EXHIBIT 10.2
STOCKHOLDER AGREEMENT
dated as of
October 1, 2005
between
VISTEON CORPORATION
and
FORD MOTOR COMPANY
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions................................................ 1
ARTICLE 2
REGISTRATION RIGHTS
Section 2.01. Shelf Registration......................................... 4
Section 2.02. Demand Registration........................................ 4
Section 2.03. Postponement............................................... 7
Section 2.04. Piggyback Registration..................................... 8
Section 2.05. Expenses................................................... 9
Section 2.06. Registration and Qualification............................. 9
Section 2.07. Underwriting; Due Diligence................................ 12
Section 2.08. Indemnification and Contribution........................... 13
Section 2.09. Rule 144 and Form S-3...................................... 17
Section 2.10. Lock-Up Agreements......................................... 17
Section 2.11. Inconsistent Agreements.................................... 18
ARTICLE 3
VOTING
Section 3.01. Voting of Warrant Shares................................... 18
ARTICLE 4
STANDSTILL
Section 4.01. Standstill................................................. 19
ARTICLE 5
HEDGING
Section 5.01. Limitations on Hedging..................................... 21
Section 5.02. Notice..................................................... 21
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ARTICLE 6
TRANSFER RESTRICTIONS
Section 6.01. Transfers; Rights of Transferees of Registrable
Securities; Legends........................................ 22
ARTICLE 7
MISCELLANEOUS
Section 7.01. Remedies................................................... 23
Section 7.02. Waiver; Consents to Amendments............................. 23
Section 7.03. Successors and Assigns..................................... 23
Section 7.04. Severability............................................... 24
Section 7.05. Counterparts; Effectiveness; Third Party Beneficiaries.... 24
Section 7.06. Descriptive Headings; Interpretation....................... 24
Section 7.07. Governing Law.............................................. 24
Section 7.08. Dispute Resolution......................................... 24
Section 7.09. Jurisdiction............................................... 25
Section 7.10. WAIVER OF JURY TRIAL....................................... 26
Section 7.11. Addresses and Notices...................................... 26
Section 7.12. Business Days.............................................. 27
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STOCKHOLDER AGREEMENT
AGREEMENT (this "AGREEMENT") dated as of October 1, 2005 between Ford Motor
Company, a Delaware corporation ("FORD"), and Visteon Corporation, a Delaware
corporation (the "COMPANY").
WITNESSETH:
WHEREAS, pursuant to the Visteon "A" Transaction Agreement dated as of
September 12, 2005 between Ford and the Company (the "TRANSACTION AGREEMENT"),
among other things Ford is acquiring a warrant for the purchase of shares of
common stock, par value $1.00 per share, of the Company (the "COMMON STOCK");
and
WHEREAS, the parties hereto desire to enter into this Agreement to govern
certain of their rights, duties and obligations after consummation of the
transactions contemplated by the Transaction Agreement;
NOW, THEREFORE, in consideration of the mutual promises made herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) The following capitalized terms shall have
the meanings set forth below:
"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.
"BENEFICIAL OWNERSHIP" shall be determined in accordance with Rule 13d-3
under the 1934 Act.
"BOARD OF DIRECTORS" means the board of directors of the Company.
"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.
"CLOSING" means the date on which the transactions contemplated by the
Transaction Agreement are consummated.
"HEDGING TRANSACTION" means, with respect to any security, a short sale
with respect to such security, entering into or acquiring an offsetting
derivative contract with respect to such security, entering into or acquiring a
futures or forward contract to deliver such security or entering into any other
hedging or other derivative transaction that has the effect of materially
changing the economic benefits and risks of ownership.
"HOLDER" means Ford and, subject to Article 6, any Permitted Transferees.
"INITIAL REQUESTING HOLDER" means the Requesting Holders initiating the
registration pursuant to the first sentence of Section 2.02(a).
"MAJORITY HOLDERS" means the Holders holding a majority in aggregate of the
Registrable Securities held by all Holders.
"1933 ACT" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"1934 ACT" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
"OTHER SECURITIES" has the meaning ascribed thereto in Section 2.04(a).
"PERMITTED TRANSFEREE" means any Person to whom the Registrable Securities
are transferred in accordance with Article 6.
"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.
"REGISTRABLE SECURITIES" means (i) the Warrant Shares and (ii) any
securities issued directly or indirectly with respect to such securities by way
of a split, dividend, or other division of securities, or in connection with a
combination of securities, recapitalization, merger, consolidation or other
reorganization of the Company. As to any particular Registrable Securities, such
Registrable Securities shall cease to be Registrable Securities when they (A)
have been effectively registered under the 1933 Act and disposed of in
accordance with the registration statement covering them, (B) have been sold
pursuant to Rule 144 under the 1933 Act, (C) could immediately be sold pursuant
to Rule 144(k) under the 1933 Act or (D) have been repurchased by the Company or
otherwise cease to be outstanding.
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"REGISTRATION EXPENSES" means any and all expenses incident to performance
of or compliance with any registration or marketing of securities pursuant to
Article 2, including (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with this Agreement and the performance of
the Company's obligations hereunder (including the expenses of any annual audit
letters and "cold comfort" letters required or incidental to the performance of
such obligations); (ii) all expenses, including filing fees, in connection with
the preparation, printing and filing of the registration statement, any
preliminary prospectus or final prospectus, any other offering document and
amendments and supplements thereto and the mailing and delivering of copies
thereof to any underwriters and dealers; (iii) the cost of printing and
producing any agreements among underwriters, underwriting agreements, selling
group agreements and any other customary documents in connection with the
marketing of securities pursuant to Article 2; (iv) all expenses in connection
with the qualification of the securities to be disposed of for offering and sale
under state securities laws, including the reasonable fees and disbursements of
counsel for the underwriters or the Holders of securities in connection with
such qualification and in connection with any blue sky and legal investment
surveys, including the cost of printing and producing any such blue sky or legal
investment surveys; (v) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the
securities being registered pursuant to Article 2; (vi) transfer agents' and
registrars' fees and expenses and the fees and expenses of any other agent or
trustee appointed in connection with such offering; (vii) all security engraving
and security printing expenses; (viii) all fees and expenses payable in
connection with the listing of the securities on any securities exchange or
automated interdealer quotation system; (ix) the costs and expenses of the
Company and its officers relating to analyst or investor presentations, if any,
or any "road show" undertaken in connection with the registration and/or
marketing of any Registrable Securities; and (x) the reasonable fees and
expenses (up to a maximum of Thirty Thousand Dollars ($30,000) in the aggregate
for all registrations contemplated by this Agreement) of no more than one legal
counsel to the Holders selected by Holders holding a majority of the Registrable
Securities included in the relevant registration statement, as applicable. In no
event shall Registration Expenses be deemed to include underwriting discounts
and commissions, brokerage fees and transfer taxes, if any.
"REQUESTING HOLDERS" means the Holders requesting the registration of their
Registrable Securities pursuant to Section 2.02(a) or 2.02(f).
"RULE 415 OFFERING" means an offering on a delayed or continuous basis
pursuant to Rule 415 (or any successor rule to similar effect) promulgated under
the 1933 Act.
"SEC" means the Securities and Exchange Commission.
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"SELLING HOLDER" means a Holder of Registrable Securities included in the
relevant registration statement.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement of
the Company relating to a Rule 415 Offering which covers all of the Registrable
Securities held by the Holders, on Form S-3 under the 1933 Act, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all materials incorporated by reference
therein.
"WARRANT" means the Warrant to purchase shares of Common Stock as described
in the Transaction Agreement.
"WARRANT SHARES" means the shares of Common Stock deliverable upon exercise
of the Warrant, as adjusted from time to time.
ARTICLE 2
REGISTRATION RIGHTS
Section 2.01. Shelf Registration. Provided that the Company is eligible to
file a registration statement on Form S-3, it shall, not later than 270 days
after the date hereof or, if later, as soon as is reasonably practicable after
it becomes eligible to file a registration statement on Form S-3, cause to be
filed a Shelf Registration Statement, and shall use its reasonable best efforts
to have such Shelf Registration Statement declared effective by the SEC within
one year after the date hereof or as soon as is reasonably practicable after it
becomes eligible to use Form S-3.
(b) Subject to the terms of this Agreement, the Company agrees to use
reasonable best efforts to keep the Shelf Registration Statement continuously
effective from the date the SEC declares the Shelf Registration Statement
effective until the first date that the Holders cease to hold any Registrable
Securities.
Section 2.02. Demand Registration. If at any time after the first
anniversary of the Closing or after a Change of Control (as defined in the
Warrant), a Shelf Registration Statement is not effective (subject to any
permitted postponement pursuant to Section 2.03), the Majority Holders may
request in writing that the Company effect the registration under the 1933 Act
of any or all of the Registrable Securities held by such requesting Holders,
which notice shall specify the intended method or methods of disposition of such
Registrable Securities. Except as otherwise provided herein, the Company shall
prepare and (within ninety (90) days after such request has been given) file
with the SEC a registration statement with respect to (x) all Registrable
Securities included in such request and (y) all Registrable Securities included
in any request delivered
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by the Requesting Holders pursuant to Section 2.02(f), and thereafter use its
reasonable best efforts to effect the registration under the 1933 Act and
applicable state securities laws of such Registrable Securities for disposition
in accordance with the intended method or methods of disposition stated in such
request; provided that the Company shall not be obligated to effect any such
registration pursuant to this Section 2.02(a) if (i) within thirty (30) days of
receipt of a written request from the Requesting Holders, the Company gives
notice to the Requesting Holders that the Company intends to effect an offering
of the Company's securities for the Company's account and has taken substantial
steps (including, but not limited to, selecting a managing underwriter or
placement agent for such offering) and is proceeding with reasonable diligence
to effect such offering (provided that in such case, the Company shall, subject
to Section 2.04(c), use its reasonable best efforts to include in the
registration relating to such public offering all Registrable Securities
requested to be included by any Holder pursuant to Section 2.04(c) and, in the
event Section 2.04(c) applies to such registration, shall include in such
registration a number of such Registrable Securities that is equal to at least
25% of the shares of Common Stock (on an as-converted basis, with respect to
securities convertible into or exchangeable for Common Stock to be included in
such registration) that the Company is registering pursuant to such
registration) or (ii) the Requesting Holders propose to sell less than all
Registrable Securities then held by them pursuant to such registration statement
and the estimated aggregate price to the public of such Registrable Securities
is less than Five Million Dollars ($5,000,000).
(b) The Majority Holders may collectively exercise their rights under this
Section 2.02 on not more than three occasions.
(c) The Holders shall not have the right to require the filing of a
registration statement pursuant to this Section 2.02 while any registration
statement that has been filed pursuant to this Section 2.02 has yet to become
effective or within six months following the effectiveness of any registration
statement on Form S-1 that was filed pursuant to this Section 2.02.
(d) A registration pursuant to this Section 2.02 shall not be deemed to
have been effected (and, therefore, rights of a Requesting Holder shall be
deemed not to have been exercised for purposes of paragraph (a) above) (i) if it
has not become effective, (ii) if after it has become effective such
registration (or the use of the prospectus contained in such registration
statement) is (A) interfered with by any stop order, injunction or other order
or requirement of the SEC or other governmental agency or court for any reason
other than a misrepresentation or an omission by any Holder or underwriter or
(B) delayed, withdrawn, suspended or terminated and, in each case, as a result
thereof, the Registrable Securities requested to be registered cannot be
completely distributed in accordance with the plan of distribution set forth in
the related registration statement (until such time as the Registrable
Securities requested to be registered may be completely distributed in
accordance with the plan of distribution set forth in the related
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registration statement) or (iii) if the conditions to closing specified in any
purchase agreement or underwriting agreement containing customary terms for
secondary offerings by selling securityholders entered into by the Company in
connection with such registration are not satisfied or waived other than because
of some act or omission by any Holder or underwriter.
(e) In the event that any registration pursuant to Section 2.02(a) shall
involve, in whole or in part, an underwritten offering, the Holders of a
majority of the Registrable Securities to be registered shall select the lead
underwriter or underwriters (which selection or selections shall be subject to
the approval of the Company, which approval shall not be unreasonably withheld),
as well as counsel for the Holders, with respect to such registration. The
parties hereto acknowledge and agree that the Company shall have sole discretion
with respect to the selection of underwriters for any registration pursuant to
Section 2.04 that involves an underwritten offering.
(f) Upon receipt of a written request from the Initial Requesting Holders
pursuant to the first sentence of Section 2.02(a), the Company shall promptly
give written notice of such requested registration to all other Holders of
Registrable Securities and the intended method or methods of disposition stated
in such request. Each other Holder may, by written notice to the Company to be
delivered within ten (10) days of the delivery of the Company's notice, request
the inclusion in such registration of any Registrable Securities held by such
other Holder. The Company shall promptly after the expiration of such 10-day
period notify each Requesting Holder of (i) the identity of the other Requesting
Holders and (ii) the number of Registrable Securities requested to be included
therein by each Requesting Holder. In the event that the Initial Requesting
Holders intend to distribute the Registrable Securities covered by their request
by means of an underwriting, the right of any Holder to include all or any
portion of its Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute all of any portion of their
Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form (for secondary sales by selling
stockholders) with the underwriter or underwriters selected pursuant to Section
2.02(e).
(g) The Company shall have the right to cause the registration of
additional equity securities for sale for the account of any Person that is not
a Holder (including the Company and any directors, officers or employees of the
Company (such additional equity securities, the "ADDITIONAL EQUITY SECURITIES"))
in any registration of Registrable Securities requested by the Requesting
Holders; provided that if such registration is to be an underwritten
registration and such Requesting Holders are advised in writing (with a copy to
the Company) by a nationally recognized investment banking firm selected
pursuant to paragraph (e) above that, in such firm's good faith view, all or a
part of the equity securities to
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be included in such registration (including any Additional Equity Securities)
cannot be sold and the inclusion of all or part of the equity securities that
would otherwise be included in such registration would be likely to have an
adverse effect on the price, timing or distribution of the offering and sale of
the equity securities to be included in such registration, then the Company
shall exclude from such registration such Additional Equity Securities or part
thereof, to the nearest extent possible on a pro rata basis, in which case the
Company shall include in such registration:
(i) first, up to the full number of Registrable Securities and
(ii) second, up to the full number of any other Additional Equity
Securities, if any, in excess of the Registrable Securities to be sold in
such offering which, in the good faith view of such investment banking
firm, can be so sold without so adversely affecting such offering in the
manner described above.
In the event that the number of Registrable Securities requested to be
included in a registration statement that will not include any Additional Equity
Securities by the Requesting Holders exceeds the number which, in the good faith
view of such investment banking firm, can be sold without adversely affecting
the price, timing, distribution or sale of securities in the offering, the
number shall be allocated pro rata among all of the Requesting Holders on the
basis of the relative number of Registrable Securities then held by each such
Requesting Holder (with any number in excess of a Requesting Holder's request
reallocated among the remaining Requesting Holders in a like manner).
Section 2.03. Postponement. The Company shall be entitled to postpone for a
reasonable period of time up to ninety (90) days the filing of any registration
statement or any amendment or supplement thereto otherwise required to be
prepared and filed by it pursuant to Section 2.01 or 2.02 if the Company
furnishes to the Holders a certified resolution of the Board of Directors (the
"CERTIFIED RESOLUTION") stating that the Company or any of its Subsidiaries is
engaged in confidential negotiations or other confidential business activities
(or the Board of Directors determines that the Company is at such time otherwise
in possession of material non-public information with respect to the Company or
any of its Subsidiaries), disclosure of which would be required in such
registration statement, and the Board of Directors determines in good faith that
such disclosure would be materially detrimental to the Company and its
stockholders other than the Holders. A deferral of the filing of a registration
statement pursuant to this Section 2.03 shall be lifted, and the registration
statement shall be filed forthwith, if the negotiations or other activities are
terminated or publicly disclosed (or such material non-public information has
been publicly disclosed by the Company). In order to defer the filing of a
registration statement pursuant to this Section 2.03, the Company shall promptly
(but in any event within ten (10) days), upon determining to seek such deferral,
deliver to the Holders (subject to
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the Holders entering into a customary confidentiality obligation as to such
information, which the Holders hereby agree to do) the Certified Resolution
stating that the Company is deferring such filing pursuant to this Section 2.03
and an approximation of the anticipated delay. Notwithstanding anything to the
contrary contained herein, the Company may not postpone a filing under this
Section 2.03 more than once in any 180 day period.
Section 2.04. Piggyback Registration. In the event that the Company
proposes to register any of its Common Stock, any other of its equity securities
or securities convertible into or exchangeable for its equity securities
(collectively, including Common Stock, "OTHER SECURITIES") under the 1933 Act,
whether or not for sale for its own account, in a manner that would permit
registration of Registrable Securities for sale for cash to the public under the
1933 Act, it shall so long as Holders own Registrable Securities, give prompt
written notice to each Holder of its intention to do so and of the rights of
such Holder under this Section 2.04. Subject to the terms and conditions hereof,
such notice shall offer each such Holder the opportunity to include in such
registration statement such number of Registrable Securities as such Holder may
request. Upon the written request of any such Holder made within ten (10) days
after the receipt of the Company's notice (which request shall specify the
number of Registrable Securities intended to be disposed of and the intended
method of disposition thereof), the Company shall use its reasonable best
efforts to effect, in connection with the registration of the Other Securities,
the registration under the 1933 Act of all Registrable Securities which the
Company has been so requested to register, to the extent required to permit the
disposition (in accordance with such intended methods thereof) of the
Registrable Securities so requested to be registered. Notwithstanding the
immediately preceding sentence, in the event that the holders of the Other
Securities intend to distribute the Other Securities covered by such
registration by means of an underwriting, the right of any Holder to include all
or any portion of its Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute all or any portion
of their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form (for secondary sales by selling
stockholders) with the underwriter or underwriters.
(b) If, at any time after giving a written notice of its intention to
register any Other Securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register the Other Securities, the Company
may, at its election, give written notice of such determination to such Holders
and thereupon the Company shall be relieved of its obligation to register such
Registrable Securities in connection with the registration of such Other
Securities, without prejudice, however, to the rights of the Holders immediately
to request that such registration be effected as a registration under Section
2.02 to the extent permitted thereunder.
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(c) If the registration referred to in the first sentence of Section
2.04(a) is to be an underwritten registration and a nationally recognized
investment banking firm selected by the Company advises the Company in writing
that, in such firm's good faith view, the inclusion of all or a part of such
Registrable Securities in such registration would be likely to have an adverse
effect upon the price, timing or distribution of the offering and sale of the
Other Securities then contemplated, the Company shall include in such
registration:
(i) first, all Other Securities the Company proposes to sell for its
own account,
(ii) second, any securities of the Company to be registered pursuant
to "demand" registration rights existing as of the date hereof, and
(iii) third, up to the full number of Registrable Securities held by
Holders of Registrable Securities in excess of the number of Other
Securities to be sold in such offering which, in the good faith view of
such investment banking firm, can be so sold without so adversely affecting
such offering in the manner described above.
(d) The Company shall not be required to effect any registration of
Registrable Securities under this Section 2.04 incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans or stock option or other
executive or employee benefit or compensation plans or in connection with the
filing of a Form S-4 or Form S-8 registration statement.
(e) No registration of Registrable Securities effected under this Section
2.04 shall relieve the Company of its obligation to effect a registration of
Registrable Securities pursuant to Section 2.01 or 2.02.
Section 2.05. Expenses. Except as provided herein, the Company shall pay
all Registration Expenses under this Article 2 with respect to a particular
offering (or proposed offering). Each Selling Holder shall bear the fees and
expenses of its own counsel as well as all underwriting discounts and
commissions, brokerage fees and taxes, except that reasonable fees and expenses
(up to a maximum of Thirty Thousand Dollars ($30,000) in the aggregate for all
registrations contemplated by this Agreement) of one counsel representing all
Selling Holders selected by the Selling Holders holding a majority of the
Registrable Securities included in the relevant registration statement, as
applicable, will constitute Registration Expenses.
Section 2.06. Registration and Qualification. If the Company is required to
effect the registration of any Registrable Securities under the 1933 Act as
provided in Section 2.01, 2.02 or 2.04, the Company shall as promptly as
practicable, but subject to the other provisions of this Agreement:
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(a) prepare, file and use its reasonable best efforts to cause to become
effective a registration statement under the 1933 Act relating to the
Registrable Securities to be offered in accordance with the intended method of
disposition thereof;
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement continuously effective and to
comply with the provisions of the 1933 Act with respect to the disposition of
all such Registrable Securities until such time as all of such Registrable
Securities have been disposed of in accordance with the intended methods of
disposition set forth in such registration statement; provided that the Company
will, at least five (5) Business Days prior to filing a registration statement
or prospectus or any amendment or supplement thereto, furnish to each Selling
Holder copies of such registration statement or prospectus (or amendment or
supplement) as proposed to be filed (including, upon the request of such Holder,
documents to be incorporated by reference therein) which documents will be
subject to the reasonable review and comments of such Holder (and its attorneys)
during such 5 business-day period and the Company will not file any registration
statement, any prospectus or any amendment or supplement thereto (or any such
documents incorporated by reference) containing any statements with respect to
such Holder to which such Holder shall reasonably object in writing; it being
agreed that there is no need to pre-deliver or give a right to review of any
1934 Act filing that is fully incorporated by reference;
(c) furnish to the Selling Holders and to any underwriter of such
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included in
such registration statement (including each preliminary prospectus and any
summary prospectus), in conformity with the requirements of the 1933 Act, such
documents incorporated by reference in such registration statement or
prospectus, and such other documents as the Selling Holders or such underwriter
may reasonably request, and, upon the request of the Selling Holders or such
underwriter, a copy of any and all transmittal letters or other correspondence
to or received from, the SEC or any other governmental agency or self-regulatory
body or other body having jurisdiction (including any domestic or foreign
securities exchange) relating to such offering;
(d) after the filing of the registration statement, promptly notify each
Selling Holder in writing of the effectiveness thereof and of any stop order
issued or, to the knowledge of the Company, threatened by the SEC and use its
reasonable best efforts to prevent the entry of such stop order or to promptly
remove it if entered and promptly notify each Selling Holder of such lifting or
withdrawal of such order;
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(e) use its reasonable best efforts to register or qualify all Registrable
Securities covered by such registration statement under the securities or blue
sky laws of such U.S. jurisdictions as may be necessary and as the Selling
Holders or any underwriter of such Registrable Securities shall reasonably
request, and use its reasonable best efforts to obtain all appropriate
registrations, permits and consents in connection therewith, and do any and all
other acts and things which may be reasonably necessary or advisable to enable
the Selling Holders or any such underwriter to consummate the disposition in
such jurisdictions of the Registrable Securities covered by such registration
statement; provided that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any such
jurisdiction wherein it is not so qualified or to consent to general service of
process in any such jurisdiction or become subject to taxation in any such
jurisdiction;
(f) use its reasonable best efforts in the event of an underwritten
offering to furnish to each Selling Holder and to any underwriter of such
Registrable Securities (i) an opinion of counsel for the Company addressed to
each underwriter and each Selling Holder and dated the date of the closing under
the underwriting agreement and (ii) a "cold comfort" letter addressed to each
underwriter and each Selling Holder and signed by the independent public
accountants who have audited the financial statements of the Company included in
such registration statement, in each such case covering substantially the same
matters with respect to such registration statement (and the prospectus included
therein) as are customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to underwriters in connection with the
consummation of underwritten secondary public offerings of securities by selling
securityholders;
(g) as promptly as practicable, notify the Selling Holders in writing (i)
at any time when a prospectus relating to a registration pursuant to Section
2.01, Section 2.02 or Section 2.04 is required to be delivered under the 1933
Act of the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (ii) of any
request by the SEC or any other regulatory body or other body having
jurisdiction for any amendment of or supplement to any registration statement or
other document relating to such offering, and in either such case, at the
request of the Selling Holders (but subject to Section 2.03) prepare and furnish
to the Selling Holders as promptly as practicable a reasonable number of copies
of a supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading (and the Selling Holders agree to immediately discontinue use
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(and cause each other person acting on its behalf to immediately discontinue
use) of the prospectus included in such registration statement following receipt
of such notice until such time as such prospectus shall have been so amended or
supplemented or such time as the Company shall have provided the Selling Holders
with a subsequent notice to the effect that such prospectus may again be used);
(h) if requested by the lead or managing underwriters or Selling Holders,
use its reasonable best efforts to list all such Registrable Securities covered
by such registration on each securities exchange and automated inter-dealer
quotation system on which the Common Stock is then listed;
(i) upon the Selling Holders' reasonable request, send appropriate officers
of the Company to attend customary "road shows" and analyst and investor
presentations scheduled in connection with any such underwritten offering of
Registrable Securities; provided, however, that attending such road show would
not unduly interfere with the operation of the Company; and
(j) furnish for delivery in connection with the closing of any offering of
Registrable Securities pursuant to a registration effected pursuant to Section
2.01, Section 2.02 or Section 2.04 unlegended certificates representing
ownership of the Registrable Securities being sold in such denominations as
shall be requested by the Selling Holders or the underwriters.
In addition, each Holder agrees that (i) in connection with any
registration of Registrable Securities pursuant to this Article 2 it will timely
provide all information reasonably necessary with respect to such Holder and its
plan of distribution, for such registration of Registrable Securities, (ii)
failure to provide such information will postpone the Company's obligations to
such Holder for the applicable registration until such information is provided
and (iii) the Company will have no obligation to update or amend selling
stockholders' information in any filing more frequently than every 90 days.
Notwithstanding anything to the contrary in this Article 2, the Company
shall not be obligated to effect any offering by means of an underwritten
offering (and, without limiting the generality of the foregoing, the Company
shall not be obligated to comply with Section 2.07 and paragraphs (f) and (i) of
Section 2.06) unless the estimated aggregate price to the public of the
securities to be sold thereunder are in excess of Fifteen Million Dollars
($15,000,000).
Section 2.07. Underwriting; Due Diligence. (a) If requested by the
underwriters for any underwritten offering of Registrable Securities pursuant to
a registration requested under this Article 2, the Company shall enter into an
underwriting agreement with such underwriters for such offering, which agreement
will contain such representations and warranties and covenants by the Company
and such other terms and provisions as are customarily contained in
12
underwriting agreements with respect to secondary distributions by selling
securityholders, including indemnification and contribution provisions
substantially to the effect and to the extent provided in Section 2.08, and
agreements as to the provision of opinions of counsel and accountants' letters
to such underwriters and Selling Holders the effect and to the extent provided
in Section 2.06(f). The Selling Holders on whose behalf the Registrable
Securities are to be distributed by such underwriters shall be parties to any
such underwriting agreement and the representations and warranties by, and the
other agreements on the part of, the Company to and for the benefit of such
underwriters, shall also be made to and for the benefit of such Selling Holders.
Such underwriting agreement shall also contain such representations and
warranties and covenants and indemnification by such Selling Holders and
underwriters and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions on the part of
selling shareholders, including indemnification and contribution provisions
substantially to the effect and to the extent provided in Section 2.08.
Notwithstanding anything to the contrary herein, such underwriting agreement
shall not require the Selling Holders to have any liability with respect to the
representations made by, the operations of or the disclosures made by the
Company.
(b) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the 1933 Act under this
Article 2, upon entering into a confidentiality agreement with the Company that
is reasonably satisfactory to the Company, the Company shall give the
underwriters, if any, and underwriters' counsel, and counsel for the Holders as
selected pursuant to Section 2.02(e) or by the Selling Holders holding a
majority of the Registrable Securities included in the relevant registration
statement, as applicable, such reasonable and customary access to its books,
records and properties and such opportunities to discuss the business and
affairs of the Company with its officers and the independent public accountants
who have certified the financial statements of the Company as shall be
necessary, in the reasonable opinion of such underwriters, such underwriters'
counsel or such counsel for the Holders, to conduct a reasonable investigation
within the meaning of the 1933 Act; provided that such underwriters, such
underwriters' counsel and such counsel for the Holders shall use their
reasonable best efforts to coordinate any such investigation of the books,
records and properties of the Company and any such discussions with the
Company's officers and accountants so that all such investigations occur at the
same time and all such discussions occur at the same time.
Section 2.08. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Selling Holder and each person, if any, who
controls each Selling Holder within the meaning of either Section 15 of the 1933
Act or Section 20 of the 1934 Act from and against any and all losses, claims,
damages and liabilities (including, subject to Section 2.08(c), any reasonable
legal or other costs, fees and expenses reasonably incurred in connection with
13
defending or investigating any such action or claim) insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or alleged
untrue statement of a material fact contained in any registration statement
filed by the Company pursuant to this Agreement at the time it became effective
or any amendment thereof, any preliminary prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) or
prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) relating to the Registrable Securities, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission which is based upon information relating to a Selling Holder or
underwriter which is furnished to the Company in writing by or on behalf of such
Selling Holder or underwriter expressly for use therein. The Company also agrees
to indemnify any underwriter of the Registrable Securities so offered and each
person, if any, who controls such underwriter on substantially the same basis as
that of the indemnification by the Company of each Selling Holder provided in
this Section 2.08(a). Notwithstanding the foregoing, (i) with respect to any
untrue statement or omission or alleged untrue statement or omission made in any
preliminary prospectus, or in any prospectus, as the case may be, the indemnity
agreement contained in this paragraph shall not apply to the extent that any
such losses, claims, damages or liabilities result from the fact that a current
copy of the prospectus (or such amended or supplemented prospectus, as the case
may be) was not sent or given to the Person asserting such losses, claims,
damages or liabilities at or prior to the written confirmation of the sale of
the Registrable Securities concerned to such Person if its is determined that
the Company has provided such current prospectus (or such amended or
supplemented prospectus, as the case may be) to any Selling Holder or
underwriter prior to such confirmation and it was the responsibility of such
Selling Holder or underwriter to provide such Person with a current copy of the
prospectus and such current copy of the prospectus (or such amended or
supplemented prospectus, as the case may be) would have cured the defect giving
rise to such losses, claims, damages or liabilities, and (ii) the indemnity
agreement shall also not apply to losses, claims, damages or liabilities
attributable to a failure of a Selling Holder, underwriter or other Person on
their behalf to comply with Section 2.06(g).
(b) Each Selling Holder agrees, to the extent Registrable Securities held
by such Selling Holder are included in the securities as to which a registration
is being effected hereunder, to indemnify and hold harmless the Company, its
directors, officers and each person, if any, who controls the Company within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from
and against any and all losses, claims, damages and liabilities (including,
subject to Section 2.08(c), any reasonable legal or other costs, fees and
expenses reasonably incurred in connection with defending or investigating any
such action
14
or claim) insofar as such losses, claims, damages or liabilities are caused by
any untrue statement or alleged untrue statement of a material fact contained in
such registration statement at the time it became effective or any amendment
thereof, any preliminary prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) relating to the Registrable Securities, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only with reference to information relating to a Selling Holder furnished in
writing by or on behalf of such Selling Holder expressly for use in a
registration statement, any preliminary prospectus, prospectus or any amendments
or supplements thereto. Each Selling Holder also agrees to indemnify any
underwriter of the Registrable Securities so offered and each person, if any,
who controls such underwriter on substantially the same basis as that of the
indemnification by such Selling Holder of the Company provided in this Section
2.08(b). Notwithstanding any other provision of this Section 2.08, no Selling
Holder's obligations to indemnify pursuant to this Section 2.08 shall exceed the
amount of net proceeds received by such Selling Holder in connection with the
offering of its Registrable Securities. Each Selling Holder's obligations to
indemnify pursuant to this Section are several in the proportion that the net
proceeds of the offering received by such Selling Holder bear to the total net
proceeds of the offering received by all Selling Holders and not joint.
(c) Each party indemnified under paragraph (a) or (b) above shall, promptly
after receipt of notice of a claim or action against such indemnified party in
respect of which indemnity may be sought hereunder, notify the indemnifying
party in writing of the claim or action and the indemnifying party shall assume
the defense thereof, including the employment of counsel reasonably satisfactory
to such indemnified party, and shall assume the payment of all fees and expenses
in connection therewith; provided that the failure of any indemnified party so
to notify the indemnifying party shall not relieve the indemnifying party of its
obligations hereunder except to the extent that the indemnifying party is
materially prejudiced by such failure to notify. In any such action, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the sole expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) in the reasonable
judgment of such indemnified party representation of both parties by the same
counsel would be inappropriate due to material differing interests between them,
in which case the reasonable fees and expenses of such counsel shall be at the
sole expense of the indemnifying party. It is understood that the indemnifying
party shall not, in connection with any claim or action or related proceeding in
the same jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) at any
time for all
15
such indemnified parties, and that all such reasonable fees and expenses shall
be reimbursed as they are incurred. In the case of any such separate firm for
the Holders as indemnified parties, such firm shall be designated in writing by
the indemnified party that had the largest number of Registrable Securities
included in such registration. The indemnifying party shall not be liable for
any settlement of any claim or action effected without its written consent,
which consent shall not be unreasonably withheld or delayed, but if settled with
such consent, or if there be a final judgment for the plaintiff, the
indemnifying party shall indemnify and hold harmless such indemnified parties
from and against any loss or liability (to the extent stated above) by reason of
such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened claim or action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability arising out of such proceeding.
(d) If the indemnification provided for in this Section 2.08 shall for any
reason be unavailable (other than in accordance with its terms) or insufficient
to an indemnified party in respect of any loss, liability, cost, claim or damage
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, cost, claim or damage (A)
as between the Company and the underwriters, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations, and (B) as between (x) the Company and the Selling Holders or
(y) the Selling Holders and the underwriters, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company, the Selling Holders and the
underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company, by a Selling Holder or by the underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, as well as the matters referred to in the last
sentence of Section 2.08(a). The amount paid or payable by an indemnified party
as a result of the loss, cost, claim, damage or liability, or action in respect
thereof, referred to above in this paragraph (d) shall be deemed to include, for
purposes of this paragraph (d), any legal or other costs, fees and expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such
16
action or claim. The Company and the Selling Holders agree that it would not be
just and equitable if contribution pursuant to this Section 2.08 were determined
by pro rata allocation (even if the underwriters and/or Selling Holders were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this
paragraph. Notwithstanding any other provision of this Section 2.08, no Selling
Holder shall be required to contribute any amount in excess of the amount by
which the net proceeds of the offering received by such Selling Holder exceed
the amount of any damages which such Selling Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. Each Selling Holder's obligations to contribute pursuant to
this Section are several in the proportion that the net proceeds of the offering
received by such Selling Holder bear to the total net proceeds of the offering
received by all the Selling Holders and not joint. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) Indemnification and contribution similar to that specified in the
preceding paragraphs of this Section 2.08 (with appropriate modifications) shall
be given by the Company, the Selling Holders and the underwriters with respect
to any required registration or other qualification of securities under any
state law or regulation or governmental authority.
(f) The obligations of the parties under this Section 2.08 shall be in
addition to any liability which any party may otherwise have to any other party.
(g) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in an underwriting agreement entered
into in connection with an underwritten public offering are in conflict with the
foregoing provisions, the provisions in such underwriting agreement shall
control.
Section 2.09. Rule 144 and Form S-3. The Company shall use its reasonable
best efforts to ensure that the conditions to the availability of Rule 144 set
forth in paragraph (c) thereof shall at all times be satisfied. The Company
further agrees to use its reasonable best efforts to cause all conditions to the
availability of Form S-3 (or any successor form) under the 1933 Act for the
filing of registration statements under this Agreement to at all times be
satisfied.
Section 2.10. Lock-Up Agreements. If requested by the lead or managing
underwriters, each Holder hereby agrees that such Holder shall not sell any
Common Stock or securities convertible into or exercisable for Common Stock held
by such Holder (other than the sale pursuant to the registration statement of
those securities included in the registration) for such requested period (not to
exceed ninety (90) days) after the effective date of a registration statement
for an underwritten public offering of any of the Company's equity securities in
which
17
either (i) Registrable Securities of such Holder are included (unless
Registrable Securities sought to be included in such underwritten public
offering by such Holder were excluded pursuant to the applicable provisions of
this Article 2) or (ii) such Holder was offered the opportunity to include
Registrable Securities in such underwritten public offering pursuant to the
"piggyback" registration rights under Section 2.04 but declined to do so.
Notwithstanding the foregoing, this Section 2.10 shall not apply unless all then
officers and directors of the Company, and all stockholders of the Company who
own Common Stock representing 10% or more of the outstanding Common Stock, enter
into similar agreements. Any discretionary waiver or termination of the
requirements under the foregoing provisions made by the managing underwriters
shall apply to each Holder on a pro rata basis.
Section 2.11. Inconsistent Agreements. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
ARTICLE 3
VOTING
Section 3.01. Voting of Warrant Shares. For so long as Ford or any of its
Affiliates holds any Warrant Shares, it hereby unconditionally and irrevocably
agrees that at any meeting of the stockholders of the Company however called (or
any action by written consent in lieu of a meeting) or any adjournment thereof,
Ford shall vote all Warrant Shares at such time beneficially owned by Ford or
any of its Affiliates (or cause them to be voted) or (as appropriate) execute
written consents in respect thereof, in the same proportions (as between votes
"for", "against" or to "abstain" on each respective matter) as the shares of
Common Stock voted by all holders of Common Stock, other than Ford and its
subsidiaries, with respect to each respective matter to be voted upon by holders
of Common Stock (or for which such consent is sought). Any vote required
pursuant to the preceding sentence shall be cast (or consent shall be given) by
Ford and its Affiliates in accordance with such procedures relating thereto so
as to ensure that it is duly counted, including for purposes of determining that
a quorum is present and for purposes of recording the results of such vote (or
consent). The Company shall establish procedures to allow Ford to vote its
Warrant Shares in accordance with this Section 3.01. This Section 3.01 shall be
inoperative and of no force or effect if Ford and its Affiliates shall acquire
more than 50% of the outstanding Common Stock of the Company without violation
of this Agreement.
18
ARTICLE 4
STANDSTILL
Section 4.01. Standstill. Ford agrees that for a period of three years
following the date hereof, neither Ford nor any of its Affiliates will, without
the Company's prior written consent:
(i) acquire, agree to acquire or offer to acquire beneficial ownership
of any securities of the Company (or options or other rights to acquire any
securities of the Company) other than Registrable Securities; provided that
the foregoing limitation shall not prohibit the acquisition of securities
issued as dividends or as a result of stock splits and similar
reclassifications or received in a consolidation, merger or other business
combination in respect of Registrable Securities held by such Persons at
the time of such dividend, split, reclassification, consolidation, merger
or business combination;
(ii) make or in any way participate in, directly or indirectly, alone
or in concert with others, any "solicitation" of "proxies" (as such terms
are used in the proxy rules of the U.S. Securities and Exchange Commission
promulgated pursuant to Section 14 of the 1934 Act) to vote any voting
securities of the Company;
(iii) form, join or any way participate in a "group" within the
meaning of Section 13(d)(3) of the 1934 Act with respect to any voting
securities of the Company;
(iv) otherwise act, alone or in concert with others, to seek to
propose to the Company or any of its stockholders any merger, share
exchange, business combination, sale of all or substantially all assets,
recapitalization or similar transaction to or with the Company or otherwise
seek, alone or in concert with others, to control, or change the
management, Board of Directors or policies of the Company or nominate any
person as a director who is not nominated by the then incumbent directors,
or propose any matter to be voted upon by the stockholders of the Company;
(v) make any request or proposal to amend, waive or terminate any
provision of this Article 4; or
(vi) take any action that would reasonably be expected to result in
the Company having to make a public announcement regarding any of the
matters referred to in clauses (i) through (v) of this Section 4.01, or
announce an intention to do, or enter into any arrangement or understanding
with others to do, any of the actions restricted or prohibited under
clauses (i) through (v) of this Section 4.01.
19
(b) Notwithstanding the provisions of this Section 4.01, if:
(i) the Company enters into a definitive agreement with an entity
other than a subsidiary of the Company providing for:
(A) a merger, 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, would cease to
possess, immediately after consummation of such transaction,
beneficial ownership of voting securities entitling them to exercise
more than 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 Person resulting from such
transaction),
(B) a sale of all or substantially all of the assets of the
Company and its subsidiaries (determined on a consolidated basis), or
(C) the acquisition (by purchase, merger or otherwise) by any
Person (including any syndicate or group deemed to be a "person" under
Section 13(d)(3) of the 1933 Act) of beneficial ownership of voting
securities of the Company entitling that Person to exercise more than
50% of the total voting power of all outstanding securities entitled
to vote generally in elections of directors of the Company (the
transactions described in clauses (A), (B) and (C) of this Section
4.01(b)being each hereinafter referred to as a "THIRD-PARTY
AGREEMENT"); or
(ii) any Person (other than the Company or a subsidiary of the
Company) commences (within the meaning of the 1934 Act), other than
pursuant to a Third-Party Agreement, a tender offer or exchange offer for
voting securities of the Company entitling the holders thereof to exercise
more than 50% of the total voting power of all outstanding securities
entitled to vote generally in elections of directors of the Company, which
offer is not withdrawn or terminated within five (5) days after it is
commenced (a "THIRD-PARTY TENDER OFFER");
then the restrictions set forth in Section 4.01(a) above shall not restrict the
Holder from (A) in the case of a Third-Party Agreement, making a non-public
proposal solely to the Board of Directors for a transaction as long as such
proposal (x) is at a price that is financially superior to the price to be paid
to the Company or its stockholders pursuant to the Third-Party Agreement, (y)
the structure of such transaction is substantially similar to that contained in
the Third-Party Agreement
20
and (z) the other non-financial terms of such transaction are not less favorable
in any material respect to the Company and its stockholders than the other
non-financial terms contained in the Third-Party Agreement, and (B) in the case
of a Third-Party Tender Offer, commencing a tender offer, or making a non-public
proposal solely to the Board of Directors for a merger, in each case at a price
that is financially superior to the price to be paid pursuant to the Third-Party
Tender Offer; provided, however, that the restrictions set forth in Section
4.01(a) shall again be fully applicable in accordance with their terms upon the
termination of the Third-Party Agreement or termination, withdrawal or final
expiration of the Third-Party Tender Offer, as the case may be, except in each
case with respect to any or offer commenced by Ford as permitted by this
sentence prior to such termination or withdrawal.
(c) The provisions of this Section 4.01 shall be inoperative and of no
force or effect following a Change of Control (as defined in the Warrant).
ARTICLE 5
HEDGING
Section 5.01. Limitations on Hedging. Ford agrees that:
(i) until the date that is the first anniversary of the Closing,
neither Ford nor its Affiliates shall engage in any Hedging Transaction
with respect to any shares of Common Stock;
(ii) between the date that is the first anniversary of Closing and the
date that is the second anniversary of Closing, neither Ford nor its
Affiliates shall engage in any Hedging Transaction with respect to more
than an aggregate of 12,500,000 shares (as adjusted for stock splits,
combinations, recapitalizations and the like) of Common Stock; and
(iii) after the second anniversary of the Closing, Ford will not be
restricted from engaging in any Hedging Transactions.
Section 5.02. Notice. Prior to engaging in any Hedging Transaction, Ford
will first offer the Company a reasonable opportunity to participate in such
transaction, to the extent consistent with market practice, as purchaser of any
Common Stock proposed to be sold by any counterparty in connection with such
Hedging Transaction.
21
ARTICLE 6
TRANSFER RESTRICTIONS
Section 6.01. Transfers; Rights of Transferees of Registrable Securities;
Legends. The Warrant and the Registrable Securities shall be transferable, in
whole or in part from time to time, subject to the following restrictions in
this Section 6.01. Each Holder agrees not to make any direct or indirect sale,
assignment, pledge, transfer or other disposition, whether or not for value
(each, a "TRANSFER"), to the same transferee or any Affiliates of a transferee
(or any member of a "group" (within the meaning of Section 13(d)(3) under the
1934 Act) of which any such transferee or Affiliate is a member) in a single
transaction or series of transactions, of all or any portion of the Warrant or
Registrable Securities (or any right or interest therein) representing (or
representing the right to acquire) a number of shares of Common Stock that is
more than 5% of the then outstanding shares of Common Stock; provided that the
foregoing restriction shall not apply to a Transfer by a Holder to an Affiliate
of the Holder; and provided further the Warrant may only be Transferred in part
in minimum denominations of Two Million (2,000,000) Warrant Shares (as adjusted
appropriately in the event of any stock split, combination, stock dividend or
similar transaction involving the Company's Common Stock, and aggregating, for
purposes of determining whether the minimum is met, any related Transfers made
to Affiliates of the transferee or any member of a "group" (within the meaning
of Section 13(d)(3) under the 1934 Act) of which such transferee or Affiliate is
a member). Each Holder further agrees not to make any Transfer of all or any
portion of the Warrant or Registrable Securities (or any right or interest
therein) unless and until there is then in effect a registration statement under
the 1933 Act covering such proposed transfer and such transfer is made in
accordance with such registration statement, such transfer is made in accordance
with Rule 144 under the 1933 Act and the Company has received an opinion of
counsel for such Holder (which opinion may rely on customary certifications as
to factual matters), reasonably satisfactory to the Company, that such transfer
is made in accordance with Rule 144 under the 1933 Act or (i) the transferee has
agreed in writing to be bound by these transfer restrictions, (ii) such Holder
shall have notified the Company of the proposed transfer and (iii) if reasonably
requested by the Company and the transferee is not an Affiliate of the Holder,
such Holder shall have furnished the Company with an opinion of counsel for such
Holder (which opinion may rely on customary certifications as to factual
matters), reasonably satisfactory to the Company, that such transfer does not
require registration of the Registrable Securities under the 1933 Act. In
connection with a transfer pursuant to clause (c) of the immediately preceding
sentence, the transferee of all or any portion of the Warrant or any Registrable
Securities will be deemed a Holder hereunder as soon as the Company receives (A)
written notice stating the name and address of the transferee and identifying
the portion of the Warrant and all number of Registrable Securities, as
applicable, transferred, (B) a written agreement, in form and substance
acceptable to the Company and Majority
22
Holders, from such transferee to the Company whereby such transferee agrees to
be bound by the terms of this Agreement as a Holder and (C) if required under
clause (c)(iii) above, the opinion referred to therein. Certificates
representing the Warrant and Registrable Securities shall bear a legend
referring to this Agreement and the transfer restrictions contained herein;
provided that such legends shall be removed in connection with any transfer
pursuant to clause (a) or (b) of this Section 6.01.
ARTICLE 7
MISCELLANEOUS
Section 7.01. Remedies. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically (without
posting a bond or other security), to recover damages caused by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law. The parties hereto agree and acknowledge that money damages may
not be an adequate remedy for any breach of the provisions of this Agreement and
that any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
Section 7.02. Waiver; Consents to Amendments. (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 the Company and the
Majority Holders (except in the case of Article 3, Article 4 and Article 5 which
may be amended only upon the written consent of the Company and Ford), 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 7.03. 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 (which shall include, with respect
to Article 2, all Permitted Transferees) and any successor to the Company in
connection with a Change in Control (as defined in the Warrant)); provided that
the Company may not otherwise assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the prior written consent of
the Majority Holders and (ii) the obligations of Ford under Article 3, Article 4
and Article 5 shall be binding on Ford and its successors and not any Permitted
Transferees, and Ford shall not be permitted to delegate such obligations
without the prior written consent of the Company.
23
Section 7.04. 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 7.05. 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 all of the other parties 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 and their respective
successors and permitted assigns.
Section 7.06. Descriptive Headings; Interpretation. The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a substantive part of this Agreement. The use of the words "include"
or "including" in this Agreement shall be by way of example rather than by
limitation. Reference to any agreement, document or instrument means such
agreement, document or instrument as amended or otherwise modified from time to
time in accordance with its terms.
Section 7.07. 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 7.08. Dispute Resolution. (a) 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 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
24
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 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 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 7.08 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 7.09. Jurisdiction. Subject to Section 7.08, 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
25
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.
Section 7.10. 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 7.11. Addresses and 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
26
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
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. If to
any other Holder, to the address or facsimile set forth on the books of the
Company or any other address or facsimile number as a party may hereafter
specify for such purpose to the Company. Notwithstanding the foregoing, no
Holder or its counsel shall be entitled to notice if such Holder holds less than
1% in the aggregate of the Registrable Securities held by all Holders.
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.
Section 7.12. Business Days. If any time period for giving notice or
taking action hereunder does not expire on a Business Day, the time period shall
automatically be extended to the immediately following Business Day.
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed 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
28