EXHIBIT 10.1
VISTEON CORPORATION
WARRANT FOR THE PURCHASE OF SHARES OF
COMMON STOCK OF VISTEON CORPORATION
NO. 1 WARRANT TO PURCHASE
25,000,000 SHARES
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD OR
OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO
SUBJECT TO RESTRICTIONS ON TRANSFER AS SET FORTH HEREIN AND IN THE
STOCKHOLDER AGREEMENT (AS HEREIN DEFINED), COPIES OF WHICH MAY BE OBTAINED
UPON REQUEST FROM THE COMPANY.
FOR VALUE RECEIVED, VISTEON CORPORATION, a Delaware corporation (the
"COMPANY"), hereby certifies that FORD MOTOR COMPANY, a Delaware Corporation
("FORD" and together with its successors and permitted assigns, the "HOLDER"),
is entitled, subject to the provisions of this Warrant and the Stockholder
Agreement (as hereinafter defined), to purchase from the Company, at the times
specified herein, twenty-five million fully paid and non-assessable shares of
Common Stock of the Company, par value $1.00 per share (the "COMMON STOCK"), at
a purchase price per share equal to the Exercise Price (as hereinafter defined).
The number of shares of Common Stock to be received upon the exercise of this
Warrant and the price to be paid for a share of Common Stock are subject to
adjustment from time to time as hereinafter set forth.
1. Definitions. (a) The following terms, as used herein, have the following
meanings:
"AFFILIATE" means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with such other
Person. For the purpose of this definition, the term "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, means having the right to
elect a majority of the board of directors or other comparable body responsible
for management and direction of a Person, or otherwise having, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such Person, by contract or by virtue of share ownership.
"AGGREGATE EXERCISE PRICE" shall have the meaning set forth in paragraph
9(a)(ii).
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
1
"BUSINESS DAY" means a day, other than Saturday, Sunday or other day on
which commercial banks in Detroit, Michigan are authorized or required by law to
close.
"CHANGE OF CONTROL" means (i) a liquidation or dissolution of the Company;
(ii) the sale, lease, transfer, conveyance or other disposition, in one or a
series of related transactions, of all or substantially all of the assets of the
Company and its Subsidiaries, taken as a whole; (iii) a merger, consolidation,
share exchange, business combination or similar extraordinary transaction as a
result of which the persons possessing, immediately prior to the consummation of
such transaction, beneficial ownership of the voting securities of the Company
entitled to vote generally in elections of directors of the Company, cease to
possess, immediately after consummation of such transaction, beneficial
ownership of voting securities entitling them to exercise at least 50% of the
total voting power of all outstanding securities entitled to vote generally in
elections of directors of the Company (or, if not the Company, the surviving
entity resulting from such transaction, or its parent); or (iv) a transaction or
series of transactions (including by way of merger, consolidation, sale of stock
or otherwise) the result of which is that any Person or "group" (as defined in
Section 13 of the 1934 Act) becomes the "beneficial owner" (as such term is
defined in Rule 13d-3 and Rule 13d-5 promulgated under the 1934 Act), directly
or indirectly, of more than 50% of the voting power of the outstanding voting
stock of the Company entitled to vote generally in elections of directors of the
Company.
"CONSTITUENT PERSON" shall have the meaning set forth in paragraph 10.
"CURRENT MARKET PRICE PER COMMON SHARE" shall have the meaning set forth in
paragraph 6.
"DAILY PRICE" shall have the meaning set forth in paragraph 6.
"EXCLUDED TRANSACTIONS" shall have the meaning set forth in paragraph 9(b).
"EXERCISE PRICE" means $6.90 per Warrant Share, as such Exercise Price may
be adjusted from time to time as provided herein.
"EXPIRATION DATE" means the eighth anniversary of the date of the Closing
at 5:00 p.m. Detroit, Michigan time.
"NON-ELECTING SHARE" shall have the meaning set forth in paragraph 10.
"NYSE" means the New York Stock Exchange.
"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
2
"STOCKHOLDER AGREEMENT" means the Stockholder Agreement dated as of October
1, 2005 between the Company and Ford.
"WARRANT SHARES" means the shares of Common Stock deliverable upon exercise
of this Warrant, as adjusted from time to time.
(b) Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Stockholder Agreement.
2. Exercise of Warrant.
(a) The Holder is entitled to exercise this Warrant in whole or in
part at any time, or from time to time, commencing on the earlier of (i) the
first anniversary of the date of the Closing and (ii) the occurrence of a Change
of Control and ending on the Expiration Date or, if any such day is not a
Business Day, then on the next succeeding day that shall be a Business Day. To
exercise this Warrant, the Holder shall execute and deliver to the Company a
Warrant Exercise Notice substantially in the form annexed hereto and, if the
Holder so desires, such Warrant Exercise Notice shall include a written request
by the Holder to exercise this Warrant on a cashless basis pursuant to paragraph
2(e). Promptly, and in any event within five (5) days, after delivery of the
Warrant Exercise Notice, the Company shall notify the Holder in writing (x)
whether it will settle such exercise in cash pursuant to paragraph 2(d)(ii) or
(y) if a request for cashless exercise has been made by the Holder, whether it
will permit the Holder to exercise on a cashless basis pursuant to paragraph
2(e). Subject to paragraph 2(e) below, within ten (10) days after delivery of
the Warrant Exercise Notice, the Holder shall deliver to the Company this
Warrant Certificate, including the Warrant Exercise Subscription Form forming a
part hereof duly executed by the Holder, together with payment of the applicable
Exercise Price (unless the Company shall have elected to settle in cash pursuant
to paragraph 2(d)(ii), in which case the applicable Exercise Price shall be
netted against the cash settlement amount payable by the Company pursuant to
paragraph 2(d)(ii)). At the close of business on the date of such delivery and
payment, the Holder shall be deemed to be the holder of record of the Warrant
Shares subject to such exercise, notwithstanding that the stock transfer books
of the Company shall then be closed or that certificates representing such
Warrant Shares shall not then be actually delivered to the Holder.
(b) The Exercise Price shall be paid by wire transfer of immediately
available funds to a bank account designated by the Company. Any documentary,
stamp or similar issue or transfer taxes payable in respect of the issue or
delivery of the Warrant Shares shall be borne by the party or parties having
responsibility therefor under applicable law, provided that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of the Warrant Shares in a name other than
that of the then Holder of this Warrant; provided further that the parties shall
take reasonable steps to minimize such taxes.
3
(c) If the Holder exercises this Warrant in part, this Warrant
Certificate shall be surrendered by the Holder to the Company and a new Warrant
Certificate of the same tenor and for the unexercised number of Warrant Shares
shall be executed by the Company as promptly as reasonably practicable. The
Company shall register the new Warrant Certificate in the name of the Holder or
in such name or names of its transferee pursuant to paragraph 7 hereof as may be
directed in writing by the Holder and deliver the new Warrant Certificate to the
Person or Persons entitled to receive the same as promptly as reasonably
practicable.
(d) Upon surrender of this Warrant Certificate in conformity with the
foregoing provisions, the Company shall, as promptly as reasonably practicable,
either (i) transfer to the Holder of this Warrant Certificate appropriate
evidence of ownership of the shares of Common Stock or other securities or
property (including any money) to which the Holder is entitled, registered or
otherwise placed in, or payable to the order of, the name or names of the Holder
or such transferee as may be directed in writing by the Holder, and shall, as
promptly as reasonably practicable, deliver such evidence of ownership and any
other securities or property (including any money) to the Person or Persons
entitled to receive the same or (ii) if the Company has elected pursuant to
paragraph 2(a) to cash settle, pay an amount in cash equal to (x) such number of
shares of Common Stock to which the Holder is entitled times the Current Market
Price on the Business Day immediately preceding the date on which the Holder
delivered the Warrant Exercise Notice pursuant to paragraph 2(a) minus (y) the
applicable Exercise Price, if any, that would have otherwise been payable by the
Holder, in each case of clauses (i) or (ii) together with an amount in cash in
lieu of any fraction of a share as provided in paragraph 6 below, such amounts
to be paid in cash or by wire transfer of immediately available funds to a bank
account designated by the Holder or by certified or official bank check or bank
cashier's check payable to the order of such Holder or by any combination of
such cash, wire transfer or check.
(e) If, pursuant to paragraph 2(a) the Company permits a cashless
exercise by the Holder, in lieu of making the payment required to exercise the
Warrant pursuant to paragraph 2(a) (but in all other respects in accordance with
the exercise procedure set forth in paragraph 2(a)), the Holder may convert this
Warrant into shares of Common Stock, in which event the Company will issue to
the Holder the number of shares of Common Stock equal to the result obtained
under the following equation:
4
(A - B) x C where:
X = -----------
A
X = the number of shares of Common Stock issuable upon exercise
pursuant to this paragraph 2(e);
A = the Current Market Price Per Common Share on the Business Day
immediately preceding the date on which the Holder delivers the
Warrant Exercise Notice pursuant to paragraph 2(a);
B = the Exercise Price; and
C = the number of shares of Common Stock as to which this Warrant is
being exercised pursuant to paragraph 2(a).
If the foregoing calculation results in a negative number, then no shares
of Common Stock shall be issued upon exercise pursuant to this paragraph 2(e).
3. Beneficial Ownership. Notwithstanding anything to the contrary in this
Warrant, in no event shall the Holder be entitled to receive, or shall be deemed
by applicable law to receive, any Warrant Shares if, upon the receipt of such
Warrant Shares, the "beneficial ownership" (within the meaning of Section 13 of
the 1934 Act and the rules and regulations promulgated thereunder) of Common
Stock by the Holder would be equal to or greater than 9.9% of the outstanding
shares of Common Stock. If any delivery owed to the Holder hereunder is not
made, in whole or in part, as a result of this provision, the Company's
obligation to make such delivery shall not be extinguished and the Company shall
make such delivery as promptly as practicable after, but in no event later than
two Business Days after, the Holder gives notice to the Company that such
delivery would not result in the Holder directly or indirectly so beneficially
owning in excess of 9.9% of the outstanding shares of Common Stock. Upon
request, the Company shall advise the Holder of the number of shares of Common
Stock outstanding, in order to permit the Holder to make the calculation
contemplated by this paragraph 3. The Company shall have no responsibility to
monitor the beneficial ownership of Common Stock by the Holder. For the
avoidance of doubt, nothing in this paragraph 3 shall entitle the Holder to
exercise this Warrant after the Expiration Date.
4. Restrictive Legend. Certificates representing shares of Common Stock
issued pursuant to this Warrant shall bear a legend substantially in the form of
the legend set forth on the first page of this Warrant Certificate to the extent
that and for so long as such legend is required pursuant to the Stockholder
Agreement.
5. Reservation of Shares; NYSE Listing. The Company hereby agrees that at
all times there shall be reserved for issuance and delivery upon exercise of
this Warrant such number of its authorized but unissued shares of Common Stock
or other securities of the Company from time to time issuable upon exercise of
this
5
Warrant as will be sufficient to permit the exercise in full of this Warrant.
All such shares shall be duly authorized and, when issued upon such exercise,
shall be validly issued, fully paid and non-assessable, free and clear of all
liens, security interests, charges and (except as contemplated in the legend
referred to in paragraph 4) other encumbrances or restrictions on sale and free
and clear of all preemptive rights.
If the Warrant Shares have not been approved for listing on the NYSE as of
the date hereof, the Company shall use its reasonable best efforts to cause the
Warrant Shares to be so approved for listing as soon as practicable after the
date hereof.
6. Fractional Shares. No fractional shares or scrip representing fractional
shares shall be issued upon the exercise of this Warrant and in lieu of delivery
of any such fractional share upon any exercise hereof, the Company shall pay to
the Holder an amount in cash equal to such fraction multiplied by the Current
Market Price Per Common Share on the Business Day immediately preceding the date
on which the Holder delivers the Warrant Exercise Notice pursuant to paragraph
2(a).
"CURRENT MARKET PRICE PER COMMON SHARE" on any date shall be the average of
the Daily Prices (as defined below) per share of Common Stock for the twenty
(20) consecutive trading days immediately prior to such date. "DAILY PRICE"
means (A) the last reported sale price on such day on the NYSE Composite
Transactions Tape; or (B) if the shares of Common Stock then are not traded on
the NYSE, the closing price (at the close of the regular trading session) on
such day as reported by the principal national securities exchange (or principal
trading market/quotation system) on which the shares are listed and traded. If
on any determination date the shares of such class of Common Stock are not
quoted by any such organization, the Current Market Price Per Common Share shall
be the fair market value of such shares on such determination date as determined
in good faith by the Board of Directors.
7. Exchange, Transfer or Assignment of Warrant. Subject to compliance with
the Stockholder Agreement, the Holder of this Warrant shall be entitled, without
obtaining the consent of the Company to assign and transfer this Warrant, at any
time in whole or from time to time in part, to any Person or Persons. Subject to
the preceding sentence, upon surrender of this Warrant to the Company, together
with the attached Warrant Assignment Form duly executed, the Company shall, as
promptly as reasonably practicable and without charge, execute and deliver new
Warrant Certificates in the name of the assignee or assignees named in such
instrument of assignment and, if the Holder's entire interest is not being
assigned, in the name of the Holder and this Warrant Certificate shall promptly
be canceled. Each taker and holder of this Warrant Certificate by taking or
holding the same, consents and agrees that the registered holder hereof may be
treated by the Company and all other persons dealing with this Warrant
Certificate as the absolute owner hereof for any purpose and as the person
entitled to exercise
6
the rights represented hereby.
8. Loss or Destruction of Warrant. Upon receipt by the Company of evidence
satisfactory to it (in the exercise of its reasonable discretion) of the loss,
theft, destruction or mutilation of this Warrant Certificate, and (in the case
of loss, theft or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of this Warrant Certificate, if mutilated, the
Company shall execute and deliver a new Warrant Certificate of like tenor and
date.
9. Anti-dilution Provisions.
(a) (i) In case the Company shall at any time after the date hereof
subdivide or split its outstanding shares of Common Stock into a greater number
of shares, the Exercise Price in effect immediately prior to such subdivision or
split shall be proportionately reduced and the number of shares of Common Stock
purchasable under this Warrant shall be proportionately increased. Conversely,
in case the outstanding shares of Common Stock shall be combined or reclassified
into a smaller number of shares, the Exercise Price in effect immediately prior
to such combination or reclassification shall be proportionately increased and
the number of shares of Common Stock purchasable under this Warrant shall be
proportionately decreased.
(ii) In case the Company shall at any time after the date hereof
declare a dividend or make a distribution on Common Stock generally,
that is payable in Common Stock, the Exercise Price in effect at the
time of the record date for such dividend or distribution and the
aggregate number of shares of Common Stock receivable upon exercise of
this Warrant shall be proportionately adjusted so that the exercise of
this Warrant in full after such time shall entitle the Holder to
receive (for the Aggregate Exercise Price (as defined below)) the
aggregate number of shares of Common Stock which, if this Warrant had
been exercised in full immediately prior to such time (for the
aggregate Exercise Price in effect at such time (the "AGGREGATE
EXERCISE PRICE")), such Holder would have owned upon such exercise and
been entitled to receive by virtue of such dividend or distribution.
If any declared dividend or distribution on Common Stock payable in
Common Stock for which adjustments have been made pursuant to the
immediately preceding sentence is not paid in whole or in part on the
applicable payment date, then, effective as of the time of the record
date for such dividend or distribution, the Exercise Price and the
aggregate number of shares of Common Stock receivable upon exercise of
this Warrant shall be proportionately readjusted so that the exercise
of this Warrant in full after such time shall entitle the Holder to
receive (for the Aggregate Exercise Price) the aggregate number of
shares of Common Stock which, if this Warrant had been exercised in
full immediately prior to such time (for the Aggregate Exercise
Price),
7
such Holder would have owned upon such exercise and in fact received
by virtue of such dividend or distribution.
(iii) In case the Company shall at any time after the date hereof
issue any shares of its capital stock in a reclassification of Common
Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation), then, as a condition to such reclassification, lawful
provisions shall be made, and duly executed documents evidencing the
same from the Company or its successor shall be delivered to the
Holder, so that the Holder shall have the right at any time that this
Warrant is exercisable to purchase, at a total price equal to that
payable upon exercise of this Warrant, the kind and amount of capital
stock receivable in connection with such recapitalization by a record
holder of the same number of shares of Common Stock as were
purchasable (without applying the restrictions set forth in paragraph
3 hereof) by the Holder immediately prior to such recapitalization.
Such adjustments under this paragraph 9(a) shall be made successively
whenever any event listed above shall occur.
(b) Except in the case of Excluded Transactions (as defined below), in
case the Company shall fix a record date for the issuance of rights, options or
warrants to the holders of its Common Stock generally, entitling such holders to
subscribe for or purchase shares of Common Stock (or securities convertible into
shares of Common Stock) at a price per share of Common Stock (or having a
conversion price per share of Common Stock, if a security convertible into
shares of Common Stock) less than the Current Market Price Per Common Share on
such record date (or if such date of issuance is more than sixty days after the
record date, less than the Current Market Price Per Common Share on such date of
issuance), the maximum number of shares of Common Stock issuable upon exercise
of such rights, options or warrants (or conversion of such convertible
securities) shall be deemed to have been issued and outstanding as of such
record date (or if such date of issuance is more than sixty days after the
record date, on such date of issuance) and the Exercise Price to be in effect
after such issuance or sale shall be determined by multiplying the Exercise
Price in effect immediately prior to such issuance or sale by a fraction, the
numerator of which shall be the sum of (x) the number of shares of Common Stock
outstanding immediately prior to the time of such issuance or sale multiplied by
the Current Market Price Per Common Share immediately prior to such issuance or
sale and (y) the aggregate consideration, if any, to be received by the Company
upon such issuance or sale, and the denominator of which shall be the product of
the aggregate number of shares of Common Stock outstanding immediately after
such issuance or sale and the Current Market Price Per Common Share immediately
prior to such issuance or sale. In case any portion of the consideration to be
received by the Company shall be in a form other than cash, the fair market
value of such noncash consideration shall be utilized in the foregoing
computation. Such fair market value shall be determined by the Board of
Directors. The Holder
8
shall be notified promptly of any consideration other than cash to be received
by the Company and furnished with a description of the consideration and the
fair market value thereof, as determined in good faith by the Board of
Directors. Such adjustment shall be made successively whenever any such record
date is fixed; and in the event that such rights, options or warrants or
securities convertible into shares of Common Stock are not so issued or expire
unexercised, or in the event of a change in the number of shares of Common Stock
to which the holders of such rights, options or warrants or securities
convertible into shares of Common Stock are entitled or the aggregate
consideration payable by the holders of such rights, options, warrants or
convertible securities for such shares of Common Stock prior to their receipt of
such shares of Common Stock (other than pursuant to adjustment provisions
therein comparable to those contained in this paragraph 9), the Exercise Price
shall again be adjusted to be the Exercise Price which would then be in effect
if such rights, options or warrants or securities convertible into shares of
Common Stock that were not so issued or expired unexercised had never had their
related record date fixed, in the former event, or the Exercise Price which
would then be in effect if such holder had initially been entitled to such
changed number of shares of Common Stock or required to pay such changed
consideration, in the latter event. "EXCLUDED TRANSACTIONS" means any Common
Stock issued by the Company (i) upon exercise or conversion of any security the
issuance of which caused an adjustment under this paragraph 9, (ii) pursuant to
employee or director compensation plans or arrangements and (iii) pursuant to a
stockholder rights plan adopted by the Company.
(c) In case the Company shall fix a record date for the making of a
distribution to holders of Common Stock in their capacities as such (including
any such distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation) of cash, evidences of indebtedness,
assets or other property (other than (i) ordinary dividends payable in cash,
(ii) dividends payable in Common Stock, (iii) distributions in connection with a
stockholder rights plan adopted by the Company; or (iv) rights, options or
warrants or convertible securities referred to in, and for which an adjustment
is made pursuant to, paragraph 9(b) hereof), the Exercise Price to be in effect
after such record date shall be determined by multiplying the Exercise Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the Current Market Price Per Common Share on such record date,
less the fair market value (determined as set forth in paragraph 9(b) hereof) of
the portion of the assets, other property or evidence of indebtedness so to be
distributed which is applicable to one share of Common Stock, and the
denominator of which shall be such Current Market Price Per Common Share. Such
adjustments shall be made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, the Exercise Price shall
again be adjusted to be the Exercise Price which would then be in effect if such
record date had not been fixed
(d) In case at any time or from time to time the Company shall take
any action affecting its capital stock as such, other than an action described
9
in any of the foregoing clauses (a) through (c), which the Board of Directors of
the Company reasonably determines in good faith will adversely affect the rights
of the Holders of the Warrants, the number of shares of Common Stock purchasable
upon exercise of each Warrant and/or the Exercise Price shall be adjusted in
such manner and at such time as the Board of Directors of the Company may
reasonably and in good faith determine to be equitable in the circumstances.
(e) The Company may, at its option, at any time during the term of the
Warrants, reduce the then current Exercise Price (but in no event below the par
value of a share of Common Stock) or increase the number of shares of Common
Stock for which the Warrant may be exercised to any amount deemed appropriate by
the Board of Directors; provided, however, that if the Company elects to make
such adjustment, such adjustment will remain in effect for at least a 5-day
period, after which time the Company may, at its option, reinstate the Exercise
Price or number of shares of Common Stock in effect prior to such adjustment, as
applicable, subject to any interim adjustments pursuant to this paragraph 9.
(f) No adjustment in the Exercise Price or otherwise pursuant to
paragraph 9(a) through (c) shall be required unless such adjustment would
require an increase or decrease of at least one percent in such price; provided
that any adjustments which by reason of this paragraph 9(f) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this paragraph 9 shall be made to the nearest
$0.001 or to the nearest hundredth of a share of Common Stock, as the case may
be.
(g) In the event that, at any time as a result of the provisions of
this paragraph 9, the holder of this Warrant upon subsequent exercise shall
become entitled to receive any shares of capital stock of the Company other than
Common Stock, the number of such other shares so receivable upon exercise of
this Warrant shall thereafter be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions
contained herein.
(h) Upon the occurrence of each adjustment or readjustment pursuant to
this paragraph 9 or paragraph 10 below, the Company at its expense shall
promptly compute such adjustment or readjustment in accordance with the terms
hereof and furnish to the holder of this Warrant a certificate setting forth
such adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Company shall, upon the written
request, at any time, of the holder, furnish or cause to be furnished to such
holder a like certificate setting forth (i) such adjustments and readjustments,
(ii) the Exercise Price at the time in effect and (iii) the number of shares and
the amount, if any, of other property that at the time would be received upon
exercise of the Warrant.
10
(i) The Company will not, by any voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Company, but will at all times in good faith assist
in the carrying out of all of the provisions of this paragraph 9 and in the
taking of all such action necessary or appropriate in order to protect the
rights of the holder of this Warrant against impairment.
10. Consolidation, Merger or Sale of Assets. In case of any consolidation
of the Company with, or merger of the Company into, any other Person, any merger
of another Person into the Company (other than a consolidation or merger which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock) or any sale or transfer of all or
substantially all of the assets of the Company or of the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, the Holder shall have the right thereafter, upon exercise of
this Warrant in accordance with and subject to all of the provisions of this
Warrant, to receive the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock for which this Warrant may have been exercised
(without applying the restrictions set forth in paragraph 3 hereof) immediately
prior to such consolidation, merger, sale or transfer, assuming (i) such holder
of Common Stock is not a Person with which the Company consolidated or into
which the Company merged or which merged into the Company or to which such sale
or transfer was made, as the case may be ("CONSTITUENT PERSON"), or an Affiliate
of a constituent Person and (ii) in the case of a consolidation, merger, sale or
transfer which includes an election as to the consideration to be received by
the holders, such holder of Common Stock failed to exercise its rights of
election, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer (provided that if
the kind or amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer is not the same for each share of Common
Stock held immediately prior to such consolidation, merger, sale or transfer by
other than a constituent Person or an Affiliate thereof and in respect of which
such rights of election shall not have been exercised ("NON-ELECTING SHARE"),
then for the purpose of this paragraph 9 the kind and amount of securities, cash
and other property receivable upon such consolidation, merger, sale or transfer
by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). Adjustments for
events subsequent to the effective date of such a consolidation, merger and sale
of assets shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Warrant. In any such event, effective provisions shall be
made in the certificate or articles of incorporation of the resulting or
surviving corporation, in any contract of sale, conveyance, lease or transfer,
or otherwise so that the provisions set forth herein for the protection of the
rights of the Holder shall thereafter continue to be applicable; and any such
resulting or surviving corporation shall expressly assume the obligation to
deliver, upon exercise, such shares of stock, other securities, cash and
property. The
11
provisions of this paragraph 10 shall similarly apply to successive
consolidations, mergers, sales, leases or transfers.
11. Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission and electronic
mail ("E-MAIL") transmission, so long as a receipt of such e-mail is requested
and received) and shall be given,
if to Ford, to:
Ford Motor Company
Office of the Secretary
One American Road
11th Floor World Headquarters
Dearborn, Michigan 48126
Facsimile No.: (313) 248-8713
E-mail: psherry@ford.com
with a copy to:
Ford Motor Company
Office of the General Counsel
One American Road
320 World Headquarters
Dearborn, Michigan 48126
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 the Company, 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
12
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attention: Michael E. Lubowitz
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.
12. Rights of the Holder. Prior to the exercise of any Warrant, the Holder
shall not, by virtue hereof, be entitled to any rights of a shareholder of the
Company, including, without limitation, the right to vote, to receive dividends
or other distributions, to exercise any preemptive right or to receive any
notice of meetings of shareholders or any notice of any proceedings of the
Company except as may be specifically provided for herein.
13. Governing Law. This Warrant 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.
14. Dispute Resolution.
(a) If a dispute arises between the parties relating to this Warrant,
the following shall be the sole and exclusive procedure for enforcing the terms
hereof and for seeking relief, including but not limited to 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 shall be submitted to binding arbitration
13
before a sole arbitrator in accordance with the CPR Rules, including
discovery rules, for Non-Administered Arbitration. Within five (5)
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 those 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 paragraph 14 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.
15. Jurisdiction. Subject to paragraph 14, 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 Warrant 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 Warrant 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 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.
14
16. Amendments; Waivers. Any provision of this Warrant Certificate 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 the Holder and the Company, or in the
case of a waiver, by the party against whom the waiver is to be effective;
provided that if there shall be more than one Holder of this Warrant, any
amendment of this Warrant Certificate approved by the Company and holders of a
majority of the Warrant Shares will be binding on each Holder. No failure or
delay by either 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. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
15
IN WITNESS WHEREOF, the Company has duly caused this Warrant Certificate to
be signed by its duly authorized officer and to be dated as of October 1, 2005.
VISTEON CORPORATION
By: /s/ James F. Palmer
------------------------------------
Name: James F. Palmer
Title: Executive Vice President
and Chief Financial Officer
Acknowledged and Agreed:
FORD MOTOR COMPANY
By: /s/ Donat R. Leclair
---------------------------------
Name: Donat R. Leclair
Title: Executive Vice President and
Chief Financial Officer
16