of incorporation or bylaws contains a provision to the same
effect as this Section 6, except by the affirmative vote of the holders of a majority of the Voting
Stock, subject to the terms of any series of preferred stock that may at the time be outstanding.
Section 7. Meetings. The Board of Directors may hold meetings, both regular
and special, either within or without the State of Delaware. Regular meetings of the Board of
Directors may be held at such time and at such place as may from time to time be determined by the
Board of Directors and, unless required by resolution of the Board of Directors, without notice.
Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors,
the Vice Chairman, if there be one, or any three (3) directors then in office. Upon request by the
person or persons authorized to call a special meeting, the Secretary shall give any required
notice for the meeting. Notice thereof stating the place, date and hour of the meeting shall be
given to each director either by mail not less than forty-eight (48) hours before the date of the
meeting, by telephone, facsimile or any other form of electronic transmission consented to by the
director on
21
twenty-four (24) hours notice, or on such shorter notice as the person or persons calling
such meeting may deem necessary or appropriate in the circumstances.
Section 8. Quorum. Except as may be otherwise required by law, the
Certificate of Incorporation or these Second Amended and Restated Bylaws, at all meetings of the
Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting of the time and place of the
adjourned meeting, until a quorum shall be present.
Section 9. Actions of Board. Unless otherwise provided by the Certificate of
Incorporation or these Second Amended and Restated Bylaws, any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof may be taken without a
meeting, if all the members of the Board of Directors or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of proceedings of the
Board of Directors or committee.
Section 10. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Second Amended and Restated Bylaws, members
of the Board of Directors, or any committee designated by the Board of Directors, may participate
in a meeting of the Board of Directors or such committee by means of a conference telephone or
similar communications equipment by means of which all persons participating in the meeting can
hear each other, and participation in a meeting pursuant to this Section 9 shall constitute
presence in person at such meeting.
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Section 11. Committees. The Board of Directors may, by resolution passed by a
majority of the entire Board of Directors, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board of Directors may designate
one or more directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in
the place of any absent or disqualified member. Any committee, to the extent permitted by law and
provided in the resolution establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board of Directors when
required.
Section 12. Compensation. The directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance
at each meeting of the Board of Directors or a stated salary, or such other emoluments as the Board
of Directors shall from time to time determine. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation therefor. Members of
special or standing committees may be allowed like compensation for attending committee meetings.
Section 13. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable
solely for this
23
reason, or solely because the director or officer is present at or participates in the meeting
of the Board of Directors or committee thereof which authorizes the contract or transaction, or
solely because such persons or their votes are counted for such purpose if (i) the material facts
as to such persons or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to such persons or their relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee thereof or the
stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen by the
Board of Directors and shall be a President, a Secretary and a Treasurer. The Board of Directors,
in its discretion, may also choose a Chairman of the Board of Directors (who must be a director)
and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers.
Any number of offices may be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these Second Amended and Restated Bylaws. The officers of the
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Corporation need not be stockholders of the Corporation nor, except in the case of the
Chairman of the Board of Directors, need such officers be directors of the Corporation.
Section 2. Election. The Board of Directors at its meeting held on the date
of each Annual Meeting of Stockholders shall elect the officers of the Corporation who shall hold
their offices for such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of
the Corporation shall be filled by the Board of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President and any such officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any
meeting of security holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and power incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the Board of
Directors, if there be one, shall preside at all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the President is required, the Chairman of the
Board
25
of Directors shall possess the same power as the President to sign all contracts, certificates
and other instruments of the Corporation which may be authorized by the Board of Directors. During
the absence or disability of the President, the Chairman of the Board of Directors shall exercise
all the powers and discharge all the duties of the President. The Chairman of the Board of
Directors shall also perform such other duties and may exercise such other powers as from time to
time may be assigned to him or her by these Second Amended and Restated Bylaws or by the Board of
Directors.
Section 5. President. The President shall, subject to the control of the
Board of Directors and, if there be one, the Chairman of the Board of Directors, have general
supervision of the business of the Corporation and shall see that all orders and resolutions of the
Board of Directors are carried into effect. In the absence of the Chairman of the Board of
Directors, or if there be none, the President shall preside at all meetings of the stockholders.
The President shall execute all bonds, mortgages, contracts and other instruments of the
Corporation requiring a seal, under the seal of the Corporation, except where required or permitted
by law to be otherwise signed and executed and except that the other officers of the Corporation
may sign and execute documents when so authorized by these Second Amended and Restated Bylaws, the
Board of Directors or the President. In the absence or disability of the Chairman of the Board of
Directors, or if there be none, the President shall preside at all meetings of the stockholders and
the Board of Directors. The President shall also perform such other duties and may exercise such
other powers as from time to time may be assigned to him or her by these Second Amended and
Restated Bylaws or by the Board of Directors.
Section 6. Vice Presidents. At the request of the President or in his or her
absence or in the event of his or her inability or refusal to act (and if there be no Chairman of
the Board of Directors), the Vice President or the Vice Presidents if there is more than one (in
the order designated by the Board of Directors) shall perform the duties of the President, and when
so acting,
26
shall have all the powers of and be subject to all the restrictions upon the President. Each
Vice President shall perform such other duties and have such other powers as the Board of Directors
from time to time may prescribe. If there be no Chairman of the Board of Directors and no Vice
President, the Board of Directors shall designate the officer of the Corporation who, in the
absence of the President or in the event of the inability or refusal of the President to act, shall
perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or President, under whose supervision the
Secretary shall be. If the Secretary shall be unable or shall refuse to cause to be given notice
of all meetings of the stockholders and special meetings of the Board of Directors, and if there be
no Assistant Secretary, then either the Board of Directors or the President may choose another
officer to cause such notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any such Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his or her signature. The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
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Section 8. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of the office of Treasurer and for the
restoration to the Corporation, in case of the Treasurers death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of whatever kind in
the Treasurers possession or under control of the Treasurer belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise provided in
these Second Amended and Restated Bylaws, Assistant Secretaries, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by the Board of
Directors, the President, any Vice President, if there be one, or the Secretary, and in the absence
of the Secretary or in the event of his or her disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be assigned to them by the
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Board of Directors, the President, any Vice President, if there be one, or the Treasurer, and
in the absence of the Treasurer or in the event of the Treasurers disability or refusal to act,
shall perform the duties of the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an
Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance of the duties of
the office of Assistant Treasurer and for the restoration to the Corporation, in case of the
Assistant Treasurers death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in the Assistant Treasurers possession or
under control of the Assistant Treasurer belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Uncertificated Stock; Form of Certificates. Except as otherwise
provided in a resolution approved by the Board of Directors, all shares of stock of the Corporation
issued after the date hereof shall be uncertificated shares of stock. In the event the Board of
Directors elects to provide in a resolution that certificates shall be issued to represent any
shares of stock of the Corporation, every holder of stock in the Corporation shall be entitled to
have a certificate signed, in the name of the Corporation, (i) by the Chairman of the Board of
Directors, the
29
President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by
such holder of stock in the Corporation.
Section 2. Signatures. Any or all of the signatures on a certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost, Destroyed, Stolen or Mutilated Certificates. The Board of
Directors may direct a new certificate to be issued in place of any certificate theretofore issued
by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or such persons legal representative, to advertise the same in such manner as the
Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct
as indemnity against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable in the
manner prescribed by law and in these Second Amended and Restated Bylaws. Transfers of stock shall
be made on the books of the Corporation only by the person named in the certificate or on the books
of the Corporation (in the case of uncertificated stock) or by such persons attorney lawfully
constituted in writing. No transfer of stock of the Corporation shall be valid until such transfer
has
30
been entered on the books of the Corporation by an entry showing from and to whom such stock
is transferred, and (i) if the stock is certificated, the transfer shall not be valid until and
upon the surrender of the certificate, duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, to the Corporation or the transfer agent of the
Corporation and cancellation of the certificate representing the same or (ii) if the stock is
uncertificated, the transfer shall not be valid unless accompanied by a duly executed stock
transfer power or other proper transfer instructions from the registered owner of such
uncertificated shares of stock. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares of stock of the Corporation duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, the Corporation shall cancel
the old certificate and issue a new certificate, if the stock is to be certificated, to the person
or persons entitled thereto, unless such person or persons requests, in writing to the Corporation
or the transfer agent, that such shares be uncertificated.
Section 5. Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agencies and registry offices or agencies at such
place or places as may be determined from time to time by the Board of Directors.
Section 6. Beneficial Owners. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided by law.
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ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Second Amended and Restated Bylaws, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to such
director, member of a committee or stockholder, at such persons address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail. Written notice may
also be given personally, by facsimile or by any other form of electronic transmission consented to
by the director or stockholder to whom the notice is given, in accordance with applicable law.
Notice to directors may also be given by telephone. Without limiting the manner by which notice
otherwise may be given effectively to stockholders, and except as prohibited by applicable law, any
notice given by the Corporation under any provision of applicable law, the Certificate of
Incorporation, or these Second Amended and Restated Bylaws shall be effective if given by a single
written notice to stockholders who share an address if consented to by the stockholders at that
address to whom such notice is given. Any such consent shall be revocable by the stockholder by
written notice to the Corporation. Any stockholder who fails to object in writing to the
Corporation, within sixty (60) days of having been given written notice by the Corporation of its
intention to send the single notice permitted under this Section 1 of Article VI, shall be deemed
to have consented to receiving such single written notice.
Section 2. Waivers of Notice.
(a) Except as otherwise specifically permitted by these Second Amended and Restated Bylaws,
whenever any notice is required by law, the Certificate of Incorporation or these
32
Second Amended and Restated Bylaws, to be given to any director, member of a committee or
stockholder, a waiver thereof in writing, signed, by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance
of a person at a meeting, present by person or represented by proxy, shall constitute a waiver of
notice of such meeting, except where the person attends the meeting for the express purpose of
objecting at the beginning of the meeting to the transaction of any business because the meeting is
not lawfully called or convened.
(b) Neither the business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors or members of a committee of directors need be specified in
any written waiver of notice unless so required by law, the Certificate of Incorporation or these
Second Amended and Restated Bylaws.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Subject to the requirements of the GCL and the
provisions of the Certificate of Incorporation, dividends upon the capital stock of the Corporation
may be declared by the Board of Directors at any regular or special meeting of the Board of
Directors, and may be paid in cash, in property, or in shares of the Corporations capital stock.
Before payment of any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to time, in its
absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for purchasing
any of the shares of capital stock, warrants, rights, options, bonds, debentures, notes, scrip or
other securities or evidences of indebtedness of the Corporation, or for equalizing dividends, or
for repairing or
33
maintaining any property of the Corporation, or for any other proper purpose, and the Board of
Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words Corporate Seal, Delaware.
The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
Section 5. Form of Records. Any records maintained by the Corporation in the
regular course of its business, including its stock ledger, books of account, and minute books, may
be kept on, or by means of, or be in the form of, any information storage device or method,
provided that the records so kept can be converted into clearly legible paper form within a
reasonable time.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other than Those by
or in the Right of the Corporation. (a)Subject to Section 3 of this Article VIII, the
Corporation, to the fullest extent permitted and in the manner required, by the laws of the State
of Delaware as in effect from time to time shall indemnify in accordance with the following
provisions of this Article VIII, any person who was or is a party or is threatened to be made a
party to any
34
threatened, pending or completed action, suit or proceeding (including any appeal thereof),
whether civil, criminal, administrative, regulatory or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that such person is or was a director, officer,
executive or managerial employee of the Corporation, or is or was serving at the request of, or to
serve the interests of, the Corporation as a director, officer, partner, member, trustee,
fiduciary, executive, managerial employee or agent of another corporation, partnership, joint
venture, limited liability company, trust, employee benefit plan or other enterprise, including any
charitable or not for profit public service organization or trade association (an Affiliated
Entity), against expenses (including attorneys fees and disbursements), judgments, fines,
penalties and amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding 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 Corporation,
and, with respect to any criminal action or proceeding, such person had no reasonable cause to
believe his or her conduct was unlawful; provided, however, that the Corporation shall not be
obligated to indemnify against any amount paid in settlement unless the Corporation has consented
to such settlement. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that such person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
(b) The Corporation may indemnify any employee or agent of the Corporation in the manner and
to the same or a lesser extent that it shall indemnify any director, officer, executive or
managerial employee under Section 1(a) of this Article VIII.
35
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right
of the Corporation. (a) Subject to Section 3 of this Article VIII, the Corporation, to the
fullest extent permitted and in the manner required, by the laws of the State of Delaware as in
effect from time to time shall indemnify in accordance with the following provisions of this
Article VIII, any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit (including any appeal thereof) by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that such person is or
was a director, officer, executive or managerial employee of the Corporation, or is or was serving
at the request of, or to serve the interests of, the Corporation as a director, officer, partner,
member, trustee, fiduciary, executive, managerial employee or agent of an Affiliated Entity against
expenses (including attorneys fees and disbursements) actually and reasonably incurred by such
person in connection with such action or suit 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 Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
(b) The Corporation may indemnify any employee or agent of the Corporation in the manner and
to the same or a lesser extent that it shall indemnify any director, officer, executive or
managerial employee under Section 2(a) of this Article VIII.
36
Section 3. Authorization of Indemnification. Any indemnification under this
Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director, officer or employee is
proper in the circumstances because such person has met the applicable standard of conduct set
forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall
be made (a) by a majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or by majority vote of the members of a committee of
the Board of Directors composed of at least three (3) members each of whom is not a party to such
action, suit or proceeding; (b) if there are no such directors, or if such committee is not
established or obtainable, or if such directors so direct, by independent legal counsel in a
written opinion; or (c) by the stockholders. To the extent, however, that a director, officer or
employee of the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding described in Section 1 or Section 2 of this Article VIII, or in defense
of any claim, issue or matter therein, such person shall be indemnified against expenses (including
attorneys fees and disbursements) actually and reasonably incurred by such person in connection
therewith, without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause
to believe his or her conduct was unlawful, if such persons action is based on the records or
books of account of the Corporation or an Affiliated Entity, or on information supplied to such
person by the officers of the Corporation or an Affiliated Entity in the course of their duties, or
on the advice of legal counsel for
37
the Corporation or an Affiliated Entity or on information or records given or reports made to
the Corporation or an Affiliated Entity by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or an Affiliated Entity.
The provisions of this Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable standard of conduct set
forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and notwithstanding the
absence of any determination thereunder, any director, officer, executive or managerial employee
may apply to the Court of Chancery of the State of Delaware or any other court of competent
jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director, officer, executive or managerial
employee is proper in the circumstances because such person has met the applicable standards of
conduct set forth in Sections 1 or 2 of this Article VIII, as the case may be. Neither a contrary
determination in the specific case under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application or create a presumption that the
director, officer, executive or managerial employee seeking indemnification has not met any
applicable standard of conduct. Notice of any application for indemnification pursuant to this
Section 5 shall be given to the Corporation promptly upon the filing of such application. If
successful, in whole or in part, the director, officer, executive or managerial employee seeking
indemnification shall also be entitled to be paid the expense of prosecuting such application.
38
Section 6. Expenses Payable in Advance. Expenses incurred by a director,
officer, executive or managerial employee in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director,
officer, executive or managerial employee to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the Corporation as authorized in this Article
VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Certificate of Incorporation or any Bylaw,
agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in such
persons official capacity and as to action in another capacity while holding such office, it being
the policy of the Corporation that indemnification of the persons specified in Section 1 and
Section 2 of this Article VIII shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the indemnification of any person
who is not specified in Section 1 or Section 2 of this Article VIII but whom the Corporation has
the power or obligation to indemnify under the provisions of the GCL, or otherwise.
Section 8. Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the Corporation or of another
corporation or a partnership, joint venture, limited liability company, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the GCL.
39
Section 9. Certain Definitions. For purposes of this Article VIII, references
to the Corporation shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its
directors, officers, executives and managerial employees, so that any person who is or was a
director, officer, executive or managerial employee of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director, officer, executive or
managerial employee of another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, including any charitable or not for profit public service or organization
or trade association, shall stand in the same position under the provisions of this Article VIII
with respect to the resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued. For purposes of this Article
VIII, references to fines shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to serving at the request of the Corporation shall include
any service as a director, officer, executive, managerial employee or agent of the Corporation
which imposes duties on, or involves services by, such director, officer, executive, managerial
employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner not opposed to the best interests of the Corporation as referred to in this
Article VIII.
Section 10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased
40
to be a director, officer or employee and shall inure to the benefit of the heirs, executors
and administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding anything contained
in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification
(which shall be governed by Section 5 hereof), the Corporation shall not be obligated to indemnify
any director, officer or employee (or his or her heirs, executors or personal or legal
representatives) or advance expenses in connection with a proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was authorized or consented to by the Board of
Directors.
Section 12. Indemnification of Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to other employees and agents of the Corporation similar to those
conferred in this Article VIII to directors, officers, executives and managerial employees of the
Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. These Second Amended and Restated Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the Board of
Directors or by the stockholders as provided in these Second Amended and Restated Bylaws, the
Certificate of Incorporation or the GCL; provided, however, that in addition to any other vote of
stockholders (if any) required by law and notwithstanding that a lower vote (or no vote) of
stockholders would otherwise be required, if any provision of these Second Amended and Restated
Bylaws requires a particular vote of stockholders in order to take the action specified in such
41
provision, then such vote of stockholders shall be required in order to amend, alter, change
or repeal any provision inconsistent with such provision of these Second Amended and Restated
Bylaws.
Section 2. Entire Board of Directors. As used in this Article IX and in these
Second Amended and Restated Bylaws generally, the term entire Board of Directors means the total
number of directors which the Corporation would have if there were no vacancies.
42
EXHIBIT E
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
Pursuant to Section 303 of the
Delaware General Corporation Law
Visteon Corporation (the Corporation), a corporation organized and existing under the General
Corporation Law of the State of Delaware (the GCL), does hereby certify as follows:
(1) The name of the Corporation is Visteon Corporation. The Corporation was originally
incorporated under the name Visteon Automotive Systems, Inc. The original certificate of
incorporation of the Corporation was filed with the office of the Secretary of State of the State
of Delaware on January 5, 2000.
(2) The original certificate of incorporation of the Corporation was amended by that certain
Amended and Restated Certificate of Incorporation of the Corporation filed with the Secretary of
State of the State of Delaware on June 28, 2000 (the Amended Certificate).
(3) The Corporation filed its Second Amended Joint Plan of Reorganization of Visteon
Corporation and its Debtor Affiliates Pursuant to Chapter 11 of the United States Bankruptcy Code
which, pursuant to chapter 11 of the
United States Code, 11 U.S.C. §§ 101-1532, was confirmed by an order dated [________], 2010, of the United States
Bankruptcy Court for the District of Delaware (the Confirmed Plan), and that such order provides
for the making and filing of this Second Amended and Restated Certificate of Incorporation.
(4) This Second Amended and Restated Certificate of Incorporation was duly adopted by the
Corporation in accordance with Section 303 of the GCL.
(5) This Second Amended and Restated Certificate of Incorporation restates and integrates and
further amends the Amended Certificate.
(6) The text of the Amended Certificate is amended and restated in its entirety as follows:
FIRST: The name of the Corporation is Visteon Corporation (the Corporation).
SECOND: The address of the registered office of the Corporation in the State of
Delaware is 2711 Centerville Road, in the City of Wilmington, County of New Castle. The name of
its registered agent at that address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for
which a corporation may be organized
2
under the General Corporation Law of the State of Delaware
(the GCL).
FOURTH: (a) Authorized Capital Stock. The total number of shares of stock
which the Corporation shall have authority to issue is three hundred million (300,000,000) shares
of capital stock, consisting of (i) two hundred fifty million (250,000,000) shares of common stock,
par value $0.01 per share (the Common Stock) and (ii) fifty million (50,000,000) shares of
preferred stock, par value $0.01 per share (the Preferred Stock). The holders of shares of
Common Stock shall not have cumulative voting rights. No holder of shares of Common Stock shall be
entitled to preemptive or subscription rights.
(b) Preferred Stock. The Board of Directors is hereby expressly authorized to provide
for the issuance of all or any shares of the Preferred Stock in one or more classes or series, and
to fix for each such class or series such voting powers, full or limited, or no voting powers, and
such designations, preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as shall be stated and expressed in the
resolution or resolutions adopted by the Board of Directors providing for the issuance of such
class or series, including, without limitation, the authority to provide that
3
any such class or
series may be (i) subject to redemption at such time or times and at such price or prices; (ii)
entitled to receive dividends (which may be cumulative or non-cumulative) at such rates, on such
conditions, and at such times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or any other series; (iii) entitled to such rights upon the
dissolution of, or
upon any distribution of the assets of, the Corporation; or (iv) convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other series of the same
or any other class or classes of stock, of the Corporation at such price or prices or at such rates
of exchange and with such adjustments; all as may be stated in such resolution or resolutions.
(c) Power to Sell and Purchase Shares. Subject to the requirements of applicable law,
the Corporation shall have the power to issue and sell all or any part of any shares of any class
of stock herein or hereafter authorized to such persons, and for such consideration, as the Board
of Directors shall from time to time, in its discretion, determine, whether or not greater
consideration could be received upon the issue or sale of the same number of shares of another
class, and as otherwise permitted by law. Subject to the requirements of applicable law, the
Corporation shall have the power to purchase any shares of any class of stock herein or
4
hereafter
authorized from such persons, and for such consideration, as the Board of Directors shall from time
to time, in its discretion, determine, whether or not less consideration could be paid upon the
purchase of the same number of shares of another class, and as otherwise permitted by law.
(d) Limitation on Non-Voting Equity Securities. Notwithstanding anything herein to
the contrary, the Corporation shall not issue any class of non-voting equity securities unless and
solely to the extent permitted by section 1123(a)(6) of the United States Bankruptcy Code (the
Bankruptcy Code) as in
effect on the date of filing this Second Amended and Restated Certificate of Incorporation
with the Secretary of State of the State of Delaware.
FIFTH: 5% Ownership Limit.
(a) For purposes of this Article FIFTH and Articles SIXTH and SEVENTH (collectively, the Tax
Articles), the following terms shall have the meanings indicated (and any references to any
portions of Treasury Regulation § 1.382-2T shall include any successor provisions):
5% Transaction means any Transfer of Corporation Securities described in
clause (1) or (2) of Paragraph
5
(b) of this Article FIFTH, subject to the provision
of such Paragraph (b) of this Article FIFTH.
An Affiliate of any Person means any other Person, that, directly or
indirectly through one or more intermediaries, controls or is controlled by, or is
under common control with, such Person; and, for the purposes of this definition
only, control (including the terms controlling, controlled by and under
common control with) means the possession, direct or indirect, of the power to
direct or cause the direction of the management, policies or activities of a
Person whether through the ownership of securities, by contract or agency or
otherwise.
Associate has the meaning ascribed to such term in Rule 12b-2 under the
Exchange Act.
Board Approval means the written approval of a Transfer by the Board of
Directors (or a duly authorized committee thereof). Notwithstanding the
foregoing, a transferee or transferor shall be deemed to have received Board
Approval if either:
6
(i) the Corporation is in an Unrestricted Period, or
(ii) the Corporation is in a Restricted Period and the Board of Directors (or
a duly authorized committee thereof) does not deliver a written disapproval of the
Transfer within 10 (ten) days of the receipt of the notice of the proposed
Transfer.
During a Restricted Period, the Board of Directors (or a duly authorized committee
thereof) shall authorize a 5% Transaction unless it determines in good faith that
such 5% Transaction (and any related transaction) will (i) result in an owner
shift of more than 35 percentage points during the relevant testing period for
purposes of Section 382 of the Code, or increases the amount of owner shift
further above 35 percentage points during such period, or (ii) materially
jeopardize the ability of the Corporation or its subsidiaries to make use of the
Tax Benefits. Nevertheless, the Board of Directors
(or a duly authorized committee thereof) may authorize a 5% Transaction in any
circumstance (including, for example, in a circumstance that such Transfer will
7
result in the loss of Tax Benefits) if the Board of Directors (or a duly
authorized committee thereof) determines that such Transfer is in the best
interests of the Corporation or its subsidiaries.
Code means the Internal Revenue Code of 1986, as amended.
Corporation Securities means (i) shares of Common Stock, (ii) shares of
Preferred Stock (other than preferred stock described in Section 1504(a)(4) of the
Code), (iii) warrants, rights, or options (including options within the meaning of
Treasury Regulation § 1.382-2T(h)(4)(v)) to purchase stock of the Corporation, and
(iv) any other interest that would be treated as stock of the Corporation
pursuant to Treasury Regulation § 1.382-2T(f)(18).
Effective Date
means ____, 2010 [insert effective date
of the Chapter 11 Plan].
Exchange Act means the Securities Exchange Act of 1934, as amended, or
any successor act thereto.
8
Five-Percent Shareholder means a Person or group of Persons that is
identified as a 5-percent shareholder of the Corporation pursuant to Treasury
Regulation § 1.382-2T(g) other than a direct public group as defined in Treasury
Regulation § 1.382-2T(j)(2)(ii).
Market Capitalization means the total fair value of the Corporations
outstanding equity securities, determined by the most recent public trading price
of such securities or reasonably estimated fair value if such securities are not
traded publicly.
Market Capitalization Threshold means the lesser of: (i) $1,500,000,000
or (ii) 80% of the Corporations Market Capitalization at the close of trading on
the first trading day after the Effective Date. Notwithstanding the following,
after the first anniversary of the Effective Date and not more than annually
thereafter, the Board of Directors (or a duly authorized committee thereof) may
set an alternative Market Capitalization Threshold equal to an amount that the
Board of Directors (or a duly authorized committee thereof) determines in good
faith is an amount that is necessary to protect
9
against a loss of Tax Benefits
that the Corporation or its subsidiaries is reasonably expected to utilize.
Percentage Stock Ownership means the percentage Stock Ownership interest
as determined in accordance with Treasury Regulation § 1.382-2T(g), (h), (j) and
(k).
Person means any individual, firm, corporation or other legal entity,
and includes any successor (by merger or otherwise) of such entity.
Prohibited Transfer means any purported Transfer of Corporation
Securities to the extent that such Transfer is prohibited and/or void under this
Article FIFTH.
Restricted Period means any period of time beginning when the
Corporations Market Capitalization falls below the Market Capitalization
Threshold and ending when the Corporations Market Capitalization has been above
the Market Capitalization Threshold for 30 (thirty) consecutive calendar days.
The Corporation shall promptly issue a broadly distributed press release
announcing that the Restricted Period has begun or has terminated.
10
Tax Benefit means the net operating loss carryovers, capital loss
carryovers, general business credit carryovers, alternative minimum tax credit
carryovers and foreign tax credit carryovers, as well as any loss or deduction
attributable to a net unrealized built-in loss within
the meaning of Section 382, of the Corporation or any direct or indirect
subsidiary thereof.
Transfer means, with respect to any Person other than the Corporation,
any direct or indirect sale, transfer, assignment, conveyance, pledge or other
disposition, other than a sale, transfer, assignment, conveyance, pledge or other
disposition to a wholly owned subsidiary of the transferor, or, if the transferor
is wholly owned by a Person, to a wholly owned subsidiary of such Person. A
Transfer also shall include the creation or grant of an option (including an
option within the meaning of Treasury Regulation § 1.382-2T(h)(4)(v)).
Unrestricted Period means any period of time that is not a Restricted
Period.
11
(b) In order to preserve the Tax Benefits, from and after the Effective Date, any attempted
Transfer of Corporation Securities prior to the earlier of (i) December 31, 2019, (ii) the repeal,
amendment or modification of Section 382 of the Code (and any comparable successor provision)
(Section 382) in such a way as to render the restrictions imposed by Section 382 no longer
applicable to the Corporation, (iii) the beginning of a taxable year of the Corporation (or any
successor thereof) in which no Tax Benefits are available, and (iv) the date on which the
limitation amount imposed by Section 382 in the event of an ownership change of the
Corporation, as defined in Section 382, would not be materially less than the net operating loss
carryforward or net unrealized built-in loss of the Corporation (the Restriction Release Date) or
any attempted Transfer of Corporation Securities pursuant to an agreement entered into prior to the
Restriction Release Date, shall be prohibited and void ab initio to the extent that, as a result of
such Transfer (or any series of Transfers of which such Transfer is a part), either (1) any Person
or group of Persons shall become a Five-Percent Shareholder or (2) the Percentage Stock Ownership
interest in the Corporation of any Five-Percent Shareholder shall be increased; provided, that this
Paragraph (b) of this Article FIFTH shall not apply to, nor shall any other provision in this
Restated
12
Certificate prohibit, restrict or limit in any way, the issuance of Corporation Securities
by the Corporation in accordance with the [Second Amended Joint Plan of Reorganization of the
Corporation dated _____, 2010] [Insert reference to confirmed plan] (the Chapter 11 Plan).
(c) The restrictions set forth in Paragraph (b) of this Article FIFTH shall not apply to an
attempted Transfer that is a 5% Transaction if either the transferor or the transferee (1) gives
written notice of such Transfer to the Board of Directors (or a duly authorized committee thereof);
and (2) obtains Board Approval.
(d) Each certificate representing shares of Common Stock issued prior to the Restriction
Release Date shall contain the legend set forth on Exhibit A hereto, evidencing the
restrictions set forth in the Tax Articles.
SIXTH: Treatment of Excess Securities.
(a) No employee or agent of the Corporation shall record any Prohibited Transfer, and the
purported transferee of such a Prohibited Transfer (the Purported Transferee) shall not be
recognized as a stockholder of the Corporation for any purpose
13
whatsoever in respect of the
Corporation Securities which are the subject of the Prohibited Transfer (the Excess Securities).
Until the Excess Securities are acquired by another person in a Transfer that is not a Prohibited
Transfer, the Purported Transferee shall not be entitled with respect to such Excess Securities to
any rights of stockholders of the Corporation, including, without limitation, the right to vote
such Excess Securities and to receive dividends or distributions, whether liquidating or otherwise,
in respect thereof, if any. Once the Excess Securities have been acquired in a Transfer that is not
a Prohibited Transfer, the Corporation Securities shall cease to be Excess Securities. For this
purpose, any transfer of Excess Securities not in accordance with the provisions of this Article
SIXTH shall also be a Prohibited Transfer.
(b) If the Board of Directors determines that a Transfer of Corporation Securities constitutes
a Prohibited Transfer then, upon written demand
by the Corporation, the Purported Transferee shall transfer or cause to be transferred any
certificate or other evidence of ownership of the Excess Securities within the Purported
Transferees possession or control, together with any dividends or other distributions that were
received by the Purported Transferee from the Corporation with respect to the Excess Securities
(Prohibited Distributions), to an agent designated by
14
the Board of Directors (the Agent). The
Agent shall thereupon sell to a buyer or buyers, which may include the Corporation, the Excess
Securities transferred to it in one or more arms-length transactions (over the New York Stock
Exchange or other national securities exchange on which the Corporation Securities may be traded,
if possible, or otherwise privately); provided, however, that the Agent shall effect such sale or
sales in an orderly fashion and shall not be required to effect any such sale within any specific
time frame if, in the Agents discretion, such sale or sales would disrupt the market for the
Corporation Securities or otherwise would adversely affect the value of the Corporation Securities.
If the Purported Transferee has resold the Excess Securities before receiving the Corporations
demand to surrender Excess Securities to the Agent, the Purported Transferee shall be deemed to
have sold the Excess Securities for the Agent, and shall be required to transfer to the Agent any
Prohibited Distributions and proceeds of such sale, except to the extent that the Corporation
grants written permission to the Purported Transferee to retain a portion of such sales proceeds
not exceeding the amount that the Purported Transferee would have received from the Agent pursuant
to Paragraph (c) of this
Article SIXTH if the Agent rather than the Purported Transferee had resold the Excess
Securities.
15
(c) The Agent shall apply any proceeds of a sale by it of Excess Securities and, if the
Purported Transferee had previously resold the Excess Securities, any amounts received by it from a
Purported Transferee as follows: (x) first, such amounts shall be paid to the Agent to the extent
necessary to cover its costs and expenses incurred in connection with its duties hereunder; (y)
second, any remaining amounts shall be paid to the Purported Transferee, up to (1) the amount paid
by the Purported Transferee for the Excess Securities, or, if the Purported Transferee received the
Excess Securities by gift, inheritance, or similar Transfer, (2) the fair market value of the
Excess Securities (calculated as follows: (A) if the Corporation Securities are listed or admitted
to trading on any stock exchange, on the basis of the closing market price for the Corporation
Securities on the day before the Prohibited Transfer, (B) if the Corporation Securities are not
listed or admitted to trading on any stock exchange but are traded in the over-the-counter market,
based upon the difference between the highest bid and lowest asked prices, as such prices are
reported by the National Association of Securities Dealers through its NASDAQ system or any
successor system on the day before the Prohibited Transfer or, if none, on the last preceding day
for which such quotations exist, or (C) if the Corporation Securities are neither
16
listed nor
admitted to trading on any stock exchange nor traded in the over-the-counter market, then as
determined in good faith by the Board of
Directors as of the time of the Prohibited Transfer to the Purported Transferee), which amount
(or fair market value) shall be determined by the Board of Directors; and (z) third, any remaining
amounts, subject to the limitations imposed by the following proviso, shall be paid to one or more
organizations qualifying under Section 501(c)(3) of the Code (or any comparable successor
provision) (Section 501(c)(3)) selected by the Board of Directors; provided, however, that if the
Excess Securities (including any Excess Securities arising from a previous Prohibited Transfer not
sold by the Agent in a prior sale or sales), represent a 5% or greater Percentage Stock Ownership
in any class of Corporation Securities, then any such remaining amounts to the extent attributable
to the disposition of the portion of such Excess Securities exceeding a 4.99% Percentage Stock
Ownership interest in such class shall be paid to two or more organizations qualifying under
Section 501(c)(3) selected by the Board of Directors. The recourse of any Purported Transferee in
respect of any Prohibited Transfer shall be limited to the amount payable to the Purported
Transferee pursuant to clause (y) of the preceding sentence. In no event shall the proceeds of any
sale of Excess Securities pursuant
17
to this Paragraph (c) of this Article SIXTH inure to the benefit
of the Corporation, except to the extent used to cover costs and expenses incurred by the Agent in
performing its duties hereunder.
(d) If the Purported Transferee fails to surrender the Excess Securities or the proceeds of a
sale thereof to the Agent within thirty days from the date on which the Corporation makes a written
demand pursuant to Paragraph (b) of
this Article SIXTH, then the Corporation shall use its best efforts to enforce the provisions
hereof, including the institution of legal proceedings to compel the surrender. Nothing in this
Paragraph (d) of this Article SIXTH shall (i) be deemed inconsistent with any Transfer of the
Excess Securities provided in Article FIFTH and this Article SIXTH being void ab initio, (ii)
preclude the Corporation in its discretion from bringing legal proceedings without a prior demand
or (iii) cause any failure of the Corporation to act within the time periods set forth in Paragraph
(e) of this Article SIXTH to constitute a waiver or loss of any right of the Corporation under
Article FIFTH and this Article SIXTH.
(e) The Corporation shall make the written demand described in Paragraph (b) of Article FIFTH
within thirty days of the date on which the Board of Directors determines that the
18
attempted
Transfer would result in Excess Securities; provided, however, that if the Corporation makes such
demand at a later date, the provisions of Article FIFTH and this Article SIXTH shall apply
nonetheless.
SEVENTH: (a) Board Authority. The Board of Directors shall have the power
to determine all matters necessary for assessing compliance with Articles FIFTH and SIXTH,
including, without limitation, (i) the identification of Five-Percent Shareholders, (ii) whether a
Transfer is a 5% Transaction or a Prohibited Transfer, (iii) the Percentage Stock Ownership in the
Corporation of any Five-Percent Shareholder, (iv) whether an instrument constitutes a Corporation
Security,
(v) the Corporations Market Capitalization, (vi) whether the Corporation is in a Restricted
Period, (vii) the amount (or fair market value) due to a Purported Transferee pursuant to clause
(y) Paragraph (c) of Article SIXTH, and (viii) any other matters which the Board of Directors
determines to be relevant; and the good faith determination of the Board of Directors on such
matters shall be conclusive and binding for all purposes of Articles FIFTH and SIXTH.
(b) Reliance. To the fullest extent permitted by law, the Corporation and the members
of the Board of Directors shall be
19
fully protected in relying in good faith upon the information,
opinions, reports or statements of the chief executive officer, the chief financial officer, the
chief accounting officer or the corporate controller of the Corporation and the Corporations legal
counsel, independent auditors, transfer agent, investment bankers or other employees and agents in
making the determinations and findings contemplated by Articles FIFTH and SIXTH. The members of
the Board of Directors shall not be responsible for any good faith errors made in connection
therewith. For purposes of determining the existence and identity of, and the amount of any
Corporation Securities owed by any stockholder, the Corporation is entitled to rely on the
existence and absence of filings of Schedule 13D or 13G under the Securities and Exchange Act of
1934, as amended (or similar filings), as of any date, subject to its actual knowledge of the
ownership of Corporation Securities.
(c) Obligations to Provide Information. As a condition to the registration of the
Transfer of any Corporation Securities, any Person who is a beneficial, legal or record holder of
Corporation Securities, and any proposed transferee and any Person controlling, controlled by or
under common control with the proposed transferee, shall provide such information as the
Corporation may reasonably request from time to time in order to
20
determine compliance with Articles
FIFTH and SIXTH or the status of the Tax Benefits of the Corporation and the Corporation shall keep
such information confidential.
(d) Benefits of the Tax Articles. Nothing in the Tax Articles shall be construed to
give to any Person other than the Agent any legal or equitable right, remedy or claim under the Tax
Articles. The Tax Articles shall be for the sole and exclusive benefit of the Corporation and the
Agent.
(e) Severability. The purpose of the Tax Articles is to facilitate the Corporations
ability to maintain or preserve its Tax Benefits. If any provisions of the Tax Articles or the
application of any such provision to any Person or under any circumstance shall be held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision of the Tax Articles.
(f) Wavier. With regard to any power, remedy or right provided herein or otherwise
available to the Corporation or the Agent under the Tax Articles,
(i) no waiver will be effective unless expressly contained in a writing signed by the waiving
party; and (ii) no alteration, modification or impairment will be implied by
21
reason of any previous
waiver, extension of time, delay or omission in exercise, or other indulgence.
EIGHTH: The following provisions are inserted for the management of the business and
the conduct of the affairs of the Corporation, and for further definition, limitation and
regulation of the powers of the Corporation and of its directors and stockholders:
(a) The business and affairs of the Corporation shall be managed by or under the direction of
the Board of Directors.
(b) The Board of Directors shall consist of not less than three (3) nor more than fifteen (15)
members, the exact number of which shall be fixed from time to time by resolution adopted by the
affirmative vote of a majority of the active Board of Directors; provided, however,
that the number of directors initially shall be nine (9) and shall consist of the nine (9)
individuals (such individuals comprising the Initial Board) identified in the Confirmed Plan.
(c) Each director on the Initial Board (and any directors elected to fill vacancies or newly
created directorships following the effective date of the Confirmed Plan and prior to the annual
meeting of stockholders of the Corporation to be held in 2011) shall serve until the annual meeting
of stockholders of the
22
Corporation to be held in 2011, subject to such directors earlier death,
resignation or
removal. In no case will a decrease in the number of directors shorten the term of any
incumbent director.
(d) A director shall hold office until the following annual meeting of the stockholders and
until his or her successor shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office.
(e) Election of the directors need not be by written ballot unless the Bylaws shall so
provide. If authorized by the Board of Directors, any requirement of a written ballot shall be
satisfied by a ballot submitted by electronic transmission, provided that any such electronic
transmission must either set forth or be submitted with information from which it can be determined
that the electronic transmission was authorized by the stockholder or proxy holder.
(f) Subject to the terms of any one or more classes or series of Preferred Stock, any vacancy
on the Board of Directors that results from an increase in the number of directors may be filled by
a majority of the Board of Directors then in office, provided that a quorum is present, and any
other vacancy occurring on the Board of Directors (except as otherwise provided in this
23
Article
EIGHTH) may be filled by a majority of the Board of Directors then in office, even if less than a
quorum, or by a sole remaining director. Any director or the whole Board of Directors may be
removed from office at any time, with or without cause. Except as otherwise prohibited by law, the
stockholders may remove any director and fill any
vacancy on the Board of Directors created by such removal. Notwithstanding the foregoing,
whenever the holders of any one or more classes or series of Preferred Stock issued by the
Corporation shall have the right, voting separately by class or series, to elect directors at an
annual or special meeting of stockholders, the election, term of office, removal, filling of
vacancies and other features of such directorships shall be governed by the terms of this Second
Amended and Restated Certificate of Incorporation applicable thereto.
(g) In addition to the powers and authority hereinbefore or by statute expressly conferred
upon them, the directors are hereby empowered to exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of
the GCL, this Second Amended and Restated Certificate of Incorporation, and any Bylaws adopted by
the stockholders.
24
NINTH: No director shall be personally liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent
such exemption from liability or limitation thereof is not permitted under the GCL as the same
exists or may hereafter be amended. If the GCL is amended hereafter to authorize the further
elimination or limitation of the liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent authorized by the GCL, as so
amended. Any repeal or modification of this Article NINTH by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification with respect to acts or omissions
occurring prior to such repeal or modification.
TENTH: The Corporation shall indemnify its directors and officers to the fullest
extent authorized or permitted by law, as now or hereafter in effect, and such right to
indemnification shall continue as to a person who has ceased to be a director or officer of the
Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal
representatives; provided, however, that, except for proceedings to enforce rights
to indemnification, the Corporation shall not be obligated to indemnify
25
any director or officer (or
his or her heirs, executors or personal or legal representatives) in connection with a proceeding
(or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized
or consented to by the Board of Directors. The right to indemnification conferred by this Article
TENTH shall include the right to be paid by the Corporation the expenses incurred in defending or
otherwise participating in any proceeding in advance of its final disposition.
The Corporation may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to employees and agents of the
Corporation similar to those conferred in this Article TENTH to directors and officers of the
Corporation.
The rights to indemnification and to the advance of expenses conferred in this Article TENTH
shall not be exclusive of any other right which any person may have or hereafter acquire under this
Second Amended and Restated Certificate of Incorporation, the Bylaws of the Corporation, any
statute, agreement, vote of stockholders or disinterested directors or otherwise.
The Corporation may maintain insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or of another corporation or a partnership, joint
venture,
26
limited liability company, trust or other enterprise against any expense, liability or
loss, whether or not the Corporation would have the power to indemnify such person against such
expense, liability or loss under the GCL.
To the fullest extent permitted by Section 122(17) of the GCL, the Corporation, on behalf of
itself and its subsidiaries, renounces any interest or expectancy of the Corporation and its
subsidiaries in, or in being offered an opportunity to participate in, any business opportunity of
any nature or type that is from time to time presented to, or comes to the attention of, any of the
Investors (as such term is defined in the Confirmed Plan) or any of their respective officers,
directors, agents, stockholders, members, partners, affiliates and subsidiaries (other than the
Corporation and its subsidiaries or any of their directors or officers acting as such (to the
extent the business opportunity is brought to such director or officer solely in that capacity)),
even if the opportunity is one that the Corporation or its subsidiaries might reasonably be deemed
to have pursued or had the ability or desire to pursue if granted the opportunity to do so;
and no such person shall be liable to the Corporation or any of its subsidiaries for breach of
any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such
person pursues or acquires such business opportunity,
27
directs such business opportunity to another
person or fails to present such business opportunity, or information regarding such business
opportunity, to the Corporation or its subsidiaries. Any person purchasing or otherwise acquiring
any interest in any shares of stock of the Corporation shall be deemed to have notice of and
consented to the provisions of this paragraph of this Article TENTH.
The provisions of this Article TENTH shall be deemed to be a contract right between the
Corporation and each person that is entitled to indemnification or advancement of expenses pursuant
to this Article TENTH at any time while this Article TENTH and relevant provisions of the GCL or
other applicable law are in effect, and any repeal or modification of this Article TENTH or any
such law shall not in any way diminish or adversely affect any rights to indemnification or to the
advancement of expenses of a director or officer of the Corporation existing at the time of such
repeal or modification with respect to any acts, omissions, transactions or facts occurring prior
to such repeal or modification.
ELEVENTH: Special meetings of the stockholders of the Corporation may be called by
the Board of Directors or upon the request of the holders of at least twenty percent (20%) of the
voting power of all shares of capital stock of the Corporation entitled generally to vote on the
election of directors of the
28
Corporation (without reference to any terms of any preferred stock providing for special
voting rights or restrictions with respect to particular matters) (the Voting Stock) then
outstanding. The affirmative vote of the holders of a majority of the Voting Stock shall be
required to alter, amend or repeal, or to adopt any provision inconsistent with, this Article
ELEVENTH or Article II, Section 3 of the Bylaws.
TWELFTH: Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of stockholders of the
Corporation, and the ability of the stockholders to consent in writing to the taking of any action
is hereby specifically denied.
THIRTEENTH: Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept (subject to any
provision contained in the GCL) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the Bylaws of the Corporation.
FOURTEENTH: In furtherance and not in limitation of the powers conferred upon it by
the laws of the State of Delaware, the Board of Directors shall have the power to adopt, amend,
alter or repeal the Corporations Second Amended and Restated Bylaws (as
29
amended, the
Bylaws). The affirmative vote of at least a majority of the entire Board of Directors
shall be required to adopt, amend, alter or repeal the Bylaws. The Corporations Bylaws also may
be adopted, amended, altered or repealed by the stockholders of the Corporation.
FIFTEENTH: The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Second Amended and Restated Certificate of Incorporation in the manner
now or hereafter prescribed in this Second Amended and Restated Certificate of Incorporation, the
Corporations Bylaws or the GCL, and all rights herein conferred upon stockholders are granted
subject to such reservation; provided, however, that in addition to any other vote
of stockholders (if any) required by law and notwithstanding that a lower vote (or no vote) of
stockholders would otherwise be required, if any provision of this Second Amended and Restated
Certificate of Incorporation other than this Article FIFTEENTH requires a particular vote of
stockholders in order to take the action specified in such provision, then such vote of
stockholders shall be required in order to amend, alter, change or repeal any provision
inconsistent with such provision of this Second Amended and Restated Certificate of Incorporation.
30
EXHIBIT A
Form of Common Stock Legend
The shares of Visteon Corporation Common Stock represented by this Certificate are issued pursuant
to the Plan of Reorganization for Visteon Corporation, as confirmed by the United States Bankruptcy
Court for the District of Delaware. The transfer of securities represented hereby is subject to
restriction pursuant to Article FOURTH, FIFTH and SIXTH of the Second Amended and Restated
Certificate of Incorporation of Visteon Corporation. Visteon Corporation will furnish a copy of
its Second Amended and Restated Certificate of Incorporation to the holder of record of this
Certificate without charge upon written request addressed to Visteon Corporation at its principal
place of business.
EXHIBIT F
FORM OF COMMITMENT JOINDER AGREEMENT
THIS COMMITMENT JOINDER AGREEMENT (this Commitment Joinder), dated as of
[_____], 2010, is made and entered into by and between [_____] (the Related
Purchaser) and [_____] (the Assigning Investor), pursuant to that certain
Equity Commitment Agreement, dated as of May 6, 2010 (as may be amended, supplemented or otherwise
modified, renewed or replaced from time to time, the Equity Commitment Agreement), by and
among Visteon Corporation (as a debtor in possession and a reorganized debtor, as applicable, the
Company), on the one hand, and the Investors set forth on Schedule 1 thereto (each
referred to herein as an Investor and collectively as the Investors), on the
other hand. Capitalized terms used and not otherwise defined herein have the meanings ascribed to
them in the Equity Commitment Agreement.
WITNESSETH
WHEREAS, in accordance with Section 3.6(a) of the Equity Commitment Agreement, the Assigning
Investor and the Related Purchaser have previously delivered written notice to the Company and the
other Investors (the Assignment Notice) of their intended assignment of [all/a portion]
of the Assigning Investors Allotted Portion of the Equity Commitment equaling [___percent
(___%)] of the Equity Commitment (the Assigned Interest) to the Related Purchaser as set
forth in the Assignment Notice (attached hereto as Exhibit A);
WHEREAS, contemporaneously with the execution and delivery of this Commitment Joinder, the
Assigning Investor shall assign to the Related Purchaser the Assigned Interest, as reflected on the
revised Schedule 1 to the Equity Commitment Agreement attached hereto as Exhibit B (the
Revised Schedule) and delivered to the Company and the other Investors herewith; and
WHEREAS, pursuant to the provisions of Section 3.6(a) of the Equity Commitment Agreement, as a
condition to such assignment, the Related Purchaser must agree in writing to be bound by the Equity
Commitment Agreement by executing and delivering to the Company and each Investor other than the
Assigning Investor this Commitment Joinder and the Revised Schedule; and
NOW, THEREFORE, the Related Purchaser and the Assigning Investor hereby agree as follows:
1. Joinder and Assumption. The Related Purchaser hereby agrees to be bound by the
Equity Commitment Agreement and to perform and observe and to be entitled to each and every one of
the covenants, rights, promises, agreements, terms, conditions, obligations, appointments, duties
and liabilities applicable to an Investor thereunder to the extent of the Assigned Interest. As of
the date hereof, all references to the term Investor [and
Co-Investor]1 in the
Equity Commitment Agreement or in any document or instrument executed and delivered or furnished,
or to be executed and delivered or furnished, in connection with the Equity Commitment
Agreement, shall be deemed to be references to, and shall include, the Related Purchaser.
Notwithstanding anything to the contrary contained herein, the Assigning Investor hereby
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acknowledges and agrees that neither its assignment of the Assigned Interest to the Related
Purchaser nor this Commitment Joinder shall relieve the Assigning Investor from its obligations to
the Company and each other Investor under the Equity Commitment Agreement if the Related Purchaser
breaches any of its obligations under the Equity Commitment Agreement.
2. Confirmation of Representations. The Related Purchaser hereby confirms the
accuracy of the representations set forth in Sections 6.6 through 6.8 of the Equity Commitment
Agreement as applied to the Related Purchaser.
3. Effect on Agreements. Except as may be specifically amended hereby, the terms,
covenants, provisions and conditions of the Equity Commitment Agreement shall remain unmodified and
continue in full force and effect in all respects.
4. Notices. Section 11.1 of the Equity Commitment Agreement shall apply to all
notices and other communications to the Related Purchaser in connection with the obligations
assumed by the Related Purchaser pursuant to this Commitment Joinder, which notices and other
communications shall be delivered to the Related Purchaser at the following address, which is also
reflected in a revised Schedule [5]/[6]2 to the Equity Commitment Agreement attached
hereto as Exhibit C and delivered to the Company and the other Investors herewith (or at
such other address for the Related Purchaser as will be specified by like notice):
[Related Purchaser]
[________________]
[________________]
[________________]
Attention: [____________]
Facsimile: [____________]
with a copy (which shall not constitute notice) to:
[White & Case LLP
Wachovia Financial Center
200 South Biscayne Boulevard
Suite 4900
Miami, Florida 33131
Attention: Thomas E Lauria
Facsimile: (305) 358-5744
and
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Facsimile: (212) 354-8113
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Schedule 5 if a Lead Investor, Schedule 6 if a Co-Investor. |
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Attention: Gerard Uzzi
Gregory Pryor]3
[Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036
Attention: Michael Stamer
Arik Preis
Tony Feuerstein
Facsimile: (212) 872-1002]4
5. GOVERNING LAW; VENUE. THIS COMMITMENT JOINDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAWS RULES
THEREOF. THE RELATED PURCHASER CONSENTS AND AGREES THAT ANY ACTION TO ENFORCE THIS COMMITMENT
JOINDER OR ANY DISPUTE, WHETHER SUCH DISPUTE ARISES IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO
THIS COMMITMENT JOINDER SHALL BE BROUGHT EXCLUSIVELY IN THE BANKRUPTCY COURT. THE RELATED
PURCHASER CONSENTS TO AND AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT.
THE RELATED PURCHASER HEREBY WAIVES AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (I) THE RELATED PURCHASER IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF THE BANKRUPTCY COURT, (II) THE RELATED PURCHASER AND THE RELATED
PURCHASERS PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY THE BANKRUPTCY COURT OR (III) ANY
LITIGATION OR OTHER PROCEEDING COMMENCED IN THE BANKRUPTCY COURT IS BROUGHT IN AN INCONVENIENT
FORUM. THE RELATED PURCHASER HEREBY AGREES THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION
WITH ANY SUCH ACTION OR PROCEEDING TO AN ADDRESS THE RELATED PURCHASER PROVIDED IN WRITING, OR IN
SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND
HEREBY WAIVES ANY OBJECTIONS TO SERVICE ACCOMPLISHED IN THE MANNER HEREIN PROVIDED.
6. WAIVER OF JURY TRIAL. THE RELATED PURCHASER HEREBY WAIVES ALL RIGHTS TO TRIAL BY
JURY IN ANY JURISDICTION IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE ARISING
OUT OF OR RELATING TO THIS COMMITMENT JOINDER, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
[Remainder of page intentionally left blank.]
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3
EXHIBIT F
IN WITNESS WHEREOF, the undersigned have caused this Commitment Joinder to be duly executed
and delivered as of the date first above written.
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[RELATED PURCHASER]
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[ASSIGNING INVESTOR]
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[Signature Page to Commitment Joinder]
EXHIBIT A
FORM OF ASSIGNMENT NOTICE
Date: ______________, 2010
To: |
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Visteon Corporation and the Investors party to the Equity
Commitment Agreement (as defined below) |
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Assignment by [name of Assigning Investor] of [___ percent
(___%)] of the Equity Commitment to [name of Related
Purchaser] |
Reference is made to the Equity Commitment Agreement, dated as of May 6, 2010 (as may be
amended, supplemented or otherwise modified, renewed or replaced from time to time, the Equity
Commitment Agreement), by and among Visteon Corporation (as a debtor in possession and a
reorganized debtor, as applicable, the Company), on the one hand, and the Investors set
forth on Schedule 1 thereto (each referred to herein as an Investor and collectively as
the Investors), on the other hand. Capitalized terms used and not otherwise defined
herein have the meanings ascribed to them in the Equity Commitment Agreement.
This constitutes notice under Section 3.6(a) of the Equity Commitment Agreement that
[_____] (the Assigning Investor) is assigning [all/a portion] of its Allotted
Portion of the Equity Commitment equaling [___percent (___%)] of the Equity Commitment to
[_____] (the Related Purchaser).
Sincerely,
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[ASSIGNING INVESTOR] |
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[RELATED PURCHASER] |
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By:
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Name:
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EXHIBIT B
REVISED SCHEDULE 1 TO EQUITY COMMITMENT AGREEMENT
See Attached.
EXHIBIT C
REVISED SCHEDULE [5]/[6] TO THE EQUITY COMMITMENT AGREEMENT
See Attached.
EXHIBIT G
MANAGEMENT EQUITY INCENTIVE PLAN
EXHIBIT G
MANAGEMENT EQUITY INCENTIVE PLAN TERM SHEET1
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Number of Shares
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Equivalent to 10% of New Visteon Common Stock under
the Rights Offering Sub Plan. |
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Types of Awards
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Initial awards to be granted in restricted stock as
set forth in the section entitled Grants herein.
Future awards, excluding the Initial Grants
described below, to be determined by Reorganized
Visteons board of directors (the Board), and may
include, without limitation, restricted stock,
restricted stock units, performance shares,
performance units, stock appreciation rights, stock
options, etc. |
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Withholding
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Participants will be permitted to elect to have
shares withheld by Reorganized Visteon to cover the
exercise/base price of any option and/or stock
appreciation right and the applicable withholding
taxes associated with any award if the shares are
not publicly traded. |
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Pricing
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Awards (other than Initial Grants) will have an
exercise price per share equal to the fair market
value on the date of grant. |
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Grants
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Upon the Effective Date of Visteons plan of
reorganization, restricted stock grants equal to
3.0% of the New Visteon Common Stock, on a
fully-diluted basis (the Initial Grants). |
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Future awards of up to the remaining 7.0% of the New
Visteon Common Stock will be granted at such time(s)
as the Board shall determine. |
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Participants
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Participation for Initial Grants shall be limited to
approximately 110 employees determined as follows: |
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(a) Certain Board-elected officers; and |
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(b) Up to approximately 100 additional participants
to be selected by Visteons senior management team
at the Executive Leader, Senior Director, and
Director employee levels, or at other employee
levels in the discretion of Visteons senior
management team. |
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The current Chairman and Chief Executive Officer
shall receive 22% of the Initial Grants and the
current Chief Financial Officer shall receive 9% of
the Initial Grants. |
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The current Chairman and Chief Executive Officer, in
consultation with the Requisite Investors (as
defined in the Equity Commitment Agreement), shall
determine the percentage of the Initial Grants to be
awarded to each participant other than the Chief
Executive Officer and Chief Financial Officer as
well as |
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Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Second Amended
Joint Plan of Reorganization of Visteon Corporation and Its Debtor Affiliates
Pursuant to Chapter 11 of the United States Bankruptcy Code [Docket No. ]. |
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EXHIBIT G
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select participants eligible for future
awards. |
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Vesting
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Initial Grants shall vest as follows: (a) one-sixth
on the Effective Date; (b) one-sixth upon the first
anniversary of the Effective Date; (c) one-third
upon the second anniversary of the Effective Date;
and (d) one-third upon the third anniversary of the
Effective Date. |
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Vesting of Initial Grants for a particular employee
shall be accelerated, in full, in the event of
termination of employment of such employee by
Reorganized Visteon without cause or by such
employee with good reason. |
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Upon a customary change in control event, any
portion of the Initial Grants that is not then
vested shall be treated as immediately vested and
payable to the participant as of the date of the
change in control event. The vesting terms shall be
subject to the terms of any other agreement
governing the employment of a participant to the
extent that such agreement provides greater rights
to the participant in the event of a customary
change in control event.
Future awards, excluding the Initial Grants
described herein, shall be subject to such vesting
schedules and in such form as determined by the
Board. |
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Expiration of Awards
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Earlier of (a) ten years after grant, (b) 30 days
after termination of employment other than for
death, disability or cause, (c) one year after
termination of employment by death or disability, or
(d) immediately upon termination for cause. |
-ii-
EXECUTION COPY
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re:
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Chapter 11 |
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VISTEON CORPORATION, et al.,1
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Case No. 09-11786 (CSS) |
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Debtors.
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Jointly Administered |
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THIS PLAN SUPPORT AGREEMENT IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR A
SOLICITATION OF VOTES WITH RESPECT TO A CHAPTER 11 PLAN OF REORGANIZATION. ANY
SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS
AND/OR PROVISIONS OF THE BANKRUPTCY CODE. ACCEPTANCES OR REJECTIONS WITH
RESPECT TO A CHAPTER 11 PLAN OF REORGANIZATION MAY NOT BE SOLICITED UNTIL A
DISCLOSURE STATEMENT HAS BEEN APPROVED BY THE BANKRUPTCY COURT.
This PLAN SUPPORT AGREEMENT (the Agreement) is made and entered into as of May 6,
2010, by and among:
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Visteon Corporation and all of its direct and indirect affiliates, that are or
may become a debtor and debtor in possession (collectively, the Debtors) in
the above-captioned chapter 11 cases (the Chapter 11 Cases); |
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the undersigned holders (each, a Consenting 7.00% Senior Note Holder
and collectively, the Consenting 7.00% Senior Note Holders) of certain claims
derived from or based upon the 7.00% senior notes due March 10, 2014, issued by |
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The Debtors in these chapter 11 cases, along with the
last four digits of each Debtors federal tax identification number, are:
Visteon Corporation (9512); ARS, Inc. (3590); Fairlane Holdings, Inc. (8091);
GCM/Visteon Automotive Leasing Systems, LLC (4060); GCM/Visteon Automotive
Systems, LLC (7103); Infinitive Speech Systems Corp. (7099); MIG-Visteon
Automotive Systems, LLC (5828); SunGlas, LLC (0711); The Visteon Fund (6029);
Tyler Road Investments, LLC (9284); VC Aviation Services, LLC (2712); VC
Regional Assembly & Manufacturing, LLC (3058); Visteon AC Holdings Corp.
(9371); Visteon Asia Holdings, Inc. (0050); Visteon Automotive Holdings, LLC
(8898); Visteon Caribbean, Inc. (7397); Visteon Climate Control Systems Limited
(1946); Visteon Domestic Holdings, LLC (5664); Visteon Electronics Corporation
(9060); Visteon European Holdings Corporation (5152); Visteon Financial
Corporation (9834); Visteon Global Technologies, Inc. (9322); Visteon Global
Treasury, Inc. (5591); Visteon Holdings, LLC (8897); Visteon International
Business Development, Inc. (1875); Visteon International Holdings, Inc. (4928);
Visteon LA Holdings Corp. (9369); Visteon Remanufacturing Incorporated (3237);
Visteon Systems, LLC (1903); Visteon Technologies, LLC (5291). The location of
the Debtors corporate headquarters and the service address for all the Debtors
is: One Village Center Drive, Van Buren Township, Michigan 48111. |
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Visteon Corporation in the original amount of $450,000,000 under that certain
supplemental indenture dated as of March 10, 2004, by and between Visteon
Corporation and J.P. Morgan Trust Company, N.A., as trustee (the 7.00% Senior
Notes); |
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the undersigned holders (each, a Consenting 8.25% Senior Note Holder
and collectively, the Consenting 8.25% Senior Note Holders) of certain claims
derived from or based upon the 8.25% senior notes due August 1, 2010, issued by Visteon
Corporation in the original amount of $700,000,000 under that certain indenture dated
as of June 23, 2000, by and between Visteon Corporation and Bank One Trust Company,
N.A., as trustee (the 8.25% Senior Notes), who, together with the Consenting
7.00% Senior Note Holders, hold at least two-thirds in amount of the aggregate
principal amount of the 7.00% Senior Notes and 8.25% Senior Notes; and |
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the undersigned holders (each, a Consenting 12.25% Senior Note Holder
and collectively, the Consenting 12.25% Senior Note Holders and together with
the Consenting 7.00% Senior Note Holders and the Consenting 8.25% Senior Note Holders,
the Consenting Senior Note Holders) of at least two-thirds in amount of
certain claims derived from or based upon the 12.25% senior notes due December 31,
2016, issued by Visteon Corporation in the original amount of $206,386,000 under that
certain second supplemental indenture dated as of June 18, 2008, by and among Visteon
Corporation, the guarantors party thereto, and The Bank of New York Trust Company,
N.A., as trustee (the 12.25% Senior Notes and together with the 7.00% Senior
Notes and the 8.25% Senior Notes, the Visteon Notes ). |
The Consenting Senior Note Holders, together with the Debtors, are defined collectively as the
Parties.
RECITALS
WHEREAS, on May 28, 2009, each of the above-captioned Debtors filed a voluntary petition for
relief under chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101-1532 (the Bankruptcy
Code) with the United States Bankruptcy Court for the District of Delaware (the
Bankruptcy Court).
WHEREAS, each Consenting Senior Note Holder is a Holder of a Claim, as defined in section
101(5) of the Bankruptcy Code derived from or based upon the 7.00% Senior Notes (each, a 7.00%
Senior Notes Claim), the 8.25% Senior Notes (each, a 8.25% Senior Notes Claim),
and/or the 12.25% Senior Notes (each, a 12.25% Senior Notes Claim and together with the
7.00% Senior Notes Claims, the 8.25% Senior Notes Claims, Claims held by the Consenting Senior Note
Holders arising under that certain Amended and Restated Credit Agreement dated as of April 10,
2007, as amended, supplemented, or modified from time to time, by and between, Visteon Corporation,
as borrower, JPMorgan Chase Bank, N.A., as administrative agent, Wilmington Trust FSB, as successor
administrative agent and the various
2
banks, financial institutions, and other entities party thereto, as lenders, and General
Unsecured Claims held by the Consenting Senior Note Holders, the Visteon Claims);
WHEREAS, on December 17, 2009, the Debtors filed the Joint Plan of Reorganization of Visteon
Corporation and Its Debtor Affiliates Pursuant to Chapter 11 of the United States Bankruptcy Code
[Docket No. 1475] and the Disclosure Statement for the Debtors Joint Plan of Reorganization
Pursuant to Chapter 11 of the United States Bankruptcy Code [Docket No. 1476];
WHEREAS, on March 15, 2010, the Debtors filed the First Amended Joint Plan of Reorganization
of Visteon Corporation and Its Debtor Affiliates Pursuant to Chapter 11 of the United States
Bankruptcy Code [Docket No. 2544] and the First Amended Disclosure Statement for the First Amended
Joint Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code [Docket
No. 2545];
WHEREAS, the Debtors have engaged in good faith negotiations with the Consenting Senior Note
Holders, including the Consenting Senior Note Holders holding a majority in principal amount,
respectively, of the 7.00% Senior Notes Claims, 8.25% Senior Notes Claims, and 12.25% Senior Notes
Claims held by the Consenting Senior Note Holders, regarding the terms of a further amended joint
plan of reorganization pursuant to chapter 11 of the United States Bankruptcy Code in the form
annexed hereto as Exhibit A (and as may be amended as permitted by Section 8.5(d)
of this Agreement, the Amended Plan);2
WHEREAS, in connection with the rights offering contemplated by the Rights Offering Sub Plan,
the Debtors are seeking Bankruptcy Court approval of that certain Equity Commitment Agreement, by
and among the Debtors and the Investors (as defined in the Equity Commitment Agreement, the
Investors), dated as of May 6, 2010 (the Equity Commitment Agreement);
WHEREAS, each Consenting Senior Note Holder has reviewed or has had the opportunity to review
the Amended Plan;
WHEREAS, the Debtors and the Consenting Holders have agreed to facilitate confirmation and
consummation of the Amended Plan and any and all related transactions in the manner set forth
herein and in the Amended Plan (collectively, the Restructuring);
WHEREAS, to ensure an orderly confirmation process, (a) the Debtors are prepared to perform
their obligations hereunder subject to the terms and conditions of this Agreement, including, among
other things to seek the Bankruptcy Courts approval of the Disclosure Statement (substantially in
the form attached hereto as Exhibit B, with any such amendments, supplements, changes and
modifications thereto that may be made subject to the provisions hereof, which Disclosure Statement
shall be in such form and substance as is reasonably satisfactory to Requisite Investors (as
defined in the Equity Commitment Agreement, the Requisite Investors) and with any changes
or modifications required by the Bankruptcy Court, the Disclosure Statement) prior to
soliciting votes on the Amended Plan in accordance with section 1125 of the Bankruptcy Code and (b)
the Consenting Senior Note Holders are prepared
|
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2 |
|
Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Amended Plan. |
3
to perform their obligations hereunder subject to the terms and conditions of this Agreement,
including, without limitation, working with the Debtors to obtain Bankruptcy Court approval of this
Agreement and the Amended Plan; and
WHEREAS, in expressing their support for the Agreement and the Amended Plan (pursuant to the
terms and conditions of this Agreement), the Parties do not desire and do not intend in any way to
derogate or diminish the solicitation requirements of applicable securities and bankruptcy law, or
the fiduciary duties of the Debtors.
NOW, THEREFORE, subject to the provisions of Section 8.7 of this Agreement, in
consideration of the foregoing and the premises, mutual covenants, and agreements set forth herein
and for other good and valuable consideration, the Parties agree as follows:
Section 1. The Amended Plan.
The Amended Plan is incorporated by reference herein and made part of this Agreement and each
Consenting Senior Note Holder has reviewed or has had the opportunity to review the Amended Plan.
Section 2. Commitments of the Parties Under this Agreement.
2.1 |
|
Consenting Senior Note Holders and Debtors Support of Amended Plan. |
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(a) |
|
As long as this Agreement shall not have been terminated in accordance with
Section 7 or Section 2.5 hereof, each Consenting Senior Note Holder
agrees that, unless it shall have terminated its obligations hereunder pursuant to
Section 7.1(d) hereof, by having executed and become party to this Agreement,
it shall: |
|
(1) |
|
support entry of the Disclosure Statement Order (as defined
below); |
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(2) |
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agree to permit disclosure in any disclosure statement and any
filings by the Debtors with the Securities and Exchange Commission of the
contents of this Agreement, including the aggregate 7.00% Senior Notes Claims,
8.25% Senior Notes Claims, and 12.25% Senior Notes Claims held by all
Consenting Senior Note Holders; provided, however, that the
amount of such claims held by any individual Consenting Senior Note Holder
shall be disclosed only to the Debtors and shall not be disclosed by the
Debtors to any other Entity, unless required by applicable law, regulation, or
legal process; and |
|
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(3) |
|
vote all Relevant Claims (as defined below) it holds to accept
the Amended Plan when solicited pursuant to the Disclosure Statement Order by
the Debtors, provided, however, that (a) the Disclosure
Statement shall be substantially in the form attached hereto as Exhibit
B, with any such amendments, supplements, changes and modifications
thereto, which Disclosure Statement shall be in such form and substance as is
reasonably satisfactory to Requisite Investors and with any changes or
modifications required by the Bankruptcy Court; (b) the Amended Plan is in the
form |
4
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|
|
attached hereto as Exhibit A except as may be amended pursuant to
Section 8.5(d) of this Agreement; and (c) the Bankruptcy Court has
entered the Disclosure Statement Order. |
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(b) |
|
Unless the Debtors and the Consenting Senior Note Holders have agreed, in
writing, to pursue an Alternative Plan (as defined below) and as long as this Agreement
shall not have been terminated in accordance with Section 7 or Section
2.5 hereof, the Debtors (subject in all respects to their fiduciary duties) and
each Consenting Senior Note Holder (so long as such Consenting Senior Note Holder shall
not have terminated its obligations hereunder pursuant to Section 7.1(d)
hereof) further agree that they shall not (as applicable): |
|
(1) |
|
directly or indirectly seek, solicit, support, or vote in favor
of any other plan, sale, proposal, or offer of dissolution, winding up,
liquidation, reorganization, merger, or restructuring of the Debtors that could
reasonably be expected to prevent, delay, or impede the restructuring of the
Debtors as contemplated by the Amended Plan or that is inconsistent with this
Agreement (collectively, an Alternative Plan); |
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(2) |
|
directly or indirectly (a) engage in, continue, or otherwise
participate in any negotiations regarding any Alternative Plan, (b) enter into
a letter of intent, memorandum of understanding, agreement in principle, or
other agreement relating to any Alternative Plan or (c) withhold, withdraw,
qualify, or modify their approval or recommendation of this Agreement, the
Amended Plan, or the Restructuring; |
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(3) |
|
object to or otherwise commence any proceeding opposing any of
the terms of the Amended Plan or the Disclosure Statement, including, without
limitation, the findings of the Valuation Analysis (as defined in the
Disclosure Statement), provided that nothing contained herein shall
limit the ability of any Consenting Senior Note Holder to consult with the
Debtors, to appear and be heard, or to file objections, concerning any matter
arising in the Chapter 11 Cases, so long as such consultation, appearance or
objection is not inconsistent with (i) such Consenting Senior Note Holders
obligations under this Agreement or (ii) the terms of the Amended Plan and the
other transactions contemplated by and in accordance with this Agreement and
the Amended Plan; |
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(4) |
|
commence any proceeding or prosecute, join in, or otherwise
support any action to oppose or object to entry of the Disclosure Statement
Order; |
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(5) |
|
encourage any other Entity to object to, delay, impede, appeal,
or take any other action, directly or indirectly, to interfere with entry of
the Disclosure Statement Order or, after approval thereof, an order of the
Bankruptcy Court confirming the Amended Plan; |
5
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(6) |
|
commence any proceeding or prosecute, join in, or otherwise
support any action to oppose or object to approval of the Amended Plan; or |
|
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(7) |
|
take any action that is inconsistent with this Agreement or the
Amended Plan, or that would unreasonably delay approval of the Disclosure
Statement or confirmation of the Amended Plan. |
For the avoidance of doubt, the Claims Conversion Sub Plan shall not be an Alternative Plan if
implemented or consummated pursuant to and substantially in accordance with the Amended Plan and
not in violation of the Equity Commitment Agreement. Further, the obligations of any Consenting
Senior Note Holder under this Section 2.1 shall apply to all Relevant Claims and Relevant
Interests (each, as defined below) that such Consenting Senior Note Holder has in the Chapter 11
Cases; provided that the obligations under Section 2.1(a)(3) and Section
2.1(b)(1), to the extent it relates to voting, shall apply only to Relevant Claims (as defined
below) and not to the Equity Securities of Visteon Corporation (the Equity Interests),
including the Relevant Interests (as defined below), held by such Consenting Senior Note Holder.
Relevant Claims means the Visteon Claims held by a Consenting Senior Note Holder that it
is legally authorized to make subject to the terms of this Agreement, with the exception of any
such Visteon Claims that such Consenting Senior Note Holder has sold, transferred, or assigned
prior to its execution of this Agreement, whether or not any such sale, transfer, or assignment has
settled as of the date hereof (provided that such sale, transfer, or assignment is actually
consummated). Relevant Interests means the Equity Interests held by a Consenting Senior
Note Holder that it is legally authorized to make subject to the terms of this Agreement, with the
exception of any such Equity Interests that such Consenting Senior Note Holder has sold,
transferred, or assigned prior to its execution of this Agreement, whether or not any such sale,
transfer, or assignment has settled as of the date hereof (provided that such sale,
transfer, or assignment is actually consummated).
2.2 |
|
Transfer of Claims, Interests, and Securities. |
Each Consenting Senior Note Holder hereby agrees, for so long as this Agreement shall remain
in effect with regard to such Consenting Senior Note Holder, not to sell, assign, transfer, pledge,
hypothecate or otherwise dispose of, directly or indirectly (each such action, a
Transfer), any of its Relevant Claims or any right related thereto and including any
voting rights associated with such Relevant Claims, unless the transferee thereof delivers an
agreement in writing, in substantially the form of the transfer agreement attached hereto as
Exhibit C (the Transfer Agreement), to the Debtors no later than three (3)
Business Days after the relevant Transfer (each such transferee becoming a Consenting Senior Note
Holder upon the Transfer hereunder); provided, however, that any Transfer of
Relevant Claims to a Consenting Senior Note Holder shall not require the execution of a Transfer
Agreement but shall be subject to the provisions of Section 2.3 hereof.
The Debtors shall promptly acknowledge any such Transfer Agreement in writing and provide a
copy of that acknowledgement to the transferor; provided, however, that any failure
by the Debtors to acknowledge such Transfer Agreement shall not affect the validity or
enforceability thereof. By their acknowledgement of the relevant Transfer Agreement, the Debtors
shall be deemed to have acknowledged that their obligations to the Consenting Senior
6
Note Holders hereunder shall be deemed to constitute obligations in favor of the relevant
transferee as a Consenting Senior Note Holder hereunder. Any sale, transfer, or assignment of any
Relevant Claims that does not comply with the procedures set forth in this Section 2.2
shall be deemed void ab initio. Notwithstanding the foregoing, execution of a Transfer Agreement
shall not be required for transferees that are broker-dealers or trading desks in their capacity or
to the extent of their holdings as a broker-dealer or market maker of Claims or Equity Interests (a
Market Maker) engaged in market making or riskless back-to-back trades (collectively,
Market Making Activities); provided that execution of a Transfer Agreement under
this Section 2.2 shall be required for the actual purchasers of Claims in such market
transactions. For the avoidance of doubt, no Transfer Agreement shall be required in connection
with a Transfer by any Consenting Senior Note Holder of any Equity Interests.
2.3 |
|
Further Acquisition of Visteon Claims and Interests. |
This Agreement shall in no way be construed to preclude any Consenting Senior Note Holder or
any of its affiliates (as defined in section 101(2) of the Bankruptcy Code) from acquiring
additional Relevant Claims or Relevant Interests following its execution of this Agreement;
provided, however, that any such additional Relevant Claims or Relevant Interests
acquired by a Consenting Senior Note Holder shall automatically be deemed to be subject to the
terms of this Agreement. Upon the written request of the Debtors, each Consenting Senior Note
Holder shall, in writing and within five (5) Business Days, provide an accurate and current list of
all Relevant Claims and/or Relevant Interests that it holds at that time, subject to any applicable
confidentiality restrictions and applicable law, including the confidentiality restrictions set
forth in Section 2.1(a)(2) hereof.
Each Consenting Senior Note Holder further agrees that it will not knowingly permit or cause
any subsidiary or affiliate that it is legally authorized to control, now existing or hereafter
created, to acquire any Claims against or Equity Interests in any of the Debtors without causing
such affiliate to become a Party hereto prior to such acquisition; provided,
however, that notwithstanding anything to the contrary contained in this Agreement, the
foregoing restrictions on a Consenting Senior Note Holder knowingly permitting or causing any
subsidiary or affiliate to acquire any Claims against or Equity Interests in any of the Debtors
without becoming a Party hereto set forth in this paragraph shall not apply to the following
Consenting Senior Note Holders: (a) the High Yield Distressed Investing Group of Goldman, Sachs &
Co. (the High Yield Group), except with respect to the Transfer of Relevant Claims and
Relevant Interests held by the High Yield Group to any subsidiary or affiliate of the High Yield
Group, which Relevant Claims and Relevant Interests shall, for the avoidance of doubt, remain
Relevant Claims and Relevant Interests following any such Transfer, and (b) the Distressed Products
Group of Deutsche Bank Securities Inc. (the Distressed Products Group) except with
respect to the Transfer of Relevant Claims and Relevant Interests held by the Distressed Products
Group to any subsidiary or affiliate of the Distressed Products Group, which Relevant Claims and
Relevant Interests shall, for the avoidance of doubt, remain Relevant Claims and Relevant Interests
following any such Transfer.
Sections 2.2 and 2.3 of this Agreement shall not apply to Claims or Equity
Interests traded by any subsidiary or affiliate or any trading desk of a Consenting Senior Note
Holder in
7
its capacity or to the extent of its holdings as a Market Maker engaged in Market Making
Activities.
2.4 |
|
Implementation of the Amended Plan. |
Subject to their fiduciary duties and without limiting the rights of the Requisite Investors
under the Equity Commitment Agreement, the Debtors shall use their commercially reasonable efforts
to:
|
(a) |
|
file a motion with the Bankruptcy Court authorizing the Debtors to execute and
perform under this Agreement within seven (7) days of the date hereof and use their
commercially reasonable efforts to obtain an order from the Bankruptcy Court approving
such motion (the Plan Support Agreement Approval Order); |
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(b) |
|
effectuate and consummate the Restructuring on the terms contemplated by the
Amended Plan; |
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(c) |
|
file the Disclosure Statement with the Bankruptcy Court, along with a motion,
to the extent necessary, seeking approval of such Disclosure Statement; |
|
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(d) |
|
obtain entry by the Bankruptcy Court of an order approving the Disclosure
Statement in form and substance reasonably acceptable to the Requisite Investors and
finding that the Disclosure Statement satisfies the requirements of Section 1125 of the
Bankruptcy Code (such an order, the Disclosure Statement Order); |
|
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(e) |
|
solicit the requisite acceptances of the Amended Plan in accordance with
section 1125 of the Bankruptcy Code after the Bankruptcy Court has approved the
Disclosure Statement; |
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(f) |
|
after entry of the Disclosure Statement Order, move to confirm the Amended Plan
as expeditiously as practicable under the Bankruptcy Code and the Federal Rules of
Bankruptcy Procedure as applicable to the Chapter 11 Cases, promulgated under 28 U.S.C.
§ 2075 and the general, local, and chambers rules of the Bankruptcy Court
(collectively, the Bankruptcy Rules); |
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(g) |
|
implement all steps necessary and desirable to obtain the Confirmation Order,
which Confirmation Order shall be consistent in all material respects with the Amended
Plan and shall be in form and substance reasonably acceptable to the Requisite
Investors; |
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(h) |
|
take no actions inconsistent with this Agreement, the Amended Plan, or the
expeditious confirmation and consummation of the Amended Plan; and |
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(i) |
|
seek to consummate the Amended Plan upon satisfaction of all conditions to
consummation thereof. |
8
2.5 |
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The Debtors Fiduciary Obligations. |
Notwithstanding anything to the contrary contained in this Agreement, subject to the Debtors
obligations under the Equity Commitment Agreement, the Debtors obligations hereunder are subject
at all times to the fulfillment of their respective fiduciary duties. The Debtors may terminate
their obligations under this Agreement by written notice to counsel for the Consenting Senior Note
Holders if the Debtors reasonably determine that (a) the Amended Plan is not in the best interests
of the Debtors estates and continued support of the Amended Plan pursuant to this Agreement would
be inconsistent with the Debtors fiduciary obligations, or (b) the Debtors receive a proposal for
an Alternative Plan and the Debtors reasonably determine that continued support of the Amended Plan
pursuant to this Agreement would be inconsistent with the Debtors fiduciary obligations. Upon a
termination of this Agreement pursuant to this Section 2.5, all obligations of the
Consenting Senior Note Holders hereunder shall immediately terminate without further action or
notice by the Consenting Senior Note Holders.
Section 3. Representations and Warranties of Consenting Senior Note Holders.
Each of the Consenting Senior Note Holders hereby represents and warrants that, as of the date
hereof:
|
(a) |
|
it is the legal owner, beneficial holder, and/or the investment advisor or
manager for the beneficial holder of such legal or beneficial holders Relevant Claims
and Relevant Interests subject to this Agreement and set forth on its respective
signature page to this Agreement with authority to bind such beneficial holder to the
extent that such Consenting Senior Note Holder is not the beneficial holder
(respectively, the Initial Relevant Claims and Initial Relevant
Interests), provided that such information shall be held subject to the proviso in
Section 2.1(a)(2) hereof; |
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(b) |
|
there are no Relevant Claims or Relevant Interests of which it is the holder of
record that are not part of its Initial Relevant Claims and Initial Relevant Interests
unless such Consenting Senior Note Holder does not possess the full power to vote and
dispose of such Claims; and |
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(c) |
|
it has full power to vote (with the exception of such Consenting Senior Note
Holders Initial Relevant Interests), dispose of, and compromise the aggregate
principal amount of the Initial Relevant Claims and Initial Relevant Interests. |
Section 4. Mutual Representations, Warranties, and Covenants.
Each Party makes the following representations, warranties, and covenants, severally and not
jointly as to itself, to each of the other Parties, each of which are continuing representations,
warranties, and covenants:
4.1 Good Faith.
The Parties agree to negotiate in good faith all of the documents and transactions described
in the Amended Plan and in this Agreement.
9
Subject to Section 8.7 of this Agreement and the provisions of sections 1125 and 1126
of the Bankruptcy Code, this Agreement is a legal, valid, and binding obligation, enforceable
against the Debtors and each Consenting Senior Note Holder in accordance with its terms, except as
enforcement may be limited by applicable laws relating to or limiting creditors rights generally
or by equitable principles relating to enforceability. Notwithstanding anything contained herein
to the contrary, the obligations of each Consenting Senior Note Holder hereunder shall be several
and not joint.
4.3 |
|
No Consent or Approval. |
Except as expressly provided in this Agreement, no consent or approval is required by any
other Entity in order for it to carry out the provisions of this Agreement.
It is duly organized, validly existing, and in good standing under the laws of its
jurisdiction of organization and it has all requisite corporate, partnership, or limited liability
company power and authority to enter into this Agreement and to carry out the transactions
contemplated by, and perform its respective obligations under, this Agreement and the Amended Plan.
The execution and delivery of this Agreement and the performance of its obligations hereunder
have been duly authorized by all necessary corporate, partnership, or limited liability company
action.
4.6 |
|
Governmental Consents. |
Subject to the provisions of Section 8.7 of this Agreement, the execution, delivery,
and performance by the Parties of this Agreement does not and shall not require any registration or
filing with or consent or approval of, or notice to, or other action to, with or by, any federal,
state, or other governmental authority or regulatory body, except such filings as may be necessary
and/or required under the federal securities laws or as necessary for the approval of the
Disclosure Statement and confirmation of the Amended Plan by the Bankruptcy Court.
The execution, delivery, and performance of this Agreement does not and shall not: (a) violate
any provision of law, rule, or regulations applicable to it or, in the case of the Debtors, any of
its subsidiaries; (b) violate its certificate of incorporation, bylaws (or other formation
documents in the case of a limited liability company) or, in the case of the Debtors, those of any
of its subsidiaries; or (c) conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any material contractual obligation to which it or, in the
case of the Debtors, any of its subsidiaries is a party.
10
Section 5. No Waiver of Participation and Preservation of Rights.
This Agreement and the Amended Plan are part of a proposed settlement among the Parties with
respect to the Relevant Claims and Relevant Interests. Except as expressly provided in this
Agreement, nothing herein is intended to, does or shall be deemed in any manner to waive, limit,
impair, or restrict the ability of each of the Consenting Senior Note Holders to protect and
preserve its rights, remedies, and interests, including, but not limited to, its claims against any
of the Debtors, any liens or security interests it may have in any assets of any of the Debtors, or
its full participation in the Chapter 11 Cases so long as such actions are not inconsistent with
the Consenting Senior Note Holders obligations hereunder. Without limiting the foregoing sentence
in any way, if the transactions contemplated by this Agreement or otherwise set forth in the
Amended Plan are not consummated as provided herein or therein, if this Agreement is terminated for
any reason, the Parties each fully reserve any and all of their respective rights, remedies and
interests.
Section 6. Acknowledgement.
THIS AGREEMENT, THE AMENDED PLAN, AND THE TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN, ARE
THE PRODUCT OF NEGOTIATIONS BETWEEN THE PARTIES AND THEIR RESPECTIVE REPRESENTATIVES. EACH PARTY
HEREBY ACKNOWLEDGES THAT THIS AGREEMENT IS NOT AND SHALL NOT BE DEEMED TO BE A SOLICITATION OF
VOTES FOR THE ACCEPTANCE OF A CHAPTER 11 PLAN FOR THE PURPOSES OF SECTIONS 1125 AND 1126 OF THE
BANKRUPTCY CODE OR OTHERWISE. THE DEBTORS WILL NOT SOLICIT ACCEPTANCES OF THE AMENDED PLAN FROM
ANY CONSENTING SENIOR NOTE HOLDER (OR ANY OTHER PERSON OR ENTITY) UNTIL THE CONSENTING SENIOR NOTE
HOLDERS (OR ANY OTHER PERSON OR ENTITY) HAVE BEEN PROVIDED WITH COPIES OF A DISCLOSURE STATEMENT
APPROVED BY THE BANKRUPTCY COURT. EACH PARTY FURTHER ACKNOWLEDGES THAT NO SECURITIES OF ANY DEBTOR
ARE BEING OFFERED OR SOLD HEREBY AND THAT THIS AGREEMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OF ANY DEBTOR. NOTWITHSTANDING THE FOREGOING
PROVISIONS, NOTHING IN THIS AGREEMENT SHALL REQUIRE ANY PARTY TO TAKE ANY ACTION PROHIBITED BY THE
BANKRUPTCY CODE, THE SECURITIES ACT OF 1933 (AS AMENDED), THE SECURITIES EXCHANGE ACT OF 1934 (AS
AMENDED), ANY RULE OR REGULATIONS PROMULGATED THEREUNDER, OR BY ANY OTHER APPLICABLE LAW OR
REGULATION OR BY AN ORDER OR DIRECTION OF ANY COURT OR ANY STATE OR FEDERAL GOVERNMENTAL AUTHORITY.
Section 7. Termination.
This Agreement may be terminated:
|
(a) |
|
immediately upon the written agreement of the Debtors and the Requisite Senior
Note Holders to terminate this Agreement; |
11
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(b) |
|
by any of the Debtors or the Requisite Senior Note Holders upon three (3)
Business Days written notice to each of the other Parties; provided that such
notice is delivered in accordance with Section 8.11 hereof and received not
more than ten (10) Business Days following the occurrence of any event described in
clause (1) or (2) below, if: |
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(1) |
|
any of the Chapter 11 Cases are dismissed or converted to a
case under Chapter 7 of the Bankruptcy Code; or |
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(2) |
|
the Bankruptcy Court has entered an order in any of the Chapter
11 Cases appointing an examiner with expanded powers or a trustee under chapter
7 or chapter 11 of the Bankruptcy Code; provided, however, that
the appointment of an examiner pursuant to the motion of that certain ad hoc
committee of equityholders as filed with the Bankruptcy Court on April 2, 2010
shall not give rise to a right to terminate this Agreement; |
|
(c) |
|
by the Requisite Senior Note Holders, upon three (3) Business Days written
notice to the Debtors (or such lesser time if the voting deadline for the Amended Plan
is to occur, or if the Confirmation Hearing is to commence within such period),
provided that with respect to Sections 7.1(c)(1) and (2), the
Requisite Senior Note Holders shall not be permitted to terminate this Agreement if,
prior to the delivery of such notice, the Debtors shall have filed the relevant
document(s) set forth in Sections 7.1(c)(1) and/or (2) below that,
without the occurrence of such filing, would have constituted a basis for terminating
this Agreement, if: |
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(1) |
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the Debtors fail to file a motion seeking authority to perform
under this Agreement within seven (7) days of the date hereof; |
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(2) |
|
the Debtors have not filed the Amended Plan and the Disclosure
Statement with the Bankruptcy Court on or before May 12, 2010 or such later
date as may be agreed to by the Requisite Senior Note Holders; |
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(3) |
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the Debtors have withdrawn the Amended Plan or publicly
announced their intention not to support the Amended Plan or provided written
notice to any Consenting Senior Note Holders (or any of their respective
representatives) of their intention to do so; or |
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(4) |
|
any court has entered a final, non-appealable judgment or order
declaring this Agreement or any material portion hereof to be unenforceable; |
|
(d) |
|
by each Consenting Senior Note Holder, but solely with respect to such
Consenting Senior Note Holder (this Agreement remaining in full force and effect as
among the Debtors and the other Consenting Senior Note Holders) upon three (3) Business
Days written notice to the Debtors (or such lesser time if the voting deadline for the
Amended Plan is to occur, or if the Confirmation Hearing is to commence within such
period) following a material adverse change or modification to the treatment of the
Claims of holders of Visteon Notes under the
|
12
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Amended Plan, in the form attached hereto as of the date hereof, that has been
effected without the prior written consent of such Consenting Senior Note Holder; |
|
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(e) |
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and shall be terminated automatically if the Equity Commitment Agreement has
been validly terminated, subject to, and in accordance with, the Debtors rights
hereunder to commence the Expedited Proceedings (as defined below): |
|
(1) |
|
by Requisite Investors pursuant to Section 10.1(c)(i) of the
Equity Commitment Agreement; |
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(2) |
|
by Requisite Investors pursuant to Section 10.1(c)(iv) of the
Equity Commitment Agreement (excluding a termination of the Equity Commitment
Agreement by Requisite Investors pursuant to Section 10.1(c)(iv) of the Equity
Commitment Agreement in the event of a breach by any Investor);
provided, however, that this Agreement shall not be terminated
pursuant to this Section 7.1(e)(2) in the event of any extension of the
Outside Date (as defined in the Equity Commitment Agreement) pursuant to clause
(A) or (B) of Section 10.1(b)(iii) of the Equity Commitment Agreement, if,
following the date that would otherwise have been the Outside Date (as defined
in the Equity Commitment Agreement) but for such extension, the Equity
Commitment Agreement is terminated by the Requisite Investors pursuant to
Section 10.1(c)(iv) of the Equity Commitment Agreement as a result of any
breach or breaches of the Equity Commitment Agreement by the Debtors that would
cause a failure of any condition set forth in Section 8.1(l) of the Equity
Commitment Agreement; |
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(3) |
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by Requisite Investors pursuant to Section 10.1(c)(vi) of the
Equity Commitment Agreement; |
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(4) |
|
by the Debtors pursuant to Section 10.1(b)(ii) of the Equity
Commitment Agreement, unless: |
|
(A) |
|
the Debtors shall have provided the Lead
Investors (as defined in the Equity Commitment Agreement) with ten (10)
Business Days prior notice of their intent to terminate the Equity
Commitment Agreement (which notice the Debtors hereby agree to so
deliver); |
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(B) |
|
the Requisite Investors have failed to exercise
their Plan Cure Rights (as defined below), or have failed to obtain
confirmation of the Rights Offering Sub Plan following their exercise
of such Plan Cure Rights; and |
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(C) |
|
following a failure of the Requisite Investors
to exercise the Plan Cure Rights or to obtain confirmation of the
Rights Offering Sub Plan following their exercise of the Plan Cure
Rights, the Claims Conversion Sub Plan shall be confirmable by the
Bankruptcy Court without amendment or with only such amendments as
would
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13
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not require re-solicitation of the holders of Visteon Notes or, if
also made to the Rights Offering Sub Plan, would result in the
confirmation of the Rights Offering Sub Plan. |
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The Requisite Investors Plan Cure Rights pursuant to this
Section 7.1(e)(4) shall be as follows: within the ten (10) Business
Day period following the Lead Investors (as defined in the Equity
Commitment Agreement) receipt of notice of the Debtors intent to terminate
the Equity Commitment Agreement pursuant to Section 10.1(b)(ii) thereof, the
Requisite Investors shall deliver a written amendment or amendments which
are acceptable to the Debtors in their reasonable discretion to the Equity
Commitment Agreement or the Amended Plan, as the case may be (collectively,
the Amendments), that resolve all objections to the Amended Plan
sustained by the Bankruptcy Court (with the exception of those described in
Section 7.1(f) below) in a manner that either: |
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does not require the Debtors to
re-solicit approval of the Amended Plan; or |
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if re-solicitation is ordered by
the Bankruptcy Court following the Parties request that no
further solicitation be required, such re-solicitation requires
the Debtors to re-solicit approval of the Amended Plan only from
Holders of 7.00% Senior Note Claims, 8.25% Senior Note Claims,
and 12.25% Senior Note Claims; provided that binding
agreements to support the Amended Plan, as amended by the
Amendments, are delivered to the Debtors by Consenting Senior
Note Holders holding at least two-thirds in aggregate principal
amount of the 7.00% Senior Notes and 8.25% Senior Notes and
two-thirds in aggregate principal amount of the 12.25% Senior
Notes within five (5) Business Days after delivery of the
Amendments; |
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by the Debtors, pursuant to Section 10.1(b)(iii) of the Equity
Commitment Agreement if the conditions in Sections 8.1(h), (i), and (j) thereof
have not been satisfied and the outstanding items which are the cause of such
conditions to not be satisfied (i.e., any outstanding consents,
approvals, notifications, waiting period expirations, etc.) are also necessary
under applicable Law for the Debtors to consummate the Claims Conversion Sub
Plan; |
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by the Debtors pursuant to Section 10.1(d)(ii) of the Equity
Commitment Agreement; or |
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by Requisite Investors pursuant to Section 10.1(c)(ix) of the
Equity Commitment Agreement (any termination of the Equity Commitment
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Agreement described in this Section 7.1(e), a Plan Support
Termination Event); or |
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by Requisite Investors, upon three (3) Business Days written notice to the
Debtors if (i) the Bankruptcy Court shall determine not to approve the Rights Offering
Sub Plan solely on account of issues arising from a Management Agreement (as defined in
the Equity Commitment Agreement) or Exhibits G or L to the Equity Commitment Agreement
and (ii) the Debtors have not filed or delivered, as applicable, such amendments that
are reasonably acceptable to the Requisite Investors to any Management Agreement (as
defined in the Equity Commitment Agreement) or Exhibits G or L to the Equity Commitment
Agreement and/or Amended Plan as may be necessary to resolve all objections with
respect to issues arising from a Management Agreement (as defined in the Equity
Commitment Agreement) or Exhibits G or L to the Equity Commitment Agreement sustained
by the Bankruptcy Court within sixty (60) days following the Bankruptcy Courts
determination not to approve the Rights Offering Sub Plan. |
The provisions of this Section 7.1 are intended solely for the benefit of the Debtors
and the Consenting Senior Note Holders; provided, however, that a Consenting Senior
Note Holder or a Debtor may not seek to terminate this Agreement based upon a material breach or a
failure of a condition (if any) in this Agreement arising out of its own actions or omissions. The
Parties hereby waive any requirement under section 362 of the Bankruptcy Code to lift the automatic
stay thereunder (the Automatic Stay) in connection with giving any notice described in
this Section 7.1 (and agree not to object to any non-breaching Party seeking to lift the
Automatic Stay in connection with giving any such notice, if necessary). Any such termination (or
partial termination) of this Agreement shall not restrict the Parties rights and remedies for any
breach of this Agreement by any Party, including, but not limited to, the reservation of rights set
forth in Section 5 hereof, and the right of specific performance set forth in Section
8.8. For the avoidance of doubt, except as set forth in Section 7.1(e)(5) hereof, any
termination of the Equity Commitment Agreement by the Debtors pursuant to Section 10.1(b)(iii)
thereof shall not result in a right for any Party to terminate this Agreement.
If this Agreement is terminated or alleged to have been terminated pursuant to Section
7.1(e) hereof, the Debtors shall have three (3) Business Days to provide notice (such notice,
the Dispute Notice) to the Requisite Investors of their intent to commence expedited
proceedings in the Bankruptcy Court to determine whether a Plan Support Termination Event has
occurred (the Expedited Proceedings). The Consenting Senior Note Holders hereby agree to
consent to the commencement of the Expedited Proceedings and this Agreement shall not be terminated
with respect to the Consenting Senior Note Holders pursuant to Section 7.1(e) hereof
unless and until (A) the Debtors fail to file a motion seeking to commence the Expedited
Proceedings within seven (7) Business Days after receipt of the Dispute Notice by counsel to the
Consenting Senior Note Holders, or (B) a Final Order has been entered determining that a Plan
Support Termination Event has occurred, provided that the Debtors shall not be permitted to
proceed with consummation of the Claims Conversion Sub Plan pending entry of such Final Order. For
the avoidance of doubt, this last paragraph of Section 7.1 shall survive any termination of
this Agreement.
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Effects of Termination. |
In the event this Agreement is terminated (or is terminated with respect to any Party), the
Parties hereto (or the Parties with respect to which this Agreement has been terminated, as
applicable) shall not have any continuing liability or obligation under this Agreement and each
Party (or each Party with respect to which this Agreement has been terminated, as applicable) shall
have all the rights and remedies available to it under applicable law; provided,
however, that no such termination shall relieve any Party from liability for its breach or
non-performance of its obligations hereunder prior to the date of termination. Following any
termination of this Agreement (including a termination by a Consenting Senior Note Holder with
respect to such Consenting Senior Note Holder pursuant to Section 7.1(d) hereof), the
Debtors may proceed to seek confirmation of the Amended Plan and shall not be required to
re-solicit acceptances of the Amended Plan to the extent that any such solicitation has occurred;
provided that the Consenting Senior Note Holders shall be deemed to have voted to reject
the Claims Conversion Sub Plan for the purposes of confirmation of the Claims Conversion Sub Plan;
provided further, that to the extent that any Consenting Senior Note Holder has
terminated this Agreement with respect to itself pursuant to Section 7.1(d) hereof, such
Consenting Senior Note Holder shall be deemed to have voted to reject the Amended Plan without
regard to whether the Debtors seek confirmation of the Rights Offering Sub Plan or Claims
Conversion Sub Plan; provided further, that the Debtors shall adjourn the
Confirmation Hearing to the date that is thirty (30) days from the date that this Agreement has
been terminated (or the soonest date thereafter permitted by the Bankruptcy Courts schedule), and,
during such period, the Consenting Senior Note Holders shall have the opportunity to prepare for
the Confirmation Hearing, including by taking discovery and filing pleadings and objections.
Section 8. Miscellaneous Terms.
8.1 |
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Binding Obligation; Assignment. |
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Binding Obligation. Subject to the provisions of sections 1125 and 1126 of the
Bankruptcy Code, this Agreement is a legally valid and binding obligation of the
Parties and their respective members, officers, directors, agents, financial advisors,
attorneys, employees, partners, affiliates, successors, assigns, heirs, executors,
administrators, and representatives, other than a trustee or similar representative
appointed in the Chapter 11 Cases, enforceable in accordance with its terms, and shall
inure to the benefit of the Parties and their respective members, officers, directors,
agents, financial advisors, attorneys, employees, partners, affiliates, successors,
assigns, heirs, executors, administrators, and representatives. Nothing in this
Agreement, express or implied, shall give to any Entity, other than the Parties and
their respective members, officers, directors, agents, financial advisors, attorneys,
employees, partners, affiliates, successors, assigns, heirs, executors, administrators,
and representatives, any benefit or any legal or equitable right, remedy or claim under
this Agreement. The agreements, representations, warranties, covenants, and
obligations of each Consenting Senior Note Holder contained in this Agreement are, in
all respects, several, but not joint. |
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Assignment. No rights or obligations of any Party under this Agreement may be
assigned or transferred to any other entity except as provided in Section 2.2
hereof. |
The Parties agree to execute and deliver such other instruments and perform such acts, in
addition to the matters herein specified, as may be reasonably appropriate or necessary, from time
to time, to effectuate the agreements and understandings of the Parties, whether the same occurs
before or after the date of this Agreement.
The headings of all sections of this Agreement are inserted solely for the convenience of
reference and are not a part of and are not intended to govern, limit, or aid in the construction
or interpretation of any term or provision hereof.
THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO
THE CHOICE OF LAWS PRINCIPLES THEREOF.
Further, by its execution and delivery of this Agreement, each of the Parties hereto hereby
irrevocably and unconditionally agrees that, the Bankruptcy Court shall have exclusive jurisdiction
of all matters arising out of or in connection with this Agreement.
8.5 |
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Complete Agreement, Interpretation, Modification, and Conflicts. |
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Complete Agreement. This Agreement constitutes the complete agreement between
the Parties with respect to the subject matter hereof and supersedes all prior
agreements, oral or written, between or among the Parties with respect thereto. |
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Interpretation. This Agreement is the product of negotiation by and among the
Parties. Any Party enforcing or interpreting this Agreement shall interpret it in a
neutral manner. There shall be no presumption concerning whether to interpret this
Agreement for or against any Party by reason of that Party having drafted this
Agreement, or any portion thereof, or caused it or any portion thereof to be drafted. |
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Modification of Plan Support Agreement. This Agreement may only be modified,
altered, amended, or supplemented by an agreement in writing signed by the Debtors and
the Requisite Senior Note Holders; provided, however, that Section
7.1(d) hereof and this Section 8.5(c) shall not be amended without the
consent of each Consenting Senior Note Holder; provided further, that
any other provision hereof conferring rights upon an individual Consenting Senior Note
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Holder, or conditioning the obligations of any such Consenting Senior Note Holder
hereunder, by reference to Section 7.1(d) hereof shall not be amended
without the consent of each Consenting Senior Note Holder; and provided
further that Section 8.14 hereof (and this proviso of this
Section 8.5(c)) shall not be amended without the consent of each Consenting
Senior Note Holder which is a member of the Creditors Committee. |
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Modification of Amended Plan. Subject to the rights set forth in Section
7.1(d) hereof, the Amended Plan may only be modified, altered, amended or
supplemented as set forth in the Equity Commitment Agreement. |
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Conflicts. To the extent there is any conflict between the terms of this
Agreement and the terms of the Equity Commitment Agreement, the rights of the Investors
under the Equity Commitment Agreement shall be governed by the Equity Commitment
Agreement in all respects. |
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Calculation of Visteon Claims. |
The Parties acknowledge and agree that on the effective date of the Amended Plan, the 7.00%
Senior Notes Claims, 8.25% Senior Notes Claims, and 12.25% Senior Notes Claims shall be Allowed in
the aggregate amount of $456.82 million, $211.41 million, and $202.36 million, respectively.
8.7 |
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Execution and Binding Obligations of this Agreement. |
This Agreement may be executed and delivered (by facsimile or otherwise) in any number of
counterparts, each of which, when executed and delivered, shall be deemed an original and all of
which together shall constitute the same agreement. Except as expressly provided in this
Agreement, each individual executing this Agreement on behalf of a Party has been duly authorized
and empowered to execute and deliver this Agreement on behalf of said Party.
This Agreement will become binding and effective on the Parties upon its execution by (a) the
Debtors, (b) holders of 7.00% Senior Notes and 8.25% Senior Notes holding at least two-thirds in
amount of the aggregate amount of the 7.00% Senior Notes and 8.25% Senior Notes; and (c) holders of
12.25% Senior Notes holding at least two-thirds in amount of the aggregate amount of the 12.25%
Senior Notes; provided that the Debtors obligations hereunder shall be subject to entry of
the Plan Support Agreement Approval Order.
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Specific Performance. |
If a Party breaches any obligation, term, or provision of this Agreement, such Party shall not
be liable for money damages. This Agreement, including, without limitation, the Parties
respective obligations to vote for and support the Amended Plan as provided herein, and to
facilitate its confirmation and consummation as provided herein, is intended as a binding
commitment enforceable in accordance with its terms. It is understood and agreed by each of the
Parties hereto that money damages would not be a sufficient remedy for any breach of this Agreement
by any Party (and in any event is not a remedy available under this Agreement), and
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each non-breaching Party (as applicable) shall (a) subject to prior approval of the Disclosure
Statement pursuant to section 1125 of the Bankruptcy Code, with respect to voting for the Amended
Plan as provided herein, and (b) with respect to all other obligations contained herein, in each
case, be entitled solely to specific performance and injunctive or other equitable relief as a
remedy for any such breach.
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Settlement Discussions. |
This Agreement and the Restructuring are part of a proposed settlement among the Parties with
respect to the Relevant Claims and Relevant Interests. Nothing herein shall be deemed an admission
of any kind. To the extent provided by Federal Rule of Evidence 408 and any applicable state rules
of evidence, this Agreement and all negotiations relating thereto shall not be admissible into
evidence in any proceeding other than a proceeding to enforce the terms of this Agreement.
The Debtors and each Consenting Senior Note Holder hereby acknowledge that no consideration,
other than that specifically described herein and in the Amended Plan shall be due or paid to the
Consenting Senior Note Holders for their agreement to support confirmation of the Amended Plan in
accordance with the terms and conditions of this Agreement, other than the Debtors agreement to
use commercially reasonable efforts to obtain approval of the Disclosure Statement and to seek
confirmation of the Amended Plan in accordance with the terms and conditions of the Amended Plan.
All notices hereunder shall be deemed given if in writing and hand-delivered or sent by
courier, by registered or certified mail (return receipt requested), or by electronic mail to the
following addresses (or at such other addresses as shall be specified by like notice):
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if to the Debtors, to: Visteon Corporation, One Village Center Drive, Van Buren
Township, Michigan 48111; Attn.: Michael K. Sharnas (msharnas@visteon.com); with copies
to: (i) Kirkland & Ellis, LLP, 601 Lexington Avenue, New York, NY 10022-4611, Attn.:
Marc Kieselstein, P.C (marc.kieselstein@kirkland.com) and Brian S. Lennon
(brian.lennon@kirkland.com) and (ii) Kirkland & Ellis, LLP, 300 North LaSalle, Chicago,
IL 60654; Attn: James J. Mazza Jr. (james.mazza@kirkland.com); and |
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if to a Consenting Senior Note Holder, including a transferee thereof, to:
(i) White & Case LLP, Wachovia Financial Center, 200 South Biscayne Boulevard, Suite
4900, Miami, Florida 33131, Attn.: Thomas E. Lauria (tlauria@miami.whitecase.com),
(ii) White & Case LLP, 1155 Avenue of the Americas, New York, New York 10036, Attn.:
Gerard Uzzi (guzzi@ny.whitecase.com) and Gregory Pryor (gpryor@ny.whitecase.com),
and (iii) Akin Gump Strauss Hauer & Feld LLP, One Bryant Park, New York, New York
10036, Attn.: Michael Stamer (mstamer@akingump.com) and Arik Preis
(apreis@akingump.com). |
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Any notice given by hand-delivery, courier, mail, or electronic mail shall be effective when
received.
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Third Party Beneficiaries. |
This Agreement is intended for the benefit of the Parties hereto and no toher person shall
have any right hereunder.
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Relationship Among the Parties. |
It is understood and agreed that no Consenting Senior Note Holder has any duty of trust or
confidence with any other Consenting Senior Note Holder and there are no commitments arising among
or between the Consenting Senior Note Holders except as expressly provided herein.
8.14 |
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Committee Membership. |
Notwithstanding anything to the contrary herein, nothing in this Agreement shall, or shall be
deemed to, prevent or limit any Consenting Senior Note Holder (or any of its members, officers,
directors, agents, financial advisors, attorneys, employees, partners, affiliates, successors,
assigns, or representatives) from taking any action or refraining from taking any action to
exercise its (or their) fiduciary duties in its capacity as a member of the Creditors Committee.
* * * * * *
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IN WITNESS WHEREOF, the Parties have entered into this Agreement on the day and year first
above written.
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VISTEON CORPORATION
(on behalf of itself and its Debtor affiliates)
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Name: |
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Signature Page to Plan Support Agreement
Dated: ____________, 2010
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CONSENTING SENIOR NOTE HOLDER
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Name of Institution: |
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By: |
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Name: |
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Its: |
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Aggregate outstanding principal amount of Senior Notes Claims that are Relevant Claims:
7.00% Senior Notes Claims
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8.25% Senior Notes Claims
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12.25% Senior Notes Claims
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Total Senior Notes Claims
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$ |
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Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant Interest other than Senior Notes Claims:
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Description: |
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Signature Page to Plan Support Agreement
EXHIBIT B
DISCLOSURE STATEMENT
EXHIBIT C
FORM OF TRANSFER AGREEMENT
TRANSFER AND PLAN SUPPORT JOINDER AGREEMENT
This Transfer and Plan Support Joinder Agreement (the Agreement) is dated as of
_________ and is entered into by and between [Insert name of Assignor] (the Assignor)
and [Insert name of Assignee] (the Assignee) in accordance with Section 2.2 of the Plan
Support Agreement attached hereto as Exhibit A (the Plan Support Agreement).
Capitalized terms used but not defined herein shall have the meanings given to them in the Plan
Support Agreement.
WHEREAS, Assignor is a party to the Plan Support Agreement and has assigned to Assignee by
separate agreement claims held by the Assignee against the Debtors;
WHEREAS, the assignment by Assignor to Assignee is not effective unless Assignee complies with
Section 2.2 of the Plan Support Agreement; and
WHEREAS, Assignee agrees to comply with the Plan Support Agreement by entering into this
Agreement.
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in the
Assignment and herein, and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. The Assignee (a) agrees to be bound by the Plan Support Agreement as a Consenting Senior
Note Holder and (b) assumes the rights and obligations of a Consenting Senior Note Holder under the
Plan Support Agreement, and shall be deemed for all purposes to be a Consenting Senior Note Holder.
The Assignee (a) represents and warrants to each of the other Parties to the Plan Support
Agreement that, solely with respect to itself, the statements set forth in Section 3 and Section 4
of the Plan Support Agreement are true, correct and complete as of the date hereof; and (b) further
represents and warrants that (i) it is acquiring the claims from [ ] in the amounts set
forth on Schedule 1 hereof (the Assigning Claims), and (ii) upon consummation of such
acquisition under the applicable agreements to which such Assigning Claims relate, it will be the
legal or beneficial owner of the Assigning Claims.
2. Assignee shall deliver a copy of this Agreement to the Debtors no later than three (3)
Business Days after the date of this Agreement.
3. When acknowledged by the Debtors, this Agreement may be attached to the Plan Support
Agreement to evidence the foregoing assumptions and agreements; provided that any failure
by the Debtors to acknowledge this Agreement shall not affect the validity or enforceability
hereof.
4. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF, AND, TO THE EXTENT APPLICABLE, THE
BANKRUPTCY CODE.
5. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO SHALL
BE BROUGHT IN THE BANKRUPTCY COURT, OR IN THE EVENT THAT THE BANKRUPTCY COURT DECLINES TO EXERCISE
SUCH JURISDICTION FOR ANY REASON, THEN IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN
THE STATE, COUNTY AND CITY OF NEW YORK.
6. This Agreement shall be effective upon execution by the Assignor and Assignee and shall be
binding upon, and inure to the benefit of, the parties hereto and their respective successors and
assigns. This Agreement may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy or electronic mail in portable document format (pdf) shall be effective as
delivery of a manually executed counterpart of this Assignment.
[Remainder of page intentionally left blank]
4
The terms set forth in this Agreement are hereby agreed to:
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ASSIGNOR
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ASSIGNEE
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ACKNOWLEDGEMENT
By its signature below, Visteon Corporation, on behalf of itself and all other Debtors,
acknowledges the Transfer evidenced by the Agreement to which this Acknowledgement is attachment.
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VISTEON CORPORATION
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6
EXHIBIT I
FORM OF REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this Agreement) is made as of [_______],
2010 by and among Visteon Corporation, a Delaware corporation (the Company), and the
parties identified as Investors on the signature page hereto and any parties identified
on the signature page of any joinder agreements executed and delivered pursuant to Section
12 or Section 13 hereof (each, including the Investors, a Holder and,
collectively, the Holders). Capitalized terms used but not otherwise defined herein are
defined in Section 1 hereof.
RECITALS:
WHEREAS the Company proposes to issue the New Common Stock (as defined below) pursuant to, and
upon the terms set forth in, the Plan of Reorganization of Visteon Corporation and certain of its
Subsidiaries and Affiliates (the Plan) under chapter 11 of the United States Code, 11
U.S.C. §§ 101-1532. In accordance with the Plan, the Company agrees for the benefit of the
Holders, as follows:
NOW, THEREFORE, in accordance with the Plan, and in consideration of the premises and the
mutual covenants contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each of the Holders hereby agree as
follows:
Section 1. Definitions.
Affiliate of any particular Person means any other Person directly or indirectly
controlling, controlled by or under common control with such particular Person.
Agreement has the meaning specified in the first paragraph hereof.
Automatic Shelf Registration Statement means an automatic shelf registration
statement as defined in Rule 405 promulgated under the Securities Act.
Beneficial Ownership and terms of similar import shall be as defined under and
determined pursuant to Rule 13d-3 promulgated under the Exchange Act.
Business Day means each Monday, Tuesday, Wednesday, Thursday and Friday that is not
a day on which banking institutions in New York City are generally authorized or obligated by law
or executive order to close.
Commission means the United States Securities and Exchange Commission or any
successor governmental agency.
Company has the meaning specified in the first paragraph hereof.
Company Notice has the meaning specified in Section 2(c).
1
control (including the terms controlling, controlled by and under common
control with) means, unless otherwise noted, the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person, whether through the
ownership of voting shares, by contract, or otherwise.
Counsel to the Holders means, one counsel selected from time to time by the Holders
of a majority of the Registrable Securities.
Demand Notice has the meaning specified in Section 2(c).
Determination Date has the meaning specified in Section 2(g).
Disclosure Package means, with respect to any offering of securities, (i) the
preliminary prospectus, (ii) each Free Writing Prospectus and (iii) all other information, in each
case, that is deemed, under Rule 159 promulgated under the Securities Act, to have been conveyed to
purchasers of securities at the time of sale of such securities (including a contract of sale).
Effective Date has the meaning assigned to such term in the Plan.
Equity Commitment Agreement means that certain Equity Commitment Agreement dated as
of May 6, 2010, among the Company and the other parties thereto.
Exchange Act means the Securities Exchange Act of 1934, as amended from time to
time.
FINRA means the Financial Industry Regulatory Authority, Inc.
Follow-On Registration Notice has the meaning specified in Section 2(h)(i).
Follow-On Shelf has the meaning specified in Section 2(h)(i).
Form S-3 Shelf has the meaning specified in Section 2(a).
Free Writing Prospectus means any free writing prospectus as defined in Rule 405
promulgated under the Securities Act.
Hedging Counterparty means a broker-dealer registered under Section 15(b) of the
Exchange Act or an Affiliate thereof.
Hedging Transaction means any transaction involving a security linked to the
Registrable Securities or any security that would be deemed to be a derivative security (as
defined in Rule 16a-l(c) promulgated under the Exchange Act) with respect to the Registrable
Securities or any transaction (even if not a security) which would (were it a security) be
considered such a derivative security, or which transfers some or all of the economic risk of
ownership of the Registrable Securities, including any forward contract, equity swap, put or call,
put or call equivalent position, collar, non-recourse loan, sale of an exchangeable security or
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similar transaction. For the avoidance of doubt, the following transactions shall be deemed
to be Hedging Transactions:
(i) transactions by a Holder in which a Hedging Counterparty engages in short sales of
Registrable Securities pursuant to a prospectus and may use Registrable Securities to close
out its short position;
(ii) transactions pursuant to which a Holder sells short Registrable Securities
pursuant to a prospectus and delivers Registrable Securities to close out its short
position;
(iii) transactions by a Holder in which the Holder delivers, in a transaction exempt
from registration under the Securities Act, Registrable Securities to the Hedging
Counterparty who will then publicly resell or otherwise transfer such Registrable Securities
pursuant to a prospectus or an exemption from registration under the Securities Act; and
(iv) a loan or pledge of Registrable Securities to a Hedging Counterparty who may then
become a selling stockholder and sell the loaned shares or, in an event of default in the
case of a pledge, sell the pledged shares, in each case, in a public transaction pursuant to
a prospectus.
Holder and Holders have the meanings give to those terms in the first
paragraph hereof.
Holder Free Writing Prospectus means each Free Writing Prospectus prepared by or on
behalf of the relevant Holder or used or referred to by such Holder in connection with the offering
of Registrable Securities.
Investors has the meaning specified in the first paragraph hereof.
Lock-Up Period has the meaning specified in Section 4(a).
Losses has the meaning specified in Section 8(d).
NASDAQ means the The NASDAQ Stock Market.
New Common Stock means the shares of common stock, par value $.01 per share, of the
Company issued on and after the Effective Date and any additional shares of such common stock paid,
issued or distributed in respect of any such shares by way of a stock dividend, stock split or
distribution, or in connection with a combination of shares, and any such security into which such
New Common Stock shall have been converted or exchanged in connection with a recapitalization,
reorganization, reclassification, merger, consolidation, exchange, distribution or otherwise.
Other Holders has the meaning specified in Section 3(a).
Person means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an unincorporated
3
organization, a governmental entity or any department, agency or political subdivision thereof
or any other entity.
Piggyback Takedown has the meaning specified in Section 3(a).
Plan has the meaning specified in the Recitals.
Prospectus means the prospectus used in connection with a Registration Statement.
Registrable Securities means at any time any shares of New Common Stock issued or
issuable on or after the Effective Date to any Holder hereto, including, without limitation, any
New Common Stock issued pursuant to the Plan or upon the conversion, exercise or exchange, as
applicable, of any other securities and/or interests (including for avoidance of doubt the Rights
(as defined in the Plan)) issued pursuant to the Plan, any New Common Stock issued pursuant to the
Guaranty Warrants (as defined in the Plan) and any New Common Stock issued pursuant to the Direct
Commitment (as defined in the Plan), and any securities paid, issued or distributed in respect of
any such New Common Stock by way of stock dividend, stock split or distribution, or in connection
with a combination of shares, recapitalization, reorganization, merger or consolidation, or
otherwise, but excluding shares of New Common Stock acquired in the open market after the Effective
Date; provided, however, that as to any Registrable Securities, such securities
shall cease to constitute Registrable Securities upon the earliest to occur of: (w) the date on
which such securities are disposed of pursuant to an effective registration statement under the
Securities Act; (x) the date on which such securities are disposed of pursuant to Rule 144 (or any
successor provision) promulgated under the Securities Act; (y) with respect to the Registrable
Securities held by any Holder (or its Affiliates), any time that such Holder Beneficially Owns
Registrable Securities representing less than 5% of the then outstanding New Common Stock and is
permitted sell such Registrable Securities under Rule 144(b)(1); and (z) the date on which such
securities cease to be outstanding. For the purposes of this Agreement, a Person shall be deemed
to be a holder of Registrable Securities whenever such Person has the right to acquire such
Registrable Securities (upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitation upon the exercise of such right),
whether or not such acquisition has been effected.
Registration Expenses means all expenses (other than underwriting discounts and
commissions) arising from or incident to the registration of Registrable Securities in compliance
with this Agreement, including, without limitation, (i) Commission, stock exchange, FINRA and other
registration and filing fees, (ii) all fees and expenses incurred in connection with complying with
any securities or blue sky laws (including, without limitation, fees, charges and disbursements of
counsel in connection with blue sky qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) the fees, charges and disbursements of counsel to
the Company and of its independent public accountants and any other accounting and legal fees,
charges and expenses incurred by the Company (including, without limitation, any expenses arising
from any special audits or comfort letters required in connection with or incident to any
registration), (v) the fees and expenses incurred in connection with the listing of the Registrable
Securities on the New York Stock Exchange, NASDAQ (or any other national securities exchange) or
the quotation of Registrable Securities on any inter-
4
dealer quotation system, (vi) the fees and expenses incurred in connection with any road show
for underwritten offerings and (vii) reasonable fees, charges and disbursements of Counsel to the
Holders, including, for the avoidance of doubt, any expenses of Counsel to the Holders in
connection with the filing or amendment of any Registration Statement, Prospectus or Free Writing
Prospectus hereunder.
Registration Statement means any registration statement filed hereunder or in
connection with a Piggyback Takedown.
Rights Offering means the rights offering conducted pursuant to the Plan in
accordance with the Rights Offering Procedures.
Rights Offering Procedures means the document attached as an Exhibit to the Equity
Commitment Agreement setting forth the procedures for the Rights Offering.
Securities Act means the Securities Act of 1933, as amended from time to time.
Selling Expenses means the underwriting fees, discounts, selling commissions and
stock transfer taxes applicable to all Registrable Securities registered by the Holders and legal
expenses not included within the definition of Registration Expenses.
Shelf has the meaning specified in Section 2(a).
Shelf Registration means a registration of securities pursuant to a registration
statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under
the Securities Act (or any successor rule then in effect).
Shelf Takedown means either an Underwritten Shelf Takedown or a Piggyback Takedown.
Suspension Period has the meaning specified in Section 2(e)(ii).
Underwritten Shelf Takedown has the meaning specified in Section 2(b).
Well-Known Seasoned Issuer means a well-known seasoned issuer under Rule 405
promulgated under the Securities Act.
Section 2.
Shelf Registrations.
(a) Filing. The Company shall use its reasonable best efforts to file within fourteen
(14) Business Days after the Effective Date a registration statement on any permitted form that
qualifies, and is available for, the resale of Registrable Securities, with the Commission in
accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor
rule then in effect) (the Shelf). The Company shall use its reasonable best efforts to
cause the Shelf to become effective as promptly thereafter as practicable. The Company shall
include in the Shelf all Registrable Securities with respect to which the Company has received
written requests for inclusion therein at least five (5) Business Days prior to the date of filing
pursuant to a registration notice and questionnaire provided to holders under the Rights Offering
5
Procedures; provided, however, that in order to be named as a selling securityholder each
Holder must furnish to the Company in writing such information in writing as may be reasonably
requested by the Company for the purpose of including such Holders Registrable Securities in the
Shelf (the Selling Holder Information). The Company shall include in the Shelf Selling
Holder Information received by, to the extent necessary and in a manner so that upon effectiveness
of the Shelf, the Holder shall be named, to the extent required by the rules promulgated under the
Securities Act by the Commission, as a selling securityholder and be permitted to deliver (or be
deemed to deliver) a prospectus relating to the Shelf to purchasers of the Registrable Securities
in accordance with applicable law, and shall, if requested, within five (5) Business Days of any
request, amend or supplement the Shelf such that the plan of distribution or other related
information reflects transactions proposed to be conducted by any Holder. If the Company files an
amended version of the Shelf, the Company shall include in such Shelf Selling Holder Information
that was not included in any previous filed version of the Shelf. The Company shall use its
reasonable best efforts to convert any Shelf that is on a Form S-1 (including any Follow-On Shelf)
to a Registration Statement on Form S-3 (the Form S-3 Shelf) as soon as practicable after
the Company is eligible to use Form S-3. If any Registrable Securities remain issued and
outstanding after three (3) years following the initial effective date of such Shelf (the
Initial Shelf Effective Date), the Company shall, prior to the expiration of such Shelf,
file a new Shelf covering such Registrable Securities and shall thereafter use its reasonable best
efforts to cause to be declared effective as promptly as practical, such new Shelf. The Company
shall maintain the effectiveness of the Shelf in accordance with the terms hereof for so long as
any Registrable Securities remain issued and outstanding.
(b) Requests for Underwritten Shelf Takedowns. At any time and from time to time
after the Shelf has been declared effective by the Commission, any one or more Holders of
Registrable Securities may request to sell all or any portion of their Registrable Securities in an
underwritten offering (including an at-the-market offering or a registered direct offering)
that is registered pursuant to the Shelf (each, an Underwritten Shelf Takedown);
provided that in the case of each such Underwritten Shelf Takedown such Holder or Holders
will be entitled to make such demand only if the total offering price of the Registrable Securities
to be sold in such offering (including piggyback shares and before deduction of underwriting
discounts) is reasonably expected to exceed, in the aggregate, $75 million.
(c) Demand Notices. All requests for Underwritten Shelf Takedowns shall be made by
giving written notice to the Company (the Demand Notice). Each Demand Notice shall
specify the approximate number of Registrable Securities to be sold in the Underwritten Shelf
Takedown and the expected price range (net of underwriting discounts and commissions) of such
Underwritten Shelf Takedown. Within five (5) Business Days after receipt of any Demand Notice, the
Company shall send written notice of such requested Underwritten Shelf Takedown to all other
Holders of Registrable Securities (the Company Notice) and, subject to the provisions of
Section 2(d) below, shall include in such Underwritten Shelf Takedown all Registrable
Securities with respect to which the Company has received written requests for inclusion therein
within fifteen (15) Business Days after sending the Company Notice.
(d) Priority on Underwritten Shelf Takedowns. The Company shall not include in any
Underwritten Shelf Takedown any securities which are not Registrable Securities without the prior
written consent of the Holders of a majority of the Registrable Securities
6
requested to be included in the Underwritten Shelf Takedown. If the managing underwriters for
such Underwritten Shelf Takedown advise the Company in writing that in their opinion the number of
Registrable Securities and, if permitted hereunder, other securities requested to be included in
such Underwritten Shelf Takedown exceeds the number of Registrable Securities and other securities,
if any, which can be sold in an orderly manner in such offering within a price range acceptable to
the Holders of a majority of the Registrable Securities requested to be included in the
Underwritten Shelf Takedown, the Company shall include in such Underwritten Shelf Takedown the
number of Registrable Securities which can be so sold in the following order of priority: (i)
first, the Registrable Securities requested to be included in such Underwritten Shelf
Takedown by the Holders, which in the opinion of such underwriter can be sold in an orderly manner
within the price range of such offering, pro rata among the respective Holders of such Registrable
Securities on the basis of the number of Registrable Securities held by each such Holder, and (ii)
second, other securities, including securities that the Company proposes to register for
its own account, requested to be included in such Underwritten Shelf Takedown to the extent
permitted hereunder.
(e) Restrictions on Underwritten Shelf Takedowns and Use of Registration Statement.
(i) The Company shall not be obligated to effect more than (x) three (3)
Underwritten Shelf Takedowns during any period of twelve (12) consecutive months
during the first two-year period after the Effective Date, and (y) two (2)
Underwritten Shelf Takedowns during any period of twelve (12) consecutive months
following the first two-year period after the Effective Date, and, in either case,
shall not be obligated to effect an Underwritten Shelf Takedown within one-hundred
twenty (120) days after the pricing of a previous Underwritten Shelf Takedown.
(ii) Upon written notice to the Holders of Registrable Securities, the Company
shall be entitled to suspend, for a period of time (each, a Suspension
Period), the use of any Registration Statement or Prospectus and shall not be
required to amend or supplement the Registration Statement, any related Prospectus
or any document incorporated therein by reference if the Company determines in its
reasonable good faith judgment, after consultation with counsel, that the
Registration Statement or any Prospectus may contain an untrue statement of a
material fact or omits any fact necessary to make the statements in the Registration
Statement or Prospectus not misleading; provided that (A) there are no more
than three (3) Suspension Periods in any 12-month period, (B) the duration of all
Suspension Periods may not exceed ninety (90) days in the aggregate in any twelve
(12)-month period, (C) the duration of any one period may not exceed sixty (60)
days, (D) at least thirty (30) days must elapse between Suspension Periods, and (E)
the Company shall use its good faith efforts to amend the Registration Statement
and/or Prospectus to correct such untrue statement or omission as promptly as
reasonably practicable unless, commencing on or after date that is (60) days after
the initial effective date of the first Shelf filed pursuant to Section 2(a), such
amendment would reasonably be expected to have a material adverse effect on any
proposal or plan of the Company to effect a merger,
7
acquisition, disposition, financing, reorganization, recapitalization or
similar transaction, in each case that is material to the Company.
(f) Selection of Underwriters. The Holders of a majority of the Registrable
Securities requested to be included in an Underwritten Shelf Takedown shall have the right to
select the investment banker(s) and manager(s) to administer the offering (which shall consist of
one (1) or more reputable nationally recognized investment banks), subject to the Companys
approval, which shall not be unreasonably withheld, conditioned or delayed.
(g) Automatic Shelf Registration. Upon the Company becoming a Well-Known Seasoned
Issuer, (i) the Company shall give written notice to all of the Holders as promptly as practicable
but in no event later than twenty (20) days thereafter, and such notice shall describe, in
reasonable detail, the basis on which the Company has become a Well-Known Seasoned Issuer, and (ii)
the Company shall, as promptly as practicable