Exhibit 10.4
VISTEON "B" PURCHASE AGREEMENT
dated as of
September 12, 2005
between
FORD MOTOR COMPANY
and
VISTEON CORPORATION
relating to the purchase and sale
of
100% of the Shares of Common Stock
of
VFH HOLDINGS, INC.
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
Section 1.01. Definitions.............................................. 2
Section 1.02. Other Definitional and Interpretative Provisions......... 4
ARTICLE 2
PURCHASE AND SALE
Section 2.01. Purchase and Sale........................................ 5
Section 2.02. Closing.................................................. 6
Section 2.03. Deliveries at Closing.................................... 6
Section 2.04. Estimate of Inventories Purchase Price................... 7
Section 2.05. Post-Closing Calculations................................ 8
Section 2.06. Post-Closing Adjustment of the Inventories
Purchase Price........................................ 9
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.01. Corporate Existence and Power............................ 10
Section 3.02. Corporate Authorization.................................. 10
Section 3.03. Governmental Authorization............................... 10
Section 3.04. Noncontravention......................................... 10
Section 3.05. Ownership of Shares; No Other Assets or Activities
of the Company........................................ 11
Section 3.06. Environmental Compliance................................. 12
Section 3.07. VEBA Qualification and Funding........................... 12
Section 3.08. Litigation............................................... 13
Section 3.09. Finders' Fees............................................ 13
Section 3.10. No Other Representations or Warranties................... 13
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Section 4.01. Corporate Existence and Power............................ 13
Section 4.02. Corporate Authorization.................................. 13
Section 4.03. Governmental Authorization............................... 14
Section 4.04. Noncontravention......................................... 14
Section 4.05. Litigation............................................... 14
Section 4.06. Finders' Fees............................................ 14
Section 4.07. No Other Representations or Warranties................... 15
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ARTICLE 5
COVENANTS OF BUYER AND SELLER
Section 5.01. Commercially Reasonable Efforts; Further Assurances...... 15
Section 5.02. Certain Filings.......................................... 15
Section 5.03. Transfer Taxes........................................... 15
Section 5.04. Software License Fees.................................... 16
Section 5.05. Access to Information Prior to Closing;
Confidentiality....................................... 16
Section 5.06. Public Announcements..................................... 17
Section 5.07. Conduct of the Business.................................. 17
Section 5.08. Contribution Agreement................................... 17
Section 5.09. Obligations of the Company............................... 18
Section 5.10. Financial Statements..................................... 18
Section 5.11. Additional Agreements.................................... 18
Section 5.12. Directors and Officers................................... 20
Section 5.13. Notices of Certain Events................................ 21
ARTICLE 6
CONDITIONS TO CLOSING
Section 6.01. Conditions to Obligations of Buyer and Seller............ 22
Section 6.02. Conditions to Obligation of Buyer........................ 22
Section 6.03. Conditions to Obligation of Seller....................... 23
ARTICLE 7
SURVIVAL; INDEMNIFICATION
Section 7.01. Survival................................................. 24
Section 7.02. Indemnification.......................................... 24
Section 7.03. Indemnification Procedures and other Provisions
relating to Indemnification Claims.................... 25
Section 7.04. No Double Recovery....................................... 25
ARTICLE 8
TERMINATION
Section 8.01. Grounds for Termination.................................. 26
Section 8.02. Effect of Termination.................................... 27
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices.................................................. 27
Section 9.02. Amendments and Waivers................................... 29
Section 9.03. Expenses................................................. 29
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Section 9.04. Successors and Assigns................................... 29
Section 9.05. Governing Law............................................ 29
Section 9.06. Dispute Resolution....................................... 29
Section 9.07. Jurisdiction............................................. 30
Section 9.08. WAIVER OF JURY TRIAL..................................... 31
Section 9.09. Counterparts; Effectiveness; Third Party Beneficiaries... 31
Section 9.10. Entire Agreement......................................... 31
Section 9.11. Severability............................................. 31
Section 9.12. Specific Performance..................................... 31
Exhibit A Funding Agreement Termination Agreement
Exhibit B Hourly Employee Conversion Agreement
Exhibit C Master Equipment Bailment Agreement Termination Agreement
Exhibit D Visteon Salaried Employee Lease Agreement - Rawsonville/Sterling
Exhibit E Visteon Salaried Employee Transition Agreement -
Rawsonville/Sterling
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VISTEON "B" PURCHASE AGREEMENT
VISTEON "B" PURCHASE AGREEMENT (this "AGREEMENT") dated as of September 12,
2005 between Ford Motor Company, a Delaware corporation ("BUYER"), and Visteon
Corporation, a Delaware corporation ("SELLER").
WITNESSETH:
WHEREAS, Seller formed VFH Holdings, Inc., a Delaware corporation (the
"COMPANY"), pursuant to the Delaware General Corporation Law by filing the
Certificate of Incorporation of the Company with the office of the Secretary of
State of the State of Delaware on July 15, 2005;
WHEREAS, Seller is the record and beneficial owner of all of the issued and
outstanding shares of common stock of the Company (collectively, the "SHARES");
and
WHEREAS, Buyer and Seller are parties to a Master Agreement (the "MASTER
AGREEMENT") dated as of the date hereof and pursuant to which, among other
things, (i) Seller has agreed to enter into a Contribution Agreement (the
"CONTRIBUTION AGREEMENT") with the Company whereby, among other things, and
subject to the terms and conditions set forth therein, Seller has agreed to
contribute to one or more newly-formed, wholly-owned Subsidiaries of the Company
certain assets and properties as described therein, and the Company has agreed
to assume certain liabilities as set forth therein, (ii) Buyer and Seller have
agreed to enter into this Agreement and to consummate the transactions
contemplated hereby, including the purchase and sale of the Shares, on the terms
and conditions hereinafter set forth, and (iii) Buyer and Seller have agreed to
enter into a Visteon "A" Transaction Agreement (the "VISTEON "A" TRANSACTION
AGREEMENT") whereby, among other things, and subject to the terms and conditions
set forth therein, Buyer has agreed to provide financial assistance to Seller in
connection with the restructuring of the businesses of Seller that are not being
contributed to the Company pursuant to the Contribution Agreement, Seller has
agreed to issue to Buyer a warrant to purchase shares of common stock, par value
$1.00 per share, of Seller, and Buyer and Seller have agreed to enter into
certain commercial arrangements or to make certain modifications to existing
commercial arrangements with respect to the businesses of Seller that are not
being contributed to the Company pursuant to the Contribution Agreement.
NOW THEREFORE, in consideration of the above premises and the mutual
covenants herein contained, and for other good and valuable consideration given
by each party hereto to the other, the sufficiency and receipt of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) Capitalized terms used but otherwise not
defined herein shall have the meanings assigned to them in the Contribution
Agreement.
(b) The following terms, as used herein, have the following meanings:
"BUYER MATERIAL ADVERSE EFFECT" means a material adverse effect on the
ability of Buyer to perform its obligations under this Agreement or to
consummate the transactions contemplated by this Agreement.
"CLOSING DATE" means the date of the Closing.
"DISCLOSURE SCHEDULE" means the disclosure schedule delivered by Seller to
Buyer on the date hereof as attached hereto.
"ESTIMATED INVENTORIES PURCHASE PRICE" means the estimated amount of the
Inventories Purchase Price as determined pursuant to Section 2.04.
"FINAL INVENTORIES PURCHASE PRICE" means the Inventories Purchase Price (i)
as shown in Buyer's calculation delivered pursuant to Section 2.05(a), if no
notice of disagreement with respect thereto is duly delivered pursuant to
Section 2.05(b); or (ii) if such a notice of disagreement is delivered, (A) as
agreed by Buyer and Seller pursuant to Section 2.05(c) or (B) in the absence of
such agreement, as shown in the Referee's calculation delivered pursuant to
Section 2.05(c); provided that in no event shall the Final Inventories Purchase
Price be less than Buyer's calculation of the Inventories Purchase Price
delivered pursuant to Section 2.05(a) or more than Seller's calculation of the
Inventories Purchase Price delivered pursuant to Section 2.05(b).
"FUNDING AGREEMENT TERMINATION AGREEMENT" means the Termination Agreement,
substantially in the form of Exhibit A hereto, to the Funding Agreement between
Buyer and Seller dated as of March 10, 2005, as amended.
"HOURLY EMPLOYEE CONVERSION AGREEMENT" means the Hourly Employee Conversion
Agreement substantially in the form of Exhibit B hereto.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended.
"INVENTORY ACCOUNTING PRINCIPLES" means GAAP as consistently applied by
Seller and its Subsidiaries in the preparation of the audited balance sheet of
Seller and its consolidated Subsidiaries as of December 31, 2004, taking into
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account the accounting policies, methods and procedures within GAAP used in the
preparation of such financial statement, as described in Schedule 1.01(b).
"MASTER EQUIPMENT BAILMENT AGREEMENT TERMINATION AGREEMENT" means the
Termination Agreement, substantially in the form of Exhibit C hereto, to the
Master Equipment Bailment Agreement between Buyer and Seller dated as of March
10, 2005, as amended.
"SELLER MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
condition (financial or otherwise), business, assets or results of operations of
Seller and its Affiliates, taken as whole (other than the Business) or (ii) the
ability of Seller to perform its obligations under this Agreement or to
consummate the transactions contemplated by this Agreement, other than, in each
case of clauses (i) and (ii), an effect to the extent resulting from any one or
more of the following: (A) any change in the United States or foreign economies
or securities or financial markets in general; (B) any change that generally
affects any industry in which Seller competes, including changes in the price of
energy, supplies and raw materials; (C) any change arising in connection with
hostilities, acts of war, sabotage or terrorism or military actions or any
material escalation or material worsening of any such hostilities, acts of war,
sabotage or terrorism or military actions existing or underway as of the date
hereof (but only to the extent not disproportionately impacting or affecting
Seller); (D) any volume reductions in Buyer's business with Seller; or (E) the
loss of customers, suppliers or employees resulting from the public announcement
of this Agreement, compliance with the terms of this Agreement or the
consummation of the transactions contemplated by this Agreement.
"VISTEON "B" TRANSACTION DOCUMENTS" means:
(i) this Agreement;
(ii) the Funding Agreement Termination Agreement;
(iii) the Hourly Employee Conversion Agreement;
(iv) the Master Equipment Bailment Agreement Termination Agreement;
(v) the Visteon Salaried Employee Lease Agreement -
Rawsonville/Sterling;
(vi) the Visteon Salaried Employee Transition Agreement -
Rawsonville/Sterling; and
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(vii) any and all other agreements and documents required to be
delivered by any party hereto prior to or at Closing pursuant to the terms
of this Agreement.
"VISTEON SALARIED EMPLOYEE LEASE AGREEMENT - RAWSONVILLE/STERLING" means
the Visteon Salaried Employee Lease Agreement for Rawsonville/Sterling
substantially in the form of Exhibit D hereto.
"VISTEON SALARIED EMPLOYEE TRANSITION AGREEMENT - RAWSONVILLE/STERLING"
means the Visteon Salaried Employee Transition Agreement for
Rawsonville/Sterling substantially in the form of Exhibit E hereto.
(c) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
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Agreement Preamble
Assumed Environmental Liabilities 5.11
Buyer Preamble
Closing 2.02
Company Recitals
Contribution Agreement Recitals
Existing Employee Assignment Agreement 5.11
Ford VEBA 5.11
Indemnitees 5.12
Initial Statement 2.04
Inventories Purchase Price 2.01
Master Agreement Recitals
Purchase Price 2.01
Referee 2.05
Seller Preamble
Seller VEBA 3.07
Shares Recitals
Transfer Taxes 5.03
Visteon "A" Transaction Agreement Recitals
Warranty Breach 7.02
Section 1.02. Other Definitional and Interpretative Provisions. The words
"hereof", "herein" and "hereunder" and words of like import used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof. References to Articles, Sections, Exhibits and Schedules are to
Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise
specified. All
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Exhibits and Schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set forth in full
herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise
defined therein, shall have the meanings assigned to such terms in this
Agreement. Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation", whether or not they are in fact
followed by those words or words of like import. "Writing", "written" and
comparable terms refer to printing, typing and other means of reproducing words
(including electronic media) in a visible form. References in this Agreement to
any agreement or contract are to that agreement or contract as amended, modified
or supplemented from time to time in accordance with the terms hereof and
thereof; provided that with respect to any agreement or contract listed on any
schedules hereto, all such amendments, modifications or supplements are to be
deemed included in such agreement or contract only if listed in the appropriate
schedule. References in this Agreement to any Person include the successors and
permitted assigns of that Person. References in this Agreement from or through
any date mean, unless otherwise specified, from and including or through and
including, respectively.
ARTICLE 2
PURCHASE AND SALE
Section 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, Seller agrees to sell to Buyer, and Buyer agrees
to purchase from Seller, the Shares at the Closing. The consideration (the
"PURCHASE PRICE") payable by Buyer for the Shares is:
(i) an amount in cash equal to the aggregate book value, net of
reserves, of the Contributed Inventories as of the Closing Date, as
determined in accordance with the Inventory Accounting Principles (such
aggregate book value, net of reserves, the "INVENTORIES PURCHASE PRICE");
(ii) the agreements of Buyer set forth in Sections 5.09 and 5.11 of
this Agreement; and
(iii) Buyer's entry at Closing into the Visteon "B" Transaction
Documents to which it is a party.
The Purchase Price shall be paid as provided in Section 2.03 and the
Inventories Purchase Price shall be subject to adjustment as provided in Section
2.05.
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Section 2.02. Closing. The closing (the "CLOSING") of the purchase and sale
of the Shares hereunder shall take place at the offices of Dykema Gossett PLLC,
400 Renaissance Center, Detroit, Michigan 48243, after satisfaction of the
conditions set forth in Article 6 (or waiver thereof by the party entitled to
waive such condition) on the day immediately following the closing of the
Contribution Agreement, or at such other time or place as Buyer and Seller may
agree. The Closing shall be deemed effective as of 12.01 a.m. on the Closing
Date.
Section 2.03. Deliveries at Closing. (a) Deliveries by Buyer to Seller. At
the Closing, Buyer shall deliver to Seller:
(i) An amount in cash equal to the Estimated Inventories Purchase
Price in immediately available funds by wire transfer to an account of
Seller with a bank in the United States designated by Seller, by notice to
Buyer, which notice shall be delivered not later than two Business Days
prior to the Closing Date (or the payment date if the penultimate sentence
of this Section 2.03 applies); provided that the amount of cash payable at
Closing by Buyer pursuant to this clause (i) shall be reduced (by way of
set-off) by (x) all outstanding amounts owing to Buyer by Seller under the
Secured Promissory Note and (y) all outstanding amounts owing to Buyer by
Seller under the Container Agreement (as defined in the Visteon "A"
Transaction Agreement).
(ii) A counterpart of each of the following Visteon "B" Transaction
Documents duly executed by Buyer (or Affiliate of Buyer, as appropriate):
(A) Funding Agreement Termination Agreement.
(B) Hourly Employee Conversion Agreement.
(C) Master Equipment Bailment Agreement Termination Agreement.
(D) Visteon Salaried Employee Lease Agreement -
Rawsonville/Sterling, if applicable.
(E) Visteon Salaried Employee Transition Agreement -
Rawsonville/Sterling, if applicable.
(b) Deliveries by Seller to Buyer. At the Closing, Seller shall deliver to
Buyer:
(i) or to a Person designated by Buyer, by notice to Seller, which
notice shall be delivered not later than two Business Days prior to the
Closing Date, free and clear of all Liens, certificates for the Shares
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duly endorsed in blank or accompanied by stock transfer powers with any
required transfer stamps affixed thereto.
(ii) A counterpart of each of the following Visteon "B" Transaction
Documents duly executed by Seller (or Affiliate of Seller, as appropriate):
(A) Funding Agreement Termination Agreement.
(B) Hourly Employee Conversion Agreement.
(C) Master Equipment Bailment Agreement Termination Agreement.
(D) Visteon Salaried Employee Lease Agreement -
Rawsonville/Sterling, if applicable.
(E) Visteon Salaried Employee Transition Agreement -
Rawsonville/Sterling, if applicable.
(iii) All documents Buyer may reasonably request relating to the
transfer of the VEBA assets pursuant to Section 5.11(d).
Notwithstanding the foregoing provisions of this Section 2.03, if the
Closing Date is not a Business Day, Buyer shall deliver the cash amount required
to be paid pursuant to Section 2.03(a)(i) to Seller on the Business Day
immediately preceding the scheduled Closing Date (but subsequent to the
consummation of the closing under the Contribution Agreement), subject to the
prior delivery by the parties of the documents required to be delivered pursuant
to this Section 2.03 and Section 2.03 of the Visteon "A" Transaction Agreement
(such documents to be held in escrow by the parties' counsel pending release at
the Closing). If the Closing does not occur on the scheduled Closing Date,
Seller shall promptly (on the next Business Day) repay the cash amount delivered
by Buyer pursuant to the preceding sentence to Buyer.
Section 2.04. Estimate of Inventories Purchase Price. 15 days prior to the
date on which the Closing is scheduled to occur, Seller shall, in consultation
with Buyer, prepare and furnish to Buyer a statement (the "INITIAL STATEMENT"),
prepared in reasonable detail, with specificity and in accordance with the
Inventory Accounting Principles, setting forth Seller's good faith estimate of
the Inventories Purchase Price, which estimate will be based on the closing
accounts stated in Seller's books of account as of the end of the immediately
preceding calendar month and shall also take into account additions thereto and
subtractions therefrom subsequent to such date and until the date on which the
Closing is scheduled to occur based on Seller's good faith estimates taking into
account
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Seller's historical practices and forecasts. If Buyer agrees with such
estimate or Buyer does not object to such calculation within seven days after
Seller's delivery of the Initial Statement, such amount shall be deemed to be
the Estimated Inventories Purchase Price and shall be paid by Buyer to Seller at
the Closing pursuant to Section 2.03(a)(i). If Buyer disagrees with such
estimate, Buyer shall, within seven days after delivery of the Initial
Statement, deliver a written notice to Seller stating that Buyer disagrees with
such calculation and specifying in reasonable detail those items or amounts as
to which Buyer disagrees. If Buyer disagrees with Seller's estimate of the
Inventories Purchase Price set forth in the Initial Statement, the parties shall
promptly hold a meeting of senior executives with decision-making authority to
attempt in good faith to negotiate and mutually agree on the estimate of the
Inventories Purchase Price. If the parties are able to agree, such agreed upon
estimated amount shall be deemed to be the Estimated Inventories Purchase Price
and shall be paid by Buyer to Seller at the Closing pursuant to Section
2.03(a)(i). If the parties are unable to agree, the estimated Inventories
Purchase Price payable by Buyer to Seller at the Closing pursuant to Section
2.03(a)(i) shall be the amount set forth on the Statement of Assets.
Section 2.05. Post-Closing Calculations. (a) As promptly as practicable,
but no later than 90 days, after the Closing Date, Buyer will cause to be
prepared and delivered to Seller a statement setting forth Buyer's calculation,
in accordance with the Inventory Accounting Principles, of the Inventories
Purchase Price.
(b) If Seller disagrees with Buyer's calculation of the Inventories
Purchase Price delivered pursuant to Section 2.05(a), Seller may, within 45 days
after delivery of the statement referred to in Section 2.05(a), deliver a notice
to Buyer disagreeing with Buyer's calculation of the Inventories Purchase Price
and setting forth Seller's calculation of the Inventories Purchase Price. Any
such notice of disagreement shall specify those items or amounts as to which
Seller disagrees, and Seller shall be deemed to have agreed with all other items
and amounts contained in the statement delivered by Buyer pursuant to Section
2.05(a).
(c) If a notice of disagreement shall be duly delivered pursuant to Section
2.05(b), Buyer and Seller shall, during the 15 days following such delivery, use
their best efforts to reach agreement on the disputed items or amounts in order
to determine the Inventories Purchase Price, which amount shall not be less than
the amount thereof shown in Buyer's calculations delivered pursuant to Section
2.05(a) or more than the amount thereof shown in Seller's calculation delivered
pursuant to Section 2.05(b). If, during such period, Buyer and Seller are unable
to reach such agreement, they shall promptly thereafter cause Ernst & Young (the
"REFEREE") promptly, and in any event within 45 days, to review this Agreement
and the disputed items or amounts for the purpose of calculating the Inventories
Purchase Price. In making such calculation, the Referee shall consider only
those items or amounts in Buyer's calculation of the
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Inventories Purchase Price as to which Seller has disagreed and must only use
the accounting principles, methods and procedures of the Inventory Accounting
Principles in reviewing such disputed items or amounts. The Referee shall
deliver to Buyer and Seller, as promptly as practicable, a report setting forth
such calculation of the Inventories Purchase Price. Such report shall be final
and binding upon Buyer and Seller. The cost of such review and report shall be
borne (i) by Buyer if the difference between the Final Inventories Purchase
Price and Buyer's calculation of the Inventories Purchase Price delivered
pursuant to Section 2.05(a) is greater than the difference between the Final
Inventories Purchase Price and Seller's calculation of the Inventories Purchase
Price delivered pursuant to Section 2.05(b), (ii) by Seller if the first such
difference is less than the second such difference and (iii) otherwise equally
by Buyer and Seller.
(d) Buyer and Seller agree that they will, and agree to cause their
respective independent accountants to, cooperate and assist in the determination
of the Estimated Inventories Purchase Price pursuant to Section 2.04 and the
determination of the Inventories Purchase Price pursuant to this Section 2.05
and be available to the other party in connection with the conduct of the
reviews referred to in Section 2.04 and this Section 2.05 including making
available, upon request, to the extent necessary reasonable and timely access to
such party's books, records, work papers and personnel. All information
delivered pursuant to this Section 2.05 shall be subject to the terms of the
Confidentiality Agreement.
Section 2.06. Post-Closing Adjustment of the Inventories Purchase Price. If
the Estimated Inventories Purchase Price exceeds the Final Inventories Purchase
Price, Seller shall pay to Buyer, as an adjustment to the Inventories Purchase
Price, in the manner and with interest as provided in Section 2.06(b), the
amount of such excess. If the Final Inventories Purchase Price exceeds the
Estimated Inventories Purchase Price, Buyer shall pay to Seller, in the manner
and with interest as provided in Section 2.06(b), the amount of such excess.
(b) Any payment pursuant to Section 2.06(a) shall be made within 10 days
after the Final Inventories Purchase Price has been determined by delivery by
Buyer or Seller, as the case may be, in immediately available funds by wire
transfer to an account of the other party with a bank in the United States
designated by such other party by notice delivered promptly after the Final
Inventories Purchase Price has been determined (or, in the case of a payment by
Seller to Buyer, by a disbursement to Buyer from the Escrow Account pursuant to
the terms of the Escrow Agreement). The amount of any payment to be made
pursuant to this Section 2.06 shall bear interest from and including the Closing
Date to but excluding the date of payment at a rate per annum equal to the prime
rate as published in the Wall Street Journal, Eastern Edition in effect from
time to time during the period from the Closing Date to the date of such
payment. Such interest shall be payable at the same time as the payment to which
it relates and
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shall be calculated daily on the basis of a year of 365 days and the actual
number of days elapsed.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the date hereof and as of the
Closing Date (subject to any exceptions disclosed on the correspondingly
numbered section of the Disclosure Schedule) that:
Section 3.01. Corporate Existence and Power. Each of Seller, the Company
and each Subsidiary of the Company existing as of the date hereof is (and upon
its organization each Subsidiary of the Company formed pursuant to Section 4.02
of the Contribution Agreement will be) duly organized, validly existing and in
good standing (or equivalent status) under the laws of its jurisdiction of
organization and has all corporate or other organizational powers, as the case
may be, required to carry on its business as now conducted.
Section 3.02. Corporate Authorization. The execution, delivery and
performance by Seller of this Agreement and each other Visteon "B" Transaction
Document to which it is a party and the consummation of the transactions
contemplated hereby and thereby are within its corporate powers and have been
duly authorized by all necessary corporate action on the part of Seller. This
Agreement and each other Visteon "B" Transaction Document to which Seller is or
will be a party constitutes or will constitute when executed (assuming the due
authorization, execution and delivery by the other parties thereto) a valid and
binding agreement of Seller, enforceable against Seller in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
Section 3.03. Governmental Authorization. The execution, delivery and
performance by Seller of this Agreement and each other Visteon "B" Transaction
Document to which it is a party and the consummation of the transactions
contemplated hereby and thereby require no material authorization by, or
material filing with, any Governmental Authority other than (i) compliance with
any applicable requirements of the HSR Act and (ii) applicable filings to COFECO
under Mexico's Federal Economic Competition Law.
Section 3.04. Noncontravention. The execution, delivery and performance by
Seller of this Agreement and each other Visteon "B" Transaction Document to
which it is a party and the consummation of the transactions
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contemplated hereby and thereby do not and will not (i) violate its certificate
of incorporation or bylaws or other organizational documents or the
organizational documents of the Company or any Subsidiary of the Company,
assuming compliance with the matters referred to in Section 3.03, violate in any
material respect any applicable law, rule, regulation, judgment, injunction,
order or decree, assuming the obtaining of all consents set forth on Section
3.04(b) of the Disclosure Schedule to the Contribution Agreement, require any
consent or other action by any Person under, constitute a default under, or give
rise to any right of termination, cancellation or acceleration of any rights or
obligations of (A) the Company or any Subsidiary of the Company or to a loss of
any benefit to which the Company or any Subsidiary of the Company is entitled
under any provision of any material agreement or other material instrument
binding upon the Company or any Subsidiary of the Company or (B) Seller or to a
loss of any benefit to which Seller is entitled under any provision of any
material agreement or other material instrument binding upon Seller except, in
the case of this clause (iii)(B), as would not reasonably be expected to have,
individually or in the aggregate, a Seller Material Adverse Effect or result in
the creation or imposition of any Lien on any material asset of the Company or
any Subsidiary of the Company other than any Permitted Lien.
Section 3.05. Ownership of Shares; No Other Assets or Activities of the
Company. (a) Seller is the record and beneficial owner of the Shares, free and
clear of any Lien (other than any Liens securing the Indebtedness of Seller or
its Subsidiaries under the Visteon Credit Agreement or arising under the Secured
Promissory Note between Seller and Buyer dated as of the date hereof, which
Liens shall be released at or prior to Closing) and any other limitation or
restriction (including any restriction on the right to vote, sell or otherwise
dispose of the Shares other than as provided for in this Agreement or the Master
Agreement), and will transfer and deliver to Buyer at the Closing valid title to
the Shares free and clear of any Lien and any such limitation or restriction.
The Shares have been duly authorized and validly issued and are fully paid and
non-assessable. Other than the Shares, there are no outstanding (i) securities
or other equity interests of the Company, (ii) securities or other equity
interests of the Company convertible into or exchangeable for securities or
other equity interests of the Company or (iii) options or other rights to
acquire from the Company, or other obligation of the Company to issue, any
securities or equity interests or securities convertible into or exchangeable
for securities or equity interests of the Company.
(b) As of the date hereof, neither the Company nor any Subsidiary of the
Company has, nor is it subject to, any Liabilities (other than immaterial
liabilities incurred in connection with its organization), and the Company does
not own, and has never owned, directly or indirectly, any assets or properties
(including an equity interest in any Person, other than any wholly-owned
Subsidiaries listed on Section 3.05(c) of the Disclosure Schedule or formed
11
pursuant to Section 4.02 of the Contribution Agreement), and does not and has
not conducted any business or activities other than in the ordinary course in
connection with its organization. As of the Closing Date, neither the Company
nor any Subsidiary of the Company will have (or be subject to) any Liabilities
(other than immaterial liabilities incurred in connection with its organization)
or own, directly or indirectly, any assets or properties (including an equity
interest in any Person, other than any wholly-owned Subsidiaries listed on
Section 3.05(c) of the Disclosure Schedule or formed pursuant to Section 4.02 of
the Contribution Agreement), and neither the Company nor any Subsidiary of the
Company will conduct any business activities, except in each case for such
assets, properties and businesses acquired, and such Liabilities assumed, as
provided for under the Contribution Agreement.
(c) Each Subsidiary of the Company existing as of the date hereof is listed
on Section 3.05(c) of the Disclosure Schedule, and all of the outstanding
capital stock of each such Subsidiary is wholly-owned by the Company, directly
or indirectly (as set forth on Section 3.05(c) of the Disclosure Schedule) free
and clear of any Lien (other than any Liens securing the Indebtedness of Seller
or its Subsidiaries under the Visteon Credit Agreement or arising under the
Secured Promissory Note between Seller and Buyer dated as of the date hereof,
which Liens shall be released at or prior to Closing). Other than as set forth
on Section 3.05(c) of the Disclosure Schedule, there are no outstanding (i)
securities or other equity interests of any such Subsidiary, (ii) securities or
other equity interests of any such Subsidiary convertible into or exchangeable
for securities or other equity interests of such Subsidiary or (iii) options or
other rights to acquire from of any such Subsidiary, or other obligation of such
Subsidiary to issue, any securities or equity interests or securities
convertible into or exchangeable for securities or equity interests of such
Subsidiary.
Section 3.06. Environmental Compliance. Seller's representation and
warranty in Section 3.21 of the Contribution Agreement is true and correct (it
being understood and agreed by the parties that this Section 3.06 shall not in
any respect limit or restrict Ford's indemnification obligations under this
Agreement with respect to the Assumed Environmental Liabilities).
Section 3.07. VEBA Qualification and Funding. The Visteon Corporation UAW
Voluntary Employee Beneficiary Association (the "SELLER VEBA") is qualified
under Section 501(c)(9) of the Code and has been so qualified (and maintained in
accordance with its terms) during the period from its adoption to date, and the
trust thereunder is exempt from tax pursuant to Section 501(a) of the Code. As
of May 31, 2005, the assets held in the Seller VEBA had a fair market value of
not less than $24,635,000. No assets have been withdrawn from, and no payments
have been made or otherwise distributed from, the Seller VEBA subsequent to May
24, 2005.
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Section 3.08. Litigation. Except as publicly disclosed in the reports filed
or furnished by Seller to the SEC prior to the date hereof, there is no action,
suit, investigation, inquiry or proceeding pending against, or to the knowledge
of Seller, threatened against or affecting, Seller or any of its Affiliates or
any of their respective properties by or before any Governmental Authority
which, individually or in the aggregate, if determined or resolved adversely in
accordance with the plaintiff's demands, would reasonably be expected to have a
Seller Material Adverse Effect or which in any manner challenges or seeks to
prevent, enjoin or materially delay the transactions contemplated by this
Agreement.
Section 3.09. Finders' Fees. There is no investment banker, broker, finder
or other intermediary that has been retained by or is authorized to act on
behalf of Seller or any of its Affiliates who might be entitled to any fee or
commission from Ford or any of its Affiliates in connection with the
transactions contemplated by this Agreement.
Section 3.10. No Other Representations or Warranties. Except for the
representations and warranties contained in this Agreement (as modified by the
Disclosure Schedule), or in the other agreements referred to in Section 9.10,
neither Seller nor any other Person makes any other express or implied
representation or warranty with respect to Seller, its Subsidiaries and the
transactions contemplated by this Agreement, and Seller disclaims any other such
representations or warranties, whether made by Seller, any Subsidiary of Seller
or any of their respective officers, directors, employees, agents or
representatives. Nothing in this Section 3.10 shall impair or limit in any way
any of the rights or remedies of Buyer and its Affiliates set forth in this
Agreement or in the other agreements referred to in Section 9.10 or relating to
or arising out of any fraud or willful misrepresentation.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as of the date hereof and as of the
Closing Date that:
Section 4.01. Corporate Existence and Power. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of Delaware
and has all corporate powers required to carry on its business as now conducted.
Section 4.02. Corporate Authorization. The execution, delivery and
performance by Buyer of this Agreement and each other Visteon "B" Transaction
Document to which it is a party and the consummation of the transactions
contemplated hereby and thereby are within its corporate powers and have been
13
duly authorized by all necessary corporate action on the part of Buyer. This
Agreement and each other Visteon "B" Transaction Document to which Buyer is or
will be a party constitutes or will constitute when executed (assuming the due
authorization, execution and delivery by the other parties thereto) a valid and
binding agreement of Buyer, enforceable against Buyer in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
Section 4.03. Governmental Authorization. The execution, delivery and
performance by Buyer of this Agreement and each other Visteon "B" Transaction
Document to which it is a party and the consummation of the transactions
contemplated hereby and thereby require no material authorization by, or
material filing with, any Governmental Authority other than (i) compliance with
any applicable requirements of the HSR Act and (ii) applicable filings to COFECO
under Mexico's Federal Economic Competition Law.
Section 4.04. Noncontravention. The execution, delivery and performance by
Buyer of this Agreement and each other Visteon "B" Transaction Document to which
it is a party and the consummation of the transactions contemplated hereby and
thereby do not and will not (i) violate its certificate of incorporation or
bylaws or other organizational documents or (ii) assuming compliance with the
matters referred to in Section 4.03, violate in any material respect any
applicable law, rule, regulation, judgment, injunction, order or decree or (iii)
require any consent or other action by any Person under, constitute a default
under, or give rise to any right of termination, cancellation or acceleration of
any of its rights or obligations or to a loss of any benefit to which it is
entitled under any provision of any material agreement or other instrument
binding upon it except, in the case of this clause (iii), as would not
reasonably be expected to have, individually or in the aggregate, a Buyer
Material Adverse Effect.
Section 4.05. Litigation. There is no action, suit, investigation, inquiry
or proceeding pending against, or to the knowledge of Buyer threatened against
or affecting, Buyer or any of its Affiliates or any of their respective
properties by or before any Governmental Authority which in any manner
challenges or seeks to prevent, enjoin or materially delay the transactions
contemplated by this Agreement.
Section 4.06. Finders' Fees. There is no investment banker, broker, finder
or other intermediary that has been retained by or is authorized to act on
behalf of Buyer or any of its Affiliates who might be entitled to any fee or
commission from Seller or any of its Affiliates in connection with the
transactions contemplated by this Agreement.
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Section 4.07. No Other Representations or Warranties. Except for the
representations and warranties contained in this Agreement, or in the other
agreements referred to in Section 9.10, neither Buyer nor any other Person makes
any other express or implied representation or warranty with respect to Buyer,
its Subsidiaries and the transactions contemplated by this Agreement, and Buyer
disclaims any other such representations or warranties, whether made by Buyer,
any Subsidiary of Buyer or any of their respective officers, directors,
employees, agents or representatives. Nothing in this Section 4.07 shall impair
or limit in any way any of the rights or remedies of Seller and its Affiliates
set forth in this Agreement or in the other agreements referred to in Section
9.10 or relating to or arising out of any fraud or willful misrepresentation.
ARTICLE 5
COVENANTS OF BUYER AND SELLER
Section 5.01. Commercially Reasonable Efforts; Further Assurances. Subject
to the terms and conditions of this Agreement, Buyer and Seller will use their
respective commercially reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary or desirable under
applicable laws and regulations to consummate the transactions contemplated by
this Agreement. Buyer and Seller agree to execute and deliver such other
documents, certificates, agreements and other writings and to take such other
actions as may be necessary or desirable in order to consummate or implement
expeditiously the transactions contemplated by this Agreement.
Section 5.02. Certain Filings. Buyer and Seller shall cooperate with one
another (i) in determining whether any action by or in respect of, or filing
with, any Governmental Authority is required, or any actions, consents,
approvals or waivers are required to be obtained from parties to any material
contracts, in connection with the consummation of the transactions contemplated
by this Agreement and (ii) in taking such actions or making any such filings,
furnishing information required in connection therewith and seeking timely to
obtain any such actions, consents, approvals or waivers. Filing fees
attributable to the filings made pursuant to this Section 5.02 shall be borne by
the party responsible for making the filing, or if one joint filing is required,
the applicable filing fee shall be equally borne by Buyer and Seller.
Section 5.03. Transfer Taxes. Subject to Section 4.C. of each Mexican Asset
Purchase Agreement, all transfer, documentary, sales, use, stamp, registration
and other such Taxes and fees to be incurred in connection with transactions
contemplated by this Agreement (including any real property transfer Tax and any
similar Tax) ("TRANSFER TAXES") shall be borne by Visteon. The party or parties
having responsibility therefore under applicable law shall prepare and file all
necessary Transfer Tax Returns and other documentation and shall
15
take reasonable steps to reduce or eliminate such Transfer Taxes. In the event
that Buyer, the Company or any of their Affiliates shall be required to pay or
shall pay any Transfer Tax, upon demand, Seller shall promptly pay such Transfer
Tax for Buyer or reimburse Buyer for such Transfer Tax paid by Buyer, as
applicable (and if Seller shall not promptly pay such Transfer Tax, Buyer shall
be entitled to receive a disbursement in the amount of such Transfer Tax from
the Escrow Account pursuant to the terms of the Escrow Agreement).
Section 5.04. Software License Fees. Any costs payable prior to the Closing
to licensors of software solely in connection with (i) the transfer of software
licenses by Seller to the Company pursuant to the transactions contemplated by
the Contribution Agreement, the Intellectual Property Contribution Agreement or
the Software License and Contribution Agreement, or (ii) the transactions
contemplated by this Agreement (in each case excluding ongoing licensing and
maintenance fees required to be paid by the Company pursuant to the terms of the
licenses after the Closing, except to the extent of any increase in such fees
that is payable in lieu of a software license transfer fee (it being agreed by
the parties that neither party hereto may agree to any such increase with a
licensor without the prior consent of the other party hereto)) shall be borne
equally by Buyer and Seller (and, pursuant to the Contribution Agreement, any
such costs payable after the Closing shall be borne equally by Seller and the
Company). Buyer and Seller shall cooperate to minimize the amount of any such
costs.
Section 5.05. Access to Information Prior to Closing; Confidentiality. From
the date hereof until the Closing Date, Seller will during normal business hours
and upon reasonable notice (i) give Buyer, its counsel, financial advisors,
auditors and other authorized representatives full access (subject to the next
sentence) to the offices, properties, books and records of Seller relating to
the Business, the Contributed Assets and the Assumed Liabilities, (ii) furnish
to Buyer, its counsel, financial advisors, auditors and other authorized
representatives such existing financial and operating data and other information
relating to the Business, the Contributed Assets and the Assumed Liabilities as
such Persons may reasonably request (provided that Seller shall not be required
to prepare new financial statements except as required pursuant to Section 5.10
of this Agreement and Section 4.03 of the Contribution Agreement) and
(iii)instruct the management, employees, counsel and financial advisors of
Seller to cooperate with Buyer in its investigation of the Business, the
Contributed Assets and the Assumed Liabilities and to provide prompt, accurate
and thorough responses to Buyer's request for materials and information relating
to such investigation. Any investigation pursuant to this Section shall be
conducted in such manner as not to interfere unreasonably with the conduct of
the business of Seller, including any officer of Seller. No investigation by
Buyer or other information received by Buyer shall operate as a waiver or
otherwise affect any representation, warranty or agreement given or made by
Seller hereunder or under the Contribution
16
Agreement. All such confidential information will remain subject to the terms of
the Confidentiality Agreement; provided that Buyer shall be permitted to provide
such information that it deems necessary to conduct discussions with potential
acquirors of all or a part of Business or all or part of the Contributed Real
Property (and related Contributed Assets), and Seller shall provide the access
contemplated by the first sentence of this Section 5.05 to any such potential
acquiror, provided that such potential acquiror enters into a confidentiality
agreement with Buyer substantially comparable to the Confidentiality Agreement
(which confidentiality agreements shall provide Seller with the right to enforce
the confidentiality obligations of such potential acquirors thereunder).
Section 5.06. Public Announcements. The parties agree to consult with each
other before issuing any press release or making any public statement with
respect to this Agreement or the transactions contemplated hereby and, except
for (i) any press releases and public statements the making of which may be
required by applicable law or any listing agreement with any national securities
exchange, (ii) confidential disclosures to rating agencies and (iii) disclosures
made to lenders and underwriters who enter into a confidentiality agreement
substantially comparable to the Confidentiality Agreement, no party shall issue
any such press release or make any such public statement without the prior
consent of the other party.
Section 5.07. Conduct of the Business. (a) From the date hereof until the
Closing Date, Seller agrees to, and agrees to cause its Affiliates to, (i)
conduct the Business as set forth in Section 4.01 of the Contribution Agreement
and (ii) without limiting the generality of the foregoing, support Buyer's
forward model vehicle programs.
(b) From the date hereof until the closing under the Contribution
Agreement, Seller agrees that it shall not permit the Company (or any of its
Subsidiaries) to own, directly or indirectly, any assets or properties, to
conduct any businesses or activities or to incur any Liabilities (other than
immaterial liabilities incurred in connection with its organization).
Section 5.08. Contribution Agreement. Seller agrees that from the date
hereof until the Closing: it shall not permit the Company to agree to any
amendment to or modification or waiver of any provision of, or to assign any of
its rights under, the Contribution Agreement without the prior written consent
of Buyer, (ii) it shall not permit the Company to exercise any rights of
termination under the Contribution Agreement without the prior written consent
of Buyer and it shall cause the Company to exercise any such rights of
termination at and in accordance with the direction of Buyer, (iii) where the
Company has the right under the terms of the Contribution Agreement to make any
designation or election, to give any notice, to grant any consent or approval,
to agree to any matter, to be consulted with, or to take any other similar
action (including making
17
any determination as to whether the conditions to closing under the Contribution
Agreement have been satisfied or taking actions under the dispute resolution
provisions), it shall in each case cause the Company to take any such action
only at and in accordance with the direction of Buyer, (iv) it shall take all
actions and perform all obligations required to be taken or performed by it, and
it shall cause the Company to take all actions and to perform all obligations
required to be taken or performed by the Company, pursuant to the provisions of
the Contribution Agreement, (v) all representations, warranties and obligations
of Seller under the Contribution Agreement shall be deemed made or given to or
for the benefit of Buyer, and Buyer shall have the right to enforce all rights
of the Company with respect to such representations, warranties and obligations
as if Buyer were a party to the Contribution Agreement and (vi) it shall, or
shall cause the Company to, notify Buyer promptly of any matter arising under or
with respect to the Contribution Agreement or the transactions contemplated
thereby in order that Buyer may exercise its rights under the foregoing clauses
(i) through (v).
Section 5.09. Obligations of the Company. From and after the Closing, Buyer
agrees to provide sufficient funds to the Company to enable the Company and its
Subsidiaries to fulfill their obligations under the Contribution Agreement and
the Contribution Agreement Transaction Documents (as defined in the Contribution
Agreement), including with respect to the Assumed Liabilities thereunder.
Section 5.10. Financial Statements. At Buyer's request, Seller shall use
reasonable efforts, within existing resource constraints, to assist Buyer in the
preparation of financial statements for all or any portion of the Business, as
of and for the periods ending on such dates, as Buyer shall specify (including
executing and delivering to any auditor preparing such financial statements
management representation letters with respect to periods prior to the Closing),
and Buyer shall reimburse Seller for any direct and indirect personnel costs,
including out-of-pocket costs (for third party services), reasonably incurred by
Seller in connection with such assistance.
Section 5.11. Additional Agreements. Assumption of Certain Environmental
Liabilities. Upon the terms and subject to the conditions of this Agreement,
Buyer hereby assumes, effective at the time of the Closing, all Environmental
Liabilities that were assumed by Seller pursuant to the Master Transfer
Agreement and the Site Exchange Agreement between Buyer and Seller effective as
of January 1, 2001 to the extent arising from the ownership or operation of the
Contributed Real Property prior to the Spin-Off Date (excluding any increase in
cost attributable to the exacerbation of such Liabilities by Seller or its
Affiliates) (the "ASSUMED ENVIRONMENTAL LIABILITIES"). For purposes of this
Section, for any allocation of relative liability between Buyer and Seller
relating to a parcel sold by Seller from or adjacent to one or more of the
Plants, (i) "exacerbation" shall include the sale by Seller of such parcel, and
(ii), any
18
Assumed Environmental Liability relating to such parcel shall be reduced by the
greater of (1) the consideration Seller received or receives in the future in
connection with such sale, and (2) any increase in Damages (as defined in the
Contribution Agreement) to the extent the sale altered (A) the likelihood of
Liabilities (as defined in the Contribution Agreement) being identified or
incurred, (B) the type or magnitude of Liabilities or Damages, or (C) the actual
Damages incurred. Other than the assumption of the Assumed Environmental
Liabilities by Buyer pursuant to this Section 5.11(a), nothing herein shall be
deemed to modify the allocation of Liabilities under the Master Transfer
Agreement.
(b) Termination of Existing Employee Assignment Agreement; Hourly OPEB
Liability. Effective as of the Closing: (i) Buyer and Seller hereby agree that
the Amended and Restated Hourly Employee Assignment Agreement between Buyer and
Seller dated as of April 1, 2000 and as amended and restated as of December 19,
2003 (the "EXISTING EMPLOYEE ASSIGNMENT AGREEMENT") shall be automatically
terminated without further action and shall be of no further force and effect;
and (ii) Buyer hereby fully, unconditionally, completely, irrevocably and
forever releases Seller from its obligation to pay Buyer any amounts owing to
Buyer under the Existing Employee Assignment Agreement; provided that (A) any
reimbursement obligations of Seller under the Existing Employee Assignment
Agreement with respect to (x) wages, benefits and administrative expenses that
are payable with respect to periods prior to Closing, and (y) OPEB retiree
benefits payments made prior to Closing, in each case of the type set forth on
Schedule 5.11(b), shall remain outstanding and in full force and effect, and
shall be payable by Seller to Buyer in accordance with Section 8 of the Existing
Employee Assignment Agreement and (B) any obligations of Buyer or Seller
pursuant to subsections 17.1(ii) and (iii) and subsections 17.2(ii) and (iii) of
the Existing Employee Assignment Agreement shall remain outstanding and in full
force and effect.
(c) Termination of the Funding Agreement and the Master Equipment Bailment
Agreement. Buyer and Seller hereby agree to enter into at Closing (i) the
Funding Agreement Termination Agreement and (ii) the Master Equipment Bailment
Agreement Termination Agreement.
(d) Transfer of Seller VEBA Assets. In connection with the release under
Section 5.11(b) of Seller from its obligation to reimburse Ford for the cost of
providing post-retirement health and life benefits for Ford hourly employees,
(i) As soon as practicable after the Closing Date, Seller shall (A)
cause the trustee of the Seller VEBA to make any and all filings and
submissions to the appropriate governmental agencies arising in connection
with the transfer of assets as described below, and (B) make all
19
necessary amendments to the Seller VEBA to provide for the transfer of
assets as described below.
(ii) As soon as practicable after the Closing Date, Buyer shall (A)
make any and all filings and submissions to the appropriate governmental
agencies required to be made by it in connection with the transfer of
assets described below, and (B) make all necessary amendments to the
Ford-UAW Benefits Trust (the "FORD VEBA") to provide for the transfer of
assets as described below.
(iii) As soon as practicable after the Closing Date, subject to the
delivery (A) to Buyer by Seller of Seller indemnities satisfactory to
Buyer, and (B) the delivery to Seller by Buyer of Buyer indemnities
satisfactory to Seller, Seller shall cause the trustee of the Seller VEBA
to transfer in cash (or marketable securities reasonably satisfactory to
the trustee of the Ford VEBA) the assets thereunder (including earnings
thereon attributable to the period from the Closing Date to the date of
transfer) to the trustee of the Ford VEBA. The costs associated with
liquidating the assets in the Seller VEBA in connection with the transfer
thereof to the Ford VEBA shall be borne by Buyer.
(iv) Neither Buyer nor any of its Affiliates shall release Seller from
nor assume any other obligations or liabilities arising under or
attributable to the Seller VEBA including, without limitation, any
obligations or liabilities arising under or attributable to any breach of
Seller's representations and warranties under Article 3 hereof.
(v) From the date hereof until the Closing Date, Seller agrees that it
shall not, and shall not permit any of its Subsidiaries to, withdraw or
otherwise make (or cause to be withdrawn or made) any payments or
distributions, either directly or indirectly, from the Seller VEBA.
(e) Visteon Salaried Employee Transition Agreement. If a competitive
operating agreement is reached with the UAW at the Rawsonville and/or Sterling
plants by October 1, 2005, then Buyer and Seller agree to enter into (i) the
Visteon Salaried Employee Transition Agreement (with respect to the salaried
employees at either or both of such plants, as applicable) and (ii) the Visteon
Salaried Employee Lease Agreement (with respect to the salaried employees at
either or both of such plants, as applicable).
Section 5.12. Directors and Officers. Buyer agrees that all rights of the
individuals who on or prior to the Closing Date were directors, officers or
employees of the Company or any of its Subsidiaries (collectively, the
"INDEMNITEES") to indemnification and exculpation from liabilities for acts or
omissions occurring at or prior to the Closing Date as provided in the
respective
20
certificate of incorporation or by-laws or comparable organizational documents
of the Company or such Subsidiary in effect on the Closing Date shall survive
the Closing Date and shall continue in full force and effect in accordance with
their terms. For a period of not less than six years following the Closing Date,
such rights shall not be amended, or otherwise modified in any manner that would
adversely affect the rights of the Indemnitees, unless such modification is
required by applicable law.
Section 5.13. Notices of Certain Events. Each party shall promptly notify
the other party of:
(a) any written notice or other written communication from any Person
alleging that the consent of such Person is or may be required in
connection with the transactions contemplated by this Agreement or the
other Visteon "B" Transaction Documents;
(b) any notice or other communication from any Governmental Authority
in connection with the transactions contemplated by this Agreement or the
other Visteon "B" Transaction Documents;
(c) any actions, suits, claims, investigations, inquiries or
proceedings commenced or, to its knowledge threatened that relate to the
consummation of the transactions contemplated by this Agreement or the
other Visteon "B" Transaction Documents or that, if pending on the date of
this Agreement, would have been required to be disclosed pursuant to
Section 3.08 (in the case of Seller) or Section 4.05 (in the case of
Buyer); and
(d) any circumstance, event or action the existence, occurrence or
taking of which would result in any representation or warranty made by such
party in this Agreement not being true and correct and which, if not cured,
would result in the failure of the condition set forth in Section
6.02(a)(ii) (in the case of Seller) or Section 6.03(a)(ii) (in the case of
Buyer).
No notice or disclosure by a party pursuant to this Section shall be deemed
to amend or supplement the Disclosure Schedule or to prevent, cure or operate as
a waiver of any misrepresentation or breach of warranty.
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ARTICLE 6
CONDITIONS TO CLOSING
Section 6.01. Conditions to Obligations of Buyer and Seller. The
obligations of Buyer and Seller to consummate the Closing are subject to the
satisfaction or waiver by both parties of the following conditions:
(a) The closing under the Contribution Agreement shall have been
consummated.
(b) The closing under the Visteon "A" Transaction Agreement shall have
been consummated (or be capable of being consummated contemporaneously with
the Closing).
(c) The parties shall have made applicable filings to COFECO under
Mexico's Federal Economic Competition Law with respect to the transactions
contemplated by the Contribution Agreement and this Agreement, and neither
party shall have been advised that the filings are deficient.
(d) No provision of any applicable law or regulation and no judgment,
injunction, order or decree by any Governmental Authority shall prohibit
(including as a result of the failure to obtain, take or make any required
authorization or similar action by or in respect of or filings with any
Governmental Authority) the consummation of the Closing.
Section 6.02. Conditions to Obligation of Buyer. The obligation of Buyer
to consummate the Closing is subject to the satisfaction of the following
further conditions:
(a) (i) Seller shall have performed in all material respects all of
its obligations hereunder required to be performed by it on or prior to the
Closing Date, (ii) (A) the representations and warranties of Seller
contained in Sections 3.02 and 3.05 shall be true and correct at and as of
the Closing Date as if made at and as of such date and (B) all other
representations and warranties of Seller contained in this Agreement and in
any other Visteon "B" Transaction Document and in any certificate delivered
by Seller pursuant hereto, disregarding all qualifications and exceptions
contained therein relating to materiality or Seller Material Adverse
Effect, shall be true and correct at and as of the Closing Date as if made
at and as of such date (except that representations and warranties that
relate to a specific date shall only be required to be true and correct as
of such date) except as would not, individually or in the aggregate, have a
Seller Material Adverse Effect, and (iii) Buyer shall have received a
22
certificate signed by the chief financial officer of Seller to the
foregoing effect.
(b) There shall not be pending any action or proceeding by any
Governmental Authority, that challenges or seeks to make illegal, to
materially delay or otherwise directly or indirectly to prohibit the
consummation of the transactions contemplated by this Agreement or seeks to
obtain material damages from Buyer or its Affiliates in connection with
this transaction.
(c) Seller shall have received a final, full and indefeasible release
of all Liens on the Shares pursuant to, or created in connection with, the
Visteon Credit Agreement, in form and substance reasonably satisfactory to
Buyer, and Seller shall have delivered all documents in connection
therewith as Buyer may reasonably request.
(d) Buyer shall have received certification signed by Seller to the
effect that Seller is not a "foreign person" as defined in Section 1445 of
the Code.
(e) If Buyer shall have given notice of a breach or failure to perform
pursuant to Section 8.01(a)(iv)(B), Seller shall have cured such breach.
(f) Buyer shall have received all documents and instruments to be
received by Buyer pursuant to Section 2.03(b).
Section 6.03. Conditions to Obligation of Seller. The obligation of Seller
to consummate the Closing is subject to the satisfaction of the following
further conditions:
(a) (i) Buyer shall have performed in all material respects all of its
obligations hereunder required to be performed by it on or prior to the
Closing Date, (A) the representations and warranties of Buyer contained in
Section 4.02 shall be true and correct at and as of the Closing Date as if
made at and as of such date and (B) all other representations and
warranties of Buyer contained in this Agreement and in any other Visteon
"B" Transaction Document and in any certificate delivered by Buyer pursuant
hereto shall be true and correct in all material respects at and as of the
Closing Date as if made at and as of such date (except that representations
and warranties that relate to a specific date shall only be required to be
true and correct as of such date), and (iii) Seller shall have received a
certificate signed by the chief financial officer of Buyer to the foregoing
effect.
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(b) Seller shall have received all cash, documents and instruments to
be received by Seller at Closing pursuant to Section 2.03(a).
ARTICLE 7
SURVIVAL; INDEMNIFICATION
Section 7.01. Survival. The representations and warranties of the parties
hereto contained in this Agreement or in any officer's certificate delivered
pursuant hereto or in connection herewith shall survive the Closing until the
eighteen month anniversary of the Closing Date; provided that (i) the
representations and warranties in Sections 3.01, 3.02, 3.05, 4.01 and 4.02,
shall survive indefinitely or until the latest date permitted by applicable law
and (ii) the representations and warranties in Section 3.06 shall survive until
the later of the sixth anniversary of the Closing Date and the applicable
statute of limitations. The covenants and agreements of the parties hereto
contained in this Agreement or in any officer's certificate delivered pursuant
hereto or in connection herewith shall survive the Closing indefinitely or for
the shorter period explicitly specified therein, except that for such covenants
and agreements that survive for such shorter period, breaches thereof shall
survive indefinitely or until the latest date permitted by law. Notwithstanding
the preceding sentence, any breach of covenant, agreement, representation or
warranty in respect of which indemnity may be sought under this Agreement shall
survive the time at which it would otherwise terminate pursuant to the preceding
sentence, if written notice of the inaccuracy thereof giving rise to such right
of indemnity (setting forth the basis therefor in reasonable detail) shall have
been given to the party against whom such indemnity may be sought prior to such
time.
Section 7.02. Indemnification. (a) Effective at and after the Closing,
Seller hereby indemnifies Buyer and its Affiliates against and agrees to hold
each of them harmless from any and all Damages, incurred or suffered by Buyer or
any of its Affiliates arising out of (A) any misrepresentation or breach of any
warranty (disregarding all qualifications and exceptions contained therein
relating to materiality or material adverse effect) (each such misrepresentation
and breach of warranty a "WARRANTY BREACH") by Seller or its Affiliates in this
Agreement or any other Visteon "B" Transaction Documents, (B) any breach of
covenant or agreement made or to be performed by Seller or its Affiliates
pursuant to this Agreement or any other Visteon "B" Transaction Documents or (C)
subject to Section 2.03(b) of the Contribution Agreement, any Visteon Retained
Liability (which do not include the Assumed Environmental Liabilities); provided
that with respect to indemnification by Seller for Warranty Breaches (other than
Sections 3.01, 3.02, 3.05 and 3.09, and other than in cases of fraud or willful
misrepresentation) pursuant to this Section 7.02(a), (i) Seller shall not be
liable
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unless the aggregate amount of Damages with respect to such Warranty Breaches
(together with all amounts paid or payable by Seller with respect to Warranty
Breaches under Section 8.02 of the Contribution Agreement and Section 7.02 of
the Visteon "A" Transaction Agreement) exceeds $3 million (in which case Seller
shall only be liable to the extent of such excess) and (ii) Seller's maximum
liability (together with all amounts paid or payable by Seller with respect to
Warranty Breaches under Section 8.02 of the Contribution Agreement and Section
7.02 of the Visteon "A" Transaction Agreement) shall not exceed $30 million in
the aggregate.
(b) Effective at and after the Closing, Buyer hereby indemnifies Seller and
its Affiliates against and agrees to hold each of them harmless from any and all
Damages incurred or suffered by Seller or any of its Affiliates arising out of
(A) any Warranty Breach by Buyer or its Affiliates, (B) breach of covenant or
agreement made or to be performed by Buyer or its Affiliates pursuant to this
Agreement or any other Visteon "B" Transaction Documents or (C) any Assumed
Environmental Liability; provided that with respect to indemnification by Buyer
for Warranty Breaches (other than in cases of Sections 4.01, 4.02, and 4.06, and
other than in cases of fraud or willful misrepresentation) pursuant to this
Section 7.02(b), (i) Buyer shall not be liable unless the aggregate amount of
Damages with respect to such Warranty Breaches (together with all amounts paid
or payable by Buyer with respect to Warranty Breaches under Section 7.02 of the
Visteon "A" Transaction Agreement) exceeds $3 million (in which case Buyer shall
only be liable to the extent of such excess) and (ii) Buyer's maximum liability
(together with all amounts paid or payable by Buyer with respect to Warranty
Breaches under Section 7.02 of the Visteon "A" Transaction Agreement) shall not
exceed $30 million in the aggregate.
Section 7.03. Indemnification Procedures and other Provisions relating to
Indemnification Claims. The procedures set forth in Section 8.03 of the
Contribution Agreement, and the provisions set forth in Sections 8.04, 8.05,
8.06 and 8.07 of the Contribution Agreement shall apply, mutatis mutandis, with
respect to any claim for indemnification under this Agreement.
Section 7.04. No Double Recovery. Notwithstanding anything herein to the
contrary, no indemnified party shall be entitled to indemnification under any
provision of this Agreement for any amount to the extent such indemnified party
or its Affiliate has been indemnified for such amount pursuant to this
Agreement, the other Visteon "B" Transaction Documents, the Visteon "A"
Transaction Agreement, the other Visteon "A" Transaction Documents (as defined
in the Visteon "A" Transaction Agreement), the Contribution Agreement, the other
Contribution Agreement Transaction Documents, the Confidentiality Agreement or
any other agreement, contract or instrument executed in connection herewith or
therewith.
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ARTICLE 8
TERMINATION
Section 8.01. Grounds for Termination. (a) This Agreement may be terminated
at any time prior to the Closing:
(i) by mutual written agreement of Seller and Buyer;
(ii) by either Buyer or Seller, if any applicable law or regulation
makes consummation of the transactions contemplated hereby illegal or
otherwise prohibited or if consummation of the transactions contemplated
hereby would violate any nonappealable final order, decree or judgment of
any Governmental Authority having competent jurisdiction;
(iii) by Seller if Buyer shall have breached or failed to perform in
any material respect any of its representations, warranties or covenants
contained in this Agreement, which breach or failure to perform (A) is
incapable of being cured by Buyer prior to the Outside Date or is not cured
by the earlier of (x) 30 Business Days following written notice to Buyer by
Seller of such breach and (y) the Outside Date and (B) if not cured would
result in a failure of any condition set forth in Section 6.03(a); or
(iv) by Buyer if (A) Seller shall have breached or failed to perform
in any material respect any of its representations, warranties or covenants
contained in this Agreement, which breach or failure to perform (1) is
incapable of being cured by Seller prior to the Outside Date or is not
cured by the earlier of (x) 30 Business Days following written notice to
Seller by Buyer of such breach and (y) the Outside Date and (2) if not
cured would result in a failure of any condition set forth in Section
6.02(a), or (B) Seller shall have breached or failed to perform in any
material respect any of its covenants contained in Sections 6.1 (but only,
in the case of clause (c) thereof, to the extent such breach or failure to
perform is of its performance obligations under the existing agreements
referred to in such clause), 6.2 and 6.5 of the Funding Agreement between
Buyer and Seller dated as of March 10, 2005, as amended and, other than in
the case of such breach of Section 6.1(a) thereof (if such breach relates
to the quantity or timing of the supply of components), such breach is not
cured within 15 days after written notice thereof has been given by Buyer
to Seller.
The party desiring to terminate this Agreement pursuant to clauses (ii),
(iii) or (iv) shall give notice of such termination to the other party.
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(b) This Agreement shall automatically terminate and be of no further force
and effect upon (A) termination of the Contribution Agreement in accordance with
its terms if such termination is in compliance with Section 5.08 hereof or (B)
termination of the Visteon "A" Transaction Agreement in accordance with its
terms.
Section 8.02. Effect of Termination. If this Agreement is terminated as
permitted by Section 8.01, such termination shall be without liability of either
party (or any stockholder, director, officer, employee, agent, consultant or
representative of such party) to the other party to this Agreement; provided
that if such termination shall result from the (i) willful failure of either
party to fulfill a condition to the performance of the obligations of the other
party, (ii) failure to perform a covenant of this Agreement or (iii) breach by
either party hereto of any representation or warranty or agreement contained
herein, such party shall be fully liable for any and all Damages incurred or
suffered by the other party as a result of such failure or breach. The
provisions of this Section 8.02, Section 5.06, and Article 9 shall survive any
termination hereof pursuant to Section 8.01.
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission and
e-mail transmission, so long as a receipt of such e-mail is requested and
received) and shall be given,
if to Buyer, to:
Ford Motor Company
Office of the Secretary
One American Road
11th Floor World Headquarters
Dearborn, Michigan 48126
Attention: Peter J. Sherry, Jr.
Facsimile No.: (313) 248-8713
E-mail: psherry@ford.com
with a copy to:
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Ford Motor Company
Office of the General Counsel
One American Road
320 World Headquarters
Dearborn, Michigan 48126
Attention: Marcia J. Nunn
Facsimile No.: (313) 337-3209
E-mail: mnunn@ford.com
and to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Paul R. Kingsley
Facsimile No.: (212) 450-3800
E-mail: paul.kingsley@dpw.com
if to Seller, to:
Visteon Corporation
One Village Center Drive
Van Buren Township, Michigan 48111
Attention: John Donofrio, General Counsel
Facsimile No.: (734) 710-7132
E-mail: jdonofri@visteon.com
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attention: Michael E. Lubowitz, Esq.
Facsimile No.: (212) 310-8007
E-mail: michael.lubowitz@weil.com
or such other address, facsimile number or e-mail address as such party may
hereafter specify for the purpose by notice to the other parties hereto. All
such notices, requests and other communications shall be deemed received on the
date of receipt by the recipient thereof if received prior to 5:00 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
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Section 9.02. Amendments and Waivers. (a) Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement, or
in the case of a waiver, by the party against whom the waiver is to be
effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
Section 9.03. Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
Section 9.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns; provided that neither party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of each other party hereto. Buyer may,
however, without the consent of Seller, but with notice to Seller, assign all or
a part of its right to purchase all or a portion of the Shares to any of its
Affiliates; provided that such assignment shall not relieve Buyer of its
obligations hereunder.
Section 9.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Michigan, without regard to
the conflicts of law rules of such state.
Section 9.06. Dispute Resolution. Except as contemplated by Section 2.05,
if a dispute arises between the parties relating to this Agreement, the
following shall be the sole and exclusive procedure for enforcing the terms
hereof and for seeking relief, including damages, injunctive relief and specific
performance:
(i) The parties promptly shall hold a meeting of senior executives
with decision-making authority to attempt in good faith to negotiate a
mutually satisfactory resolution of the dispute; provided that no party
shall be under any obligation whatsoever to reach, accept or agree to any
such resolution; provided further that no such meeting shall be deemed to
vitiate or reduce the obligations and liabilities of the parties or be
deemed a waiver by a party hereto of any remedies to which such party would
otherwise be entitled.
(ii) If the parties are unable to negotiate a mutually satisfactory
resolution as provided above, then upon request by either party, the matter
29
shall be submitted to binding arbitration before a sole arbitrator in
accordance with the CPR Rules, including discovery rules, for
Non-Administered Arbitration. Within five Business Days after the selection
of the arbitrator, each party shall submit its requested relief to the
other party and to the arbitrator with a view toward settling the matter
prior to commencement of discovery. If no settlement is reached, then
discovery shall proceed. Upon the conclusion of discovery, each party shall
again submit to the arbitrator its requested relief (which may be modified
from the initial submission) and the arbitrator shall select only the
entire requested relief submitted by one party or the other, as the
arbitrator deems most appropriate. The arbitrator shall not select one
party's requested relief as to certain claims or counterclaims and the
other party's requested relief as to other claims or counterclaims. Rather,
the arbitrator must only select one or the other party's entire requested
relief on all of the asserted claims and counterclaims, and the arbitrator
shall enter a final ruling that adopts in whole such requested relief. The
arbitrator shall limit his/her final ruling to selecting the entire
requested relief he/she considers the most appropriate from the requests
submitted by the parties.
(iii) Arbitration shall take place in the City of Dearborn, Michigan
unless the parties agree otherwise or the arbitrator selected by the
parties orders otherwise. Punitive or exemplary damages shall not be
awarded. This Section 9.06 is subject to the Federal Arbitration Act, 28
U.S.C.A. Section 1, et seq., or comparable legislation in non-U.S.
jurisdictions, and judgment upon the award rendered by the arbitrator may
be entered by any court having jurisdiction.
Section 9.07. Jurisdiction. Subject to Section 2.05 and Section 9.06, the
parties hereto agree that any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought in any
federal court sitting in Michigan or any Michigan State court sitting in Wayne
County or Oakland County, Michigan, so long as one of such courts shall have
subject matter jurisdiction over such suit, action or proceeding, and that any
cause of action arising out of this Agreement shall be deemed to have arisen
from a transaction of business in the State of Michigan. Each of the parties
hereby irrevocably consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or any objection that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court.
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Section 9.08. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 9.09. Counterparts; Effectiveness; Third Party Beneficiaries. This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. Until and
unless each party has received a counterpart hereof signed by the other party
hereto, this Agreement shall have no effect and no party shall have any right or
obligation hereunder (whether by virtue of any other oral or written agreement
or other communication). No provision of this Agreement is intended to confer
any rights, benefits, remedies, obligations, or liabilities hereunder upon any
Person other than the parties hereto, their respective successors and permitted
assigns under Section 9.04 and, with respect to Section 5.12, the Indemnitees.
Section 9.10. Entire Agreement. This Agreement and the other agreements
referred to in Section 8 of the Master Agreement constitute the entire agreement
between the parties with respect to the subject matter of such agreements and
supersede all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter of such agreements.
Section 9.11. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent possible.
Section 9.12. Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof in
the courts specified in Section 9.07.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
FORD MOTOR COMPANY
By: /s/ Donat R. Leclair
------------------------------------
Name: Donat R. Leclair
Title: Executive Vice President and
Chief Financial Officer
VISTEON CORPORATION
By: /s/ James F. Palmer
------------------------------------
Name: James F. Palmer
Title: Executive Vice President and
Chief Financial Officer