Schedule 13D
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ____)*
(Name of Issuer)
Common Stock, par value $1.00 per share
(Title of Class of Securities)
(CUSIP Number)
David Kelly, Esq.
UBS AG
677 Washington Blvd
Stamford CT 06901
203-719-3000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
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1 |
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NAMES OF REPORTING PERSONS
UBS AG directly and on behalf of certain subsidiaries |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a) o |
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(b) þ |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS |
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WC |
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5 |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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þ |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Switzerland
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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157,460 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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157,460 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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12 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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0.12% |
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14 |
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TYPE OF REPORTING PERSON |
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BK |
Page 2 of 11 Pages
CUSIP No. 92839U107
Item 1. Security and Issuer.
This Statement on Schedule 13D relates to shares of Common Stock, par value $1.00 per share
(the Shares) of Visteon Corporation, a Delaware corporation (Issuer) held by
UBS AG. The address of the principal executive office of the Issuer is One Village Center Drive,
Van Buren Township, Michigan 48111.
Item 2. Identity and Background.
(a) (c) This Schedule 13D is being filed on behalf of UBS AG (the Reporting Person). UBS AGs
principal business offices are located at:
Bahnhofstrasse 45
CH-8001
Zurich, Switzerland
and
Aeschenvorstadt 1
CH-4051
Basel, Switzerland
UBS AG is a major international banking and financial firm. UBS AG, a Swiss banking corporation,
is publicly owned, and its shares are listed on the Zurich and New York exchanges. UBS Securities
LLC is a wholly owned subsidiary of UBS AG. Like most securities firms, UBS Securities LLC is, and
has been, a defendant in numerous legal actions brought by private plaintiffs relating to its
securities business that allege various violations of federal and state securities laws. UBS AG
files annual reports on Form 20-F with the SEC, and also files quarterly reports and certain other
material information with the SEC under cover of Form 6-K. These reports are publicly available.
These reports include material information about UBS Securities LLC matters, including information
about any material litigation or administrative proceedings.
Further, UBS AG, UBS Securities LLC and other affiliated entities, like most large, full service
investment banks and broker-dealers, receive inquiries and are sometimes involved in investigations
by the Federal Reserve Bank, SEC, NYSE and various other regulatory organizations and government
agencies. UBS AG and its affiliates and subsidiaries fully cooperate with the authorities in all
such requests. UBS Securities LLC regularly reports to the Financial Industry Regulatory
Authority, Inc on form B-D and to the SEC on the Schedule E to Form ADV investigations that result
in orders. These reports are publicly available.
(d) (e) During the last five years, the Reporting Person, nor to the best of the Reporting
Persons knowledge, any of the executive officers has not (1) been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (2) has been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject, to federal or state securities laws or finding
any violation with respect to such laws, except as follows:
Auction Rate Securities: UBS was sued by four state regulatory authorities and was the subject of
investigations by the SEC and other regulators, relating to the marketing and sale of auction rate
securities (ARSs) to clients and to UBSs role and participation in ARS auctions and underwriting
of ARSs. UBS was also named in several putative class actions and individual civil suits and a
large number of individual arbitrations. The regulatory actions and investigations and the civil
proceedings followed the disruption in the markets for these securities and related auction
failures since mid-February 2008. Plaintiffs and the regulators
generally sought rescission, i. e., for UBS to purchase the ARSs that UBS sold to them at par
value, as well as compensatory damages, disgorgement of profits and in some cases penalties. On 8
August 2008, UBS entered into settlements in principle with the SEC, the New York Attorney General
(NYAG) and other state agencies represented by the North American Securities Administrators
Association (NASAA), whereby UBS agreed to offer to buy back ARSs from eligible customers within
certain time periods, the last of which begins on 30 June 2010, and to pay penalties of USD 150
million (USD 75 million to the NYAG, USD 75 million to the other states). UBS subsequently
finalized its settlement with the State of Massachusetts, the SEC and the NYAG, and is continuing
to finalize agreements with the other state regulators. UBSs settlement is largely in line with
similar industry regulatory settlements. The NYAG and SEC continue to investigate individuals
affiliated with UBS who traded in ARSs or who had responsibility for disclosures.
Page 3 of 11 Pages
CUSIP No. 92839U107
US Cross-Border: UBS AG has been responding to a number of governmental inquiries and
investigations relating to its cross-border private banking services to US private clients during
the years 2000-2007. On 18 February 2009, UBS announced that it had entered into a Deferred
Prosecution Agreement (DPA) with the US Department of Justice Tax Division (DOJ) and the United
States Attorneys Office for the Southern District of Florida, and a Consent Order with the SEC
relating to these investigations. As part of these settlement agreements, among other things: (i)
UBS will pay a total of USD 780 million to the United States, USD 380 million representing
disgorgement of profits from maintaining the US cross-border business and USD 400 million
representing US federal backup withholding tax required to be withheld by UBS, together with
interest and penalties, and restitution for unpaid taxes associated with certain account
relationships involving fraudulent sham and nominee offshore structures and otherwise as covered by
the DPA; (ii) UBS will complete the exit of the US cross-border business out of non-SEC registered
entities, as announced in July 2008, which these settlements permit UBS to do in a lawful, orderly
and expeditious manner; (iii) UBS will implement and maintain an effective program of internal
controls with respect to compliance with its obligations under its Qualified Intermediary (QI)
Agreement with the Internal Revenue Service (IRS), as well as a revised legal and compliance
governance structure in order to strengthen independent legal and compliance controls; and (iv)
pursuant to an order issued by the Swiss Financial Market Supervisory Authority (FINMA),
information was transferred to the DOJ regarding accounts of certain US clients as set forth in the
DPA who, based on evidence available to UBS, appear to have committed tax fraud or the like within
the meaning of the Swiss-US Double Taxation Treaty. Pursuant to the DPA, the DOJ has agreed that
any further prosecution of UBS will be deferred for a period of at least 18 months, subject to
extension under certain circumstances such as UBS needing more time to complete the implementation
of the exit of its US cross-border business. If UBS satisfies all of its obligations under the DPA,
the DOJ will refrain permanently from pursuing charges against UBS relating to the investigation of
its US cross-border business. As part of the SEC resolution, the SEC filed a Complaint against UBS
in US Federal District Court in Washington, D.C., charging UBS with acting as an unregistered
broker-dealer and investment advisor in connection with maintaining its US cross-border business.
Pursuant to the Consent Order, UBS did not admit or deny the allegations in that Complaint, and
consented to the entry of a final judgment that provides, among other things, that: (i) UBS will
pay USD 200 million to the SEC, representing disgorgement of profits from the US cross-border
business (this amount is included in, and not in addition to, the USD 780 million UBS is paying to
the United States as described above); and (ii) UBS will complete its exit of the US cross-border
business and will be permanently enjoined from violating the SEC registration requirements by
providing broker-dealer or investment advisory services to US persons through UBS entities not
registered with the SEC. The District Court entered the final judgment on 19 March 2009.
(f) The Reporting Persons may be deemed to be members of a group for purposes of Section
13(d)(3) of the Securities Exchange Act of 1934 (the Exchange Act). See Item 6 below.
The Reporting Persons expressly disclaim that they have agreed to act as a group.
Item 3. Source and Amount of Funds or Other Consideration.
The Shares were acquired in open market purchases using internally generated funds of UBS AG
(UBS) and the affiliates that purchased the subject securities. No funds or consideration were
borrowed or obtained for the purpose of acquiring the Shares.
Item 4. Purpose of Transaction.
The Reporting Persons acquired these Shares for investment purposes. The Reporting Persons do
not have any present plan or proposal that would relate to or result in any of the matters
specified in Item 4 of Schedule 13D except as set forth in Item 6 below, as amended or
supplemented. The information set forth in Item 6 of this Schedule 13D as amended or supplemented
is hereby incorporated herein by reference.
Page 4 of 11 Pages
CUSIP No. 92839U107
Item 5. Interest in Securities of the Issuer.
(a) (b) As of April 26, 2010, the number of Shares outstanding was 130,320,880 according
to the Issuers Form 10-Q filed on April 30, 2010. As of the date hereof, the Reporting Persons
are the beneficial owners of 157,460 Shares, which constitutes 0.12% of the Issuers outstanding
Shares. The Reporting Persons have the sole power to vote and sole power to dispose of 157,460
Shares. The information set forth in Item 6 of this Schedule 13D as amended or supplemented is
hereby incorporated herein by reference.
(c) Except as set forth on Exhibit A attached hereto, there have been no transactions
with respect to the Shares during the sixty days prior to the date of this Schedule 13D by the
Reporting Persons or, to their knowledge, by any executive officer or director of the Reporting
Persons.
(d) Except for
clients of UBS AG or its affiliates who may have the right to receive or the power to direct
the receipt of dividends from, or the proceeds from the sale of, shares of Common Stock, if any,
held in client accounts with respect to which UBS AG or employees of UBS AG have voting or
investment discretion, or both, no other person is known by the Reporting Persons to have the
right to receive or the power to direct the receipt of dividends from, or the proceeds from the
sale of, any shares of Common Stock beneficially owned by the Reporting Persons.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the
Issuer.
On May 28, 2009, the Issuer, its subsidiaries, and certain of its affiliates (collectively,
the Debtors) filed voluntary petitions for relief under Chapter 11 of the United States
Bankruptcy Code (the Bankruptcy Code) in the United States Bankruptcy Court for the
District of Delaware (the Bankruptcy Court). On May 7, 2010, the Debtors filed with the
Bankruptcy Court a Second Amended Joint Plan of Reorganization of the Debtors (the Plan),
and a Second Amended Disclosure Statement for the Second Amended Joint Plan of Reorganization (the
Disclosure Statement). The Plan is included as Exhibit 99.1 to the Issuers Current
Report on Form 8-K filed on May 12, 2010. The Bankruptcy Court has scheduled a hearing to approve
the Disclosure Statement for May 24, 2010.
In connection with the filing of the Plan, on May 6, 2010, the Issuer entered into an Equity
Commitment Agreement (the Equity Commitment Agreement) with certain investors (the
Investors), including UBS Securities LLC (solely with respect to the Distressed Debt
Trading Group). The Equity Commitment Agreement provides, among other things, that on the
terms and subject to the conditions of the Equity Commitment Agreement, Issuer will conduct a
rights offering whereby certain holders of existing unsecured notes of Issuer may elect to purchase
up to 34,310,200 shares of the Common Stock of a reorganized Issuer for $27.69 per share, in
accordance with the Plan. The Equity Commitment Agreement also provides that on the terms and
subject to the conditions of the Equity Commitment Agreement, the Investors severally agree to
purchase 10,834,800 shares of the Common Stock of a reorganized Issuer and any shares not purchased
in connection with the rights offering. The Issuer has agreed to pay the following fees and
expenses to the Investors: (i) $43,750,000, twenty-five percent of which is payable upon entry of
the order approving the Equity Commitment Agreement and the remainder of which would be payable
upon consummation of the transactions contemplated by the Equity Commitment Agreement; (ii)
$16,625,000 for arranging the transactions contemplated by the Equity Commitment Agreement, to be
paid only to certain of the Investors upon the consummation of the transactions contemplated by the
Equity Commitment Agreement; and (iii) out of pocket costs and expenses reasonably incurred by
each of the Investors in connection with the Equity Commitment Agreement. In addition, the Issuer
has agreed to support the Investors request for payment of liquidated damages in the event that
the Issuer enters into an agreement in connection with, or approves or seeks Bankruptcy Court
approval of, certain alternative transactions, as well as if the Issuers approval of the rights
offering-based plan is withdrawn, qualified, or modified in a manner adverse to the Investors and
otherwise inconsistent with its obligations under the Equity Commitment Agreement. The Bankruptcy
Court has scheduled a hearing for approval of the Issuers entry into the Equity Commitment
Agreement
for May 24, 2010. The above summary of the material terms of the Equity Commitment Agreement
is qualified in its entirety by reference to the text of the Equity Commitment Agreement, a copy of
which is attached hereto as Exhibit C. The Equity Commitment Agreement is subject to the
approval of the Bankruptcy Court, as well other conditions, and contains representations,
warranties, covenants, and indemnities customary for a transaction of the type contemplated
thereby.
Page 5 of 11 Pages
CUSIP No. 92839U107
Upon entering into the Equity Commitment Agreement, the Reporting Persons and the Investors
may be deemed to be a group pursuant to Section 13(d)(3) of the Exchange Act. The Reporting
Persons do not expressly affirm membership in a group with any of the Investors, and disclaim
beneficial ownership of any Shares held by the Investors (other than the Reporting Persons).
Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an
admission that the Reporting Persons or any of their respective affiliates are the beneficial
owners of any Shares beneficially owned by any of the Investors (other than the Reporting Persons)
for purposes of Section 13(d) of the Exchange Act, the rules promulgated thereunder or for any
other purpose.
The Reporting Persons expect to independently evaluate on an ongoing basis the Issuers
financial condition and prospects and its interest in, and intentions with respect to, the Issuer
and their investment in the securities of the Issuer, which review may be based on various factors,
including whether various strategic transactions have occurred or may occur, the Issuers business
and financial condition, results of operations and prospects, general economic and industry
conditions, the securities markets in general and those for the Issuers securities in particular,
as well as other developments and other investment opportunities. Accordingly, but subject to the
Reporting Persons obligations under that certain Plan Support Agreement, as filed with the
Bankruptcy Court on May 6, 2010 and attached hereto as Exhibit D, among the Investors,
certain of the Issuers note holders, and the Issuer (the Plan Support Agreement), each
Reporting Person reserves the right to change its intentions and develop plans or proposals at any
time, as it deems appropriate. In particular, and subject to the Reporting Persons obligations
under the Plan Support Agreement, each Reporting Person may at any time and from time to time, in
the open market, in privately negotiated transactions or otherwise, acquire additional securities
of the Issuer, including additional Common Stock, dispose of all or a portion of the securities of
the Issuer, including the Common Stock, that the Reporting Persons now own or may hereafter
acquire, and/or enter into derivative transactions with institutional counterparties with respect
to the Issuers securities. In addition, and subject to the Reporting Persons obligations under
the Plan Support Agreement, the Reporting Persons may engage in discussions with management,
members of the board of directors of the Issuer, shareholders of the Issuer and other relevant
parties concerning the operations, management, composition of the Issuers board of directors and
management, ownership, capital structure, balance sheet management, strategy and future plans of
the Issuer, including the possibility of proposing one of more acquisitions, business combinations,
mergers, asset sales, asset purchases or other similar transactions involving the Issuer and other
third parties.
The Plan Support Agreement provides, among other things, and subject to certain exceptions set
forth therein, that certain note holders party thereto shall (i) vote all relevant claims they hold
to accept the Plan, (ii) support entry of a disclosure statement order, and (iii) permit disclosure
in the Disclosure Statement and any filings by the Debtors with the Securities and Exchange
Commission of the contents of the Plan Support Agreement. Further, unless the Debtors and the note
holders party to the Plan Support Agreement agree to pursue an alternative plan, such note holders
agree that they shall not subject to certain exceptions set forth therein (A) support or vote in
favor of an alternative plan, (B) participate in negotiations or enter into any agreements
regarding an alternative plan, (C) withdraw support for the Plan, (D) object to or commence any
proceeding opposing any of the terms of the Plan or the Disclosure Statement, (E) object to or
commence any proceeding opposing or objecting to the entry of the disclosure statement order, (F)
encourage any other entity to take any action to interfere with entry of the disclosure statement
order or an order of the Bankruptcy Court confirming the Plan, (G) object to or commence any
proceeding opposing or objecting to the approval of the Plan, or (H) take any action
inconsistent with the Plan Support Agreement or the Plan, or that would unreasonably delay the
approval of the Disclosure Statement or confirmation of the Plan. The above summary of the
material terms of the Plan Support Agreement is qualified in its entirety by reference to the text
of the Plan Support Agreement, a copy of which is attached hereto as Exhibit D.
Page 6 of 11 Pages
CUSIP No. 92839U107
[In connection with the filing of the Plan, and subject to Bankruptcy Court approval, the
Issuer entered into a Cash Recovery Backstop Agreement with certain Investors including UBS
Securities LLC (solely with respect to the Distressed Debt Trading Group) (the Backstop
Agreement). Pursuant to the Backstop Agreement, the note holders signatory thereto (the
Backstop Note Holders), severally agreed to fund cash distributions to certain note
holders who are not eligible to participate in the rights offering under the Plan in exchange for
the Issuer issuing to such Backstop Note Holders the rights to participate in the rights offering
that would have been distributed to such non-eligible holders, had they been eligible holders. The
above summary of the material terms of the Backstop Agreement is qualified in its entirety by
reference to the text of the Backstop Agreement, a copy of which is attached hereto as Exhibit
E.]
Upon the consummation of the transactions contemplated by the Equity Commitment Agreement,
certain holders of shares of the Common Stock of a reorganized Issuer will be entitled to customary
registration rights, including shelf registration rights, demand registration rights and piggyback
registration rights, and shall be subject to customary transfer restrictions following a public
offering of the Common Stock of a reorganized Issuer, in accordance with the terms and subject to
the conditions of a registration rights agreement to be entered into by and among the Issuer and
such holders. The above summary of the material terms of the form of the registration rights
agreement is qualified in its entirety by reference to the text of the form of the registration
rights agreement, a copy of which is attached hereto as Exhibit F.
Upon the consummation of the transactions contemplated by the Equity Commitment Agreement, the
initial board of directors of a reorganized Issuer shall consist of nine members to be designated
as follows: (i) the current Chief Executive Officer of Issuer, (ii) two individuals designated by
the Issuer from a pool of individuals (the Director Pool) selected by certain majority
investors, and (iii) six individuals designated by certain majority investors from the Director
Pool. The majority investors shall be determined based on the amount of Common Stock issuable to
them pursuant to the Equity Commitment Agreement and the Plan.
Item 7. Material to be Filed as Exhibits.
Exhibit A Transactions in the Shares effected in the past 60 days
Exhibit B Second Amended Joint Plan of Reorganization for Visteon Corporation and
its Debtor Affiliates. (Incorporated herein by reference to Exhibit 99.1 to the
Issuers Current Report on Form 8-K filed on May 12, 2010)
Exhibit C Equity Commitment Agreement, dated as of May 6, 2010, by and between
Visteon Corporation and certain investors.
Exhibit D Plan Support Agreement, dated as of May 6, 2010, by and between Visteon
Corporation and certain investors.
Exhibit E Cash Recovery Backstop Agreement, dated as of May 6, 2010, by and
between Visteon Corporation and certain investors.
Exhibit F Form of Registration Rights Agreement
Page 7 of 11 Pages
CUSIP No. 92839U107
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies
that the information set forth in this statement is true, complete and correct.
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Date: May 17, 2010 |
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By:
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/s/ Anthony DeFilippis |
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Name: Anthony DeFilippis
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Title: Executive Director |
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By:
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/s/ Gordon Kiesling
Name: Gordon Kiesling
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Title: Executive Director |
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Page 8 of 11 Pages
Exhibit A
CUSIP No. 92839U107
EXHIBIT A
Transactions in the Shares of Visteon Corporation effected in the past 60 days
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Date of |
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Nature of |
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Number of |
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Price per |
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For the Account of |
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Transaction |
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Transaction |
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Shares |
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Share |
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UBS Securities LLC |
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3/15/2010 |
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Buy |
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389,249 |
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0.895 |
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UBS SECURITIES LLC |
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3/15/2010 |
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Sell |
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387,919 |
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0.896 |
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UBS SECURITIES LLC |
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3/16/2010 |
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Buy |
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1,494,894 |
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0.629 |
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UBS SECURITIES LLC |
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3/16/2010 |
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Sell |
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500,000 |
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0.620497 |
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UBS SECURITIES LLC |
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3/16/2010 |
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Sell |
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1,490,094 |
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0.63 |
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UBS SECURITIES LLC |
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3/17/2010 |
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Buy |
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306,774 |
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0.706 |
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UBS SECURITIES LLC |
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3/17/2010 |
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Sell |
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306,038 |
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0.705 |
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UBS SECURITIES LLC |
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3/18/2010 |
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Buy |
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537,703 |
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0.689 |
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UBS SECURITIES LLC |
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3/18/2010 |
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Sell |
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529,757 |
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0.689 |
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UBS SECURITIES LLC |
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3/19/2010 |
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Buy |
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218,180 |
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0.759 |
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UBS SECURITIES LLC |
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3/19/2010 |
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Sell |
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200,000 |
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0.754825 |
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UBS SECURITIES LLC |
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3/19/2010 |
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Sell |
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200,000 |
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0.7648 |
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UBS SECURITIES LLC |
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3/19/2010 |
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Sell |
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100,000 |
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0.7747 |
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UBS SECURITIES LLC |
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3/19/2010 |
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Sell |
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227,080 |
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0.757 |
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UBS SECURITIES LLC |
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3/22/2010 |
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Buy |
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64,967 |
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0.732 |
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UBS SECURITIES LLC |
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3/22/2010 |
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Sell |
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61,714 |
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0.737 |
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UBS SECURITIES LLC |
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3/23/2010 |
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Buy |
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126,338 |
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0.764 |
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UBS SECURITIES LLC |
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3/23/2010 |
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Sell |
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131,190 |
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0.762 |
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UBS SECURITIES LLC |
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3/24/2010 |
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Buy |
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33,781 |
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0.792 |
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UBS SECURITIES LLC |
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3/24/2010 |
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Sell |
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34,800 |
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0.794 |
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UBS SECURITIES LLC |
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3/25/2010 |
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Buy |
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268,055 |
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0.869 |
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UBS SECURITIES LLC |
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3/25/2010 |
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Sell |
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266,115 |
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0.868 |
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UBS SECURITIES LLC |
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3/26/2010 |
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Buy |
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486,249 |
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1 |
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UBS SECURITIES LLC |
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3/26/2010 |
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Buy |
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481,369 |
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1.001 |
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UBS SECURITIES LLC |
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3/26/2010 |
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Buy |
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481,369 |
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1.001 |
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UBS SECURITIES LLC |
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3/26/2010 |
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Sell |
|
|
481,369 |
|
|
|
1.001 |
|
UBS SECURITIES LLC |
|
3/26/2010 |
|
Sell |
|
|
486,249 |
|
|
|
1 |
|
UBS SECURITIES LLC |
|
3/26/2010 |
|
Sell |
|
|
486,249 |
|
|
|
1 |
|
UBS SECURITIES LLC |
|
3/29/2010 |
|
Buy |
|
|
342,170 |
|
|
|
0.971 |
|
UBS SECURITIES LLC |
|
3/29/2010 |
|
Sell |
|
|
343,674 |
|
|
|
0.971 |
|
UBS SECURITIES LLC |
|
3/30/2010 |
|
Buy |
|
|
443,669 |
|
|
|
1.104 |
|
UBS SECURITIES LLC |
|
3/30/2010 |
|
Sell |
|
|
445,019 |
|
|
|
1.105 |
|
UBS SECURITIES LLC |
|
3/31/2010 |
|
Buy |
|
|
330,589 |
|
|
|
1.194 |
|
Page 9 of 11 Pages
CUSIP No. 92839U107
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Date of |
|
Nature of |
|
Number of |
|
|
Price per |
|
For the Account of |
|
Transaction |
|
Transaction |
|
Shares |
|
|
Share |
|
UBS SECURITIES LLC |
|
3/31/2010 |
|
Sell |
|
|
327,289 |
|
|
|
1.195 |
|
UBS SECURITIES LLC |
|
4/1/2010 |
|
Buy |
|
|
949,293 |
|
|
|
1.46 |
|
UBS SECURITIES LLC |
|
4/1/2010 |
|
Buy |
|
|
949,924 |
|
|
|
1.461 |
|
UBS SECURITIES LLC |
|
4/1/2010 |
|
Buy |
|
|
949,924 |
|
|
|
1.461 |
|
UBS SECURITIES LLC |
|
4/1/2010 |
|
Sell |
|
|
144,900 |
|
|
|
1.572 |
|
UBS SECURITIES LLC |
|
4/1/2010 |
|
Sell |
|
|
949,924 |
|
|
|
1.461 |
|
UBS SECURITIES LLC |
|
4/1/2010 |
|
Sell |
|
|
949,293 |
|
|
|
1.46 |
|
UBS SECURITIES LLC |
|
4/1/2010 |
|
Sell |
|
|
949,293 |
|
|
|
1.46 |
|
UBS SECURITIES LLC |
|
4/5/2010 |
|
Buy |
|
|
844,289 |
|
|
|
1.668 |
|
UBS SECURITIES LLC |
|
4/5/2010 |
|
Sell |
|
|
844,592 |
|
|
|
1.667 |
|
UBS SECURITIES LLC |
|
4/6/2010 |
|
Buy |
|
|
1,160,557 |
|
|
|
1.15 |
|
UBS SECURITIES LLC |
|
4/6/2010 |
|
Sell |
|
|
1,161,925 |
|
|
|
1.15 |
|
UBS SECURITIES LLC |
|
4/7/2010 |
|
Buy |
|
|
998,092 |
|
|
|
1.028 |
|
UBS SECURITIES LLC |
|
4/7/2010 |
|
Sell |
|
|
200,000 |
|
|
|
1.001961 |
|
UBS SECURITIES LLC |
|
4/7/2010 |
|
Sell |
|
|
984,552 |
|
|
|
1.028 |
|
UBS Financial Services
Inc |
|
4/7/2010 |
|
Sell |
|
|
67 |
|
|
|
1.02 |
|
UBS SECURITIES LLC |
|
4/8/2010 |
|
Buy |
|
|
678,235 |
|
|
|
1.093 |
|
UBS SECURITIES LLC |
|
4/8/2010 |
|
Sell |
|
|
679,975 |
|
|
|
1.091 |
|
UBS SECURITIES LLC |
|
4/9/2010 |
|
Buy |
|
|
592,448 |
|
|
|
1.132 |
|
UBS SECURITIES LLC |
|
4/9/2010 |
|
Sell |
|
|
603,608 |
|
|
|
1.132 |
|
UBS SECURITIES LLC |
|
4/12/2010 |
|
Buy |
|
|
64,064 |
|
|
|
1.155 |
|
UBS SECURITIES LLC |
|
4/12/2010 |
|
Sell |
|
|
61,864 |
|
|
|
1.158 |
|
UBS SECURITIES LLC |
|
4/13/2010 |
|
Buy |
|
|
111,198 |
|
|
|
1.156 |
|
UBS SECURITIES LLC |
|
4/13/2010 |
|
Sell |
|
|
110,998 |
|
|
|
1.153 |
|
UBS SECURITIES LLC |
|
4/14/2010 |
|
Buy |
|
|
138,210 |
|
|
|
1.137 |
|
UBS SECURITIES LLC |
|
4/14/2010 |
|
Sell |
|
|
143,452 |
|
|
|
1.139 |
|
UBS SECURITIES LLC |
|
4/15/2010 |
|
Buy |
|
|
59,433 |
|
|
|
1.081 |
|
UBS SECURITIES LLC |
|
4/15/2010 |
|
Sell |
|
|
57,596 |
|
|
|
1.085 |
|
UBS SECURITIES LLC |
|
4/16/2010 |
|
Buy |
|
|
868,620 |
|
|
|
1.097 |
|
UBS SECURITIES LLC |
|
4/16/2010 |
|
Sell |
|
|
856,815 |
|
|
|
1.097 |
|
UBS SECURITIES LLC |
|
4/19/2010 |
|
Buy |
|
|
164,292 |
|
|
|
1.008 |
|
UBS SECURITIES LLC |
|
4/19/2010 |
|
Sell |
|
|
177,539 |
|
|
|
1.014 |
|
UBS Financial Services
Inc |
|
4/19/2010 |
|
Sell |
|
|
546 |
|
|
|
1.02 |
|
UBS SECURITIES LLC |
|
4/20/2010 |
|
Buy |
|
|
390,371 |
|
|
|
1.24 |
|
UBS SECURITIES LLC |
|
4/20/2010 |
|
Sell |
|
|
380,724 |
|
|
|
1.242 |
|
UBS SECURITIES LLC |
|
4/21/2010 |
|
Buy |
|
|
27,187 |
|
|
|
1.247 |
|
UBS SECURITIES LLC |
|
4/21/2010 |
|
Sell |
|
|
35,184 |
|
|
|
1.251 |
|
Page 10 of 11 Pages
CUSIP No. 92839U107
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Date of |
|
Nature of |
|
Number of |
|
|
Price per |
|
For the Account of |
|
Transaction |
|
Transaction |
|
Shares |
|
|
Share |
|
UBS SECURITIES LLC |
|
4/22/2010 |
|
Buy |
|
|
133,232 |
|
|
|
1.322 |
|
UBS SECURITIES LLC |
|
4/22/2010 |
|
Sell |
|
|
130,277 |
|
|
|
1.322 |
|
UBS SECURITIES LLC |
|
4/23/2010 |
|
Buy |
|
|
188,789 |
|
|
|
1.495 |
|
UBS SECURITIES LLC |
|
4/23/2010 |
|
Sell |
|
|
192,183 |
|
|
|
1.493 |
|
UBS SECURITIES LLC |
|
4/26/2010 |
|
Buy |
|
|
320,754 |
|
|
|
1.682 |
|
UBS SECURITIES LLC |
|
4/26/2010 |
|
Sell |
|
|
321,727 |
|
|
|
1.684 |
|
UBS SECURITIES LLC |
|
4/27/2010 |
|
Buy |
|
|
496,919 |
|
|
|
1.715 |
|
UBS SECURITIES LLC |
|
4/27/2010 |
|
Sell |
|
|
496,297 |
|
|
|
1.714 |
|
UBS SECURITIES LLC |
|
4/28/2010 |
|
Buy |
|
|
97,122 |
|
|
|
1.583 |
|
UBS SECURITIES LLC |
|
4/28/2010 |
|
Sell |
|
|
92,735 |
|
|
|
1.581 |
|
UBS SECURITIES LLC |
|
4/29/2010 |
|
Buy |
|
|
104,602 |
|
|
|
1.628 |
|
UBS SECURITIES LLC |
|
4/29/2010 |
|
Sell |
|
|
109,952 |
|
|
|
1.629 |
|
UBS SECURITIES LLC |
|
4/30/2010 |
|
Buy |
|
|
412,222 |
|
|
|
1.816 |
|
UBS SECURITIES LLC |
|
4/30/2010 |
|
Sell |
|
|
410,375 |
|
|
|
1.815 |
|
UBS SECURITIES LLC |
|
5/3/2010 |
|
Buy |
|
|
65,035 |
|
|
|
1.733 |
|
UBS SECURITIES LLC |
|
5/3/2010 |
|
Sell |
|
|
66,146 |
|
|
|
1.732 |
|
UBS SECURITIES LLC |
|
5/4/2010 |
|
Buy |
|
|
17,452 |
|
|
|
1.627 |
|
UBS SECURITIES LLC |
|
5/4/2010 |
|
Sell |
|
|
17,332 |
|
|
|
1.628 |
|
UBS SECURITIES LLC |
|
5/5/2010 |
|
Buy |
|
|
253,392 |
|
|
|
1.806 |
|
UBS SECURITIES LLC |
|
5/5/2010 |
|
Sell |
|
|
254,048 |
|
|
|
1.806 |
|
UBS SECURITIES LLC |
|
5/6/2010 |
|
Buy |
|
|
288,291 |
|
|
|
1.938 |
|
UBS SECURITIES LLC |
|
5/6/2010 |
|
Sell |
|
|
287,825 |
|
|
|
1.938 |
|
UBS SECURITIES LLC |
|
5/7/2010 |
|
Buy |
|
|
222,821 |
|
|
|
1.662 |
|
UBS SECURITIES LLC |
|
5/7/2010 |
|
Sell |
|
|
223,522 |
|
|
|
1.663 |
|
UBS SECURITIES LLC |
|
5/10/2010 |
|
Buy |
|
|
67,892 |
|
|
|
1.79 |
|
UBS SECURITIES LLC |
|
5/10/2010 |
|
Sell |
|
|
66,292 |
|
|
|
1.785 |
|
UBS SECURITIES LLC |
|
5/11/2010 |
|
Buy |
|
|
61,499 |
|
|
|
1.656 |
|
UBS SECURITIES LLC |
|
5/11/2010 |
|
Sell |
|
|
63,216 |
|
|
|
1.657 |
|
UBS SECURITIES LLC |
|
5/12/2010 |
|
Buy |
|
|
97,900 |
|
|
|
1.618 |
|
UBS SECURITIES LLC |
|
5/12/2010 |
|
Sell |
|
|
98,098 |
|
|
|
1.615 |
|
UBS SECURITIES LLC |
|
5/13/2010 |
|
Buy |
|
|
496,490 |
|
|
|
1.301 |
|
UBS SECURITIES LLC |
|
5/13/2010 |
|
Sell |
|
|
496,090 |
|
|
|
1.301 |
|
UBS SECURITIES LLC |
|
5/14/2010 |
|
Buy |
|
|
132,484 |
|
|
|
1.244 |
|
UBS SECURITIES LLC |
|
5/14/2010 |
|
Sell |
|
|
127,984 |
|
|
|
1.242 |
|
Page 11 of 11 Pages
Exhibit C
Exhibit C
EXECUTION VERSION
EQUITY COMMITMENT AGREEMENT
AMONG
VISTEON CORPORATION
AND
THE INVESTORS PARTY HERETO
Dated as of May 6, 2010
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page |
|
|
|
|
|
|
ARTICLE I DEFINITIONS |
|
|
1 |
|
Section 1.1 Definitions |
|
|
1 |
|
Section 1.2 Additional Defined Terms |
|
|
14 |
|
Section 1.3 Construction |
|
|
16 |
|
|
|
|
|
|
ARTICLE II RIGHTS OFFERING |
|
|
17 |
|
Section 2.1 The Rights Offering |
|
|
17 |
|
Section 2.2 Procedure of Rights Offering |
|
|
17 |
|
|
|
|
|
|
ARTICLE III THE COMMITMENTS |
|
|
20 |
|
Section 3.1 The Direct Purchase Commitment |
|
|
20 |
|
Section 3.2 The Stock Right Commitment |
|
|
21 |
|
Section 3.3 Alternative Financing |
|
|
21 |
|
Section 3.4 Notice of Unsubscribed Shares |
|
|
23 |
|
Section 3.5 Issuance and Delivery of Investor Shares |
|
|
23 |
|
Section 3.6 Transfer, Designation and Assignment Rights |
|
|
23 |
|
|
|
|
|
|
ARTICLE IV PREMIUMS AND EXPENSES |
|
|
25 |
|
Section 4.1 Premiums and Damages Payable by the Company |
|
|
25 |
|
Section 4.2 Payment of Premiums and Damages |
|
|
26 |
|
Section 4.3 Transaction Expenses |
|
|
26 |
|
|
|
|
|
|
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
|
|
28 |
|
Section 5.1 Organization and Qualification |
|
|
29 |
|
Section 5.2 Corporate Power and Authority |
|
|
29 |
|
Section 5.3 Execution and Delivery; Enforceability |
|
|
30 |
|
Section 5.4 Authorized and Issued Capital Stock |
|
|
30 |
|
Section 5.5 Issuance |
|
|
31 |
|
Section 5.6 No Conflict |
|
|
31 |
|
Section 5.7 Consents and Approvals |
|
|
31 |
|
Section 5.8 Arms Length |
|
|
32 |
|
Section 5.9 Financial Statements |
|
|
32 |
|
Section 5.10 Company SEC Documents and Disclosure Statement |
|
|
32 |
|
Section 5.11 Absence of Certain Changes |
|
|
33 |
|
Section 5.12 No Violation or Default; Compliance with Laws |
|
|
34 |
|
Section 5.13 Legal Proceedings |
|
|
34 |
|
Section 5.14 Labor Relations |
|
|
34 |
|
Section 5.15 Intellectual Property |
|
|
35 |
|
Section 5.16 Title to Real and Personal Property |
|
|
36 |
|
Section 5.17 No Undisclosed Relationships |
|
|
36 |
|
i
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page |
|
|
|
|
|
|
Section 5.18 Licenses and Permits |
|
|
36 |
|
Section 5.19 Compliance With Environmental Laws |
|
|
37 |
|
Section 5.20 Tax Matters |
|
|
38 |
|
Section 5.21 Company Plans |
|
|
39 |
|
Section 5.22 Internal Control Over Financial Reporting |
|
|
41 |
|
Section 5.23 Disclosure Controls and Procedures |
|
|
41 |
|
Section 5.24 Material Contracts |
|
|
42 |
|
Section 5.25 No Unlawful Payments |
|
|
42 |
|
Section 5.26 Compliance with Money Laundering Laws |
|
|
42 |
|
Section 5.27 Compliance with Sanctions Laws |
|
|
42 |
|
Section 5.28 No Brokers Fees |
|
|
43 |
|
Section 5.29 No Registration Rights |
|
|
43 |
|
Section 5.30 Takeover Statutes |
|
|
43 |
|
Section 5.31 No Off-Balance Sheet Liabilities |
|
|
43 |
|
|
|
|
|
|
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE INVESTORS |
|
|
43 |
|
Section 6.1 Incorporation |
|
|
43 |
|
Section 6.2 Corporate Power and Authority |
|
|
43 |
|
Section 6.3 Execution and Delivery |
|
|
44 |
|
Section 6.4 No Conflict |
|
|
44 |
|
Section 6.5 Consents and Approvals |
|
|
44 |
|
Section 6.6 No Registration |
|
|
44 |
|
Section 6.7 Purchasing Intent |
|
|
45 |
|
Section 6.8 Sophistication; Investigation |
|
|
45 |
|
Section 6.9 No Holdings Under the Credit Facility |
|
|
45 |
|
Section 6.10 No Brokers Fees |
|
|
45 |
|
|
|
|
|
|
ARTICLE VII ADDITIONAL COVENANTS |
|
|
45 |
|
Section 7.1 Approval Motion and Approval Order |
|
|
45 |
|
Section 7.2 Plan, Disclosure Statement and Other Documents |
|
|
46 |
|
Section 7.3 Securities Laws |
|
|
47 |
|
Section 7.4 Listing |
|
|
47 |
|
Section 7.5 Earnings Statement |
|
|
47 |
|
Section 7.6 Notification |
|
|
48 |
|
Section 7.7 Funding Approval |
|
|
48 |
|
Section 7.8 Use of Proceeds |
|
|
48 |
|
Section 7.9 Conduct of Business |
|
|
48 |
|
Section 7.10 Access to Information |
|
|
51 |
|
Section 7.11 Financial Information |
|
|
51 |
|
Section 7.12 Takeover Statutes |
|
|
52 |
|
ii
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page |
|
|
|
|
|
|
Section 7.13 Notice of Alternate Transaction |
|
|
52 |
|
Section 7.14 Commercially Reasonable Efforts |
|
|
53 |
|
Section 7.15 Antitrust Approval |
|
|
53 |
|
Section 7.16 Plan Support |
|
|
55 |
|
Section 7.17 Exit Financing |
|
|
55 |
|
Section 7.18 Ford Agreement |
|
|
55 |
|
Section 7.19 VIHI Restructuring |
|
|
56 |
|
Section 7.20 UK Pension Notice |
|
|
56 |
|
|
|
|
|
|
ARTICLE VIII CONDITIONS TO THE OBLIGATIONS OF THE PARTIES |
|
|
56 |
|
Section 8.1 Conditions to the Obligation of the Investors |
|
|
56 |
|
Section 8.2 Waiver of Conditions to Obligation of Investors |
|
|
60 |
|
Section 8.3 Conditions to the Obligation of the Company |
|
|
60 |
|
Section 8.4 Failure of Closing Conditions |
|
|
61 |
|
Section 8.5 Regulatory Reallocation |
|
|
61 |
|
|
|
|
|
|
ARTICLE IX INDEMNIFICATION AND CONTRIBUTION |
|
|
62 |
|
Section 9.1 Indemnification Obligations |
|
|
62 |
|
Section 9.2 Indemnification Procedure |
|
|
62 |
|
Section 9.3 Settlement of Indemnified Claims |
|
|
63 |
|
Section 9.4 Contribution |
|
|
64 |
|
Section 9.5 Treatment of Indemnification Payments |
|
|
64 |
|
Section 9.6 Limitation on Liabilities |
|
|
64 |
|
Section 9.7 Survival of Representations and Warranties |
|
|
64 |
|
|
|
|
|
|
ARTICLE X TERMINATION |
|
|
65 |
|
Section 10.1 Termination Rights |
|
|
65 |
|
Section 10.2 Alternate Transaction Termination |
|
|
67 |
|
Section 10.3 Effect of Termination |
|
|
68 |
|
|
|
|
|
|
ARTICLE XI GENERAL PROVISIONS |
|
|
68 |
|
Section 11.1 Notices |
|
|
68 |
|
Section 11.2 Assignment; Third Party Beneficiaries |
|
|
70 |
|
Section 11.3 Prior Negotiations; Entire Agreement |
|
|
70 |
|
Section 11.4 GOVERNING LAW; VENUE |
|
|
71 |
|
Section 11.5 WAIVER OF JURY TRIAL |
|
|
71 |
|
Section 11.6 Counterparts |
|
|
71 |
|
Section 11.7 Waivers and Amendments; Rights Cumulative |
|
|
72 |
|
Section 11.8 Headings |
|
|
72 |
|
Section 11.9 Specific Performance; Limitations on Remedies |
|
|
73 |
|
Section 11.10 Approval by Requisite Receiving Co-Investors |
|
|
74 |
|
iii
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page |
|
|
|
|
|
|
Section 11.11 No Reliance |
|
|
75 |
|
Section 11.12 Publicity |
|
|
75 |
|
Section 11.13 Effectiveness |
|
|
75 |
|
SCHEDULES AND EXHIBITS
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Schedule 1
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Equity Commitment, Premium and Damages Allotments |
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Schedule 2
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Arrangement Premium Allotment |
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Schedule 3
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Transaction Expenses Estimate |
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Schedule 4
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Consents |
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Schedule 5
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Lead Investors; Notice Information |
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Schedule 6
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Co-Investors; Notice Information |
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Exhibit A
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Form of Approval Motion |
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Exhibit B
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Attached Disclosure Statement |
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Exhibit C
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Attached Plan |
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Exhibit D
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Form of Bylaws |
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Exhibit E
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Form of Certificate of Incorporation |
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Exhibit F
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Form of Commitment Joinder Agreement |
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Exhibit G
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Management Equity Incentive Plan |
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Exhibit H
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Plan Support Agreement |
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Exhibit I
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Form of Registration Rights Agreement |
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Exhibit J
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Rights Offering Procedures |
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Exhibit K
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VIHI Restructuring Term Sheet |
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Exhibit L
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Employee Benefits Term Sheet |
iv
EQUITY COMMITMENT AGREEMENT
THIS EQUITY COMMITMENT AGREEMENT (this Agreement), dated as of May 6, 2010, is made
by and among Visteon Corporation (as a debtor in possession and a reorganized debtor, as
applicable, the Company), on the one hand, and the Investors set forth on Schedule
1 hereto (each referred to herein individually as an Investor and collectively as the
Investors), on the other hand. The Company and each Investor is referred to herein as a
Party and collectively, the Parties. Capitalized terms used herein have the
meanings ascribed thereto in Article I.
RECITALS
WHEREAS, on May 28, 2009 (the Petition Date), the Company and certain of its
Subsidiaries and Affiliates (each individually, a Debtor and collectively, the
Debtors) commenced jointly administered proceedings, styled In re Visteon Corporation, et
al., Case no. 09-11786 (CSS) (the Proceedings) under Title 11 of the United States Code,
11 U.S.C. §§ 101-1532, as may be amended from time to time (the Bankruptcy Code) in the
United States Bankruptcy Court for the District of Delaware (the Bankruptcy Court); and
WHEREAS, the Company intends to propose and submit the Plan to the Bankruptcy Court for its
approval; and
WHEREAS, within seven (7) days following the execution of this Agreement, the Company will
file a motion and supporting papers (which shall be in the form of Exhibit A attached
hereto, the Approval Motion) seeking the entry of an order of the Bankruptcy Court (the
Approval Order) (i) approving and authorizing the Company to enter into this Agreement,
and (ii) authorizing the Company and the other Debtors to perform their respective obligations
hereunder, including the payment, in accordance with, and subject to, the terms and conditions
hereof, of the Stock Right Premium, the Arrangement Premium and Transaction Expenses provided for
herein; and
WHEREAS, the Company has requested that the Investors, severally and not jointly, participate
in the Plan, and the Investors are willing to participate in the Plan, on the terms and subject to
the conditions contained in this Agreement and the Plan Support Agreement.
NOW, THEREFORE, in consideration of the mutual promises, agreements, representations,
warranties and covenants contained herein, each of the Parties hereby agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Except as otherwise expressly provided in this Agreement, or unless the context otherwise
requires, whenever used in this Agreement (including any Exhibits and Schedules hereto), the
following terms shall have the respective meanings specified therefor below.
12.25% Notes means the 12.25% senior unsecured notes due December 31, 2016 issued by
the Company under that certain second supplemental indenture dated as of June 18, 2008, by and
among the Company, the guarantors party thereto, and the Bank of New York Trust Company, as trustee
in the original amount of two hundred six million, three hundred eighty-six thousand dollars
($206,386,000).
12.25% Warrants means the warrants to purchase shares of New Common Stock to be
issued pursuant to the Plan to the holders of the 12.25% Notes.
Ad Hoc Group of Noteholders means the informal committee of Noteholders of the
Company.
Ad Hoc Counsel means Akin Gump Strauss Hauer & Feld LLP, acting in its capacity as
counsel to the Ad Hoc Group of Noteholders.
Affiliate has the meaning ascribed to such term in Rule 12b-2 promulgated pursuant
to the Exchange Act as in effect on the date hereof.
Aggregate Commitment means, collectively, the sum of (i) the product of (A) the
Purchase Price multiplied by (B) the aggregate number of Shares offered in the Rights Offering and
(ii) the product of (A) the Purchase Price multiplied by (B) the aggregate number of Direct
Subscription Shares.
Allotted Portion means, with respect to any Investor, such Investors percentage of
the Equity Commitment as set forth opposite such Investors name under the column titled Aggregate
Commitment Percentage on Schedule 1 (as it may be amended from time to time in accordance
with this Agreement).
Allowed Senior Notes Claim has the meaning ascribed to such term in the Plan.
Alternate Transaction means, except for those transactions contemplated by the VIHI
Restructuring, any restructuring, reorganization, merger, consolidation, share exchange, business
combination, recapitalization or similar transaction involving the Company or its Subsidiaries
comprising at least twenty-five percent (25%) of the Companys assets on a consolidated basis that
is inconsistent with the transactions contemplated by this Agreement or the Rights Offering
Sub-Plan; provided, that the Claims Conversion Sub-Plan shall not be an Alternate
Transaction if implemented or consummated pursuant to and substantially in accordance with the Plan
and not in violation of this Agreement.
Antitrust Authorities means the United States Federal Trade Commission, the
Antitrust Division of the United States Department of Justice, the attorneys general of the several
states of the United States, and any other Governmental Entity having jurisdiction pursuant to the
Antitrust Laws and Antitrust Authority means any of them.
Antitrust Laws mean the Sherman Act, as amended, the Clayton Act, as amended, the
HSR Act, the Federal Trade Commission Act, and any other Law governing agreements in restraint of
trade, monopolization, pre-merger notification, the lessening of competition through merger or
acquisition or anti-competitive conduct.
2
Approved Annual Incentive Program means the Annual Incentive Program of the Company
approved by the Bankruptcy Court on February 18, 2010.
Attached Disclosure Statement means the disclosure statement for the Plan, including
any exhibits and schedules thereto, that is attached hereto as of the date hereof as Exhibit
B, and excluding any amendments, supplements, changes or modifications thereto.
Attached Plan means the chapter 11 plan of reorganization that is attached hereto as
of the date hereof as Exhibit C, and excluding any amendments, supplements, changes or
modifications thereto.
Available Investor Shares means the Investor Shares that any Investor fails to
purchase as a result of an Investor Default by such Investor.
Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure, as amended from
time to time and applicable to the Proceedings, and the general, local and chambers rules of the
Bankruptcy Court.
Board means the board of directors of the Company.
Business Day means any day, other than a Saturday, Sunday or legal holiday, as
defined in Bankruptcy Rule 9006(a).
Business Intellectual Property means all Intellectual Property (i) owned by the
Company or its Subsidiaries or (ii) used by the Company or its Subsidiaries subject to valid and
enforceable rights held by the Company or its Subsidiaries.
Business Plan means the four (4)-year business plan for the Company and its
Subsidiaries, dated March 2010, a copy of which has been made available for review by the Lead
Investors and their respective Representatives.
Bylaws means the amended and restated bylaws of the Company as of the Effective
Date, which shall be in the form attached as Exhibit D hereto, with only such amendments,
supplements, changes and modifications that (i) if not adverse to any Investor, or if required by
the Bankruptcy Court, are reasonably acceptable to Requisite Investors or (ii) if demonstrated by
any Investor to be reasonably likely to be adverse to such Investor, are acceptable to Requisite
Investors in their sole discretion.
Cash Amount has the meaning ascribed to such term in the Plan.
Cash Recovery Backstop Agreement means that certain Cash Recovery Backstop
Agreement, dated as of the date hereof, among the Company and certain of the Investors party
thereto.
Cash Recovery Backstop Amount means an amount in cash equal to the sum of (i) the
Cash Recovery Subscription Equity multiplied by the Purchase Price and (ii) the aggregate Cash
Amount.
3
Cash Recovery Subscription Equity means the aggregate Shares that the Non-Eligible
Recipients would have been entitled to subscribe for pursuant to their Basic Subscription Rights
had such Non-Eligible Recipients been Rights Holders.
Certificate of Incorporation means the amended and restated certificate of
incorporation of the Company as of the Effective Date, which shall be in the form attached as
Exhibit E hereto, with only such amendments, supplements, changes and modifications that
(i) if not adverse to any Investor, or if required by the Bankruptcy Court, are reasonably
acceptable to Requisite Investors or (ii) if demonstrated by any Investor to be reasonably likely
to be adverse to such Investor, are acceptable to Requisite Investors in their sole discretion.
Change of Recommendation means (i) the Company or the Board or any committee thereof
shall have withdrawn, qualified or modified, in a manner adverse to the Investors and inconsistent
with the obligations of the Company under this Agreement, its approval or recommendation of this
Agreement or the Rights Offering Sub-Plan or the transactions contemplated hereby or thereby or
(ii) the Company or the Board or any committee thereof shall have approved or recommended, or
resolved to approve or recommend (including by filing any pleading or document with the Bankruptcy
Court seeking Bankruptcy Court approval of) any Alternate Transaction or Alternate Transaction
Agreement.
Claim means any claim (as such term is defined in section 101(5) of the Bankruptcy
Code) against any Debtor.
Claims Conversion Sub-Plan has the meaning ascribed to such term in the Plan.
Class means either, as the case may be, (i) the class of Allowed 12.25% Senior Note
Claims or (ii) the class of Allowed 7.00% Senior Note Claims and Allowed 8.25% Senior Note Claims,
taken together as one class (as such terms are defined in the Attached Plan).
Co-Investor means any Investor that is not a Lead Investor or an Affiliate of a Lead
Investor.
Code means the Internal Revenue Code of 1986, as amended, and the regulations
promulgated and the rulings issued thereunder.
Collective Bargaining Agreements means any and all written agreements, memoranda of
understanding, contracts, letters, side letters and contractual obligations of any kind, nature and
description, that have been entered into between or that involve or apply to any employer and any
Employee Representative.
Commitment Joinder Agreement means a joinder agreement substantially in the form
attached as Exhibit F hereto.
Company SEC Documents means all of the reports, schedules, forms, statements and
other documents (including exhibits and other information incorporated therein) filed with the SEC
by the Company on or after the Petition Date.
4
Confirmation Hearing means the hearing before the Bankruptcy Court pursuant to
section 1128 of the Bankruptcy Code.
Confirmation Order means the order entered by the Bankruptcy Court confirming the
Plan, which shall be in such form and substance as is reasonably acceptable to both the Company and
Requisite Investors.
Contract means any binding agreement, contract or instrument, including any loan,
note, bond, mortgage, indenture, guarantee, deed of trust, license, franchise, commitment, lease,
franchise agreement, letter of intent, memorandum of understanding or other obligation, and any
amendments thereto.
Credit Facility means that certain amended and restated credit agreement, dated as
of April 10, 2007, as such may be amended, supplemented, or modified from time to time to the date
hereof, among the Company, as borrower thereunder, the Lenders (as defined therein) party thereto
from time to time, Credit Suisse Securities (USA) LLC and Sumitomo Mitsui Banking Corporation, as
co-documentation agents, Citicorp USA, Inc., as syndication agent and JPMorgan Chase Bank, N.A., as
administrative agent.
DIP Credit Agreement means that certain Senior Secured Super Priority Priming Debtor
In Possession Credit And Guaranty Agreement, dated as of November 18, 2009, as amended,
supplemented, or modified from time to time, by and among the Company and certain of its
Subsidiaries, as guarantors, the lenders party thereto from time to time, and Wilmington Trust FSB,
as administrative agent for such lenders, in the form as approved by the Bankruptcy Court on
November 12, 2009.
DIP Lender means any lender party to the DIP Credit Agreement and the administrative
agent under the DIP Credit Agreement.
Disclosure Statement means a disclosure statement for the Plan, including all
exhibits and schedules thereto, in substantially the form attached as Exhibit B hereto,
with any such amendments, supplements, changes and modifications thereto, which Disclosure
Statement shall be in such form and substance as is reasonably satisfactory to Requisite Investors
and with any changes or modifications required by the Bankruptcy Court.
Effective Date means the date on which the Rights Offering Sub-Plan becomes
effective in accordance with its terms.
Election Form has the meaning ascribed to such term in the Plan.
Election Form Deadline has the meaning ascribed to such term in the Plan.
Eligible Recipient means any holder of a Note as of the Rights Offering Record Date
(as defined in the Rights Offering Procedures) that is an accredited investor within the meaning
of Rule 501 of the Securities Act and that timely delivers to the Subscription Agent a certificate
in a form reasonably acceptable to the Company certifying to that effect in accordance with the
Rights Offering Procedures.
5
Equity Commitment means, collectively, the Direct Commitment and the Stock Right
Commitment.
Event means any event, development, occurrence, circumstance or change.
Excess Shares means Shares offered in the Rights Offering (including Available
Direct Subscription Shares) that are not purchased pursuant to Basic Subscription Rights, but
excluding any Cash Recovery Subscription Equity.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules
and regulation of the SEC thereunder.
Excluded Consent Event means any election, decision, determination, approval,
consent, waiver or other action with respect to (i) determinations of rounding for fractional
shares as set forth in the last sentence of Sections 3.1(a) and 3.1(b)(ii) and the
first sentence of Section 3.2, (ii) Section 3.3(a) (Alternative Financing), (iii)
Section 7.9 (Conduct of Business), (iv) Section 7.18 (Ford Agreement), (v)
Section 7.19 (VIHI Restructuring), (vi) Section 8.1(s) (Ford), (vii) Section
8.5 (Regulatory Reallocations) or (viii) the exercise or non-exercise of any rights under
Section 10.1 (Termination Rights).
Expiration Time means the deadline by which holders of claims or interests are
entitled to vote on the Plan or such later date as the Company may specify in a notice provided to
the Investors before 9:00 a.m. New York City time on the Business Day immediately prior to the
then-effective Expiration Time.
Final Order means an order or judgment of the Bankruptcy Court, or other court of
competent jurisdiction with respect to the subject matter, which has not been reversed, stayed,
modified, or amended, and as to which the time to appeal or seek certiorari has expired and no
appeal or petition for certiorari has been timely taken, or as to which any appeal that has been
taken or any petition for certiorari that has been or may be filed has been resolved by the highest
court to which the order or judgment was appealed or from which certiorari was sought;
provided, however, that the possibility that a motion under Rule 60 of the Federal
Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed relating
to such order shall not prevent such order from being a Final Order; provided,
further, that either the Company or Requisite Investors may waive any appeal period.
GLCA/Sagent Engagement Letter means that certain letter agreement between the Ad Hoc
Group of Noteholders and GLCA/Sagent Advisors dated as of November 1, 2009, as amended in the form
delivered to the Company on April 28, 2010.
GLCA/Sagent Advisors means, collectively, GLC Advisors & Co. LLC and Sagent
Advisors, Inc.
Good Faith Consultation means consultation by the Company and the Lead Investors
(provided, that if the underlying election, decision, determination, approval, consent,
waiver or other action to which any requirement of Good Faith Consultation is applicable hereunder
can be taken unilaterally by Lead Investors constituting Requisite Investors in accordance herewith
(including exercise of the termination rights by Lead Investors constituting
6
Requisite Investors pursuant to Section 10.1(b)-(c) and waiver by Lead
Investors constituting Requisite Investors of conditions pursuant to Section 8.2), the
consultation shall be by such Lead Investors constituting Requisite Investors only) with the Ad Hoc
Counsel acting in good faith, including without limitation: (i) providing a copy to the Ad Hoc
Group of any relevant documents and a reasonable opportunity to review and comment on such
documents prior to such documents being approved or consented to and prior to such documents being
executed or delivered or filed with the Bankruptcy Court, as applicable and (ii) considering, in
good faith, any comments of the Ad Hoc Counsel consistent with this Agreement, and any other
reasonable comments made by the Ad Hoc Counsel on behalf of the Co-Investors; provided,
however, that in no event shall the failure of the Lead Investors or Requisite Investors,
as applicable, to engage in such Good Faith Consultation in any way (including the actions
contemplated in clauses (i) and (ii) above) in and of itself (w) prevent the Company from relying
upon any election, determination, waiver or decision in connection herewith by the Lead Investors
or Requisite Investors or the exercise of the Lead Investors or Requisite Investors of any their
respective rights under this Agreement, (x) relieve the Lead Investors or Requisite Investors from
complying with any of their respective obligations under this Agreement, (y) affect the validity
and enforceability of any approval given by the Lead Investors or Requisite Investors or (z) cause
any election, decision, determination or other action to be deemed to be a Material Discriminatory
Effect; provided, further, nothing in the preceding proviso shall limit the
availability of the consent rights of the Co-Investors with respect to an Investor Consent Action
that has or would, if implemented, have a Material Discriminatory Effect. The Ad Hoc Counsel shall
promptly notify the Lead Investors or the Company, as the case may be, in writing whenever the Ad
Hoc Counsel believes that such Person or Persons are not complying with any obligation to conduct
Good Faith Consultations.
Governmental Entity means any U.S. or non-U.S. federal, state, municipal, local,
judicial, administrative, legislative or regulatory agency, department, commission, court, or
tribunal of competent jurisdiction (including any branch, department or official thereof).
Guaranty Equity Amount has the meaning ascribed to such term in the Plan.
HSR Act means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
Intellectual Property means any of the following, whether foreign or domestic: (i)
trade names, trademarks and service marks, certification marks, trade dress, internet domain names,
corporate names, business names, slogans, logos and all other indicia of origin, whether registered
or unregistered, and all registrations and applications to register any of the foregoing (including
all translations, adaptations, derivations, and combinations of the foregoing), together with all
associated goodwill; (ii) inventions (whether or not patentable or reduced to practice), issued
patents and patent applications and patent disclosures and improvements thereto together with all
reissues, continuations, continuations in part, divisions, extensions or reexaminations thereof;
(iii) copyright registrations, copyright applications, works of authorship, unregistered copyrights
and all associated moral rights; (iv) Trade Secrets; (v) computer software (including source code
and object code), data, databases and documentation thereof; (vi) rights of privacy and publicity;
(vii) all other intellectual property and proprietary rights; (viii) rights to sue for past,
present and future infringement or misappropriation of the foregoing; and (ix) all proceeds
7
of any of the forgoing including license royalties and other income and damages and other
proceeds of suit.
Investor Consent Event means an election, decision, determination, approval,
consent, waiver or other action that this Agreement expressly requires to be taken or made by (i)
all of the Lead Investors and is expressly specified in this Agreement as subject to a Material
Discriminatory Effect qualification or (ii) Requisite Investors; provided, that in no event
shall any Excluded Consent Event be deemed to be an Investor Consent Event.
Investor Default means the failure by any Investor to purchase any Investor Shares
that such Investor is obligated to purchase under this Agreement.
Investor Shares means, collectively, (i) the Unsubscribed Shares and (ii) the Direct
Subscription Shares.
IRS means the United States Internal Revenue Service.
Joint Venture means, with respect to any Person, any corporation, partnership, joint
venture or other legal entity of which such Person (either alone or through or together with any
other subsidiary) owns, directly or indirectly, fifty percent (50%) of the stock or other equity
interests.
Knowledge of the Company means the actual knowledge, after a reasonable inquiry of
their direct reports, of the chief executive officer, chief financial officer and general counsel
of the Company.
Last Trading Price means, as of any time of determination, with respect to shares of
common stock of the Company the closing price as quoted by OTCQX on the immediately previous
trading day.
Law means any law (statutory or common), statute, regulation, rule, code or
ordinance enacted, adopted, issued or promulgated by any Governmental Entity.
Lead Investor means an Investor set forth on Schedule 5; provided,
that such Investor shall cease to be a Lead Investor and shall be deemed to be a Co-Investor for
all purposes of this Agreement if such Investor and its Affiliates, in the aggregate, hold less
than fifty percent (50%) of the Allotted Portions, measured as of the date hereof, of the Equity
Commitment of such Investor and its Affiliates.
Lien means any lease, lien, adverse claim, charge, option, right of first refusal,
servitude, security interest, mortgage, pledge, deed of trust, easement, encumbrance, restriction
on transfer, conditional sale or other title retention agreement, defect in title or other
restrictions of a similar kind.
Management Agreements means, collectively, the (i) Change In Control Agreement, (ii)
Executive Officer Change In Control Agreement and (iii) Employment Agreement to be entered into
with Donald J. Stebbins, in each case, (x) in the form delivered by Kirkland & Ellis LLP, in its
capacity as counsel to the Company, to White & Case LLP, as
8
counsel to the Lead Investors, and attached to a letter dated the date hereof and (y) with
only such amendments, supplements, changes and modifications that are acceptable to Requisite
Investors in their sole discretion.
Management Equity Incentive Plan means the post-Effective Date management equity
incentive program as set forth in Exhibit G attached hereto.
Material Adverse Effect means a material adverse effect on (i) the business, assets,
liabilities, properties, results of operations or financial condition of the Company and its
Subsidiaries, taken as a whole, or (ii) the ability of the Company, subject to receipt of the
consents, approvals and other authorizations set forth in Section 5.7, to consummate the
transactions contemplated by this Agreement or the Rights Offering Sub-Plan; provided, that
the following shall not constitute a Material Adverse Effect and shall not be taken into account in
determining whether or not there has been, or would reasonably be expected to be, a Material
Adverse Effect: (A) any change in general economic or political conditions or conditions generally
affecting the industries in which the Company and its Subsidiaries operate (including those
resulting from acts of terrorism or war (whether or not declared) or other calamity, crisis or
geopolitical Event); (B) any change or prospective change in any Law or GAAP, or any interpretation
thereof; (C) any change in currency, exchange or interest rates or the financial or securities
markets generally; (D) any matter identified or described in (1) the Company SEC Documents
(excluding any risk factor disclosure and disclosure included in any forward-looking statements
disclaimer or other statements included in such Company SEC Documents that are predictive,
forward-looking, non-specific or primarily cautionary in nature (but including any specific factual
information contained therein)) filed with the SEC prior to the date hereof, (2) the Disclosure
Letter or (3) the Attached Disclosure Statement (excluding any risk factor disclosure and
disclosure included in any forward-looking statements disclaimer or other statements included in
the Attached Disclosure Statement that are predictive, forward-looking, non-specific or primarily
cautionary in nature (but including any specific factual information contained therein)) (but not
including any amendments, supplements, changes or modifications thereto), in each case to the
extent that the effect or potential effect on the Company and its Subsidiaries of such disclosed
matter is reasonably apparent on its face, (E) any change in the market price or trading volume of
the common stock of the Company or the Notes, as the case may be; provided, that any Event
that caused or contributed to such change in market price or trading volume shall not be excluded;
(F) any change to the extent resulting from the announcement or pendency of the transactions
contemplated by this Agreement; and (G) any change resulting from actions of the Company or its
Subsidiaries expressly agreed to or requested in writing by Requisite Investors; except in the
cases of (A) through (C) to the extent such change or Event is disproportionately adverse with
respect to the Company and its Subsidiaries when compared to other companies in the industry in
which the Company and its Subsidiaries operate.
Material Discriminatory Effect means an effect that is material and discriminatorily
adverse to the Co-Investors, as a group, relative to the Lead Investors, as a group;
provided, that in no event shall any Excluded Consent Event be deemed to have a Material
Discriminatory Effect.
9
New Common Stock means the common stock of the Company as a reorganized debtor, par
value $0.01 per share.
Non-Eligible Recipient means any holder of a Note that is not an Eligible Recipient.
Notes means, collectively, (i) the 8.25% senior unsecured notes due August 1, 2010
issued by the Company under that certain indenture dated as of June 23, 2000, by and between the
Company and Bank One Trust Company, N.A., as trustee, in the original amount of seven hundred
million dollars ($700,000,000), (ii) the 7.0% senior unsecured notes due March 10, 2014 issued by
the Company under that certain supplemental indenture dated as of March 10, 2004, by and between
the Company and J.P. Morgan Trust Company, as trustee, in the original amount of four hundred fifty
million dollars ($450,000,000) and (iii) the 12.25% Notes.
Order means any judgment, order, award, injunction, writ, permit, license or decree
of any Governmental Entity or arbitrator.
Owned Real Property means all real property owned, in whole or in part, directly or
indirectly by the Company, except to the extent such real property is residential real property
that is not material to the Company.
Pension Protection Fund means the statutory fund established under the UK Pensions
Act 2004, as amended.
Permitted Liens means (i) real estate taxes, assessments, and other governmental
levies, fees or charges imposed with respect to any Owned Real Property that (A) are not due and
payable or (B) are being contested in good faith by appropriate proceedings and for which adequate
reserves have been made with respect thereto; (ii) mechanics liens and similar liens for labor,
materials or supplies provided with respect to any Owned Real Property or personal property
incurred in the ordinary course of business, consistent with past practice and as otherwise not
prohibited under this Agreement, for amounts that (A) do not materially detract from the value of,
or materially impair the use of, any of the Owned Real Property or personal property of the Company
or any of its Subsidiaries or (B) are being contested in good faith by appropriate proceedings;
(iii) zoning, building codes and other land use Laws regulating the use or occupancy of any Owned
Real Property or the activities conducted thereon that are imposed by any Governmental Entity
having jurisdiction over such real property; provided, that no such zoning, building codes
and other land use Laws prohibit the use or occupancy of such Owned Real Property; (iv) easements,
covenants, conditions, restrictions and other similar matters affecting title to any Owned Real
Property and other title defects that do not or would not materially impair the use or occupancy of
such real property or the operation of the Companys or any of its Subsidiaries business; and (v)
Liens that, pursuant to the Confirmation Order, will not survive beyond the Effective Date.
Person means an individual, firm, corporation (including any non-profit
corporation), partnership, limited liability company, joint venture, associate, trust, Governmental
Entity or other entity or organization.
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Plan means the chapter 11 plan of reorganization, including all exhibits, schedules
and annexes, attached as Exhibit C hereto, with only such amendments, supplements
(including any Plan Supplement), changes and modifications that (i) if not adverse to any Investor,
or if submitted by the Company in accordance with Section 7.1(f) of the Plan Support Agreement, or
if required by the Bankruptcy Court, are reasonably acceptable to Requisite Investors; (ii) if
constituting a change or modification to the manner in which the Claims of holders of Notes
belonging to any specific Class are treated under either the Rights Offering Sub-Plan (including
the terms and conditions of the Guaranty Equity Amount) or the Claims Conversion Sub-Plan, are
acceptable to Lead Investors holding at least sixty-six and two-thirds percent (66 2/3%) of the
aggregate Allotted Portions held by those Lead Investors holding Claims that are of the affected
Class after Good Faith Consultation; provided, that to the extent Lead Investors cease to
hold at least fifteen percent (15%) of the aggregate amount of Notes in such Class (as per the most
recent updated holdings information provided pursuant to the Plan Support Agreement, or as
requested by the Debtors pursuant thereto), such change or modification must be acceptable to
Investors holding more than fifty percent (50%) of the Notes (as per the most recent updated
holdings information provided pursuant to the Plan Support Agreement or as requested by the Debtors
pursuant thereto) held by those Investors holding Claims in that Class; or (iii) if otherwise
demonstrated by any Investor to be reasonably likely to be adverse to such Investor, are acceptable
to Requisite Investors in their sole discretion (it being agreed that any amendment, supplement,
change or modification which provides for a distribution to any stakeholder junior to the holders
of Notes, including existing interests in the Company, shall be deemed adverse without any such
demonstration being required to be made; provided, that without limiting the rights and
obligations of the Parties hereunder, it is acknowledged that nothing in this parenthetical shall
derogate the Companys fiduciary obligations); provided, further, that
notwithstanding anything to the contrary contained herein, no change or modification may be made to
the treatment of Claims of holders of Notes belonging to any specific Class under either the Rights
Offering Sub-Plan (including the terms and conditions of the Guaranty Equity Amount) or the Claims
Conversion Sub-Plan, which disproportionately affects the recoveries of claimholders in such Class
as compared to any other noteholder Class, without the reasonable consent of Investors holding more
than fifty percent (50%) of the Notes (as per the most recent updated holdings information provided
pursuant to the Plan Support Agreement or as requested by the Debtors pursuant thereto) held by
those Investors holding Claims in any such disproportionately affected Class.
Plan Supplement has the meaning ascribed to such term in the Plan, and shall be
reasonably acceptable to Requisite Investors. For the purposes of this Agreement, the term Plan
Supplement does not include any document attached as an Exhibit to this Agreement.
Plan Support Agreement means the agreement among the Company and each Investor to
support the Plan, attached as Exhibit H hereto.
Priority Oversubscription Right means the priority right of the Investors with
respect to oversubscription of Excess Shares described in Section 2.2(e).
Proposal Letter means that certain letter, dated February 1, 2010, from certain of
the Investors to the Company and executed by such Investors.
11
Real Property Leases means those leases, subleases, licenses, concessions and other
agreements, as amended, modified or restated, pursuant to which the Company or one of its
Subsidiaries or Joint Ventures holds a leasehold or subleasehold estate in, or is granted the right
to use or occupy, any land, buildings, structures, improvements, fixtures or other interest in real
property used in the Companys or its Subsidiaries or Joint Ventures business.
Receiving Co-Investor means a Co-Investor, at the time of determination with respect
to a specific Investor Consent Event, for whom, following prior written request, the Ad Hoc Counsel
promptly certifies in writing to the Company and the Lead Investors based upon information provided
by such Co-Investor acting in good faith, (i) does not hold (A) Term Loan Facility Claims (as
defined in the Plan) in an aggregate principal amount in excess of ten million dollars
($10,000,000) or (B) a number of shares of common stock of the Company that when multiplied by the
Last Trading Price results in a product in excess of ten percent (10%) of the principal amount of
the Notes held by such Co-Investor as of the time of the determination, and (ii) has either (A)
agreed as of the time of determination to receive all relevant information regarding either (1) the
specific Investor Consent Event being considered or (2) Investor Consent Events generally or (B)
arranged to have a Representative of such Co-Investor (which may include, for the avoidance of
doubt, the Ad Hoc Counsel) review such information on its behalf.
Registration Rights Agreement means a registration rights agreement among the
Company and the Investors, their Related Purchasers and Ultimate Purchasers, in the form attached
as Exhibit I hereto, with only such amendments, supplements, changes and modifications that
(i) if not adverse to any Investor, or if required by the Bankruptcy Court, are reasonably
acceptable to Requisite Investors or (ii) if demonstrated by any Investor to be reasonably likely
to be adverse to such Investor, are acceptable to Requisite Investors in their sole discretion.
Related Party means, with respect to any Person, (i) any former, current or future
director, officer, agent, Affiliate, employee, general or limited partner, member, manager or
stockholder of such Person and (ii) any former, current or future director, officer, agent,
Affiliate, employee, general or limited partner, member, manager or stockholder of any of the
foregoing.
Representatives means, with respect to any Person, such Persons directors,
officers, employees, investment bankers, attorneys, accountants or other advisors, collectively.
Requisite Investors means Lead Investors holding at least sixty-six and two-thirds
percent (66 2/3%) of the aggregate Allotted Portions held by the Lead Investors; provided,
that with respect to any Investor Consent Event that has or would, if implemented, have a Material
Discriminatory Effect, Requisite Investors also requires Requisite Receiving Co-Investor Approval
in accordance with Section 11.10; provided, further, that in no event shall
(i) any Investor Consent Event that has the same effect on the Allotted Portions and the rights and
obligations derived therefrom held on the one hand by the Lead Investors and on the other hand by
the Co-Investors or (ii) any Excluded Consent Event, in either case, be deemed to have a Material
Discriminatory Effect; provided, further, that for purposes of this definition,
each Investor shall be deemed to hold the Allotted Portions held by such Investors Related
Purchasers. Moreover, the amount originally paid by any Co-Investor to acquire its individual
12
Notes shall not, under any circumstance, provide an independent basis for the assertion of a
Material Discriminatory Effect.
Rights Holder means an Eligible Recipient that is the holder of a Right.
Rights Offering Sub-Plan has the meaning ascribed to such term in the Plan.
Rights Offering Procedures means the procedures for conducting the Rights Offering
attached as Exhibit J hereto, with only such amendments, supplements, changes and
modifications that (i) if not adverse to any Investor, or if required by the Bankruptcy Court, are
reasonably acceptable to Requisite Investors or (ii) if demonstrated by any Investor to be
reasonably likely to be adverse to such Investor, are acceptable to Requisite Investors in their
sole discretion.
SEC means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC thereunder.
Signatory Default means the failure of any Investor to purchase any Available
Distributable Securities that such Investor is obligated to purchase under the Cash Recovery
Backstop Agreement.
Significant Subsidiary means a Subsidiary that satisfies the definition contained in
Article 1, Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act.
Subscription Agent means a subscription agent reasonably acceptable to both the
Company and Requisite Investors.
Subsidiary means, with respect to any Person, any corporation, partnership, joint
venture or other legal entity of which such Person (either alone or through or together with any
other subsidiary), (i) owns, directly or indirectly, more than fifty percent (50%) of the stock or
other equity interests, (ii) has the power to elect a majority of the board of directors or similar
governing body or (iii) has the power to direct the business and policies.
Superior Transaction means an Alternate Transaction, which the Board, after
consultation with its outside legal counsel and its independent financial advisors, determines in
good faith to be more favorable to the bankruptcy estate of the Company and the estates of the
other Debtors than the transactions contemplated by this Agreement and the Rights Offering
Sub-Plan, taking into account all aspects of such Alternate Transaction and the Boards good-faith
estimation of the likelihood of consummating the Alternate Transaction.
Taxes means all taxes, assessments, charges, duties, fees, levies or other
governmental charges, including all federal, state, local, foreign and other income, franchise,
profits, gross receipts, capital gains, capital stock, transfer, property, sales, use, value-added,
occupation, excise, severance, windfall profits, stamp, license, payroll, social security,
withholding and other taxes, assessments, charges, duties, fees, levies or other governmental
charges of any kind whatsoever (whether payable directly or by withholding and whether or not
13
requiring the filing of a Tax Return), all estimated taxes, deficiency assessments, additions
to tax, penalties and interest and shall include any liability for such amounts as a result either
of being a member of a combined, consolidated, unitary or affiliated group or of a contractual
obligation to indemnify any Person, and any liability therefor as a transferee, successor or
otherwise.
Trade Secret means any and all trade secrets or other proprietary and confidential
information, which are subject to reasonable efforts to maintain its secrecy from third parties,
including ideas, formulas, compositions, unpatented inventions (whether patentable or unpatentable
and whether or not reduced to practice), invention disclosures, financial and accounting data,
technical data, personal information, customer lists, supplier lists, business plans, know-how,
formulae, methods (whether or not patentable), designs, processes, merchandising processes,
procedures, source code, object code, and techniques, research and development information,
industry analyses, drawings, data collections and related information.
Transfer means sell, transfer, assign, pledge, hypothecate, participate, donate or
otherwise encumber or dispose of.
UK Pension Plan means any Company Plan which is a retirement benefit scheme
administered in the UK.
UK Pensions Regulator means the body corporate by that name established under Part 1
of the UK Pensions Act 2004 (as amended).
Unsubscribed Shares means the Shares, other than (i) the Shares issuable pursuant to
the Rights that were properly exercised by the Rights Holders during the Rights Exercise Period
pursuant to the Basic Subscription Right and the Oversubscription Right (but excluding any
Available Direct Subscription Shares) and (ii) Cash Recovery Subscription Equity.
VIHI Restructuring means the reorganizations and other transactions involving
Subsidiaries and Joint Ventures of the Company that may be undertaken on or prior to the Effective
Date in the manner set forth in Exhibit K attached hereto.
Section 1.2 Additional Defined Terms. In addition to the terms defined in Section 1.1, additional defined terms used
herein shall have the respective meanings assigned thereto in the Sections indicated in the table
below.
|
|
|
Defined Term |
|
Section |
Additional Investor Agreements |
|
Section 3.6(b) |
Agreement |
|
Preamble |
Alternate Transaction Agreement |
|
Section 8.1(d) |
Alternate Transaction Damages |
|
Section 10.2(a) |
Alternative Financing |
|
Section 3.3(a) |
Approval Conditions |
|
Section 10.1(b)(iii) |
Approval Motion |
|
Recitals |
Approval Order |
|
Recitals |
Arrangement Premium |
|
Section 4.1(b) |
Available Direct Subscription Shares |
|
Section 3.1(b)(ii) |
14
|
|
|
Defined Term |
|
Section |
Bankruptcy Code |
|
Recitals |
Bankruptcy Court |
|
Recitals |
Basic Subscription Right |
|
Section 2.2(b) |
Breaching Investor |
|
Section 9.1(b) |
Company |
|
Preamble |
Company Plans |
|
Section 5.21(a) |
Confirmed Plan |
|
Section 8.1(b) |
Debtor |
|
Recitals |
Determination Date |
|
Section 2.2(f) |
Direct Commitment |
|
Section 3.1(a) |
Direct Subscription Shares |
|
Section 3.1(a) |
Disclosure Letter |
|
Article V |
Discrimination Notice |
|
Section 11.10 |
Dispute Notice |
|
Section 11.10 |
Employee Representatives |
|
Section 5.14(a) |
Environmental Laws |
|
Section 5.19(a) |
ERISA |
|
Section 5.21(a) |
Exit Financing |
|
Section 7.17 |
Expedited Proceedings |
|
Section 11.10 |
Filing Party |
|
Section 7.15(b) |
Financial Reports |
|
Section 7.11(a) |
Financial Statements |
|
Section 5.9 |
Ford |
|
Section 7.18 |
Ford Agreement |
|
Section 7.18 |
Fully Exercising Holder |
|
Section 2.2(c) |
Funding Approval Certificate |
|
Section 7.7 |
GAAP |
|
Section 5.9 |
Indemnified Claim |
|
Section 9.2 |
Indemnified Person |
|
Section 9.2 |
Indemnifying Party |
|
Section 9.2 |
Investor |
|
Preamble |
Joint Filing Party |
|
Section 7.15(c) |
Legal Proceedings |
|
Section 5.13 |
Losses |
|
Section 9.1(a) |
Material Contracts |
|
Section 5.24 |
Money Laundering Laws |
|
Section 5.26 |
Multiemployer Plans |
|
Section 5.21(b) |
Offered Direct Subscription Shares |
|
Section 3.1(b) |
Offering Investor |
|
Section 3.1(b) |
OPEB Order |
|
Section 5.11(f) |
Outside Date |
|
Section 10.1(b)(iii) |
Over-Allotted Investor |
|
Section 8.5 |
Over-Subscribed Shares |
|
Section 2.2(e) |
Oversubscription Right |
|
Section 2.2(c) |
Party |
|
Preamble |
15
|
|
|
Defined Term |
|
Section |
Petition Date |
|
Recitals |
Pre-Closing Period |
|
Section 7.9 |
Proceedings |
|
Recitals |
Purchase Notice |
|
Section 2.2(f) |
Purchase Price |
|
Section 2.1 |
Regulatory Cure |
|
Section 8.5 |
Regulatory Reallocation |
|
Section 8.5 |
Related Purchaser |
|
Section 3.6(a) |
Removed Allotted Portion |
|
Section 8.5 |
Requisite Receiving Co-Investor Approval |
|
Section 11.10 |
Right |
|
Section 2.1 |
Rights Distribution Date |
|
Section 2.2(b) |
Rights Exercise Period |
|
Section 2.2(d) |
Rights Offering |
|
Section 2.1 |
ROFR Investors |
|
Section 3.6(c) |
Share |
|
Section 2.1 |
Stock Right Commitment |
|
Section 3.2 |
Stock Right Deposit |
|
Section 4.2 |
Stock Right Premium |
|
Section 4.1(a) |
Takeover Statute |
|
Section 5.30 |
Tax Return |
|
Section 5.20(a) |
Transaction Agreements |
|
Section 5.2(a) |
Transaction Expenses |
|
Section 4.3(a) |
Transfer Notice |
|
Section 3.6(c) |
Transferring Investor |
|
Section 3.6(c) |
Ultimate Purchaser |
|
Section 3.6(b) |
Section 1.3 Construction. In this Agreement, unless the context otherwise requires:
(a) references to Articles, Sections, Exhibits and Schedules are references to the articles
and sections or subsections of, and the exhibits and schedules attached to, this Agreement;
(b) the descriptive headings of the Articles and Sections of this Agreement are inserted for
convenience only, do not constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement;
(c) references in this Agreement to writing or comparable expressions include a reference to
a written document transmitted by means of electronic mail in portable document format (.pdf),
facsimile transmission or comparable means of communication;
(d) words expressed in the singular number shall include the plural and vice versa; words
expressed in the masculine shall include the feminine and neuter gender and vice versa;
16
(e) the words hereof, herein, hereto and hereunder, and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole, including all Exhibits and
Schedules attached to this Agreement, and not to any provision of this Agreement;
(f) the term this Agreement shall be construed as a reference to this Agreement as the same
may have been, or may from time to time be, amended, modified, varied, novated or supplemented;
(g) include, includes and including are deemed to be followed by without limitation
whether or not they are in fact followed by such words;
(h) references to day or days are to calendar days;
(i) references to the date hereof means as of the date of this Agreement;
(j) unless otherwise specified, references to a statute means such statute as amended from
time to time and includes any successor legislation thereto and any regulations promulgated
thereunder in effect on the date of this Agreement; and
(k) references to dollars or $ are to United States of America dollars.
ARTICLE II
RIGHTS OFFERING
Section 2.1 The Rights Offering. The Company proposes to offer and sell shares of New Common Stock pursuant to a rights
offering (the Rights Offering) whereby the Company will distribute to each Eligible
Recipient, including, to the extent applicable, the Investors, that number of rights (each, a
Right) that will enable Rights Holders to purchase an aggregate of up to the sum of (i)
thirty-four million three hundred ten thousand two hundred (34,310,200) shares of New Common Stock
(each, a Share), minus (ii) the Cash Recovery Subscription Equity and plus (iii) as
applicable, Available Direct Subscription Shares, in each case, at a purchase price of twenty-seven
dollars and sixty-nine cents ($27.69) per share (the Purchase Price). The Company will
conduct the Rights Offering in accordance with this Agreement, the Rights Offering Sub-Plan and the
Rights Offering Procedures in all material respects.
Section 2.2 Procedure of Rights Offering. The Rights Offering will be conducted as follows:
(a) On the terms and subject to the conditions of this Agreement (including Bankruptcy Court
approval) and pursuant to the Rights Offering Procedures, the Company shall offer the Shares (less
the Cash Recovery Subscription Equity) for subscription by Rights Holders.
(b) The Company shall, no later than ten (10) days after the Bankruptcy Court has entered an
order approving the Disclosure Statement, mail Election Forms to all holders of
17
Allowed Senior Notes Claims as of the Rights Offering Record Date to determine whether or not
such holders of Allowed Senior Notes Claims are Eligible Recipients. As soon as practicable after
the approval by the Bankruptcy Court of the Disclosure Statement, the Company shall distribute the
ballot form(s) in connection with the solicitation of acceptances of the Plan. As soon as
practicable after the Election Form Deadline, the Company shall issue to each Eligible Recipient
(the date of such issuance, the Rights Distribution Date) sufficient Rights to purchase
its pro rata share (based on the Allowed Senior Notes Claims held by such Eligible Recipient in
relation to the aggregate amount of Allowed Senior Notes Claims held by all holders of Allowed
Senior Notes Claims) of thirty-four million three hundred ten thousand two hundred (34,310,200)
Shares in the aggregate (the Basic Subscription Right). The Company will be responsible
for effecting the distribution of the Election Forms and any related materials to each holder of an
Allowed Senior Notes Claim. Each holder of Allowed Senior Notes Claims as of the Rights Offering
Record Date that properly delivers a completed Election Form to the Subscription Agent shall, (i)
if such holder properly certifies that it is an Eligible Recipient, be permitted to participate in
the Rights Offering and shall receive the Rights Offering Procedures, a subscription form and any
related materials and (ii) if such holder properly certifies that it is not an Eligible Recipient,
have the right to receive a distribution in accordance with the Plan.
(c) Subject to the Priority Oversubscription Right set forth in Section 2.2(e), each
Rights Holder that exercises in full its Basic Subscription Right (a Fully Exercising
Holder) shall be entitled to subscribe for Excess Shares on the same terms as the Basic
Subscription Right, to the extent that any Excess Shares are available for purchase (the
Oversubscription Right).
(d) The Rights may be exercised during a period (the Rights Exercise Period)
commencing on the Rights Distribution Date and ending at the Expiration Time. Subject to the
approval of this Agreement by the Bankruptcy Court, the Rights Offering Sub-Plan shall provide that
to exercise a Right, a Rights Holder shall, during the Rights Exercise Period, (i) return a duly
executed subscription document to the Subscription Agent (A) electing to exercise all or a portion
of the Rights held by such Rights Holder and (B) if such Rights Holder is a Fully Exercising
Holder, indicating the number of Excess Shares, if any, such Fully Exercising Holder desires to
purchase pursuant to its Oversubscription Right and (ii) pay an amount equal to the aggregate
Purchase Price for the number of Shares and Excess Shares that such Rights Holder elects to
purchase pursuant to its Basic Subscription Right and Oversubscription Right by wire transfer of
immediately available funds to an escrow account established by the Company for the Rights
Offering.
(e) As promptly as reasonably practicable following the Expiration Time, the Company shall
determine the aggregate number of Excess Shares that the Fully Exercising Holders elected to
purchase pursuant to their Oversubscription Rights (the Over-Subscribed Shares) and the
number of Excess Shares that were available for purchase. Subject to Section 3.1(b), if
the number of Over-Subscribed Shares exceeds the number of Excess Shares, then the Company shall
apportion, pro rata relative to the number of Excess Shares each Fully Exercising Holder elected to
purchase pursuant to its Oversubscription Right, the number of Excess Shares (i) first, to the Lead
Investors and their Related Purchasers (other than any Lead Investor and Related Purchaser that
elected to include Available Direct Subscription Shares in the Rights Offering pursuant to
Section 3.1(b)) and their respective Affiliates that are Fully
18
Exercising Holders (ii) second, to the Co-Investors and their Related Purchasers (other than any
Co-Investor and Related Purchaser that elected to include Available Direct Subscription Shares in
the Rights Offering pursuant to Section 3.1(b)) and their respective Affiliates that are
Fully Exercising Holders and (iii) last, to all other Fully Exercising Holders, in each case
pursuant to its Oversubscription Right such that the aggregate number of Excess Shares the Fully
Exercising Holders shall receive pursuant to their Oversubscription Rights shall equal the number
of Excess Shares available. As promptly as practicable after such adjustment, the Company shall
notify each affected Fully Exercising Holder of such adjustment and remit, by wire transfer of
immediately available funds, an amount equal to the aggregate Purchase Price for the shares such
Fully Exercising Holder shall not be allowed to purchase pursuant to this Section 2.2(e).
(f) No later than the fifth (5th) Business Day following the date on which the Expiration Time
occurs (the Determination Date), the Company shall deliver to each Investor a written
certification by an executive officer of the Company of (i) the number of Shares elected to be
purchased by Rights Holders pursuant to the Basic Subscription Right and the aggregate Purchase
Price therefor, (ii) the number of Shares elected to be purchased by Rights Holders pursuant to the
Oversubscription Rights and the aggregate Purchase Price therefor, (iii) any Available Direct
Subscription Shares not purchased pursuant to the Oversubscription Rights and (iv) the number of
Unsubscribed Shares, if any, and the aggregate Purchase Price therefor (a Purchase
Notice). The Company shall promptly provide any written backup, information and documentation
relating to the information contained in the Purchase Notice as any Investor may reasonably request
in writing.
(g) On the Effective Date, the Company will issue (and deliver as promptly as reasonably
practicable thereafter) to each Rights Holder that validly exercised Rights the number of Shares
and, if applicable, Excess Shares to which such Rights Holder is entitled based on such exercise.
All such Shares and, if applicable, Excess Shares will be delivered with all issue, stamp,
transfer, sales and use, or similar Taxes or duties that are due and payable (if any) in connection
with such delivery duly paid by the Company.
(h) All funds paid by the Rights Holders to the Company in connection with the exercise of
their rights pursuant to the Rights Offering shall be held for the benefit of the Rights Holders in
an escrow account established by the Company with an escrow agent reasonably acceptable to
Requisite Investors. The escrow agreement establishing such escrow account shall be on market
terms reasonably acceptable to both the Company and Requisite Investors and shall provide for all
fees and expenses in connection therewith to be paid by the Company. The funds held in such escrow
account shall only be released to the Company upon the occurrence of the Effective Date and
contemporaneously with the issuance of the Shares by the Company to the Rights Holders. If this
Agreement is terminated in accordance with its terms, the Company shall cause the escrow agent to,
as promptly as practicable following such termination, return all such funds (and any interest or
other income earned thereon) by wire transfer of immediately available funds to the Rights Holders.
19
ARTICLE III
THE COMMITMENTS
Section 3.1 The Direct Purchase Commitment.
(a) On the terms and subject to the conditions set forth in this Agreement, each Investor
agrees, severally and not jointly, to subscribe for and purchase, or cause one or more Related
Purchasers to subscribe for and purchase, and the Company agrees to sell and issue to such Investor
and its Related Purchasers, if applicable, on the Effective Date for the Purchase Price per share,
such Investors Allotted Portion of ten million eight hundred thirty-four thousand eight hundred
(10,834,800) shares of New Common Stock (the Direct Subscription Shares), rounded among
the Investors solely to avoid fractional shares as Requisite Investors may determine in their sole
discretion (such obligation to purchase the Direct Subscription Shares, the Direct
Commitment).
(b) Each Investor may elect to request that the Company first offer all or any portion of the
Direct Subscription Shares that such Investor has committed to purchase pursuant to Section
3.1(a) in the Rights Offering for purchase by Rights Holders. Such election must be made by
providing written notice to the Company and each other Investor at least five (5) Business Days
prior to the Rights Distribution Date specifying the number of Direct Subscription Shares (the
Offered Direct Subscription Shares) such Investor (the Offering Investor)
elects to cause the Company to offer in the Rights Offering and the identity of the Offering
Investor.
(i) Each Lead Investor and its Related Purchasers (other than any Offering Investor or
any of its Related Purchasers) may elect, upon written notice to the Company and the
Offering Investor at least two (2) Business Days prior to the Rights Distribution Date, to
assume the obligation to purchase all or any portion of the Offered Direct Subscription
Shares from the Offering Investor; provided, that if Lead Investors and their
Related Purchasers in the aggregate elect to assume more than the number of Offered Direct
Subscription Shares available, the Offered Direct Subscription Shares shall be allocated by
the Company among the electing Lead Investors and Related Purchasers pro rata relative to
the number of Offered Direct Subscription Shares each Lead Investor and Related Purchaser
elected to assume the obligation to purchase, such that the aggregate number of Direct
Subscription Shares the electing Lead Investors and Related Purchasers shall assume the
obligation to purchase shall equal the number of Offered Direct Subscription Shares made
available by the Offering Investor. Any Offered Direct Subscription Shares that Lead
Investors and their Related Purchasers have elected to purchase pursuant to this Section
3.1(b)(i) shall be purchased by such electing Lead Investors and Related Purchasers on
the terms and subject to the conditions of this Agreement and shall not be offered for
issuance in the Rights Offering. The Company shall distribute to the Lead Investors and
their Related Purchasers a revised Schedule 1 accurately reflecting the changes to
the allocated amounts of Direct Subscription Shares required by the transactions
contemplated by this Section 3.1(b)(i).
(ii) Any Offered Direct Subscription Shares that the Lead Investors and their Related
Purchasers do not elect to assume the obligation to purchase pursuant to
20
Section 3.1(b)(i) shall be included in the Rights Offering and shall be
available for purchase by Rights Holders (such included Offered Direct Subscription Shares,
the Available Direct Subscription Shares). The Investors acknowledge and agree
that (A) Available Direct Subscription Shares may be purchased by Rights Holders pursuant to
the exercise of their Rights only if all Shares offered in the Rights Offering (other than
Available Direct Subscription Shares) are first purchased in the Rights Offering pursuant to
the exercise of the Basic Subscription Rights or the Oversubscription Rights and (B) that if
more than one (1) Offering Investor includes Available Direct Subscription Shares in the
Rights Offering, then the number of Direct Subscription Shares each such Offering Investor
is obligated to purchase pursuant to this Agreement shall be reduced by such Offering
Investors pro rata portion of the Available Direct Subscription Shares actually purchased
pursuant to the exercise of Oversubscription Rights based on the number of Available Direct
Subscription Shares such Offering Investor included in the Rights Offering relative to the
total number of Available Direct Subscription Shares all such Offering Investors included in
the Rights Offering, which pro rata portion shall be rounded by Requisite Investors in their
sole discretion solely to avoid fractional shares.
(iii) Notwithstanding anything to the contrary contained in this Agreement, the
election of an Investor to enable the Company to offer Direct Subscription Shares in the
Rights Offering shall not release such Investor from its obligation hereunder to purchase
such Direct Subscription Shares unless, and only to the extent that, (A) the obligation to
purchase such Direct Subscription Shares is assumed by Lead Investors and their Related
Purchasers pursuant to Section 3.1(b)(i) and such Direct Subscription Shares are
actually purchased by such Investor(s) or (B) such Direct Subscription Shares are validly
purchased by Fully Exercising Holders pursuant to their Oversubscription Rights.
Section 3.2 The Stock Right Commitment. On the terms and subject to the conditions set forth in this Agreement, each Investor
agrees, severally and not jointly, to purchase or cause one or more Related Purchasers to purchase,
and the Company agrees to sell to such Investor or its designated Related Purchasers, if
applicable, on the Effective Date for the Purchase Price per Share, such Investors Allotted
Portion of the Unsubscribed Shares, rounded among the Investors solely to avoid fractional shares
as Requisite Investors may determine in their sole discretion; provided, that Requisite
Investors notify the Company of any such rounding prior to or on the Effective Date (such
obligation to purchase the Unsubscribed Shares, the Stock Right Commitment). For the
avoidance of doubt, Unsubscribed Shares shall not, under any circumstances, include any Available
Direct Subscription Shares, and any Investor that included Available Direct Subscription Shares in
the Rights Offering shall remain obligated to purchase such Available Direct Subscription Shares to
the extent not purchased by Rights Holders pursuant to their Oversubscription Rights.
Notwithstanding anything in this Agreement to the contrary, no Investor shall have any obligation
under this Agreement to purchase any Cash Recovery Subscription Equity.
Section 3.3 Alternative Financing.
(a) Upon the occurrence of an Investor Default or a Signatory Default, the Lead Investors
(other than any Lead Investor whose breach is the cause of such Investor Default
21
or Signatory Default) shall have the right, but shall not be obligated to, within five (5)
Business Days after receipt of written notice from the Company to all Lead Investors on behalf of
the Investors of such Investor Default or Signatory Default to make arrangements for one or more of
such Lead Investors, their Related Purchasers, Ultimate Purchasers or any combination thereof to
purchase all or any portion of the Available Investor Shares or Cash Recovery Subscription Equity,
as the case may be, on the terms and subject to the conditions set forth in this Agreement and in
such amounts as may be agreed upon by such Lead Investors; provided, that if such Lead
Investors, Related Purchasers and Ultimate Purchasers do not, in the aggregate, agree to purchase
all of the Available Investor Shares or Cash Recovery Subscription Equity, as the case may be, on
the terms and subject to the conditions of this Agreement or the Cash Recovery Backstop Agreement,
as the case may be, the Co-Investors (other than any Co-Investor whose breach is the cause of such
Investor Default or Signatory Default) shall have the right, but shall not be obligated to, within
two (2) Business Days after the expiration of such five (5) Business Day period, to make
arrangements for one or more of such Co-Investors, their Related Purchasers, Ultimate Purchasers or
any combination thereof to purchase all or any portion of the remaining Available Investor Shares
or Cash Recovery Subscription Equity, as the case may be, on the terms and subject to the
conditions set forth in this Agreement and in such amounts as may be agreed upon by such
Co-Investors and any Lead Investors participating in the Alternative Financing (such arrangement
pursuant to which all Available Investor Shares or all of the Cash Recovery Subscription Equity, as
the case may be, are purchased, an Alternative Financing). If an Investor Default or
Signatory Default occurs, the Effective Date and the Outside Date shall each be delayed only to the
extent necessary to allow for an Alternative Financing to be completed within the time frame
established in this Section 3.3(a); provided, that in no event shall the Effective
Date or the Outside Date be delayed more than eight (8) Business Days without the prior written
consent of the Company and all Lead Investors (other than any Investor whose breach is the cause of
such Investor Default or Signatory Default). Notwithstanding anything to the contrary contained
herein, (i) if the Investor Default or Signatory Default occurs on the date that would have been
the Effective Date, then each condition set forth in Section 8.1 that was satisfied as of
such date (including any condition that had been waived by Requisite Investors) shall be deemed to
be satisfied at all times after the date of such Investor Default or Signatory Default, and (ii) in
the event that an Alternative Financing has not been consummated prior to the expiration of the
eight (8) Business Day period (or such longer period as agreed among the Company and the Investors)
set forth in the preceding sentence, the Company shall be entitled to terminate this agreement
pursuant to Section 10.1(d)(i).
(b) Each Investor agrees that if such Investor causes an Investor Default or Signatory
Default, such Investor shall, within two (2) Business Days of receiving written notice by the
Company that an Alternative Financing has been consummated, repay its Allotted Portion of the Stock
Right Premium to the extent received from the Company by wire transfer of immediately available
funds to the non-defaulting Investors pro rata based on their Allotted Portions whether or not the
Effective Date occurs.
(c) Nothing in this Agreement shall be deemed to require an Investor to purchase more than its
Allotted Portion of (i) the Direct Subscription Shares and (ii) the Unsubscribed Shares.
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Section 3.4 Notice of Unsubscribed Shares. On the Determination Date, the Company will provide a Purchase Notice to each Investor as
provided in Section 2.2(f), setting forth a true and accurate determination of the
aggregate number of Unsubscribed Shares, if any.
Section 3.5 Issuance and Delivery of Investor Shares.
(a) Issuance of the Investor Shares will be made by the Company to the account of each
Investor (or to such other accounts as any Investor may designate in accordance with this
Agreement) at 10:00 a.m., New York City time, on the Effective Date, or such other date and time as
the Company and Requisite Investors may agree in writing, contemporaneously against payment on the
Effective Date of the aggregate Purchase Price for the Investor Shares by wire transfer of
immediately available funds in U.S. dollars to the account specified by the Company to the
Investors in writing at least five (5) days prior to the Effective Date, and such Investor Shares
shall be delivered on the Effective Date or as promptly as reasonably practicable thereafter.
(b) All Investor Shares will be delivered with all issue, stamp, transfer, sales and use, or
similar Taxes or duties that are due and payable (if any) in connection with such delivery duly
paid by the Company.
(c) The documents to be delivered on the Effective Date by or on behalf of the Parties and the
Investor Shares will be delivered at the offices of Kirkland & Ellis LLP, 601 Lexington Avenue, New
York, New York 10022 on the Effective Date. Notwithstanding the previous sentence, unless an
Investor (on behalf of itself or its Related Purchasers or Ultimate Purchasers) requests in writing
delivery of a physical stock certificate, the entry of any Investor Shares to be delivered pursuant
to Section 3.5(a) into the account of an Investor pursuant to the Companys book entry
procedures shall be deemed delivery of such Investor Shares for purposes of this Agreement. The
Company shall use its commercially reasonable efforts to make all shares of New Common Stock issued
pursuant to the Plan (including Shares and Investor Shares) Depository Trust Company eligible as of
the Effective Date.
Section 3.6 Transfer, Designation and Assignment Rights.
(a) Each Investor shall have the right to designate by written notice to the Company no later
than five (5) Business Days prior to the Effective Date that some or all of its Investor Shares be
issued in the name of and delivered to, one or more of its Affiliates (each a Related
Purchaser) upon receipt by the Company of payment therefor in accordance with the terms
hereof, which notice of designation shall (i) be addressed to the Company and signed by such
Investor and each Related Purchaser, (ii) specify the number of Investor Shares to be delivered to
or issued in the name of such Related Purchaser and (iii) contain a confirmation by such Related
Purchaser of the accuracy of the representations set forth in Sections 6.6 through
6.8 as applied to such Related Purchaser; provided, that no such designation
pursuant to this Section 3.6(a) shall relieve such Investor from its obligations under this
Agreement. Additionally, each Investor may assign all or any portion of its Allotted Portion of
the Equity Commitment to a Related Purchaser who agrees in writing to be bound by this Agreement by
executing and delivering to the Company and each other Investor a Commitment Joinder Agreement,
including a revised Schedule 1 to reflect such assignment; provided, that no such
23
assignment pursuant to this Section 3.6(a) shall relieve such Investor from its
obligations under this Agreement without giving effect to such revised Schedule 1;
provided, further, that such Investor shall provide written notice to the Company
and each other Investor in advance of such assignment and no later than five (5) Business Days
prior to the Effective Date.
(b) The Company acknowledges and agrees that certain of the Investors may enter into one or
more additional agreements (the Additional Investor Agreements) with one or more Persons
(other than Related Purchasers) (each an Ultimate Purchaser) pursuant to which (subject
to Section 3.6(c)) the Ultimate Purchasers agree to purchase all or any portion of an
Investors Investor Shares and/or Allotted Portion of the Equity Commitment and may designate by
written notice to the Company that some or all of its Investor Shares be issued in the name of and
delivered directly to, such Ultimate Purchasers; provided, that no such Additional Investor
Agreement shall relieve such Investor from its obligations under this Agreement; provided,
further, that such Investor shall provide written notice to the Company and each other
Investor a copy of such Additional Investor Agreement no later than three (3) Business Days prior
to the Effective Date and each such Additional Investor Agreement shall contain such Ultimate
Purchasers representations and warranties as to itself to the effect set forth in Sections
6.6 through 6.8 and such Ultimate Purchasers agreement to be bound by the covenants
contained in Section 7.16.
(c) Each Investor and its Related Purchasers, severally and not jointly, agrees that, from the
date hereof until the Effective Date, prior to entering into any Additional Investor Agreement with
an Ultimate Purchaser pursuant to Section 3.6(b), such Investor and its Related Purchasers
(the Transferring Investor) shall provide to all other Investors and their Related
Purchasers (the ROFR Investors) a written notice (a Transfer Notice) specifying
(i) the number of Investor Shares or amount of the Allotted Portion of the Equity Commitment, as
the case may be, that the Transferring Investor is proposing to Transfer to an Ultimate Purchaser
and (ii) the material terms and conditions of such transfer, including the consideration to be paid
for such Investor Shares or Allotted Portion, as the case may be. Each ROFR Investor may elect, by
giving written notice to the Transferring Investor and the other ROFR Investors within three (3)
Business Days after the delivery of the Transfer Notice, to assume the obligation to purchase all
or any portion of such Investor Shares or such Allotted Portion, as the case may be, subject to the
conditions and on the terms set forth in the Transfer Notice. If the ROFR Investors in the
aggregate elect to assume more than the Investor Shares or Allotted Portion, as the case may be,
specified in the Transfer Notice, such Investor Shares or Allotted Portion, as the case may be,
shall be allocated among the electing ROFR Investors as follows: (x) first, among the electing ROFR
Investors that are also Lead Investors or Related Purchasers of Lead Investors pro rata relative to
the number of Investor Shares or amount of the Allotted Portion, as the case may be, that each ROFR
Investor that is also a Lead Investor or a Related Purchaser of a Lead Investor elected to assume
the obligation to purchase, and (y) second, among the electing ROFR Investors that are also
Co-Investors or Related Purchasers of Co-Investors pro rata relative to the number of Investor
Shares or amount of the Allotted Portion, as the case may be, that each ROFR Investor that is also
a Co-Investor or a Related Purchaser of a Co-Investor elected to assume the obligation to purchase,
such that the aggregate number of Investor Shares or amount of the Allotted Portion, as the case
may be, that the electing ROFR Investors assume the obligation to purchase shall equal the number
of Investor Shares or the Allotted Portion, as the case may be, specified in the Transfer Notice.
If, within the three (3) Business Day election period referred to
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above, the ROFR Investors in the aggregate elect to assume less than all of the Investor
Shares or Allotted Portion, as the case may be, specified in the Transfer Notice, then all such
elections shall be void and the Transferring Investor shall have the right, during the thirty (30)
day period immediately following the expiration of such three (3) Business Day election period (but
in no event after the date that is three (3) Business Days prior to the Effective Date), to enter
into Additional Investor Agreements to Transfer all, but not less than all, of the Investors Shares
or Allotted Portion, as the case may be, specified in the Transfer Notice to one or more Ultimate
Purchasers on terms and conditions not less favorable to the Transferring Investor than those set
forth in the Transfer Notice and in any event in accordance with Section 3.6(b). The
Company and the Investors agree that in the event that both (i) the ROFR Investors in the aggregate
elect to assume all of the Investor Shares or Allotted Portion, as the case may be, specified in a
Transfer Notice, and (ii) each electing ROFR Investor delivers a Funding Approval Certificate to
the Company for the aggregate amount of such ROFR Investors Allotted Portion (including the amount
of the Transferring Investors Allotted Portion assumed by such ROFR Investor pursuant to this
Section 3.6(c)) either simultaneously with such Transfer or in accordance with Section
7.7, (x) the Transferring Investor shall be relieved of its obligations hereunder with respect
to such Investor Shares or Allotted Portion, as the case may be, and the electing ROFR Investors
shall assume such obligations in the proportions that such Investor Shares or Allotted Portion, as
the case may be, were allocated amongst the ROFR Investors and (y) the Investors shall provide
written notice to the Company containing a revised Schedule 1 accurately reflecting any
changes required by the transactions contemplated by this Section 3.6(c).
(d) Each Investor, severally and not jointly, agrees that it will not, directly or indirectly,
assign, at any time prior to the Effective Date or earlier termination of this Agreement in
accordance with its terms, its rights and obligations under this Agreement or to Investor Shares or
any interest or participation therein to any Person other than in accordance with this Section
3.6. Each Investor, severally and not jointly, agrees that with respect to any offer or
Transfer to an Ultimate Purchaser prior to the Effective Date, it has not offered and shall not
offer any Investor Shares to, and it has not entered into and shall not enter into an Additional
Investor Agreement or Commitment Joinder Agreement with any Person that is not an accredited
investor within the meaning of Rule 501(a) of the Securities Act; provided, that nothing
in this Agreement shall limit or restrict in any way any Investors ability to Transfer any of its
Investor Shares or any interest therein after the Effective Date pursuant to an effective
registration statement under the Securities Act or an exemption from the registration requirements
thereunder and pursuant to applicable state securities Laws.
ARTICLE IV
PREMIUMS AND EXPENSES
Section 4.1 Premiums and Damages Payable by the Company. The Company shall pay to the Investors the following premiums and damages, in accordance
with and subject to Sections 4.2 and 10.2, in the following manner:
(a) a nonrefundable (except as set forth in Section 4.2) aggregate premium in an
amount equal to forty-three million seven hundred fifty thousand dollars ($43,750,000), in
accordance with Section 4.2, to the Investors in the proportions set forth in Schedule
1 to
25
compensate the Investors for their agreement to purchase the Investor Shares (the Stock
Right Premium); and
(b) a nonrefundable aggregate arrangement premium in an amount equal to sixteen million six
hundred twenty-five thousand dollars ($16,625,000), in accordance with Section 4.2, to
those Persons set forth in Schedule 2 in the proportions set forth therein to compensate
such Persons for arranging the transactions contemplated hereby (the Arrangement
Premium); and
(c) in the event that this Agreement is terminated, the Alternate Transaction Damages, if any,
which shall be paid by the Company to the Investors as provided in Section 10.2.
Section 4.2 Payment of Premiums and Damages. (a) Twenty-five percent (25%) of the Stock Right Premium (the Stock Right
Deposit) shall be earned by the Investors and paid by the Company to the Investors in the
proportions set forth on Schedule 1 on the first (1st) Business Day following the date on
which the Approval Order is entered and (b) the remainder of the Stock Right Premium and the
Arrangement Premium shall become earned by the Persons specified in Sections 4.1(a) and
4.1(b) and paid by the Company simultaneously with the delivery of the Investor Shares on
the Effective Date. Payment of the Stock Right Premium, the Arrangement Premium and the Alternate
Transaction Damages, if any, will be made by wire transfer of immediately available funds in U.S.
dollars to the account specified by each Investor to the Company in writing at least five (5)
Business Days prior to such payment. The Stock Right Premium, the Arrangement Premium and the
Alternate Transaction Damages, if any, will be nonrefundable and non-avoidable when paid;
provided, that in the event that this Agreement is terminated pursuant to Section
10.1(d)(i), each Investor shall refund such Investors portion of the Stock Right Deposit
received by it pursuant to this Section 4.2 to the Company by wire transfer of immediately
available funds in U.S. dollars to the account specified by the Company in the Companys notice of
such termination.
Section 4.3 Transaction Expenses.
(a) The Company will reimburse or pay, as the case may be, the documented out-of-pocket costs
and expenses reasonably incurred by each of the Investors and their respective Affiliates, so long
as such Investor is obligated, under the Plan Support Agreement, to support the Plan and has not
breached such obligation, in connection with (w) the exploration and discussion of the Proposal
Letter, this Agreement and the Plan and the transactions contemplated hereby (including any
expenses related to obtaining required consents of Governmental Entities and other Persons), (x)
any due diligence related to this Agreement and the transactions contemplated hereby, (y) the
preparation and negotiation of the Proposal Letter, this Agreement, the Plan (and related
documents) and the proposed documentation of the transactions contemplated hereby and thereby and
(z) the implementation of the transactions contemplated by this Agreement and the Plan (including
any legal proceedings (A) in connection with the confirmation of the Plan and approval of the
Disclosure Statement, and objections thereto (other than objections of any Investor or any
Affiliate of an Investor), and any other actions in the Proceedings related thereto and (B) to
enforce the Investors rights against the Company (but not against any other Investor, any Related
Purchaser or any Ultimate Purchaser)
26
under this Agreement, the Plan and any Transaction Agreement, but only to the extent such
Investor prevails on the merits of their underlying claim in such proceedings) and any other
judicial and regulatory proceedings in furtherance of this Agreement, the Plan and any Transaction
Agreement, including, in each case, the reasonable fees, costs, and expenses of (1) the individual
outside counsel of each Lead Investor (as well as White & Case LLP, as counsel to all the Lead
Investors), (2) the Ad Hoc Counsel (but not any fees, costs or expenses of any counsel for any
Co-Investors (except to the extent provided in Section 4.3(a)(iv)) other than the Ad Hoc
Counsel and (3) any other professionals reasonably retained by any Investor (including GLCA/Sagent
Advisors, OHorizons LLC and Conway MacKenzie, Inc.), but specifically excluding any fees, costs, or
expenses of any Co-Investor incurred or required to be paid in connection with any filings required
to be made by such Co-Investor or its Affiliates under the HSR Act or any other Antitrust Laws
(collectively, Transaction Expenses) in the following manner:
(i) to the extent Transaction Expenses (including any monthly fees and reasonable
expenses paid or payable to GLCA/Sagent Advisors pursuant to the terms of the GLCA/Sagent
Engagement Letter, but excluding any success or transaction fee) are or were incurred prior
to the date of this Agreement, and the Investors have delivered, at least three (3) Business
Days prior to the date hereof, a good faith estimate, with reasonably detailed support, of
such Transaction Expenses, which estimate shall be attached hereto as Schedule 3,
such Transaction Expenses shall be paid by the Company promptly upon the Bankruptcy Courts
entry of the Approval Order;
(ii) to the extent Transaction Expenses (including any monthly fees and reasonable
expenses paid or payable to GLCA/Sagent Advisors pursuant to the terms of the GLCA/Sagent
Engagement Letter, but excluding any success or transaction fee (any such fee to be payable
only in accordance with clause (iii) below)) are incurred on or after the date of this
Agreement, such Transaction Expenses shall be paid upon submission to the Company of summary
statements therefor within fifteen (15) days of the submission of such statements, in each
case, without (A) the need to file an application or notice with the Bankruptcy Court, (B)
Bankruptcy Court (or any other Persons) review or (C) further Bankruptcy Court order,
whether or not the transactions contemplated hereby are consummated; provided, that
no such statements may be submitted until the Approval Order has been entered;
(iii) to the extent any success or transaction fee is payable to GLCA/Sagent under the
terms of the GLCA/Sagent Engagement Letter, such success or transaction fee shall be paid
only upon the effective date of the Plan;
(iv) the fees and expenses of counsel for any Co-Investor whose Allotted Portion of the
Aggregate Commitment (including, for this purpose, the Allotted Portions held by such
Co-Investors Related Purchasers) exceeds fifty million dollars ($50,000,000) shall be
included as Transaction Expenses; provided, that the Company shall not be required
to reimburse or pay any such fees and expenses pursuant to this Section 4.3(a)(iv)
in excess of two hundred thousand dollars ($200,000) in the aggregate for all Co-Investors;
and
27
(v) the filing fee, if any, required to be paid in connection with any filings required
to be made by any Lead Investor or its Affiliates under the HSR Act or any other Antitrust
Laws shall be paid by the Company on behalf of the Lead Investors when filings under the HSR
Act or any other Antitrust Laws are made, together with all expenses of the Lead Investors
incurred to comply therewith.
(b) The obligation of the Company to pay Transaction Expenses shall not be conditioned or
contingent upon the consummation of the transactions contemplated by this Agreement or the Plan.
(c) The provision for the payment of Transaction Expenses is (and the Approval Order should so
provide that payment of Transaction Expenses is) an integral part of the transactions contemplated
by this Agreement and without this provision the Investors would not have entered into this
Agreement and such Transaction Expenses shall constitute an allowed administrative expense of the
Company under sections 503(b)(1) and 507(a)(2) of the Bankruptcy Code.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in (i) the disclosure letter delivered by the Company to the Lead
Investors and the Ad Hoc Counsel on the date hereof (the Disclosure Letter), (ii) the
Company SEC Documents filed prior to the date hereof (excluding any risk factor disclosure and
disclosure included in any forward-looking statements disclaimer or other statements included in
such Company SEC Documents that are predictive, forward-looking, non-specific or primarily
cautionary in nature (but including any specific factual information contained therein)) or (iii)
in the Attached Disclosure Statement (excluding (A) any risk factor disclosure and disclosure of
risks included in any forward-looking statements disclaimer or other statements included in the
Attached Disclosure Statement that are predictive, forward-looking, non-specific or primarily
cautionary in nature (but including any specific factual information contained therein) and (B) any
amendments, updates or modifications thereto), the Company represents and warrants to, and agrees
with, each of the Investors as set forth below. Any disclosure in the Company SEC Documents or the
Attached Disclosure Statement that is deemed to qualify a representation or warranty shall only so
qualify a representation or warranty to the extent that it is made in such a way as to make the
relevance of such disclosure to these representations and warranties reasonably apparent on its
face. Any item disclosed in a section of the Disclosure Letter shall be deemed disclosed for
purposes of all other Sections of this Article V to the extent the relevance of such
disclosure or item to such Section of this Article V is reasonably apparent on its face.
Except for representations, warranties and agreements that are expressly limited as to their date,
each representation, warranty and agreement shall be deemed made as of the date hereof and as of
the Effective Date. For the purposes of this Article V, references to Subsidiaries (other
than such references in Sections 5.2(b), 5.3(a) and 5.16(b), and for
purposes of Section 7.9(j), other than Section 5.11) are also deemed to include Joint
Ventures; provided, that the representations and warranties contained in this Article
V made with respect to any aspect of the Joint Ventures (including their Real Property Leases
or other assets, operations or condition) are made only as to the Knowledge of the Company.
28
Section 5.1 Organization and Qualification. The Company and each of its Subsidiaries is a legal entity duly organized, validly existing
and in good standing (or the equivalent thereof) under the Laws of its respective jurisdiction of
incorporation or organization and, subject to any necessary authority from the Bankruptcy Court,
has all requisite power and authority to own, lease and operate its properties and to carry on its
business as currently conducted. Each of the Company and its Subsidiaries is duly qualified or
licensed to do business and is in good standing (or the equivalent thereof) under the Laws of each
other jurisdiction in which it owns, leases or operates properties or conducts any business, in
each case except to the extent that the failure to be so qualified or licensed or be in good
standing has not had and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
Section 5.2 Corporate Power and Authority.
(a) The Company has or, to the extent executed in the future, shall have when executed the
requisite corporate power and authority to enter into, execute and deliver this Agreement and the
Plan Supplement and other agreements to which it will be a party as contemplated by this Agreement
and the Plan (this Agreement and the Plan Supplement and other agreements collectively, the
Transaction Agreements) and, subject to entry of the Confirmation Order and the
expiration, or waiver by the Bankruptcy Court, of the fourteen (14)-day period set forth in
Bankruptcy Rules 6004(h) and 3020(e), respectively, to perform its obligations hereunder and
thereunder, including the issuance of the Rights, the Shares and the Investor Shares. The Company
has or, to the extent executed in the future, shall have when executed, taken all necessary
corporate action required for the due authorization, execution, delivery and performance by it of
this Agreement, including the issuance of the Rights, the Shares and the Investor Shares.
(b) Each of the Companys Subsidiaries has or, to the extent executed in the future, shall
have when executed the requisite power and authority (corporate or otherwise) to enter into,
execute and deliver each Transaction Agreement to which such Subsidiary is a party and, subject to
entry of the Confirmation Order and the expiration, or waiver by the Bankruptcy Court, of the
fourteen (14)-day period set forth in Bankruptcy Rules 6004(h) and 3020(e), respectively, to
perform its obligations thereunder. Each of the Companys Subsidiaries has or, to the extent
executed in the future, shall have when executed, taken all necessary corporate action required for
the due authorization, execution, delivery and performance by it of each Transaction Agreement to
which such Subsidiary is a party.
(c) Prior to the execution by the Company and filing with the Bankruptcy Court of the Plan,
the Company and each of the other Debtors executing the Plan will have the requisite power and
authority (corporate or otherwise) to execute the Plan and to file the Plan with the Bankruptcy
Court and, subject to entry of the Confirmation Order and the expiration, or waiver by the
Bankruptcy Court, of the fourteen (14)-day period set forth in Bankruptcy Rule 3020(e), to perform
its obligations thereunder, and will have taken all necessary actions (corporate or otherwise)
required for the due authorization, execution, delivery and performance by it of the Plan.
29
Section 5.3 Execution and Delivery; Enforceability.
(a) This Agreement and each Transaction Agreement has been, or prior to its execution and
delivery will be, duly and validly executed and delivered by the Company and each of its
Subsidiaries party thereto, and, upon the entry of the Approval Order and the expiration, or waiver
by the Bankruptcy Court, of the fourteen (14)-day period set forth in Bankruptcy Rule 6004(h), each
such document will constitute the valid and binding obligations of the Company and each of its
Subsidiaries party thereto, enforceable against the Company and each of its Subsidiaries party
thereto in accordance with their respective terms.
(b) The Plan will be duly and validly filed with the Bankruptcy Court by the Company and each
of the other Debtors executing the Plan and, upon the entry of the Confirmation Order and the
expiration, or waiver by the Bankruptcy Court, of the fourteen (14)-day period set forth in
Bankruptcy Rule 3020(e), will constitute the valid and binding obligation of the Company and such
Debtors, enforceable against the Company and such Debtors in accordance with its terms.
Section 5.4 Authorized and Issued Capital Stock.
(a) As of the Effective Date, the authorized capital stock of the Company will consist of two
hundred fifty million (250,000,000) shares of New Common Stock and fifty million (50,000,000)
shares of preferred stock, par value $0.01 per share. As of the Effective Date, (i) forty-nine
million three hundred eleven thousand six hundred sixty-seven (49,311,667) shares of New Common
Stock will be issued and outstanding, (ii) no shares of the preferred stock will be issued and
outstanding, (iii) other than the 12.25% Warrants, no warrants to purchase shares of New Common
Stock will be issued and outstanding, (iv) no shares of New Common Stock will be held by the
Company in its treasury, (v) three million eight hundred eighty-eight thousand eight hundred
eighty-nine (3,888,889) shares of New Common Stock will be reserved for issuance upon exercise of
stock options and other rights to purchase or acquire shares of New Common Stock granted under any
Company Plan, and (vi) other than shares of New Common Stock reserved for issuance upon the
exercise of the 12.25% Warrants, no shares of New Common Stock will be reserved for issuance upon
the exercise of warrants to purchase shares of New Common Stock.
(b) As of the Effective Date, all issued and outstanding shares of capital stock of the
Company and each of its Subsidiaries will have been duly authorized and validly issued and will be
fully paid and non-assessable, and will not be subject to any preemptive rights.
(c) Except as set forth in this Section 5.4, as of the Effective Date, no shares of
capital stock or other equity securities or voting interest in the Company will have been issued,
reserved for issuance or outstanding.
(d) Except as described in this Section 5.4, and except as required by the Plan, as of
the Effective Date, neither the Company nor any of its Subsidiaries will be party to or otherwise
bound by or subject to any outstanding option, warrant, call, right, security, commitment,
contract, arrangement or undertaking (including any preemptive right) that (i) obligates the
Company or any of its Subsidiaries to issue, deliver, sell or transfer, or
30
repurchase,
redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred, or
repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity or
voting interests in, the Company or any of its Subsidiaries or any security convertible or
exercisable for or exchangeable into any capital stock of, or other equity or voting interest in,
the Company or any of its Subsidiaries, (ii) obligates the Company or any of its Subsidiaries to
issue, grant, extend or enter into any such option, warrant, call, right, security, commitment,
contract, arrangement or undertaking, (iii) restricts the transfer of any shares of capital stock
of the Company or any of its Subsidiaries or (iv) relates to the voting of any shares of capital
stock of the Company or any of its Subsidiaries.
Section 5.5 Issuance. The Investor Shares and the Shares to be issued and sold by the Company to the Investors
and the Rights Holders hereunder, respectively, when such Investor Shares and Shares are issued and
delivered against payment therefor by the Investors and the Rights Holders in accordance with this
Agreement, the Plan and the subscription documents contemplated hereby and thereby, respectively,
shall have been duly and validly authorized, issued and delivered and shall be fully paid and
non-assessable, and free and clear of all Taxes, Liens, preemptive rights, subscription and similar
rights, other than any rights set forth in the Certificate of Incorporation.
Section 5.6 No Conflict. Provided that the consents described in Section 5.7 are obtained, the execution and
delivery by the Company and, to the extent relevant, its Subsidiaries of this Agreement, the Plan
and the Transaction Agreements, the compliance by the Company and, to the extent relevant, its
Subsidiaries with all of the provisions hereof and thereof and the consummation of the transactions
contemplated herein and therein (including compliance by each Investor with its obligations
hereunder and thereunder) (a) will not conflict with, or result in a breach or violation of, any of
the terms or provisions of, or constitute a default under (with or without notice or lapse of time,
or both), or result, except to the extent specified in the Attached Plan, in the acceleration of,
or the creation of any Lien under, any Contract to which the Company or any of its Subsidiaries is
a party or by which the Company or any of its Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Subsidiaries is subject, (b) will not result in any
violation of the provisions of the certificate of incorporation or bylaws (or comparable
constituent documents) of the Company or any of its Subsidiaries or the Certificate of
Incorporation or Bylaws and (c) will not result in any material violation of any Law or Order
applicable to the Company or any of its Subsidiaries or any of their properties, except in any such
case described in clause (a) for any conflict, breach, violation, default, acceleration or Lien
which has not had and would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
Section 5.7 Consents and Approvals. No consent, approval, authorization, order, registration or qualification of or with any
Governmental Entity having jurisdiction over the Company or any of its Subsidiaries or any of their
properties is required for the execution and delivery by the Company and, to the extent relevant,
its Subsidiaries of this Agreement, the Plan and the Transaction Agreements, the compliance by the
Company and, to the extent relevant, its Subsidiaries with all of the provisions hereof and thereof
and the consummation of the transactions contemplated herein and therein (including compliance by
each Investor with its obligations hereunder and thereunder), except (a) the approval by the
Bankruptcy Court of the Companys authority to enter into and implement this Agreement, (b) the
entry of the
31
Confirmation Order and the expiration, or waiver by the Bankruptcy Court, of the fourteen
(14)-day period set forth in Bankruptcy Rules 6004(h) and 3020(e), as applicable, (c) filings, if
any, pursuant to the HSR Act and the expiration or termination of all applicable waiting periods
thereunder or any applicable notification, authorization, approval or consent under any other
Antitrust Laws in connection with the transactions contemplated by this Agreement, (d) the filing
with the Secretary of State of the State of Delaware of the Certificate of Incorporation to be
applicable to the Company from and after the Effective Date and (e) such consents, approvals,
authorizations, registrations or qualifications (i) if applicable, as may be required under the
rules and regulations of the New York Stock Exchange or the Nasdaq Stock Exchange to consummate the
transactions contemplated herein or (ii) as may be required under state securities or Blue Sky laws
in connection with the purchase of the Investor Shares by the Investors and the issuance of the
Rights and the Shares pursuant to the exercise of the Rights.
Section 5.8 Arms Length. The Company acknowledges and agrees that (a) each of the Investors is acting solely in the
capacity of an arms length contractual counterparty to the Company with respect to the
transactions contemplated hereby (including in connection with determining the terms of the Rights
Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any of
its Subsidiaries and (b) no Investor is advising the Company or any of its Subsidiaries as to any
legal, tax, investment, accounting or regulatory matters in any jurisdiction.
Section 5.9 Financial Statements. The consolidated financial statements of the Company included or incorporated by reference
in the Company SEC Documents, and to be included or incorporated by reference in the Disclosure
Statement (collectively, the Financial Statements), comply or will comply, as the case
may be, in all material respects with the applicable requirements of the Securities Act, the
Exchange Act and the Bankruptcy Code, and present fairly and will present fairly in all material
respects the financial position, results of operations and cash flows of the Company and its
consolidated subsidiaries, taken as a whole, as of the dates indicated and for the periods
specified. The Financial Statements have been prepared in conformity with U.S. generally accepted
accounting principles (GAAP) applied on a consistent basis throughout the periods covered
thereby, subject to (a) in the case of any unaudited Financial Statements, the absence of footnote
disclosures and (b) in the case of any Financial Statements other than year-end Financial
Statements, changes resulting from normal period-ending adjustment.
Section 5.10 Company SEC Documents and Disclosure Statement. Since the Petition Date, the Company has filed all material required reports, schedules,
forms and statements with the SEC. As of their respective dates, and giving effect to any
amendments or supplements thereto filed prior to the date of this Agreement, each of the Company
SEC Documents complied in all material respects with the requirements of the Securities Act or the
Exchange Act applicable to such Company SEC Documents. The Company has filed with the SEC all
material contracts (as such term is defined in Item 601(b)(10) of Regulation S-K under the
Exchange Act) that are required to be filed as exhibits to the Company SEC Documents. No Company
SEC Document, after giving effect to any amendments or supplements thereto, and to any subsequently
filed Company SEC Documents, in each case filed prior to the date of this Agreement, contained any
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
32
circumstances under which they were made, not misleading. The Attached Disclosure Statement
conforms in all material respects to the requirements of the Bankruptcy Code and complies in all
material respects with section 1125 of the Bankruptcy Code; provided, that any amendments,
supplements, changes or modifications to the Attached Disclosure Statement that are incorporated
into the Disclosure Statement shall not, in and of themselves, constitute a presumption that the
Attached Disclosure Statement does not conform in all material respects to the requirements of the
Bankruptcy Code or comply in all material respects with section 1125 of the Bankruptcy Code. The
Disclosure Statement, when submitted to the Bankruptcy Court, when approved thereby and upon
confirmation and effectiveness, will conform in all material respects to the requirements of the
Bankruptcy Code and will comply in all material respects with section 1125 of the Bankruptcy Code.
Section 5.11 Absence of Certain Changes. Since December 31, 2009, except for actions required to be taken pursuant to this Agreement
or the Rights Offering Sub-Plan:
(a) no Event has occurred or exists which has had or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has amended its certificate of
incorporation, bylaws or comparable constituent documents;
(c) the Company has not made any material changes with respect to its accounting policies or
procedures, except as required by Law or changes in GAAP;
(d) neither the Company nor any of its Subsidiaries has (i) made, changed or revoked any
material Tax election, (ii) entered into any settlement or compromise of any material Tax
liability, (iii) filed any amended Tax Return with respect to any material Tax, (iv) changed any
annual Tax accounting period, (v) entered into any closing agreement relating to any material Tax
or (vi) made material changes to their Tax accounting methods or principles;
(e) other than in the ordinary course of business in compliance with all applicable Laws,
neither the Company nor any of its Subsidiaries has entered into any transaction or engaged in
layoffs or employment terminations which would trigger application of the Worker Adjustment and
Retraining Notification Act of 1988 (or any similar foreign, state or local Law) or would be
considered as a collective dismissal, mass termination or reduction in force under applicable
foreign Law;
(f) other than (i) the approval of the Approved Annual Incentive Program, (ii) in accordance
with the Approved Annual Incentive Program, or (iii) relating to the Bankruptcy Courts December
22, 2009 order granting in part Certain Debtors Motion for Order Authorizing Them to Amend or
Terminate Post-Employment Health Care and Life Insurance Benefits for Certain Employees and
Retirees and Their Surviving Spouses, Spouses, Domestic Partners and Dependents (the OPEB
Order), there has not been (A) any increase in the compensation payable or to become payable
to any officer or employee of the Company or any of its Subsidiaries with annual base compensation
in excess of two hundred fifty thousand dollars ($250,000) (except for compensation increases in
the ordinary course of business and consistent with past practice), (B) any establishment,
adoption, renewal, entry into or material amendment
33
or supplement of any bonus, profit sharing, thrift, compensation, employment, termination,
severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of (1) any
individual officer or employee with annual base compensation in excess of two hundred fifty
thousand dollars ($250,000) or (2) any director or (C) any establishment, adoption, renewal, entry
into or material amendment or supplement of any Collective Bargaining Agreement; and
(g) neither the Company nor any of its Subsidiaries have sold, transferred, leased, licensed
or otherwise disposed of any assets or properties material to the Company and its Subsidiaries,
taken as a whole, except for (i) sales of inventory in the ordinary course of business consistent
with past practice and (ii) leases or licenses entered into in the ordinary course of business
consistent with past practice that do not, individually, require annual payments by or to the
Company or any of its Subsidiaries in excess of ten million dollars ($10,000,000) and (iii)
dispositions approved by the Bankruptcy Court or in which the aggregate consideration received did
not exceed ten million dollars ($10,000,000).
Section 5.12 No Violation or Default; Compliance with Laws. The Company is not in violation of its charter or bylaws and none of the Companys
Subsidiaries are in violation of their respective charters or bylaws or similar organizational
documents in any material respect. Neither the Company nor any of its Subsidiaries are, except as
a result of the Proceedings, in default, and no Event has occurred or exists that, with notice or
lapse of time or both, would constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any Contract to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any
of the property or assets of the Company or any of its Subsidiaries is subject, except for any such
default that has not had and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is or has
been at any time since January 1, 2008 in violation of any Law or Order, except for any such
violation that has not had and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. There is and since January 1, 2008 has been no failure on
the part of the Company to comply in all material respects with the Sarbanes-Oxley Act of 2002, as
amended, and the rules and regulations promulgated by the SEC thereunder.
Section 5.13 Legal Proceedings. There are no legal, governmental or regulatory investigations, actions, suits, arbitrations
or proceedings (Legal Proceedings) pending to which the Company or any of its
Subsidiaries is a party or to which any property of the Company or any of its Subsidiaries is the
subject that, individually or in the aggregate, has had or would reasonably be expected to have, a
Material Adverse Effect, and, to the Knowledge of the Company, no such Legal Proceedings are either
(a) threatened or contemplated by any Governmental Entity or (b) threatened by any other Person.
Section 5.14 Labor Relations.
(a) There is no labor or employment-related audit, inspection or Legal Proceeding pending or
threatened between the Company or any of its Subsidiaries and any of their respective employees or
such employees labor organization, works council, European Works Council, workers committee,
union representatives or any other type of employees
34
representatives appointed for collective bargaining purposes (collectively Employee
Representatives) that would reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any of its Subsidiaries is a party to, or is bound by, any
Collective Bargaining Agreement applicable to persons employed by the Company or any of its
Subsidiaries, and to the Knowledge of the Company, no union organizing efforts or Employee
Representatives elections are underway with respect to any such employees. There is no strike,
slowdown, work stoppage, lockout or, to the Knowledge of the Company, threat thereof, by or with
respect to any employees of the Company or any of its Subsidiaries.
(c) The Company and each of its Subsidiaries has complied in all respects with its payment
obligations to all employees of the Company, its Subsidiaries in respect of all wages, salaries,
fees, commissions, bonuses, overtime pay, holiday pay, sick pay, benefits and all other
compensation, remuneration and emoluments due and payable to such employees under any Company or
Subsidiary policy, practice, agreement, plan, program or any applicable Collective Bargaining
Agreement or Law, except to the extent that any noncompliance has not had and would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 5.15 Intellectual Property.
(a) Except as has not resulted in and would not reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect, (i) the Company and its Subsidiaries
own or possess valid and enforceable rights, free and clear of all Liens (except for Permitted
Liens), to use all Intellectual Property necessary for the conduct of their respective businesses
as currently conducted and (ii) there is no Intellectual Property other than the Business
Intellectual Property that is necessary for the conduct of the businesses of the Company and its
Subsidiaries as currently conducted.
(b) All registrations with and applications to Governmental Entities in respect of material
Business Intellectual Property owned by the Company are valid and in full force and effect, have
not lapsed, expired (other than expirations in accordance with their statutory terms) or been
abandoned (subject to the vulnerability of a registration for trademarks to cancellation for lack
of use) and are not the subject of any opposition filed with the United States Patent and Trademark
Office or any other applicable Intellectual Property registry, except where such lapse, expiration,
abandonment or opposition would not have or reasonably be expected to have a Material Adverse
Effect. The consummation of the transactions contemplated by this Agreement and by the Plan will
not (i) result in the loss or impairment of any rights to use any material Business Intellectual
Property or (ii) obligate any of the Investors to pay any royalties or other amounts to any third
party in excess of the amounts that would have been payable by Company and its Subsidiaries absent
the consummation of such transactions.
(c) To the Knowledge of the Company, the Company and its Subsidiaries are not in default (or
with the giving of notice or lapse of time or both, would be in default) under any Contract
relating to any material Business Intellectual Property. To the Knowledge of the Company, (i) no
material Business Intellectual Property rights owned by the Company or its Subsidiaries are being
infringed by any other Person and (ii) the conduct of the businesses of the
35
Company and its Subsidiaries as presently conducted does not violate, infringe or
misappropriate any Intellectual Property rights of other Persons, except to the extent such
conflict, infringement or misappropriation has not had and would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
Section 5.16 Title to Real and Personal Property.
(a) Real Property. The Company or one of its Subsidiaries, as the case may be, has
good title in fee simple to each Owned Real Property, free and clear of all Liens, except (i) Liens
that are described in the Company SEC Documents filed prior to the date hereof, the Attached Plan
or the Attached Disclosure Statement or (ii) Permitted Liens. All Real Property Leases are valid,
binding and enforceable by and against the Company or its relevant Subsidiary (except (A) those
which are cancelled, rescinded or terminated after the date of this Agreement in accordance with
their terms and this Agreement and (B) as may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws affecting creditors rights
generally and general principles of equity), except where the failure to be valid, binding or
enforceable has not had and would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, and no written notice to terminate, in whole or part, any
Real Property Lease has been delivered to the Company or any of its Subsidiaries (nor, to the
Knowledge of the Company, has there been any indication that any such notice of termination will be
served). Other than as a result of the filing of the Proceedings, neither the Company nor any of
its Subsidiaries nor, to the Knowledge of the Company, any other party to any Real Property Lease
is in default or breach under the terms thereof except for such instances of default or breach that
have not had and would not be reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect.
(b) Personal Property. The Company or one of its Subsidiaries has good title or, in
the case of leased assets, a valid leasehold interest, free and clear of all Liens, to all of the
tangible and intangible personal property and assets that are material to the business of the
Company and its Subsidiaries, except (i) Liens that are described in the Company SEC Documents
filed prior to the date hereof, the Attached Plan or the Attached Disclosure Statement or (ii)
Permitted Liens.
Section 5.17 No Undisclosed Relationships. As of the date hereof, no relationship, direct or indirect, exists between or among the
Company or any of its Subsidiaries, on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company or any of its Subsidiaries, on the other, that is required by
the Exchange Act to be described in the Company SEC Documents and that are not so described in the
Company SEC Documents filed prior to the date hereof, except for the transactions contemplated by
this Agreement.
Section 5.18 Licenses and Permits. The Company and its Subsidiaries possess all licenses, certificates, permits and other
authorizations issued by, and have made all declarations and filings with, the appropriate
Governmental Entities that are necessary for the ownership or lease of their respective properties
or the conduct of their respective businesses as described in the Company SEC Documents filed prior
to the date hereof, in each case, except as, individually or in the aggregate, has not had and
would not reasonably be expected to have a Material Adverse Effect. Except as, individually and in
the aggregate, has not had and would not
36
reasonably be expected to have a Material Adverse Effect, neither the Company nor any of its
Subsidiaries (i) has received notice of any revocation or modification of any such license,
certificate, permit or authorization or (ii) has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course.
Section 5.19 Compliance With Environmental Laws.
(a) The Company and its Subsidiaries have complied and are in compliance with all applicable
Laws relating to the protection of the environment or to the management, use, transportation,
storage or disposal of hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, Environmental Laws), except for such noncompliance that would not
reasonably be expected to have a Material Adverse Effect;
(b) the Company and its Subsidiaries (i) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses, (ii) are not subject to any action to revoke, terminate, cancel, limit,
amend or appeal any such permits, licenses or approvals, and (iii) have paid all fees, assessments
or expenses due under any such permits, licenses or approvals except for such failures to receive
and comply with permits, licenses or approvals, or any such actions, or failure to pay any such
fees, assessments or expenses that would not reasonably be expected to have a Material Adverse
Effect;
(c) except with respect to matters that have been settled or resolved, the Company and its
Subsidiaries have not received written notice of any actual or potential liability of the Company
for the investigation or remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, or for any violation of Environmental Laws, where such
investigation or remediation would reasonably be expected to have a Material Adverse Effect;
(d) there are no facts, circumstances or conditions relating to the past or present business
or operations of the Company, its Subsidiaries or any of their predecessors (including the disposal
of any hazardous or toxic substances or wastes, pollutants or contaminants), or to any real
property currently or formerly owned, leased or operated by the Company, its Subsidiaries or any of
their predecessors, that would reasonably be expected to give rise to any claim, proceeding or
action, or to any liability, under any Environmental Law, where such claim, proceeding, action or
liability would reasonably be expected to have a Material Adverse Effect;
(e) neither the Company nor any of its Subsidiaries has agreed by Contract to assume or accept
responsibility for any liability of any other Person under Environmental Laws, where such
assumption or acceptance of responsibility would reasonably be expected to have a Material Adverse
Effect;
(f) to the Knowledge of the Company, none of the transactions contemplated under this
Agreement will give rise to any obligations to obtain the consent of or provide notice to any
Governmental Entity under any Environmental Laws; and
37
(g) neither the Company nor any of its Subsidiaries has manufactured, distributed or sold
asbestos or any products containing asbestos, except as would not reasonably be expected to have a
Material Adverse Effect.
Section 5.20 Tax Matters.
(a) The Company has timely filed or caused to be timely filed (taking into account any
applicable extension of time within which to file) with the appropriate taxing authorities all
income and other material tax returns, statements, forms and reports (including elections,
declarations, disclosures, schedules, estimates and information Tax Returns) for Taxes (Tax
Returns) that are required to be filed by, or with respect to, the Company and its
Subsidiaries. The Tax Returns accurately reflect all material liability for Taxes of the Company
and its Subsidiaries for the periods covered thereby.
(b) All material Taxes and Tax liabilities due by or with respect to the income, assets or
operations of the Company and its Subsidiaries for all taxable years or other taxable periods that
end on or before the Effective Date have been paid in full or will be paid in full pursuant to the
Plan or, to the extent not yet due, accrued and fully provided for in accordance with GAAP on the
financial statements of the Company included in the Company SEC Documents.
(c) Neither the Company nor any of its Subsidiaries has received any written notices from any
taxing authority relating to any issue that could materially affect the Tax liability of the
Company or any of its Subsidiaries.
(d) All material Taxes that the Company and each of its Subsidiaries is (or was) required by
Law to withhold or collect in connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder or other third party have been duly withheld or collected, and
have been timely paid to the proper authorities to the extent due and payable.
(e) Neither the Company nor any of its Subsidiaries has been included in any consolidated,
unitary or combined Tax Return provided for under any Law with respect to Taxes for any taxable
period for which the statute of limitations has not expired (other than a group of which the
Company and/or its Subsidiaries are the only members).
(f) There are no tax sharing, allocation, indemnification or similar agreements in effect as
between the Company or any of its Subsidiaries or any predecessor or Affiliate thereof and any
other party (including any predecessors or Affiliates thereof) under which the Company or any of
its Subsidiaries could be liable for any material Taxes or other claims of any party.
(g) The Company has not been a United States real property holding corporation within the
meaning of Section 897(c)(2) of the Code at any time during the five (5)-year period ending on the
date hereof.
(h) Neither the Company nor any of its Subsidiaries is a party to any agreement that would
require the Company or any of its Subsidiaries or any of their respective
38
Affiliates to make any material payment that would constitute an excess parachute payment
for purposes of Sections 280G and 4999 of the Code.
(i) Neither the Company nor any of its Subsidiaries has (A) engaged in a listed transaction
within the meaning of Treasury Regulations Section 1.6011-4(b)(2) or (B) engaged in a reportable
transaction within the meaning of Treasury Regulation Section 1.6011-4(b) for tax years prior to
2009.
Section 5.21 Company Plans.
(a) Correct and complete copies of the following documents, with respect to all material
domestic and foreign benefit and compensation plans, programs, contracts, commitments, practices,
policies, arrangements and agreements, whether written or oral, including, but not limited to,
employee benefit plans within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (ERISA), whether or not subject to ERISA, arrangements
for the provision of pension, lump sum or other benefits payable on, in anticipation of, or
following retirement, death, reaching a particular age, illness or disability, or in similar
circumstances, and employment, deferred compensation (whether qualified or nonqualified), stock
option, stock purchase, restricted stock, stock appreciation rights, stock based, incentive and
bonus plans and agreements, that are currently maintained or contributed to (or with respect to
which an obligation to contribute has been undertaken) or with respect to which the Company or any
of its Subsidiaries has liability or any potential liability (the Company Plans), have
been delivered upon request or made available to the Investors by the Company, to the extent
applicable: (i) all Company Plan documents currently in effect, together with all amendments and
attachments thereto (including, in the case of any Company Plan not set forth in writing, a written
description thereof); (ii) all trust documents, declarations of trust and other documents
establishing other funding arrangements currently in effect, and all amendments thereto currently
in effect and the latest financial statements thereof; (iii) the annual report on IRS Form 5500 for
each of the past three (3) years and all schedules (other than Schedule SSA) thereto; (iv) the most
recent IRS determination letter; (v) summary plan descriptions and summaries of material
modifications currently in effect; and (vi) the two (2) most recently prepared actuarial valuation
reports.
(b) Except as has not resulted in and would not reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect: (i) each Company Plan, other than any
multiemployer plans within the meaning of Section 3(37) of ERISA (Multiemployer Plans),
is in compliance with ERISA, the Code, other applicable Laws and its governing documents; (ii) each
Company Plan that is intended to be a qualified plan under Section 401(a) of the Code has received
a favorable determination letter from the IRS covering all Tax law changes prior to the Economic
Growth and Tax Relief Reconciliation Act of 2001 or has applied to the IRS for such favorable
determination within the applicable remedial amendment period under Section 401(b) of the Code,
and, to the Knowledge of the Company, nothing has occurred that is reasonably likely to result in
the loss of the qualification of such Company Plan under Section 401(a) of the Code; (iii) no
Company Plan (other than any Multiemployer Plan, the Visteon Pension Plan and the Visteon Systems
Connersville and Bedford Pension Plan) subject to Section 412 of the Code or Section 302 of ERISA
has failed to satisfy the minimum funding standard within the meaning of Section 412 of the Code or
Section
39
302 of ERISA, or obtained a waiver of any minimum funding standard or an extension of any
amortization period under Section 412 of the Code or Section 303 or 304 of ERISA; (iv) no Company
Plan covered by Title IV of ERISA has been terminated and no proceedings have been instituted to
terminate or appoint a trustee under Title IV of ERISA to administer any such Company Plan; (v)
neither the Company nor any of its Subsidiaries have incurred any unsatisfied liability under Title
IV of ERISA or Section 412 of the Code or Section 302 of ERISA by reason of being treated as a
single employer together with any other person under Section 4001 of ERISA or Section 414 of the
Code; (vi) the projected benefit obligations (whether or not vested) under each Company Plan that
is a pension plan (within the meaning of Section 3(2) of ERISA) as of the close of its most recent
plan year did not exceed the market value of the assets allocable thereto by more than, as
applicable, (A) the amount shown in the most recent actuarial valuation report for such Company
Plan provided or made available to Investors pursuant to Section 5.21(a)(vi) hereof or (B)
the amount shown in the Attached Plan or Attached Disclosure Statement; (vii) the Company and its
Subsidiaries have not incurred any withdrawal liability with respect to a Multiemployer Plan under
Subtitle E of Title IV of ERISA other than (A) with respect to the Central States, Southeast and
Southwest Areas Pension Plan and the Teamsters Pension Trust Fund of Philadelphia and Vicinity, as
set forth in the Attached Plan or Attached Disclosure Statement, or (B) that has not been satisfied
in full, and no condition or circumstance exists that presents a reasonable risk of the occurrence
of any other withdrawal from or, to the Knowledge of the Company, the partition, termination,
reorganization or insolvency of any such Multiemployer Plan; (viii) the aggregate liabilities of
the Company and its Subsidiaries to any Multiemployer Plans not described in Section
5.21(b)(vii)(A) in the event of a complete withdrawal by the Company and its Subsidiaries
therefrom, as of the close of the most recent fiscal year of each Multiemployer Plan ended prior to
the date hereof, would not exceed fifty thousand dollars ($50,000); (ix) no reportable event,
within the meaning of Section 4043 of ERISA has occurred or is expected to occur for any Company
Plan covered by Title IV of ERISA other than as a result of the Proceedings; (x) all contributions
required to be made under the terms of any Company Plan have been timely made or have been (A)
reflected in the financial statements of the Company included in the Company SEC Reports filed
prior to the date hereof or (B) described in the Attached Plan or Attached Disclosure Statement;
(xi) there has been no amendment to, announcement by the Company or any of its Subsidiaries
relating to, or change in employee participation or coverage under, any Company Plan which would
increase the expense of maintaining such plan above the level of the expense incurred therefor for
the most recent fiscal year; (xii) no Company Plan provides for post-employment or retiree health,
life insurance or other welfare benefits, except for (A) death benefits or retirement benefits
under any employee pension benefit plan (as such term is defined in Section 3(2) of ERISA), (B)
benefits required by Section 4980B of the Code or similar Law, (C) benefits for which the covered
individual pays the full premium cost, or (D) benefits described in the documents filed with the
Bankruptcy Court in connection with the OPEB Order; (xiii) neither the Company nor any of its
Subsidiaries, nor any of their respective directors, officers or employees, nor, to the Knowledge
of the Company, any other disqualified person or party in interest (as defined in Section
4975(e)(2) of the Code and Section 3(14) of ERISA, respectively) has engaged in any transaction,
act or omission to act in connection with any Company Plan that would reasonably be expected to
result in the imposition of a material penalty or fine to the Company or any of its Subsidiaries
pursuant to Section 502 of ERISA, damages to the Company or any of its Subsidiaries pursuant to
Section 409 of ERISA or a tax to the Company or any of its Subsidiaries
40
pursuant to Section 4975 of the Code; (xiv) no liability, claim, action, litigation, audit,
examination, investigation or administrative proceeding has been made, commenced or, to the
Knowledge of the Company, threatened with respect to any Company Plan (other than (A) routine
claims for benefits payable in the ordinary course, (B) in relation to the OPEB Order, (C)
otherwise in relation to the Proceedings or (D) any that, individually, could not reasonably be
expected to result in a liability of the Company or any of its Subsidiaries in excess of fifty
thousand dollars ($50,000)); (xv) each Company Plan that is a nonqualified deferred compensation
plan (within the meaning of Section 409A of the Code) has been operated and administered since
January 1, 2005 in good faith compliance with Section 409A of the Code, and is currently in
compliance with Section 409A of the Code; (xvi) neither the execution of this Agreement,
stockholder approval of this Agreement nor the consummation of the transactions contemplated hereby
will (A) entitle any employees of the Company or any of its Subsidiaries to severance pay or any
increase in severance pay upon any termination of employment after the date hereof, (B) accelerate
the time of payment or vesting or result in any payment or funding (through a grantor trust or
otherwise) of compensation or benefits under, increase the amount payable or result in any other
material obligation pursuant to, any of the Company Plans, or (C) limit or restrict the right of
the Company to merge, amend or terminate any of the Company Plans; (xvii) except as required to
maintain the tax-qualified status of any Company Plan intended to qualify under Section 401(a) of
the Code, no condition or circumstance exists that would prevent the amendment or termination of
any Company Plan other than a Company Plan between the Company or any of its Subsidiaries, on the
one hand, and an individual employee or director thereof on the other; and (xviii) the UK Pensions
Regulator, as of the date of this Agreement, has not issued any of the following: (A) an
improvement notice under section 13 of the UK Pensions Act 2004 (as amended); (B) third party
notice under section 14 of the UK Pensions Act 2004 (as amended); (C) a contribution notice under
section 38 or section 47 of the UK Pensions Act 2004 (as amended); (D) a financial support
direction under section 43 of the UK Pensions Act 2004 (as amended); (E) a restoration order under
section 52 of the UK Pensions Act 2004 (as amended); or (F) a warning notice in relation to any of
clauses (A), (B), (C), (D) or (E) above.
Section 5.22 Internal Control Over Financial Reporting. The Company maintains, and has maintained since January 1, 2008, a system of internal
control over financial reporting (as such term is defined in Rule 13a-15 under the Exchange Act)
that (a) complies in all material respects with the requirements of the Exchange Act, (b) has been
designed by the Companys principal executive officer and principal financial officer (or under
their supervision) to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles, and (c) is effected by the Board and the Companys management and
other personnel to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles. The Company is not aware of any material weaknesses in its
internal control over financial reporting.
Section 5.23 Disclosure Controls and Procedures. The Company maintains disclosure controls and procedures required by Rule 13a-15(e) or
15d-15(e) under the Exchange Act. Such disclosure controls and procedures have been designed to
ensure that information required to be disclosed by the Company is recorded, processed, summarized
and reported on a
41
timely basis to the individuals responsible for the preparation of the Companys filings with
the SEC and other public disclosure documents.
Section 5.24 Material Contracts. All Contracts that are material contracts (as such term is defined in Item 601(b)(10) of
Regulation S-K of the SEC as applied to the Company on a consolidated basis) to which the Company
or any of its Subsidiaries is a party or is bound (the Material Contracts) are valid,
binding and enforceable by and against the Company or its relevant Subsidiary (except those which
are cancelled, rescinded or terminated after the date of this Agreement in accordance with their
terms and this Agreement and as may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws affecting creditors rights generally and
general principles of equity), except where the failure to be valid, binding or enforceable has not
had and would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and no written notice to terminate, in whole or part, any Material Contract has
been delivered to the Company or any of its Subsidiaries except where such termination has not had
and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect. Other than as a result of the filing of the Proceedings, neither the Company nor any of
its Subsidiaries nor, to the Knowledge of the Company, any other party to any Material Contract, is
in default or breach under the terms thereof except, in each case, for such instances of default or
breach that have not had and would not be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect.
Section 5.25 No Unlawful Payments. Since January 1, 2008, neither the Company nor any of its Subsidiaries nor any of their
respective directors, officers or employees nor, to the Knowledge of the Company, any agent or
other Person acting on behalf of the Company or any of its Subsidiaries, has: (a) used any funds of
the Company or any of its Subsidiaries for any unlawful contribution, gift, entertainment or other
unlawful expense, in each case relating to political activity; (b) made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from corporate funds;
(c) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or
(d) made any bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment.
Section 5.26 Compliance with Money Laundering Laws. The operations of the Company and its Subsidiaries are, and since January 1, 2008 have been
at all times, conducted in compliance in all material respects with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar Laws (collectively, the Money Laundering Laws) and
no action, suit or proceeding by or before any Governmental Entity or any arbitrator involving the
Company or any of its Subsidiaries with respect to Money Laundering Laws is pending or, to the
Knowledge of the Company, threatened.
Section 5.27 Compliance with Sanctions Laws. Neither the Company nor any of its Subsidiaries nor any of their respective directors,
officers or employees nor, to the Knowledge of the Company, any agent or other Person acting on
behalf of the Company or any of its Subsidiaries, is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department. The Company
will not directly or indirectly use the proceeds of the Rights Offering or the sale of the Investor
Shares, or lend,
42
contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner
or other Person, for the purpose of financing the activities of any Person that, to the Knowledge
of the Company, is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department.
Section 5.28 No Brokers Fees. Neither the Company nor any of its Subsidiaries is a party to any Contract with any Person
(other than this Agreement) that would give rise to a valid claim against the Investors for a
brokerage commission, finders fee or like payment in connection with the Rights Offering or the
sale of the Investor Shares.
Section 5.29 No Registration Rights. Except as provided for pursuant to the Registration Rights Agreement, no Person has the
right to require the Company or any of its Subsidiaries to register any securities for sale under
the Securities Act.
Section 5.30 Takeover Statutes. The Board has taken all such action necessary to render the restrictions contained in
Section 203 of the General Corporation Law of the State of Delaware inapplicable to the sale and
issuance of New Common Stock to the Investors in accordance with the Plan. Except for Section 203
of the General Corporation Law of the State of Delaware (which has been rendered inapplicable), no
other fair price, moratorium, control share acquisition, business combination or other
similar anti-takeover statute or regulation (a Takeover Statute) is applicable to the
Company, the New Common Stock, the Shares, the sale and issuance of New Common Stock in accordance
with the Plan.
Section 5.31 No Off-Balance Sheet Liabilities. Except for liabilities incurred in the ordinary course of business, since December 31,
2009, neither the Company nor any of its Subsidiaries has any material off balance sheet
liabilities, except as set forth in (a) the statement of financial affairs filed by the Debtors
with the Bankruptcy Court on August 26, 2009, (b) the amended schedule of assets and liabilities
filed by the Debtors with the Bankruptcy Court on November 16, 2009, (c) the Debtors monthly
operating report filed with the Bankruptcy Court on February 26, 2010, (d) the Financial Statements
or (e) the Company SEC Documents filed prior to the date hereof.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
Each Investor represents and warrants (except with respect to the representations and
warranties contained in Section 6.9, as to which only the Lead Investors represent and
warrant) as to itself only, and agrees with, as of the date hereof, the Company, severally and not
jointly, as set forth below.
Section 6.1 Incorporation. Such Investor is a legal entity duly organized, validly existing and, if applicable, in
good standing (or the equivalent thereof) under the laws of its jurisdiction of incorporation or
organization.
Section 6.2 Corporate Power and Authority. Such Investor has the requisite corporate, limited partnership or limited liability company
power and authority to enter into, execute and deliver this Agreement and to perform its
obligations hereunder and has taken all
43
necessary corporate, limited partnership or limited liability company action required for the
due authorization, execution, delivery and performance by it of this Agreement.
Section 6.3 Execution and Delivery. This Agreement and each Transaction Agreement to which such Investor is a party (a) has
been, or prior to its execution and delivery will be, duly and validly executed and delivered by
such Investor and (b) upon the entry of the Approval Order and the expiration, or waiver by the
Bankruptcy Court of the fourteen (14)-day period set forth in Bankruptcy Rule 6004(h), will
constitute the valid and binding obligations of such Investor, enforceable against such Investor in
accordance with their respective terms.
Section 6.4 No Conflict. Provided that the consents, approvals and authorizations described in Section 6.5
are obtained, the execution and delivery by such Investor of this Agreement, the Plan and, to the
extent applicable, the Transaction Agreements, the compliance by such Investor with all of the
provisions hereof and thereof and the consummation of the transactions contemplated herein and
therein (including compliance by each other Party with its obligations hereunder and thereunder)
(a) will not conflict with, or result in a breach or violation of, any of the terms or provisions
of, or constitute a default under (with or without notice or lapse of time, or both), or result in
the acceleration of, or the creation of any Lien under, any Contract to which such Investor is a
party or by which such Investor is bound or to which any of the property or assets of such Investor
is subject, (b) will not result in any violation of the provisions of the certificate of
incorporation or bylaws (or comparable constituent documents) of such Investor and (c) will not
result in any material violation of any Law or Order applicable to such Investor or any of its
properties, except in any such case described in clause (a) for any conflict, breach, violation,
default, acceleration or Lien which has not and would not reasonably be expected, individually or
in the aggregate, to prohibit, materially delay or materially and adversely impact such Investors
performance of its obligations under this Agreement, the Plan and, to the extent applicable, the
Transaction Agreements.
Section 6.5 Consents and Approvals. No consent, approval, authorization, order, registration or qualification of or with any
Governmental Entity having jurisdiction over such Investor or any of its properties is required for
the execution and delivery by such Investor of this Agreement, the Plan and, to the extent
applicable, the Transaction Agreements, the compliance by such Investor with all of the provisions
hereof and thereof and the consummation of the transactions (including the purchase by such
Investor of its Allocated Portion of the Investor Shares) contemplated herein and therein
(including compliance by each other Party with its obligations hereunder and thereunder), except
(a) filings, if any, pursuant to the HSR Act and the expiration or termination of all applicable
waiting periods thereunder or any applicable notification, authorization, approval or consent under
any other Antitrust Laws in connection with the transactions contemplated by this Agreement, and
(b) any consent, approval, authorization, order, registration or qualification which, if not made
or obtained, has not and would not reasonably be expected, individually or in the aggregate, to
prohibit, materially delay or materially and adversely impact such Investors performance of its
obligations under this Agreement, the Plan and, to the extent applicable, the Transaction
Agreements.
Section 6.6 No Registration. Such Investor understands that the Investor Shares have not been registered under the
Securities Act by reason of a specific exemption from the registration provisions of the Securities
Act, the availability of which depends on, among
44
other things, the bona fide nature of the investment intent and the accuracy of such
Investors representations as expressed herein or otherwise made pursuant hereto.
Section 6.7 Purchasing Intent. Such Investor is acquiring the Investor Shares for its own account, not as a nominee or
agent, and not with the view to, or for resale in connection with, any distribution thereof not in
compliance with applicable securities Laws, and such Investor has no present intention of selling,
granting any participation in, or otherwise distributing the same, except in compliance with
applicable securities Laws.
Section 6.8 Sophistication; Investigation. Such Investor has such knowledge and experience in financial and business matters that it
is capable of evaluating the merits and risks of its investment in the Investor Shares being
acquired hereunder. Such Investor is an accredited investor within the meaning of Rule 501(a) of
the Securities Act. Such Investor understands and is able to bear any economic risks associated
with such investment (including the necessity of holding the Investor Shares for an indefinite
period of time). Such Investor has conducted and relied on its own independent investigation of,
and judgment with respect to, the Company and its Subsidiaries and Joint Ventures and the advice of
its own legal, tax, economic, and other advisors.
Section 6.9 No Holdings Under the Credit Facility. Such Lead Investor and each of its Affiliates (a) is not a Lender (as such term is defined
in the Credit Facility) or a Participant (as such term is defined in the Credit Facility) or an
Affiliate thereof and (b) is not an assignee under any Assignment and Assumption (as such term is
defined in the Credit Facility) that as of the date hereof is not yet effective. There are no
Obligations (as such term is defined in the Credit Facility) owing to such Lead Investor or any of
its Affiliates and such Lead Investor and its Affiliates do not hold any right or option to acquire
or purchase any Obligations (as such term is defined in the Credit Facility). Notwithstanding
anything to the contrary contained herein, (i) Deutsche Bank Securities Inc. is only making the
representations contained in this Section 6.9 with respect to, and Section 6.9
shall only apply to, the Distressed Products Group of Deutsche Bank Securities Inc., and not to any
other business or Affiliate of Deutsche Bank Securities Inc. and (ii) Goldman, Sachs & Co. is only
making the representations contained in this Section 6.9 with respect to, and Section
6.9 shall only apply to, the High Yield Distressed Investing Group of Goldman, Sachs & Co., and
not to any other business or Affiliate of Goldman, Sachs & Co.
Section 6.10 No Brokers Fees. Such Investor is not a party to any Contract with any Person (other than this Agreement)
that would give rise to a valid claim against the Company, other than pursuant to Section
4.3, for a brokerage commission, finders fee or like payment in connection with the Rights
Offering or the sale of the Investor Shares.
ARTICLE VII
ADDITIONAL COVENANTS
Section 7.1 Approval Motion and Approval Order. The Company agrees that it shall use commercially reasonable efforts to (a) obtain the
entry of the Approval Order (including filing supporting affidavits on behalf of the Company and
its financial advisor) and
45
(b) cause the Approval Order to become a Final Order (including by requesting that such
Approval Order be a Final Order immediately upon its entry by the Bankruptcy Court pursuant to a
waiver of Bankruptcy Rule 6004(h)), in each case as soon as practicable following the filing of the
Approval Motion.
Section 7.2 Plan, Disclosure Statement and Other Documents.
(a) The Company shall authorize, execute and file with the Bankruptcy Court the Disclosure
Statement and the Plan, and shall seek approval of the Disclosure Statement and seek confirmation
of the Plan.
(b) The Company shall use commercially reasonable efforts to, and shall cause the other
Debtors to use commercially reasonable efforts to:
(i) file a motion seeking entry of the Approval Order on or before 5:00 pm (New York
time) on May 13, 2010;
(ii) obtain from the Bankruptcy Court the Approval Order on or before 5:00 pm (New York
time) on June 20, 2010;
(iii) file the Disclosure Statement on or before 5:00 pm (New York time) on May 21,
2010;
(iv) obtain from the Bankruptcy Court an order approving the Disclosure Statement on or
before 5:00 pm (New York time) on June 20, 2010;
(v) file the Plan on or before 5:00 pm (New York time) on May 26, 2010; and
(vi) obtain from the Bankruptcy Court the Confirmation Order on or before 5:00 pm (New
York time) on September 3, 2010.
(c) The Company shall (i) provide to the Lead Investors and the Ad Hoc Counsel a copy of (A)
any proposed amendments, supplements, changes or modifications to the Plan, the Disclosure
Statement, the Certificate of Incorporation, the Bylaws, the Registration Rights Agreement and the
Rights Offering Procedures and (B) the proposed form of Confirmation Order, the proposed form of
any Plan Supplement and any proposed amendments, supplements, changes or modifications to any of
the foregoing, (ii) provide a reasonable opportunity to the Lead Investors and the Ad Hoc Counsel
to review and comment on such documents prior to authorizing, agreeing to, entering into,
implementing, executing or, if applicable, filing with the Bankruptcy Court or seeking Bankruptcy
Court approval or confirmation of, any such documents, and (iii) consider, in good faith, any
comments consistent with this Agreement and the Plan, and any other reasonable comments of the Lead
Investors, their respective counsel and the Ad Hoc Counsel. Notwithstanding anything to the
contrary contained in this Agreement, at all times prior to the Effective Date the Company shall
not: authorize, approve, agree to, enter into, implement, execute or, if applicable, file with the
Bankruptcy Court or seek Bankruptcy Court approval or confirmation of (w) any plan of
reorganization for any Debtor, disclosure statement, confirmation order, certificate of
46
incorporation or bylaws of the Company, registration rights agreement, rights offering
procedures or Plan Supplement other than a Plan, Disclosure Statement, Confirmation Order,
Certificate of Incorporation, Bylaws, Registration Rights Agreement, Rights Offering Procedures or
Plan Supplement which conforms with the requirements therefor set forth in Section 1.1; (x)
any management equity incentive program that is inconsistent with or does not conform with the
requirements and criteria set forth in Exhibit G as attached hereto as of the date hereof;
(y) any incentive program, non-qualified benefit program or severance program that is inconsistent
with or does not conform with the requirements and criteria under the headings Incentive
Programs, Non-Qualified Benefit Programs and Severance Programs in Exhibit L as
attached hereto as of the date hereof, subject to adjustments only for changes in seniority level
of participating employees and arrival of new employees and departure of current employees;
provided, that such changes shall not result in a change in the aggregate amount of
payments to be paid under such program or the performance metrics, as applicable, of such program;
and (z) any employment agreement with Donald J. Stebbins or any change in control agreement with
any employee other than a Management Agreement that conforms with the requirements therefor set
forth in Section 1.1.
(d) If at any time prior to the Expiration Time, to the Knowledge of the Company, any Event
occurs as a result of which the Disclosure Statement, as then amended or supplemented, would not
meet the requirements of section 1125 of the Bankruptcy Code, or if it shall be necessary to amend
or supplement the Disclosure Statement to comply with applicable Law, the Company will promptly
notify the Investors of any such Event and prepare an amendment or supplement to the Disclosure
Statement that is reasonably acceptable in form and substance to Requisite Investors that will
correct such statement or omission or effect such compliance.
Section 7.3 Securities Laws. The Company shall use its commercially reasonable efforts to take all action as may be
necessary or advisable so that the Rights Offering and the issuance and sale of the Investor Shares
and the other transactions contemplated by this Agreement will be effected in accordance with this
Agreement, the Rights Offering Sub-Plan, the Securities Act, the Exchange Act and any state or
foreign securities or Blue Sky laws. The Company shall use commercially reasonable efforts to, and
shall cause the other Debtors to use commercially reasonable efforts to, commence the Rights
Offering on or before the date that is ten (10) days after the Bankruptcy Court has entered an
order approving the Disclosure Statement.
Section 7.4 Listing. The Company shall not, until the earlier of the date that (a) is the three (3) month
anniversary of the Effective Date and (b) the SEC declares effective the Shelf Registration
Statement (as defined in the Registration Rights Agreement), list the New Common Stock on the New
York Stock Exchange, the Nasdaq Stock Market or any other national securities exchange;
provided, that until such date, the Company shall, upon the written request of Requisite
Investors, use commercially reasonable effort to list and maintain the listing of the New Common
Stock on the New York Stock Exchange, the Nasdaq Stock Market or any other national securities
exchange as requested by Requisite Investors.
Section 7.5 Earnings Statement. The Company shall, until the first anniversary of the Effective Date, timely file such
reports pursuant to the Exchange Act as are necessary to
47
make generally available to its security holders as soon as practicable an earnings statement
complying with Section 11(a) of the Securities Act and the rules and regulations thereunder
(including, at the option of the Company, Rule 158 under the Securities Act); provided that
the Companys obligation under this Section 7.5 shall be deemed satisfied by the Companys
filing of its annual report on Form 10-K pursuant to the Exchange Act within the time periods
permitted thereunder.
Section 7.6 Notification. The Company shall notify, or cause the Subscription Agent to notify the Investors, on each
Friday during the Rights Exercise Period and on each Business Day during the five (5) Business Days
prior to the Expiration Time (and any extensions thereto), or more frequently if reasonably
requested by any of the Investors, of the aggregate number of Rights known by the Company to have
been exercised pursuant to the Rights Offering as of the close of business on the preceding
Business Day or the most recent practicable time before such request, as the case may be.
Section 7.7 Funding Approval. Each Investor shall deliver to the Company, on the later of the date that is (x) ten (10)
Business Days prior to the date scheduled for the Confirmation Hearing and (y) five (5) Business
Days after delivery of the Purchase Notice by the Company to the Investors, a certificate (a
Funding Approval Certificate) from an officer or a duly authorized agent of such Investor
certifying that (a) such Investors credit committee (or such similar governing entity that is
responsible for approving such matters in accordance with such Investors normal operations) has
approved, subject only to the terms and conditions of this Agreement and the Plan, the funding by
such Investor of an amount equal to the sum of (i) such Investors Allotted Portion of the amount
by which the Aggregate Commitment exceeds the sum of (A) the aggregate amount of payments received
by the Company in respect of Direct Commitment purchase obligations as of such date, (B) the
aggregate amount of payments received by the Company or deposited into an escrow account for
subsequent delivery to the Company as of such date for exercised Rights and (C) the Cash Recovery
Backstop Amount plus (ii) for each Investor that is party to the Cash Recovery Backstop Agreement,
an amount equal to such Investors Distributable Commitment Percentage (as defined in the Cash
Recovery Backstop Agreement) of the aggregate Cash Recovery Backstop Amount and (b) such Investor
is not aware, as of the date of such Funding Approval Certificate, of any breaches of any
representations, warranties, or covenants of this Agreement that would cause any condition under
Section 8.1 to not be satisfied; provided, that notwithstanding anything to the
contrary contained in this Agreement, no Investor shall be required to make the certification set
forth in clause (b) above unless the Company simultaneously delivers to each Investor a certificate
from the chief executive officer or the chief financial officer of the Company certifying that the
Company is not aware, as of the date of delivery of such certificate, of any breaches of any
representations, warranties, or covenants of this Agreement that would cause any condition under
Section 8.3 to not be satisfied.
Section 7.8 Use of Proceeds. The Company will apply the net proceeds from the exercise of the Rights and the sale of the
Investor Shares to effect the Plan as provided in the Plan.
Section 7.9 Conduct of Business. Except as otherwise (v) required by Law, (w) disclosed in the Attached Disclosure
Statement, but only to the extent that the relevance of
48
such disclosure to these covenants is reasonably apparent on its face, (x) required by this
Agreement or the Plan, (y) necessary to implement the VIHI Restructuring or (z) consented to in
writing by Requisite Investors (such consent not to be unreasonably withheld, delayed or
conditioned), during the period from the date of this Agreement to the earlier of the Effective
Date and the date on which this Agreement is terminated in accordance with its terms (the
Pre-Closing Period) (except as otherwise expressly provided or permitted by the terms of
this Agreement, including the Disclosure Letter), the Company and its Subsidiaries shall use their
respective commercially reasonable best efforts to carry on their businesses in the usual, regular
and ordinary course in substantially the same manner as conducted at the date of this Agreement,
but only to the extent consistent with the Business Plan, and, to the extent consistent therewith,
use commercially reasonable efforts to (i) preserve intact their current business organizations,
(ii) keep available the services of their current officers and (iii) preserve their relationships
with material customers, suppliers, distributors and others having material business dealings with
the Company or its Subsidiaries or Joint Ventures, in each case consistent with past practice as
conducted prior to the date of this Agreement. Without limiting the generality of the foregoing,
except as set forth in the Disclosure Letter, as otherwise expressly provided or permitted by this
Agreement, or as otherwise required by Law (including, for the avoidance of doubt, any Law relating
to fiduciary duties), during the Pre-Closing Period, the Company shall not, and shall cause its
Subsidiaries not to, without the prior written consent of Requisite Investors (not to be
unreasonably withheld, delayed or conditioned):
(a) (i) declare, set aside or pay any dividends on, or make any other distributions in respect
of, any of its capital stock other than dividends and distributions in respect of the capital stock
of any direct or indirect Subsidiary of the Company to the Company or another Subsidiary not in
excess of twenty five million dollars ($25,000,000) in the aggregate during the Pre-Closing Period
or (ii) purchase, redeem or otherwise acquire, except in connection with the Plan, any shares of
capital stock of the Company or any other securities thereof or any rights, warrants or options to
acquire any such shares or other securities;
(b) issue, deliver, grant, sell, pledge, dispose of or otherwise encumber any of its capital
stock or any securities convertible into, or any rights, warrants or options to acquire, any such
capital stock at less than fair market value;
(c) acquire or agree to acquire (i) by merging or consolidating with, or by purchasing a
substantial portion of the stock, or other ownership interests in, or substantial portion of assets
of, or by any other manner, any business or any corporation, partnership, association, joint
venture, limited liability company or other entity or division thereof, except for any acquisition
of any interest in a joint venture in an amount not to exceed five million dollars ($5,000,000) for
any individual acquisition or twenty million dollars ($20,000,000) in the aggregate during the
Pre-Closing Period or (ii) any assets in excess of ten million dollars ($10,000,000) in any
individual transaction or twenty million dollars ($20,000,000) in the aggregate during the
Pre-Closing Period, except purchases of supplies, equipment and inventory in the ordinary course of
business consistent with past practice;
(d) (i) incur any indebtedness for borrowed money or guarantee any such indebtedness of
another individual or entity, issue or sell any debt securities or warrants or other rights to
acquire any debt securities of the Company, guarantee any debt securities of another
49
individual or entity, enter into any keep well or other agreement to maintain any financial
statement condition of another Person or enter into any arrangement having the economic effect of
any of the foregoing, except for (A) borrowings and increases in letters of credit permitted under
the DIP Credit Agreement and (B) indebtedness existing solely between the Company and its wholly
owned Subsidiaries or between such Subsidiaries or (ii) make any loans, advances or capital
contributions to, or investments in, any other individual or entity, except for (A) loans, advances
or capital contributions (1) between the Company and its Subsidiaries, (2) between such
Subsidiaries, or (3) by the Company or any of its Subsidiaries to any joint venture in an amount
not to exceed five million dollars ($5,000,000) for any individual loan, advance, contribution, or
investment or twenty million dollars ($20,000,000) in the aggregate during the Pre-Closing Period
and (B) customary immaterial advances in the ordinary course of business consistent with past
practice;
(e) other than as set forth in the Business Plan or in connection with the repair or
replacement of the plant and equipment at the manufacturing facilities of the Company or its
Subsidiaries in the ordinary course of business consistent with past practice, make or incur any
capital expenditure involving the expenditure of no more than five million dollars ($5,000,000) in
any individual expenditure or fifteen million dollars ($15,000,000) in the aggregate during the
Pre-Closing Period;
(f) make, change or rescind any material election relating to Taxes, except elections that are
consistent with past practice, settle or compromise any material Tax liability for an amount
greater than the amount reserved for such liability on the most recent Financial Statements, or
amend any material Tax Return;
(g) adopt, or enter into any new, or renew, or materially amend or supplement any existing,
Collective Bargaining Agreement;
(h) fail to comply in any material respect with any information, consultation, or bargaining
obligations to the extent relating to the transactions contemplated by this Agreement and required
under any applicable Law or Collective Bargaining Agreement;
(i) enter into any new, or amend or terminate (other than amendments required to maintain the
tax qualified status of such plans under the Code in the ordinary course of business consistent
with past practices) any existing, Company Plans, arrangements or programs, severance agreement,
deferred compensation arrangement or employment agreement with any officers, directors or employees
or in accordance with the OPEB Order, the Plan or the Attached Disclosure Statement, (ii) take any
other action in connection with the UK Pensions Plans which may materially prejudice the issuance
of a transfer notice by the Pension Protection Fund under section 161(1) of the UK Pensions Act
2004 (as amended), (iii) grant any increases in employee compensation, other than in the ordinary
course or pursuant to promotions, in each case consistent with past practice (which shall include
normal individual periodic performance reviews and related compensation and benefit increases and
bonus payments consistent with past practices), (iv) grant any stock options or stock awards or (v)
make any annual or long-term incentive awards, other than, in the case of clauses (iv) and (v), in
accordance with the Approved Annual Incentive Program; or
50
(j) take any action that, if taken prior to the date hereof, would have constituted a breach
of the Companys representations and warranties in Section 5.11.
Section 7.10 Access to Information. Subject to applicable Law, upon reasonable notice, the Company shall (and shall cause its
Subsidiaries to) afford (i) the Lead Investors and their Representatives and (ii) the Ad Hoc
Counsel and any Co-Investors and/or their Representatives that sign a customary confidentiality
agreement with the Company on terms reasonably acceptable to the Company and such party, reasonable
access, during normal business hours and without unreasonable disruption or interference with the
Companys and its Subsidiaries business or operations, throughout the Pre-Closing Period, to the
Companys and its Subsidiaries senior managers, properties, books, contracts and records and,
during the Pre-Closing Period, the Company shall (and shall cause its Subsidiaries to) furnish
promptly to such parties all information concerning the Companys and its Subsidiaries business,
properties and personnel as may reasonably be requested by any such party, provided, that
the foregoing shall not require the Company (a) to permit any inspection, or to disclose any
information, that in the reasonable judgment of the Company would cause the Company to violate any
of its obligations with respect to confidentiality to a third party if the Company shall have used
its commercially reasonable efforts to obtain, but failed to obtain, the consent of such third
party to such inspection or disclosure, (b) to disclose any legally privileged information of the
Company or any of its Subsidiaries or (c) to violate any Laws; provided, further,
that the Company shall deliver to the Lead Investors, the Ad Hoc Counsel and any Co-Investors
and/or their Representatives that sign a customary confidentiality agreement with the Company on
terms reasonably acceptable to the Company and such party, a schedule setting forth a description
of any information not provided to the Lead Investors, the Ad Hoc Counsel, any Co-Investors and
their Representatives that sign a customary confidentiality agreement with the Company pursuant to
clauses (a) through (c) above (in the case of clause (a), to the extent not prohibited from doing
so). All requests for information and access made pursuant to this Section 7.10 shall be
directed to an executive officer of the Company or such person as may be designated by the
Companys executive officers. All information acquired by any Investor or its Representatives
pursuant to this Section 7.10 shall be subject to any confidentiality agreement between the
Company and such Investor.
Section 7.11 Financial Information.
(a) At all times prior to the Effective Date, the Company shall deliver to (i) GLCA/Sagent
Advisors as financial advisors to the Lead Investors and the Co-Investors and (ii) the Ad Hoc
Counsel, all statements and reports the Company is required to deliver to any DIP Lender pursuant
to Sections 5.2(a) and 5.2(b) of the DIP Credit Agreement (the Financial Reports) in
accordance with the terms thereof (as in effect on the date hereof). From and after the Effective
Date, during any time that the Company is not subject to the periodic reporting requirement under
Section 13(a) or 15(d) of the Exchange Act, the Company shall deliver the Financial Reports to
GLCA/Sagent Advisors and the Ad Hoc Counsel as if the DIP Credit Facility was still in effect
(whether or not it actually is in effect). Neither any waiver by the DIP Lenders of their right to
receive the Financial Reports nor any amendment or termination of the DIP Credit Agreement shall
affect the Companys obligation to deliver the Financial Reports to GLCA/Sagent Advisors and the Ad
Hoc Counsel in accordance with the terms of this Agreement and the DIP Credit Agreement (as in
effect on the date hereof).
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(b) All Financial Reports shall be complete and correct in all material respects and shall be
prepared in accordance with GAAP applied (except as approved by such accountants or officer, as the
case may be, and disclosed in reasonable detail therein) consistently throughout the periods
reflected therein and with prior periods. Information required to be delivered pursuant to Section
5.2(b) of the DIP Credit Agreement (as in effect on the date hereof) shall be deemed to have been
delivered in accordance with Section 7.11(a) on the date on which the Company provides
written notice to (i) GLCA/Sagent Advisors as financial advisors to the Lead Investors and the
Co-Investors and (ii) the Ad Hoc Counsel that such information has been posted on the Companys
website on the internet at http://www.visteon.com or is available via the EDGAR system of the SEC
on the internet (to the extent such information has been posted or is available as described in
such notice). Notwithstanding anything to the contrary contained herein, any breach of the first
sentence of this Section 7.11(b) shall be deemed a breach of a representation and warranty,
and not a breach of a covenant, for purposes of Section 8.1.
Section 7.12 Takeover Statutes. The Company and the Board shall (a) take all reasonable action to prevent a Takeover
Statute from becoming applicable to this Agreement or the sale or issuance of New Common Stock to
Investors in accordance with the Plan and (b) if any Takeover Statute is or would reasonably be
expected to become applicable to the sale or issuance of New Common Stock to Investors in
accordance with the Plan, the Company and the Board shall grant such approvals and take such
actions as are necessary so that such transactions may be consummated as promptly as practicable on
the terms contemplated by this Agreement and the Plan and otherwise act to eliminate or minimize
the effects of such statute or regulation on such transactions.
Section 7.13 Notice of Alternate Transaction.
(a) The Company shall notify the Lead Investors and the Ad Hoc Counsel promptly (but in any
event within two (2) Business Days) of any bona fide, written proposals or offers received after
the date of this Agreement by the Company, any of its Subsidiaries or any of their respective
Representatives, relating to any Alternate Transaction, which such notice shall indicate the
identity of such Person and contain a summary of the material terms of such proposal or offer for
an Alternate Transaction. The Company shall keep the Lead Investors and the Ad Hoc Counsel
informed, on a reasonably prompt basis, of the status and material terms of any such proposals or
offers and the status of any material developments in respect of any such discussions or
negotiations.
(b) The Company, in response to an unsolicited, bona fide written third party proposal or
offer for an Alternate Transaction that is made after the date of this Agreement shall be permitted
to: (i) provide access to non-public information to the Person making such proposal or offer
pursuant to and in accordance with an executed confidentiality agreement (provided, that
such agreement shall not contain terms which prevent the Company from complying with its
obligations under this Section 7.13); provided, that all such information provided
to such Person has previously been provided to the Investors or is provided to the Investors prior
to or substantially concurrent with the time it is provided to such Person; and (ii) participate in
discussions or negotiations with respect to such proposal or offering with the Person making such
proposal or offer if the Board has determined in good faith after consultation with its
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financial advisors and outside counsel that such proposal or offer could reasonably be
expected to result in a Superior Transaction.
Section 7.14 Commercially Reasonable Efforts.
(a) Without in any way limiting any other respective obligation of the Company or any Investor
in this Agreement, the Company shall use (and shall cause its Subsidiaries to use), and each
Investor shall use, commercially reasonable efforts to take or cause to be taken all actions, and
do or cause to be done all things, reasonably necessary, proper or advisable in order to consummate
and make effective the transactions contemplated by this Agreement and the Rights Offering
Sub-Plan, including using commercially reasonable efforts in:
(i) timely preparing and filing all documentation reasonably necessary to effect all
necessary notices, reports and other filings of such party and to obtain as promptly as
practicable all consents, registrations, approvals, permits and authorizations necessary or
advisable to be obtained from any third party or Governmental Entity; and
(ii) defending any Legal Proceedings challenging this Agreement, the Rights Offering
Sub-Plan or any Transaction Agreement or the consummation of the transactions contemplated
hereby and thereby, including seeking to have any stay or temporary restraining order
entered by any Governmental Entity vacated or reversed.
(b) Subject to applicable Laws relating to the exchange of information, the Investors and the
Company shall have the right to review in advance, and to the extent practicable each will consult
with the other on all of the information relating to Investors or the Company, as the case may be,
and any of their respective Subsidiaries, that appears in any filing made with, or written
materials submitted to, any third party and/or any Governmental Entity in connection with the
transactions contemplated by this Agreement or the Rights Offering Sub-Plan. In exercising the
foregoing rights, each of the Company and the Investors shall act reasonably and as promptly as
practicable.
(c) Nothing contained herein this Section 7.14 shall limit the ability of any Investor
to consult with the Debtors, to appear and be heard, or to file objections, concerning any matter
arising in the Proceedings, so long as such consultation, appearance or objection is not
inconsistent with (i) such Investors obligations hereunder or (ii) the terms of the Rights
Offering Sub-Plan and the other transactions contemplated by and in accordance with this Agreement
and the Rights Offering Sub-Plan.
Section 7.15 Antitrust Approval.
(a) Each Party agrees to use commercially reasonable efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary to consummate and make effective
the transactions contemplated by this Agreement, the other Transaction Agreements and the Rights
Offering Sub-Plan, including (i) if applicable, filing, or causing to be filed, the Notification
and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this
Agreement with the Antitrust Division of the United States Department of Justice and the United
States Federal Trade Commission and any filings under any other
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Antitrust Laws that are necessary to consummate and make effective the transactions
contemplated by this Agreement as soon as reasonably practicable following the date on which the
Approval Order is entered and (ii) promptly furnishing documents or information requested by any
Antitrust Authority.
(b) The Company and each Investor subject to an obligation pursuant to the Antitrust Laws to
notify any transaction contemplated by this Agreement, the Rights Offering Sub-Plan or the
Transaction Agreements that has notified the Company in writing of such obligation (each such
Investor, a Filing Party) agree to reasonably cooperate with each other as to the
appropriate time of filing such notification and its content. The Company and each Filing Party
shall, to the extent permitted by applicable Law: (i) promptly notify each other of, and if in
writing, furnish each other with copies of (or, in the case of material oral communications, advise
each other orally of) any communications from or with an Antitrust Authority; (ii) not participate
in any meeting with an Antitrust Authority unless it consults with each other Filing Party and the
Company, as applicable, in advance and, to the extent permitted by the Antitrust Authority and
applicable Law, give each other Filing Party and the Company, as applicable, a reasonable
opportunity to attend and participate thereat; (iii) furnish each other Filing Party and the
Company, as applicable, with copies of all correspondence, filings and communications between such
Filing Party or the Company and the Antitrust Authority; (iv) furnish each other Filing Party with
such necessary information and reasonable assistance as may be reasonably necessary in connection
with the preparation of necessary filings or submission of information to the Antitrust Authority;
and (v) not withdraw its filing, if any, under the HSR Act without the prior written consent of
Requisite Investors and the Company.
(c) Should a Filing Party be subject to an obligation under the Antitrust Laws to jointly
notify with one or more other Filing Parties (each, a Joint Filing Party) a transaction
contemplated by this Agreement, the Rights Offering Sub-Plan or the Transaction Agreements, such
Joint Filing Party shall promptly notify each other Joint Filing Party of, and if in writing,
furnish each other Joint Filing Party with copies of (or, in the case of material oral
communications, advise each other Joint Filing Party orally of) any communications from or with an
Antitrust Authority.
(d) The Company and each Filing Party shall use commercially reasonable efforts to cause the
waiting periods under the applicable Antitrust Laws to terminate or expire at the earliest possible
date after the date of filing. The communications contemplated by this Section 7.15 may be
made by the Company or a Filing Party on an outside counsel-only basis or subject to other agreed
upon confidentiality safeguards. The obligations in this Section 7.15 shall not apply to
filings, correspondence, communications or meetings with Antitrust Authorities unrelated to the
transactions contemplated by this Agreement, the Rights Offering Sub-Plan and the Transaction
Agreements.
(e) Notwithstanding anything in this Agreement to the contrary, nothing shall require the
Company, any Investor or any of their respective Affiliates to (i) dispose of, license or hold
separate any of its or its Subsidiaries or Affiliates assets or the Companys or its
Subsidiaries assets, (ii) limit its freedom of action with respect to any of its or its
Subsidiaries businesses, the Companys or its Subsidiaries businesses or make any other
behavioral commitments, (iii) divest any of its Subsidiaries, its Affiliates or any of the
Companys
54
Subsidiaries, or (iv) commit or agree to any of the foregoing. Without the prior written
consent of Requisite Investors (such consent not to be unreasonably withheld, conditioned or
delayed), neither the Company nor any of its Subsidiaries shall commit or agree to (i) dispose of,
license or hold separate any of its assets or (ii) limit its freedom of action with respect to any
of its businesses or commit or agree to any of the foregoing, in each case, in order to secure any
necessary consent or approvals for the transactions contemplated hereby under the Antitrust Laws.
Notwithstanding anything to the contrary herein, neither the Investors, nor any of their
Affiliates, nor the Company or any of its Subsidiaries, shall be required as a result of this
Agreement, to initiate any legal action against, or defend any litigation brought by, the United
States Department of Justice, the United States Federal Trade Commission, or any other Governmental
Entity in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary
restraining order or other order in any suit or proceeding which would otherwise have the effect of
preventing or materially delaying the transactions contemplated hereby, or which may require any
undertaking or condition set forth in the preceding sentence.
Section 7.16 Plan Support. Each Investor and the Company shall be obligated to support the Plan as required by and in
accordance with and subject to the terms and conditions of the Plan Support Agreement. For the
avoidance of doubt, nothing in this Agreement shall restrict or prohibit any Investor from
Transferring its Notes in accordance with the Plan Support Agreement.
Section 7.17 Exit Financing. The Lead Investors (after Good Faith Consultation) shall use their commercially reasonable
efforts to work with Rothschild Inc. in its efforts to obtain for and on behalf of the Company debt
financing from financing sources reasonably acceptable to the Lead Investors and the Company after
Good Faith Consultation providing for proceeds to be funded to the Company on or prior to the
Effective Date in an aggregate amount of not less than four hundred fifty million dollars
($450,000,000), such debt financing to be on then-prevailing market terms that are reasonably
acceptable to the Lead Investors and the Company after Good Faith Consultation (the Exit
Financing). The Company shall reasonably cooperate with the Lead Investors in connection with
arranging and obtaining of the Exit Financing, including by (a) participating in a reasonable
number of meetings, due diligence sessions, management presentations and rating agency sessions,
(b) assisting the Lead Investors with preparation of materials required in connection with the Exit
Financing and (c) executing and delivering any customary and reasonable commitment letters,
underwriting or placement agreements, registration statements, pledge and security documents, other
customary and reasonable definitive financing documents, or requested certificates or documents
reasonably necessary or desirable to obtain the Exit Financing, in each case, after Good Faith
Consultation. The Company agrees that under no circumstances shall the execution of this Agreement
or any act of the Lead Investors pursuant to this Section 7.17 commit or be deemed a
commitment by any of the Lead Investors (or any their Affiliates) or any Co-Investor (or any of
their Affiliates) to provide or arrange the Exit Financing.
Section 7.18 Ford Agreement. The Company shall use its commercially reasonable efforts to enter into an agreement (the
Ford Agreement) among the Company, Ford Motor Company (Ford) and their
respective Subsidiaries with respect to (a) any claims (i) held by Ford and its Subsidiaries
against the Company and any of its Subsidiaries and (ii) held by the Company and its Subsidiaries
against Ford and any of its Subsidiaries and (b) the relationships
55
and business arrangements that will be in place after the Effective Date between the Company
and its Subsidiaries, on the one hand, and Ford and its Subsidiaries, on the other hand, that is
consistent with the Rights Offering Sub-Plan and reasonably acceptable to Requisite Investors. The
Company will (x) provide to the Lead Investors, their respective counsel and the Ad Hoc Counsel a
copy of the Ford Agreement and a reasonable opportunity to review and comment on such documents
prior to such documents being executed or delivered or filed with the Bankruptcy Court, and (y)
consider, in good faith, any comments consistent with this Agreement, and any other reasonable
comments of Requisite Investors, their respective counsel and the Ad Hoc Counsel. Other than the
Ford Agreement, neither the Company nor any of its Subsidiaries has entered into, or will enter
into, any material written agreements between or among the Company or any of its Subsidiaries and
Ford or any of its Subsidiaries directly relating to the Plan, this Agreement or the Ford
Agreement. Notwithstanding the foregoing, the Company and its Subsidiaries may enter into, modify,
or amend its commercial agreements with Ford in the ordinary course of business.
Section 7.19 VIHI Restructuring. The Company and the Lead Investors agree to reasonably cooperate, following Good Faith
Consultation, with each other to structure and implement the VIHI Restructuring in a commercially
reasonable manner advantageous to the Company and the Investors. The Company (a) shall provide to
the Lead Investors, their respective counsel and the Ad Hoc Counsel any proposed changes to the
VIHI Restructuring and shall provide to the Lead Investors a reasonable opportunity to review and
comment on such proposed changes prior to implementing such changes, (b) shall consider, in good
faith, any reasonable changes proposed by and suggestions of the Lead Investors, their respective
counsel and the Ad Hoc Counsel with respect to the VIHI Restructuring and (c) shall not make any
amendments, supplements, changes or modifications to the VIHI Restructuring as set forth in
Exhibit K unless such amendments, supplements, changes or modifications are reasonably
acceptable to Requisite Investors, in each case, after Good Faith Consultation.
Section 7.20 UK Pension Notice. To the extent that the UK Pensions Regulator issues any notices and/or directions and/or
orders as set out in clauses (A) through (F) of Section 5.21(b)(xviii) during the
Pre-Closing Period, the Company shall notify the Investors promptly and shall cooperate by allowing
the counsel for the Lead Investors and the Ad Hoc Counsel an opportunity to review and comment on
the preparation of any responses to, or inquiries with, the UK Pensions Regulator regarding any
such notices and/or directions and/or orders.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
Section 8.1 Conditions to the Obligation of the Investors. Subject to Section 8.2, the obligations of each of the Investors hereunder to
consummate the transactions contemplated hereby shall be subject to (unless waived by Requisite
Investors in accordance with Section 8.2) the satisfaction on or prior to the Effective
Date of each of the following conditions:
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(a) Approval Order and Confirmation Order. The Approval Order and the Confirmation
Order shall each have become a Final Order.
(b) Bankruptcy Approval of Plan and Disclosure Statement. The Disclosure Statement
shall have been approved by the Bankruptcy Court, which Disclosure Statement, and the Order
approving it, shall be in form and substance reasonably acceptable to Requisite Investors. The
Plan confirmed by the Bankruptcy Court in the Confirmation Order (the Confirmed Plan) and
any amendments, supplements, changes and modifications thereto shall, in each case, meet the
requirements set forth in the definition of the Plan in Section 1.1. The Confirmation
Order and the Orders entered by the Bankruptcy Court for any amendments, supplements, changes or
modifications to the Confirmed Plan shall be in form and substance reasonably acceptable to
Requisite Investors; provided, that Requisite Investors shall have the same approval rights
over any amendments, supplements, changes or modifications to the Confirmed Plan that Requisite
Investors have with respect to the Plan as set forth in the definition of the Plan in Section
1.1. The Orders entered by the Bankruptcy Court referred to above approving the Disclosure
Statement and any amendments, supplements, changes and modifications to the Confirmed Plan shall,
in each case, have become Final Orders.
(c) Plan of Reorganization. The Company and all of the other Debtors shall have
complied in all material respects with the terms and conditions of the Rights Offering Sub-Plan
that are to be performed by the Company and the other Debtors prior to the Effective Date.
(d) Alternate Transaction. Neither the Company nor any of its Subsidiaries shall have
entered into any Contract or written agreement in principle providing for the consummation of any
Alternate Transaction (an Alternate Transaction Agreement) (or proposed or resolved to do
so, which proposal or resolution has not been withdrawn or terminated).
(e) Change of Recommendation. There shall not have been a Change of Recommendation.
(f) Conditions to Plan. The conditions to the occurrence of the Effective Date of the
Rights Offering Sub-Plan as set forth in the Confirmed Plan shall have been satisfied or waived in
accordance with the Plan.
(g) Rights Offering. The Rights Offering shall have been conducted in all material
respects in accordance with this Agreement and the Rights Offering Sub-Plan, and the Expiration
Time shall have occurred.
(h) Antitrust Approvals. All terminations or expirations of waiting periods imposed
by any Governmental Entity necessary for the consummation of the transactions contemplated by this
Agreement, including under the HSR Act and any other Antitrust Laws, shall have occurred and all
other notifications, consents, authorizations and approvals required to be made or obtained from
any Governmental Entity under any Antitrust Law shall have been made or obtained for the
transactions contemplated by this Agreement.
(i) Consents. All governmental and third party notifications, filings, consents,
waivers and approvals set forth on Schedule 4 and required for the consummation of
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the
transactions contemplated by this Agreement and the Rights Offering Sub-Plan shall have been made
or received.
(j) No Legal Impediment to Issuance. No Law or Order shall have been enacted, adopted
or issued by any Governmental Entity that prohibits the implementation of the Rights Offering
Sub-Plan or the transactions contemplated by this Agreement.
(k) Good Standing. The Investors shall have received on and as of a date no earlier
than ten (10) Business Days prior to the Effective Date satisfactory evidence of the good standing
of the Company and its Significant Subsidiaries in their respective jurisdictions of incorporation
or organization, in each case in writing or any standard form of telecommunication from the
appropriate Governmental Entity of such jurisdictions.
(l) Representations and Warranties.
(i) The representations and warranties in Sections 5.3 (Execution and Delivery;
Enforceability), 5.4 (Authorized and Issued Capital Stock), 5.11(a) (No
Material Adverse Effect) and 5.30 (Takeover Statutes) shall be true and correct in
all respects as of the date hereof and at and as of the Effective Date with the same effect
as if made on and as of the Effective Date (except for such representations and warranties
made as of a specified date, which shall be true and correct only as of the specified date).
(ii) The other representations and warranties of the Company contained in this
Agreement shall be true and correct (disregarding all materiality or Material Adverse Effect
qualifiers) (A) as of the date hereof and (B) at and as of the Effective Date with the same
effect as if made on and as of the Effective Date (except for such representations and
warranties made as of a specified date, which shall be true and correct only as of the
specified date), except, in the case of (A) and (B), where the failure to be so true and
correct, individually or in the aggregate, has not had and would not reasonably be expected
to have a Material Adverse Effect.
(iii) The representations and warranties of each Investor (other than the Investor
asserting the failure of this condition) contained in this Agreement and in any other
Transaction Agreement shall be true and correct (disregarding all materiality or Material
Adverse Effect qualifiers) as of the date hereof and at and as of the Effective Date with
the same effect as if made on and as of the Effective Date (except for such representations
and warranties made as of a specified date, which shall be true and correct only as of the
specified date), except where the failure to be so true and correct, individually or in the
aggregate, has not and would not reasonably be expected to prohibit, materially delay or
materially and adversely impact such Investors performance of its obligations under this
Agreement, the Rights Offering Sub-Plan and, to the extent applicable, the Transaction
Agreements.
(m) Covenants. The Company and each Investor (other than the Investor asserting the
failure of this condition) shall have performed and complied with all of its respective covenants
and agreements contained in this Agreement that contemplate, by their terms, performance or
compliance prior to the Effective Date, in all material respects.
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(n) Officers Certificate. The Investors shall have received on and as of the
Effective Date a certificate of the chief financial officer or chief accounting officer of the
Company confirming (without personal liability) that the conditions set forth in Sections
8.1(l)(i) and (l)(ii), (m), (o), (q) and (r) have been
satisfied, other than any such conditions in Section 8.1(m) relating to the Investors.
(o) No Material Adverse Effect. There shall not have occurred after the date of this
Agreement any Event that, individually or in the aggregate, has had or would reasonably be expected
to have a Material Adverse Effect.
(p) Certificate and Bylaws. The Company shall have (i) adopted the Certificate of
Incorporation and the Bylaws and (ii) entered into the Registration Rights Agreement.
(q) Consolidated Net Cash. The amount of the Companys actual consolidated cash and
cash equivalents, including restricted cash, less foreign indebtedness, in each case determined in
accordance with GAAP, shall be no less than five hundred million dollars ($500,000,000) as of June
30, 2010; provided, that the Company shall not have drawn any available amounts under the
DIP Credit Agreement in excess of or incremental to the seventy-five million dollars ($75,000,000)
drawn and outstanding under the DIP Credit Agreement as of the date hereof, and the proceeds of any
such draw shall not be considered in calculating the amount of cash and cash equivalents for this
purpose.
(r) Consolidated Net Sales and Adjusted EBITDA Forecasts.
(i) No more than three (3) days prior to the Effective Date, the Company shall have
provided guidance, in a manner that is compliant with Regulation FD, with respect to
consolidated net sales for each of the years ending December 31, 2010 and December 31, 2011
that is consistent with the forecasts for consolidated net sales contained in the Attached
Disclosure Statement, and in no event shall the consolidated net sales guidance be more than
three hundred fifty million dollars ($350,000,000) lower, in either such year, than the
consolidated net sales set forth in the Attached Disclosure Statement. The calculation of
such consolidated net sales shall be in accordance with GAAP and consistent with the
methodology used by the Company to calculate consolidated net sales set forth in the
Attached Disclosure Statement.
(ii) No more than three (3) days prior to the Effective Date, the Company shall have
provided guidance, in a manner that is compliant with Regulation FD, which discloses the
Companys forecasted consolidated adjusted EBITDA for each of the years ending December 31,
2010 and December 31, 2011, which shall be consistent with the forecasts for consolidated
adjusted EBITDA for such years contained in the Business Plan, and in no event shall the
consolidated adjusted EBITDA guidance in either such year be more than seventy-five million
dollars ($75,000,000) lower than the consolidated adjusted EBITDA for such year set forth in
the Business Plan. The calculation of such consolidated adjusted EBITDA shall be consistent
with the methodology used by the Company to calculate consolidated adjusted EBITDA as
disclosed in the Company SEC Documents filed on or after January 1, 2009.
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(s) Ford. The Ford Agreement shall be reasonably acceptable to Requisite Investors,
and nothing in the Ford Agreement shall be inconsistent with this Agreement or the Rights Offering
Sub-Plan. The Ford Agreement shall remain in full force and effect and shall not have been
rescinded, terminated, challenged or repudiated by any party thereto and shall not have been
amended or modified in any material respect. None of the parties to the Ford Agreement shall have
been in material breach of any of their respective covenants and agreements contained in the Ford
Agreement.
Section 8.2 Waiver of Conditions to Obligation of Investors. All or any of the conditions set forth in Section 8.1 may only be waived in whole
or in part with respect to all Investors by a written instrument executed by Requisite Investors in
their sole discretion and if so waived, all Investors shall be bound by such waiver;
provided, that with respect to the condition set forth in Section 8.1(b), if any
amendment, supplement, change or modification to the Plan or the Confirmed Plan requires the
approval of Investors of any particular Class as set forth in the definition of Plan in
Section 1.1, then any waiver of Section 8.1(b) shall require the prior written
consent of Investors of such Class as set forth in the definition of Plan.
Section 8.3 Conditions to the Obligation of the Company. The obligation of the Company to consummate the transactions contemplated hereby is subject
to (unless waived by the Company) the satisfaction on or prior to the Effective Date of each of the
following conditions:
(a) Approval Order and Confirmation Order. The Approval Order and the Confirmation
Order shall each have become a Final Order.
(b) Bankruptcy Approval of Plan and Disclosure Statement. The Disclosure Statement
shall have been approved by the Bankruptcy Court. The Confirmation Order and the Order entered by
the Bankruptcy Court approving the Disclosure Statement shall, in each case, have become Final
Orders.
(c) Conditions to Plan. The conditions to the occurrence of the Effective Date of the
Confirmed Plan shall have been satisfied or waived in accordance with the Plan.
(d) Antitrust Approvals. All terminations or expirations of waiting periods imposed
by any Governmental Entity necessary for the consummation of the transactions contemplated by this
Agreement, including under the HSR Act and any other Antitrust Laws, shall have occurred and all
other notifications, consents, authorizations and approvals required to be made or obtained from
any Governmental Entity under any Antitrust Law shall have been made or obtained for the
transactions contemplated by this Agreement.
(e) No Legal Impediment to Issuance. No Law or Order shall have been enacted, adopted
or issued by any Governmental Entity that prohibits the implementation of the Rights Offering
Sub-Plan or the transactions contemplated by this Agreement.
(f) Representations and Warranties. The representations and warranties of each
Investor contained in this Agreement shall be true and correct (disregarding all materiality
qualifiers) as of the date hereof and at and as of the Effective Date with the same effect as if
made on and as of the Effective Date (except for such representations and warranties made as of
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a specified date, which shall be true and correct only as of the specified date), except where
the failure to be so true and correct, individually or in the aggregate, has not and would not
reasonably be expected to prohibit, materially delay or materially and adversely impact such
Investors performance of its obligations under this Agreement, the Rights Offering Sub-Plan and,
to the extent applicable, the Transaction Agreements.
(g) Covenants. Each Investor shall have performed and complied with all of its
covenants and agreements contained in this Agreement and in any other document delivered pursuant
to this Agreement (including in any Transaction Agreement) in all material respects.
(h) Cash Recovery Backstop Agreement. The Company shall have received the full
proceeds of the sale of Cash Recovery Subscription Equity pursuant to the Cash Recovery Backstop
Agreement in accordance with its terms in an amount equal to the aggregate Cash Recovery Backstop
Amount.
Section 8.4 Failure of Closing Conditions. No Party may rely on the failure of any condition set forth in Section 8.1 or
Section 8.3, as applicable, to be satisfied, and such condition shall be deemed to be
satisfied with respect to such Party if such failure was caused by such Partys failure, to act in
good faith or fulfill any of its obligations contained in this Agreement.
Section 8.5 Regulatory Reallocation. If (a) an Investor (an Over-Allotted Investor) is required to obtain any consent,
waiver or approval of a Governmental Entity (pursuant to Antitrust Laws or otherwise) for the
Approval Conditions to be satisfied and such Investor has not obtained such consent, waiver or
approval prior to the entry of the Confirmation Order and (b) Requisite Investors determine (after
Good Faith Consultation to the extent the Over-Allotted Investor is a Co-Investor) that a reduction
or elimination of such Investors Allotted Portion would either obviate the need for such Investor
to obtain such consent, waiver or approval or result in such consent, waiver or approval being
obtained (a Regulatory Cure), the Lead Investors (other than the Over-Allotted Investor)
shall have the right, but shall not be obligated, to, prior to the date that is five (5) Business
Days before the Effective Date, (x) reduce the Over-Allotted Investors Allotted Portion only to
the extent necessary (in such Lead Investors good-faith judgment) to achieve a Regulatory Cure
(the amount by which the Over-Allotted Investors Allotted Portion is reduced, the Removed
Allotted Portion) and (y) to make arrangements for one or more of the Lead Investors (other
than any Over-Allotted Investors) to assume all of the Removed Allotted Portion on the terms and
subject to the conditions set forth in this Agreement and in such amounts as may be agreed upon by
such Lead Investors (but in no event less than the total Removed Allotted Portion, such that the
Aggregate Commitment of the Investors is not reduced) (such arrangement, a Regulatory
Reallocation). Notwithstanding anything to the contrary contained in this Agreement, a
reduction and reallocation of an Over-Allotted Investors Allotted Portion of the Equity Commitment
(and revision of Schedule 1 to reflect such reduction and reallocation) pursuant to a
Regulatory Reallocation in accordance with this Section 8.5 shall not require the consent
of such Over-Allotted Investor.
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ARTICLE IX
INDEMNIFICATION AND CONTRIBUTION
Section 9.1 Indemnification Obligations.
(a) Indemnification by the Company. Subject to the entry of the Approval Order by the
Bankruptcy Court, following the date hereof, the Company shall indemnify and hold harmless each
Investor, their respective Affiliates, shareholders, general partners, members, managers, equity
holders and their respective Representatives, agents and controlling persons from and against any
and all losses, claims, damages, liabilities and reasonable expenses (including any legal or other
expenses reasonably incurred in connection with defending or investigating any action or claim as
to which it is entitled to indemnification hereunder as such expenses are incurred), joint or
several (collectively, Losses) that such Person incurred arising out of or in connection
with any third party claim (not including, for the avoidance of doubt, any claim by any other
Investor, any Related Purchaser, any Ultimate Purchaser or any of their respective Affiliates, but
including, for the avoidance of doubt, any claim by any Affiliate of the Company other than any of
the foregoing) against any such Person (in every case, other than any third party claim arising out
of or in connection with any action taken by any Investor in opposition to (x) the Plan or (y) the
Companys pursuit of the Claims Conversion Sub-Plan) in connection with (a) the Rights Offering,
this Agreement, any amendment, supplement, change or modification hereto or the transactions
contemplated by the Rights Offering or this Agreement, (b) the failure of any representation or
warranty made by the Company in this Agreement to be true and correct as of the date of this
Agreement and as of the Effective Date, or (c) any breach by the Company of any covenant or
agreement contained in this Agreement, in each case, whether or not the Rights Offering, the Plan
or the other transactions contemplated by this Agreement or the Plan are consummated or this
Agreement is terminated. Notwithstanding the foregoing, the Company shall not be obligated to
indemnify any Investor pursuant to this Section 9.1(a) that has breached its obligations
under the Plan Support Agreement.
(b) Indemnification by the Investors. Subject to the entry of the Approval Order by
the Bankruptcy Court, following the date hereof, each Investor (the Breaching Investor)
shall indemnify and hold harmless the other Investors and their respective Affiliates,
shareholders, general partners, members, managers, equity holders and their respective
Representatives, agents and controlling persons from and against any and all Losses that such
Person incurred arising out of or in connection with any third party claim (not including, for the
avoidance of doubt, any claim by any other Investor, any Related Purchaser, any Ultimate Purchaser
or any of their respective Affiliates) against any such Person in connection with (a) the failure
of any representation or warranty made by the Breaching Investor in this Agreement to be true and
correct as of the date of this Agreement and as of the Effective Date, or (b) any breach by the
Breaching Investor of any covenant or agreement contained in this Agreement, in each case, whether
or not the Rights Offering, the Plan or the other transactions contemplated by this Agreement or
the Plan are consummated or this Agreement is terminated.
Section 9.2 Indemnification Procedure. Promptly after receipt by a Person entitled to indemnification under Section 9.1
(such Person, an Indemnified Person) of notice of the commencement of any claim,
litigation, investigation or proceeding (an Indemnified
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Claim) by any Person other than the Party obligated to provide indemnification under
Section 9.1 (such Person, the Indemnifying Party), such Indemnified Person will,
if a claim is to be made hereunder against the Indemnifying Party in respect thereof, notify the
Indemnifying Party in writing of the commencement thereof; provided, that the omission to
so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability that it
may have hereunder except to the extent it has been materially prejudiced by such failure. In case
any such Indemnified Claims are brought against any Indemnified Person and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be entitled to
participate therein, and, to the extent that it may elect by written notice delivered to such
Indemnified Person, to assume the defense thereof, with counsel reasonably acceptable to such
Indemnified Person; provided, that if the parties (including any impleaded parties) to any
such Indemnified Claims include both such Indemnified Person and the Indemnifying Party and based
on advice of such Indemnified Persons counsel there are legal defenses available to such
Indemnified Person that are different from or additional to those available to the Indemnifying
Party, such Indemnified Person shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such Indemnified Claims on behalf of such
Indemnified Person. Upon receipt of notice from the Indemnifying Party to such Indemnified Person
of its election so to assume the defense of such Indemnified Claims with counsel reasonably
acceptable to the Indemnified Person, the Indemnifying Party shall not be liable to such
Indemnified Person for expenses incurred by such Indemnified Person in connection with the defense
thereof (other than reasonable costs of investigation) unless (w) such Indemnified Person shall
have employed separate counsel (in addition to any local counsel) in connection with the assertion
of legal defenses in accordance with the proviso to the immediately preceding sentence (it being
understood, however, that the Indemnifying Party shall not be liable for the expenses of more than
one separate counsel representing the Indemnified Persons who are parties to such Indemnified
Claims (in addition to one local counsel in each jurisdiction in which local counsel is required)
and that all such expenses shall be reimbursed as they occur), (x) the Indemnifying Party shall not
have employed counsel reasonably acceptable to such Indemnified Person to represent such
Indemnified Person within a reasonable time after notice of commencement of the Indemnified Claims,
(y) the Indemnifying Party shall have failed or is failing to defend such claim, and is provided
written notice of such failure by the Indemnified Person and such failure is not reasonably cured
within fifteen (15) Business Days of receipt of such notice, or (z) the Indemnifying Party shall
have authorized in writing the employment of counsel for such Indemnified Person.
Section 9.3 Settlement of Indemnified Claims. The Indemnifying Party shall not be liable for any settlement of any Indemnified Claims
effected without its written consent. If any settlement of any Indemnified Claims is consummated
with the written consent of the Indemnifying Party or if there is a final judgment for the
plaintiff in any such Indemnified Claims, the Indemnifying Party agrees to indemnify and hold
harmless each Indemnified Person from and against any and all Losses by reason of such settlement
or judgment to the extent such Losses are otherwise subject to indemnification by the Indemnifying
Party hereunder in accordance with, and subject to the limitations of, the provisions of this
Article IX. Notwithstanding anything in this Article IX to the contrary, if at any
time an Indemnified Person shall have requested the Indemnifying Party to reimburse such
Indemnified Person for legal or other expenses in excess of fifty thousand dollars ($50,000)
connection with investigating, responding to or defending any Indemnified Claims as contemplated by
this Article IX, the
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Indemnifying Party shall be liable for any settlement of any Indemnified Claims effected
without its written consent if (a) such settlement is entered into more than (i) sixty (60) days
after receipt by the Indemnifying Party of such request for reimbursement and (ii) thirty (30) days
after receipt by the Indemnified Party of the material terms of such settlement and (b) the
Indemnifying Party shall not have reimbursed such Indemnified Person in accordance with such
request prior to the date of such settlement. The Indemnifying Party shall not, without the prior
written consent of an Indemnified Person, effect any settlement of any pending or threatened
Indemnified Claims in respect of which indemnity or contribution has been sought hereunder by such
Indemnified Person unless such settlement (x) includes an unconditional release of such Indemnified
Person in form and substance satisfactory to such Indemnified Person from all liability on the
claims that are the subject matter of such Indemnified Claims and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
Section 9.4 Contribution. If for any reason the foregoing indemnification is unavailable to any Indemnified Person or
insufficient to hold it harmless from Losses that are subject to Indemnification pursuant to
Section 9.1, then the Indemnifying Party shall contribute to the amount paid or payable by
such Indemnified Person as a result of such Loss in such proportion as is appropriate to reflect
not only the relative benefits received by the Indemnifying Party on the one hand and such
Indemnified Person on the other hand but also the relative fault of the Indemnifying Party, on the
one hand, and such Indemnified Person, on the other hand, as well as any relevant equitable
considerations. It is hereby agreed that the relative benefits to the Indemnifying Party on the
one hand and all Indemnified Persons on the other hand shall be deemed to be in the same proportion
as (a) the total value received or proposed to be received by the Company pursuant to the sale of
Investor Shares and Shares in the Rights Offering contemplated by this Agreement bears to (b) the
Stock Right Premium and/or Arrangement Premium paid or proposed to be paid to the Investors.
Section 9.5 Treatment of Indemnification Payments. All amounts paid by the Indemnifying Party to an Indemnified Person under this Article
IX shall, to the extent permitted by applicable Law, be treated as adjustments to Purchase
Price for all Tax purposes.
Section 9.6 Limitation on Liabilities. Notwithstanding anything to the contrary contained in this Agreement, the indemnification
provided in this Article IX will not, as to any Indemnified Person, apply to Losses to the
extent that they are finally judicially determined to have resulted from (a) any material breach of
this Agreement by such Indemnified Person; or (b) the willful misconduct or gross negligence of
such Indemnified Person.
Section 9.7 Survival of Representations and Warranties. Notwithstanding any investigation at any time made by or on behalf of any Party, all
representations, warranties and agreements made in this Agreement will survive the execution and
delivery of this Agreement, except that the representations made in Sections 5.6 through
5.31 will survive only for a period of two (2) years after the Effective Date.
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ARTICLE X
TERMINATION
Section 10.1 Termination Rights. This Agreement may be terminated and the transactions contemplated hereby may be abandoned
at any time prior to the Effective Date:
(a) by mutual written consent of the Company and Requisite Investors;
(b) by the Company by written notice to each Investor or by Requisite Investors by written
notice to the Company if:
(i) any Law or Order shall have been enacted, adopted or issued by any Governmental
Entity, that prohibits the implementation of the Rights Offering Sub-Plan or the Rights
Offering or the transactions contemplated by this Agreement;
(ii) the Bankruptcy Court shall determine not to approve the Rights Offering Sub-Plan;
(iii) the Effective Date has not occurred by 11:59 p.m., New York City time on the date
that is thirty (30) days after the entry of the Confirmation Order by the Bankruptcy Court
or, if such Confirmation Order is stayed (other than pursuant to Rule 6004(h) of the
Bankruptcy Rules), by 11:59 p.m. New York City time on the date that is thirty (30) days,
less that number of days that elapsed during the period after the Confirmation Order was
entered and before such Confirmation Order was stayed, but in no event less than five (5)
Business Days following the date that such stay is vacated (the Outside Date);
provided, that (A) the Outside Date may be extended in accordance with Section
3.3(a) in connection with an Alternative Financing and (B) if (1) all of the conditions
set forth in Sections 8.1(h), 8.1(i) and 8.1(j) (collectively, the
Approval Conditions) have not been satisfied but still could be satisfied and (2)
the Requisite Investors deliver to the Company a written request for an extension of the
Outside Date to satisfy the Approval Conditions, the Outside Date may be extended until
11:59 p.m., New York City time on the date that is sixty (60) days after the entry of the
Confirmation Order by the Bankruptcy Court or, if such Confirmation Order is stayed (other
than pursuant to Rule 6004(h) of the Bankruptcy Rules), until 11:59 p.m. New York City time
on the date that is sixty (60) days, less that number of days that elapsed during the period
after the Confirmation Order was entered and before such Confirmation Order was stayed, but
in no event less than five (5) Business Days following the date that such stay is vacated;
(iv) any of the Proceedings shall have been dismissed or converted to a case under
chapter 7 of the Bankruptcy Code, or the Bankruptcy Court has entered an order in any of the
Proceedings appointing an examiner with expanded powers or a trustee under chapter 7 or
chapter 11 of the Bankruptcy Code; provided, however, that the appointment
of an examiner pursuant to the motion of that certain ad hoc committee of equityholders as
filed with the Bankruptcy Court on April 2, 2010 shall not give rise to a right to terminate
this Agreement;
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(v) (A) the Exit Financing is not consummated and the proceeds thereof have not been
received by the Company by the Outside Date and (B) all of the conditions set forth in
Section 8.1 and Section 8.3 (except for those conditions that by their
nature are intended to be fulfilled on the Effective Date) have been either satisfied or
waived in accordance with the provisions of Article VIII; or
(vi) subject to the right of the Investors to arrange Alternative Financing in
accordance with Section 3.3, any Investor shall have breached its obligation under
the Cash Recovery Backstop Agreement to purchase shares of New Common Stock in accordance
with the terms thereof or otherwise pay to the Company such Investors Distributable
Commitment Percentage (as defined in the Cash Recovery Backstop Agreement) of Cash Recovery
Backstop Amount;
(c) by Requisite Investors upon written notice to the Company (other than clause (iv) below
which may be excused by action of all non-breaching Investors):
(i) if the Bankruptcy Court has not entered the Approval Order on or before 5:00 pm
(New York time) on the date that is thirty (30) days after the date hereof;
provided, that the Requisite Investors shall not be entitled to terminate this
Agreement pursuant to this Section 10.1(c)(i) at any time after the entry of the
Approval Order;
(ii) if the Bankruptcy Court has not entered an order approving the Disclosure
Statement on or before 5:00 pm (New York time) on the date that is thirty (30) days after
the date hereof; provided, that the Requisite Investors shall not be entitled to
terminate this Agreement pursuant to this Section 10.1(c)(ii) at any time after the
entry of such order by the Bankruptcy Court;
(iii) if the Election Forms are not mailed to the holders of Allowed Senior Notes
Claims within ten (10) days after the Bankruptcy Court has entered an order approving the
Disclosure Statement; provided, that the Requisite Investors shall not be entitled
to terminate this Agreement pursuant to this Section 10.1(c)(iii) at any time after
such Election Forms have been mailed to the holders of Allowed Senior Notes Claims;
(iv) if the Company or any Investor shall have breached any provision of this
Agreement, which breach would cause the failure of any condition set forth in Section
8.1(l) or 8.1(m) to be satisfied, which failure cannot be or has not been cured
on the earlier of (A) the tenth (10th) Business Day after the giving of written notice
thereof to the Company or such Investor by any Investor and (B) the third (3rd) Business Day
prior to the Outside Date; provided, that the right to terminate this Agreement
under this Section 10.1(c)(iv) shall not be available to any Investor whose breach
is the cause of the failure of the condition in Section 8.1(l) or 8.1(m) to
be satisfied;
(v) if the Bankruptcy Court terminates the Debtors exclusive right to propose a plan
of reorganization;
(vi) there shall have been a Change of Recommendation, or the Company shall have
entered into an Alternate Transaction Agreement;
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(vii) at any time after the date which is one hundred sixty (160) days after the date
of this Agreement;
(viii) the Plan Support Agreement is terminated pursuant to Section 7.1(c)(2),
7.1(c)(4) or 7.1(f) thereof; or
(ix) the Company shall have breached its obligation under the Cash Recovery Backstop
Agreement to issue shares of New Common Stock in accordance with the terms thereof;
(d) by the Company upon written notice to each Investor:
(i) subject to the right of the Investors to arrange Alternative Financing in
accordance with Section 3.3, if any Investor shall have breached any provision of
this Agreement, which breach would cause the failure of any condition set forth in
Section 8.3(f) or 8.3(g) to be satisfied, which failure cannot be or has not
been cured on the earlier of (A) the tenth (10th) Business Day after the giving of written
notice thereof to the Company or such Investor by any Investor and (B) the third (3rd)
Business Day prior to the Outside Date;
(ii) if the Company enters into any Alternate Transaction Agreement; provided,
that the Company may only terminate this Agreement under the circumstances set forth in this
Section 10.1(d)(ii) if: (A) the Board has determined in good faith, after having
consulted with its outside legal counsel and its independent financial advisors, that such
Alternate Transaction is a Superior Transaction and the failure to enter into such an
Alternate Transaction Agreement would be reasonably likely to result in a breach of the
applicable fiduciary duties of the Board; or
(iii) subject to the rights of the Investors to arrange Alternative Financing in
accordance with Section 3.3, upon any breach of Section 7.7 (Funding
Approvals).
Section 10.2 Alternate Transaction Termination.
(a) If this Agreement is terminated pursuant to Section 10.1(c)(vi) or Section
10.1(d)(ii), the Company, subject to the approval of the Bankruptcy Court (which approval the
Company shall seek at the earliest date following such termination), shall pay liquidated damages
for the destruction of a capital asset in an amount equal to forty-three million, seven hundred
fifty thousand dollars ($43,750,000) (the Alternate Transaction Damages) to the Investors
in such proportions as are set forth on Schedule 1, and, in any case, the Company shall pay
to the Investors any Transaction Expenses incurred prior to such termination that are due and
payable hereunder that have not been paid theretofore.
(b) If this Agreement is terminated pursuant to Section 10.1(c)(iv) as a result of a
willful and knowing breach of this Agreement by the Company, and if within the period ending one
(1) year after the date such termination becomes effective the Company (i) enters into an Alternate
Transaction Agreement or (ii) approves or consummates an Alternate Transaction, to the extent the
Alternate Transaction Damages were not already paid in accordance with
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Section 10.2(a), the Company, subject to the approval of the Bankruptcy Court (which
approval the Company shall seek at the earliest date following such termination), shall pay the
Alternate Transaction Damages to the Investors in such proportions as are set forth on Schedule
1 and, in any case, the Company shall pay to the Investors any Transaction Expenses that have
not been paid theretofore.
(c) Payment of the Alternate Transaction Damages due under this Section 10.2 will be
made no later than the close of business on the next Business Day following approval by the
Bankruptcy Court of such payment, which approval shall be sought (i) at the earliest date following
such termination in the case of a termination by Requisite Investors pursuant to Section
10.1(c)(vi) or in the case of a termination by the Company pursuant to Section
10.1(d)(ii) or (ii) as specified in Section 10.2(b) in the circumstances described in
Section 10.2(b). The provision for the payment of the Alternate Transaction Damages is an
integral part of the transactions contemplated by this Agreement and without such provision the
Investors would not have entered into this Agreement, and the Alternate Transaction Damages shall,
subject to Bankruptcy Court approval and to the extent payable in accordance herewith, constitute
an allowed administrative expense of the Company.
Section 10.3 Effect of Termination. Upon termination under this Article X, all rights and obligations of the Parties
shall terminate without any liability of any Party to any other Party except that the provisions of
the covenants and agreements made by the Parties herein under Article IV, Section
7.16, this Article X and Article XI will survive indefinitely in accordance
with their terms.
ARTICLE XI
GENERAL PROVISIONS
Section 11.1 Notices. All notices and other communications in connection with this Agreement will be in writing
and will be deemed given (and will be deemed to have been duly given upon receipt) if delivered
personally, sent via electronic facsimile (with confirmation), mailed by registered or certified
mail (return receipt requested) or delivered by an express courier (with confirmation) to the
Parties at the following addresses (or at such other address for a Party as will be specified by
like notice):
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If to the Company: |
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Visteon Corporation
One Village Center Drive
Van Buren Township, Michigan 48111
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(734) 710-7112 |
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Attention:
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Chief Financial Officer |
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with a copy (which shall not constitute notice) to: |
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Pachulski Stang Ziehl & Jones LLP
919 North Market Street, 17th Floor
Wilmington, Delaware 19899-8705 |
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Facsimile:
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(302) 652-4400 |
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Attention:
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Laura Davis Jones
James E. ONeill
Mark M. Billion |
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Kirkland & Ellis LLP
300 North LaSalle
Chicago, Illinois 60654 |
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(312) 862-2200 |
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Attention:
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James H. M. Sprayregen, P.C.
James J. Mazza, Jr.
Gerald T. Nowak, P.C.
Howard Norber |
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Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022 |
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(212) 446-4900 |
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Attention:
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Marc Kieselstein, P.C.
Brian S. Lennon |
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To the address set forth opposite such Investors name on
Schedule 5 |
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with a copy (which shall not constitute notice) to: |
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White & Case LLP
Wachovia Financial Center
200 South Biscayne Boulevard
Suite 4900
Miami, Florida 33131 |
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Attention:
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Thomas E Lauria |
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(305) 358-5744 |
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White & Case LLP
1155 Avenue of the Americas
New York, New York 10036 |
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(212) 354-8113 |
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Attention:
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Gerard Uzzi
Gregory Pryor |
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To the address set forth opposite such Co-Investors name on
Schedule 6 |
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with a copy (which shall not constitute notice) to: |
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Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036 |
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Attention:
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Michael Stamer
Arik Preis
Tony Feuerstein |
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(212) 872-1002 |
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Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036 |
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Attention:
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Michael Stamer
Arik Preis
Tony Feuerstein
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(212) 872-1002 |
Section 11.2 Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations under this Agreement
shall be assigned by any Party (whether by operation of Law or otherwise) without the prior written
consent of the Company and Requisite Investors, other than an assignment by an Investor in
accordance with Section 3.6. Except as provided in Article XI with respect to the
Indemnified Persons, this Agreement (including the documents and instruments referred to in this
Agreement) is not intended to and does not confer upon any Person other than the Parties any rights
or remedies under this Agreement.
Section 11.3 Prior Negotiations; Entire Agreement.
(a) This Agreement (including the agreements attached as Exhibits to and the documents and
instruments referred to in this Agreement) constitutes the entire agreement of the Parties and
supersedes all prior agreements, arrangements or understandings, whether written or
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oral, among the Parties with respect to the subject matter of this Agreement, except that the
Parties hereto acknowledge that any confidentiality agreements heretofore executed among the
Parties will continue in full force and effect.
(b) Notwithstanding anything to the contrary in the Plan (including any amendments,
supplements or modifications thereto) or the Confirmation Order (and any amendments, supplements or
modifications thereto) or an affirmative vote to accept the Plan submitted by any Investor, nothing
contained in the Plan (including any amendments, supplements or modifications thereto) or
Confirmation Order (including any amendments, supplements or modifications thereto) shall alter,
amend or modify the rights of the Investors under this Agreement unless such alteration, amendment
or modification has been agreed to in writing by Requisite Investors to the extent required under
the definition of Plan in Section 1.1 or by such portion of the Investors as required
pursuant to clause (ii) thereunder to the extent such clause (ii) is applicable.
Section 11.4 GOVERNING LAW; VENUE. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAWS RULES THEREOF. THE PARTIES CONSENT AND AGREE
THAT ANY ACTION TO ENFORCE THIS AGREEMENT OR ANY DISPUTE, WHETHER SUCH DISPUTES ARISE IN LAW OR
EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS
CONTEMPLATED HEREBY SHALL BE BROUGHT EXCLUSIVELY IN THE BANKRUPTCY COURT. THE PARTIES CONSENT TO
AND AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT. EACH OF THE PARTIES
HEREBY WAIVES AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY CLAIM THAT (I) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE
BANKRUPTCY COURT, (II) SUCH PARTY AND SUCH PARTYS PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED
BY THE BANKRUPTCY COURT OR (III) ANY LITIGATION OR OTHER PROCEEDING COMMENCED IN THE BANKRUPTCY
COURT IS BROUGHT IN AN INCONVENIENT FORUM. THE PARTIES HEREBY AGREE THAT MAILING OF PROCESS OR
OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING TO AN ADDRESS PROVIDED IN WRITING BY
THE RECIPIENT OF SUCH MAILING, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID
AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE ANY OBJECTIONS TO SERVICE ACCOMPLISHED IN THE
MANNER HEREIN PROVIDED.
Section 11.5 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY JURISDICTION IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE AMONG THE PARTIES UNDER THIS AGREEMENT, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE.
Section 11.6 Counterparts. This Agreement may be executed in any number of counterparts, all of which will be
considered one and the same agreement and will become effective when counterparts have been signed
by each of the Parties and delivered to each other
71
Party (including via facsimile or other electronic transmission), it being understood that
each Party need not sign the same counterpart.
Section 11.7 Waivers and Amendments; Rights Cumulative. This Agreement may be amended, modified, superseded, cancelled, renewed or extended only by
a written instrument signed by (a) the Company and all of the Lead Investors following, in each
case, Good Faith Consultation, or (b) to the extent such action has a Material Discriminatory
Effect, the Company, all of the Lead Investors and all of the Receiving Co-Investors, and subject
in each case, to the extent required, to the approval of the Bankruptcy Court; provided,
that Section 11.3, this Section 11.7, Section 11.10, Schedule 1 and
the definitions of Excluded Consent Event, Good Faith Consultation, Investor Consent Event,
Material Discriminatory Effect, Plan, Receiving Co-Investors, Requisite Investors,
Requisite Receiving Co-Investor Approval and Last Trading Price may be amended or modified only
by a written instrument signed by all Investors affected by such amendment or modification. The
terms and conditions of this Agreement (other than the conditions set forth in Sections 8.1
and 8.3, the waiver of which shall be governed solely by Article VIII) may be
waived (x) by the Company only by a written instrument executed by the Company and (y) by the
Investors only by a written instrument executed by (1) all of the Lead Investors or (2) to the
extent such waiver has a Material Discriminatory Effect, all of the Lead Investors and all of the
Receiving Co-Investors, and subject in each case, to the extent required, to the approval of the
Bankruptcy Court; provided, however, with respect to any waiver of the terms or
conditions of Section 11.3, this Section 11.7, Section 11.10, Schedule
1 or the definition of Excluded Consent Event, Good Faith Consultation, Investor Consent
Event, Material Discriminatory Effect, Plan, Receiving Co-Investors, Requisite Investors,
Requisite Receiving Co-Investor Approval or Last Trading Price, such waiver must be by a
written instrument signed by all Investors affected by such waiver. Notwithstanding anything to
the contrary contained in this Agreement, the Investors may agree, among themselves, to reallocate
their Allotted Portions, without any consent or approval of any other Party; provided,
however, for the avoidance of doubt any such agreement among the Investors (other than
pursuant to a Regulatory Reallocation) shall require the consent or approval of all Investors
affected by such reallocation. No delay on the part of any Party in exercising any right, power or
privilege pursuant to this Agreement will operate as a waiver thereof, nor will any waiver on the
part of any Party of any right, power or privilege pursuant to this Agreement, nor will any single
or partial exercise of any right, power or privilege pursuant to this Agreement, preclude any other
or further exercise thereof or the exercise of any other right, power or privilege pursuant to this
Agreement. Except as otherwise provided in this Agreement (including Section 11.9), the
rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any
rights or remedies which any Party otherwise may have at law or in equity. Notwithstanding
anything to the contrary contained in this Agreement, any amendment, modification, revision or
reallocation of Schedule 1 pursuant to a Regulatory Reallocation shall not require the
approval or consent by the Over-Allotted Investor or any other Investor other than the Lead
Investors arranging the Regulatory Reallocation and any Investor whose Allotted Portion is affected
thereby (other than the Over-Allotted Investor).
Section 11.8 Headings. The headings in this Agreement are for reference purposes only and will not in any way
affect the meaning or interpretation of this Agreement.
72
Section 11.9 Specific Performance; Limitations on Remedies.
(a) The Company and each Investor acknowledges and agrees that, in the event any provision of
this Agreement is not performed by the Company in accordance with its specific terms or is
otherwise breached by the Company (including any provision requiring the payment of all or a
portion of the Stock Right Premium, the Arrangement Premium, the Alternative Transaction Damages
and/or Transaction Expenses), (i) the Investors may not have an adequate remedy at law in the form
of money damages and (ii) in addition to any other rights and remedies existing in its favor, the
Investors shall have the right to bring an action to enforce specifically the terms and provisions
of this Agreement and to obtain an injunction, injunctions or any form of equitable relief to
prevent breaches of this Agreement.
(b) The Company hereby (i) waives, on behalf of itself and its Affiliates, any and all common
law, statutory or other remedies the Company or any of its Affiliates may have against any Investor
in respect of any claims or causes of actions arising out of or relating to the Rights Offering,
this Agreement and any of the transactions contemplated thereby and hereby, except for the remedy
expressly set forth in Section 11.9(c)(ii), which the Company agrees shall be its sole and
exclusive remedy for any such claims or causes of action and (ii) agrees that, to the extent it or
any of its Affiliates incur Losses arising from or in connection with a breach by any Investor of
its representations, warranties, covenants and agreements contained in this Agreement, in no event
shall the Company or its Affiliates seek to recover any money damages from (or seek any other
remedy based on any legal, contractual or equitable theory against) such Investor or any of its
Affiliates except as otherwise expressly provided in Section 11.9(c)(ii). Notwithstanding
anything to the contrary contained in this Agreement, the Company acknowledges and agrees that (i)
the liability of the Investors under this Agreement shall be several and not joint and (ii) under
no circumstance shall the Investors and their respective Affiliates be liable for any punitive,
special, indirect or consequential damages.
(c) Each of the Company and the Investors hereby agree that:
(i) the sole and exclusive remedy available to any Investor against the Company or any
of its Subsidiaries or Affiliates under this Agreement or in connection with the
transactions contemplated hereby shall be (A) the remedy set forth in Section
11.9(a), (B) pursuant to Article IX and (C) as specifically provided for in the
Plan Support Agreement;
(ii) the sole and exclusive remedy available to the Company against the Investors or
any of their respective Affiliates under this Agreement or in connection with the
transactions contemplated hereby shall be (A) enforcement of the last sentence of
Section 4.2 and (B) as specifically provided for in the Plan Support Agreement;
(iii) the sole and exclusive remedy available to any Investor against any other
Investor or any of their respective Affiliates under this Agreement or in connection with
the transactions contemplated hereby shall be pursuant to Article IX; and
(iv) in the event any provision of this Agreement is not performed by any Investor in
accordance with its specific terms or is otherwise breached, (A) the
73
remedy set forth in Section 11.9(c)(ii) will provide the Company with an
adequate remedy and (B) no Party or any of its Affiliates shall have any right to enforce
specifically with respect to any Investor the terms and provisions of this Agreement and
shall not be entitled to an injunction, injunctions or any form of equitable relief to
prevent breaches by any Investor of this Agreement.
(d) Notwithstanding anything to the contrary contained in this Agreement, the Company
acknowledges and agrees that no Person other than the Investors and their permitted assignees shall
have any obligation under this Agreement and that, notwithstanding that the Investors (or any of
their permitted assignees) may be a partnership or limited liability company, no recourse under
this Agreement (other than with respect to the return of the Stock Right Deposit to the extent
required under Section 4.2), the Plan or any documents or instruments delivered in
connection herewith or therewith shall be had against any Related Party of the Investors (or any of
their permitted assignees) based upon the relationship of such Related Party to any Investor,
whether by or through attempted piercing of the corporate (or limited liability company or limited
liability partnership) veil the enforcement of any assessment or by any legal or equitable
proceeding, or by virtue of any applicable Law, or otherwise, it being expressly agreed and
acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be
incurred by any such Related Party, as such, for any obligations of the Investors (or any of their
permitted assignees) under this Agreement, the Plan or any documents or instruments delivered in
connection herewith or therewith or for any claim based on, in respect of, or by reason of such
obligation or their creation.
Section 11.10 Approval by Requisite Receiving Co-Investors. Any Investor Consent Event with respect to which Lead Investors (and their Related
Purchasers) constituting at least sixty-six and two-thirds percent (66 2/3%) of the aggregate
Allotted Portions of the Lead Investors (and their Related Purchasers) is required in order to take
action shall be deemed not to have a Material Discriminatory Effect to the extent the Ad Hoc
Counsel (following Good Faith Consultation with respect to such Investor Consent Event) (a) does
not deliver a written notice (at the direction of the Receiving Co-Investors) to the Lead Investors
and the Company asserting that the relevant Investor Consent Event has or, if implemented, would
have a Material Discriminatory Effect (a Discrimination Notice) within three (3) Business
Days following receipt of a written request from the Company or any Lead Investor to determine
whether it believes the Investor Consent Event has a Material Discriminatory Effect, or (b)
withdraws such Discrimination Notice (at the direction of the Receiving Co-Investors). In the
event an Investor Consent Event has or would, if implemented, have a Material Discriminatory
Effect, such Investor Consent Event shall require the written approval of Receiving Co-Investors
holding, as of the time of the determination, at least sixty-six and two-thirds percent (66 2/3%) of
the aggregate Allotted Portions held by the Receiving Co-Investors (such approval of the Receiving
Co-Investors being referred to as a Requisite Receiving Co-Investor Approval). If the Ad
Hoc Counsel delivers a Discrimination Notice to the Company and the Lead Investors, either the
Company or Lead Investors (and their Related Purchasers) constituting at least sixty-six and
two-thirds percent (66 2/3%) of the aggregate Allotted Portions of the Lead Investors (and their
Related Purchasers) shall have three (3) Business Days to provide notice (such notice, the
Dispute Notice) to the Ad Hoc Counsel and the Receiving Co-Investors of their intent to
commence expedited proceedings in the Bankruptcy Court to determine whether an Investor Consent
Event has or would have, if implemented, a Material Discriminatory Effect (the
74
Expedited Proceedings). The Co-Investors hereby agree to consent to the
commencement of the Expedited Proceedings upon receipt of a Dispute Note with respect to an
Investor Consent Notice and the Company and the Lead Investors agree not to implement the Investor
Consent Event until either (i) a Final Order has been entered determining that such Investor
Consent does not have and would not, if implemented, have a Material Discriminatory Effect or (ii)
the Requisite Receiving Co-Investor Approval has been received.
Section 11.11 No Reliance. No Investor or any of its Related Parties shall have any duties or obligations to the other
Investors in respect of this Agreement, the Plan or the transactions contemplated hereby or
thereby, except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) no Investor or any of its Related Parties shall be subject to any fiduciary or other
implied duties to the other Investors, (b) no Investor or any of its Related Parties shall have any
duty to take any discretionary action or exercise any discretionary powers on behalf of any other
Investor, (c) (i) no Investor or any of its Related Parties shall have any duty to the other
Investors to obtain, through the exercise of diligence or otherwise, to investigate, confirm, or
disclose to the other Investors any information relating to the Company or any of its Subsidiaries
or Joint Ventures that may have been communicated to or obtained by such Investor or any of its
Affiliates in any capacity and (ii) no Investor may rely, and confirms that it has not relied, on
any due diligence investigation that any other Investor or any Person acting on behalf of such
other Investor may have conducted with respect to the Company or any of its Affiliates or any of
their respective securities and (d) each Investor acknowledges that no other Investor is acting as
a placement agent, initial purchaser, underwriter, broker or finder with respect to its Investor
Shares or Allotted Portion of its Equity Commitment.
Section 11.12 Publicity. At all times prior to the Effective Date or the earlier termination of this Agreement in
accordance with its terms, the Company and Requisite Investors shall consult with each other prior
to issuing any press releases (and provide each other a reasonable opportunity to review and
comment upon such release) or otherwise making public announcements with respect to the
transactions contemplated by this Agreement and the Plan.
Section 11.13 Effectiveness. This Agreement is expressly contingent on, and shall automatically become effective on such
date as both (a) the Approval Order has been entered by the Bankruptcy Court and (b) each Party to
this Agreement has executed this Agreement; provided, that no Party has rejected,
terminated or repudiated this Agreement prior to the entry of the Approval Order by the Bankruptcy
Court; provided, further, that the Companys obligations under Sections
7.1, 7.2(b)(i) and 7.2(b)(ii) shall be effective and in full force and effect
upon the execution of this Agreement by the Parties.
[Signature Pages Follow]
75
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first above
written.
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VISTEON CORPORATION
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By: |
/s/ William G. Quigley
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Name: |
William G. Quigley |
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Title: |
EVP and CFO |
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[Company Signature Page]
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CQS CONVERTIBLE AND QUANTITATIVE STRATEGIES MASTER FUND LIMITED
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By: |
/s/ Kevin Jones
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Name: |
Kevin Jones |
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Title: |
Authorized Signatory |
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[Lead Investor Signature Page]
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CQS DIRECTIONAL OPPORTUNITIES MASTER FUND LIMITED
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By: |
/s/ Kevin Jones
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Name: |
Kevin Jones |
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Title: |
Authorized Signatory |
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[Lead Investor Signature Page]
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DEUTSCHE BANK SECURITIES INC.
(Solely with Respect to the Distressed Products
Group)
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By: |
/s/ Ray Costa
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Name: |
Ray Costa |
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Title: |
Managing Director |
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By: |
/s/ C. J. Lanktree
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Name: |
Charles J. Lanktree |
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Title: |
Managing Director |
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[Lead Investor Signature Page]
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ELLIOTT INTERNATIONAL, L.P.
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By: |
Elliott International Capital Advisors Inc., as
Attorney-in-Fact
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By: |
/s/ Elliot Greenberg
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Name: |
Elliot Greenberg |
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Title: |
Vice President |
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[Lead Investor Signature Page]
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GOLDMAN, SACHS & CO.,
solely with respect to the
High Yield Distressed Investing Group
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By: |
/s/ Justin Slatky
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Name: |
Justin Slatky |
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Title: |
Managing Director |
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[Lead Investor Signature Page]
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KIVU INVESTMENT FUND LIMITED
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By: |
/s/ Peter M. Fletcher
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Name: |
Peter M. Fletcher |
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Title: |
Director |
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[Lead Investor Signature Page]
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MONARCH MASTER FUNDING LTD
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By: |
MONARCH ALTERNATIVE CAPITAL LP, its investment advisor
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By: |
/s/ Christopher Santana
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Name: |
Christopher Santana |
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Title: |
Managing Principal |
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[Lead Investor Signature Page]
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OAK HILL ADVISORS, L.P., on behalf of
certain private funds and separate accounts
that it manages
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By: |
/s/ Scott D. Krase
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Name: |
Scott D. Krase |
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Title: |
Authorized Signatory |
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[Lead Investor Signature Page]
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SOLUS ALTERNATIVE ASSET MANAGEMENT LP, as investment advisor to its private funds
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By: |
/s/ Chris Pucillo
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Name: |
Chris Pucillo |
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Title: |
Authorized Signatory |
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[Lead Investor Signature Page]
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THE LIVERPOOL LIMITED PARTNERSHIP
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By: |
Liverpool Associates, Ltd., as General Partner
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By: |
/s/ Elliot Greenberg
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Name: |
Elliot Greenberg |
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Title: |
Vice President |
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[Lead Investor Signature Page]
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ALDEN GLOBAL DISTRESSED OPPORTUNITIES FUND, L.P.
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By: |
Alden Global Distressed Opportunities Fund GP,
LLC, its general partner
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By: |
/s/ Jim Puohg
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Name: |
Jim Puohg |
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Title: |
Vice President |
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[Co-Investor Signature Page]
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ALLEN ARBITRAGE, L.P.
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By: |
/s/ Tal Gurion
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Name: |
Tal Gurion |
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Title: |
Managing Director of Investment
Manager |
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[Co-Investor Signature Page]
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ALLEN ARBITRAGE OFFSHORE
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By: |
/s/ Tal Gurion
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Name: |
Tal Gurion |
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Title: |
Managing Director of Investment
Manager |
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[Co-Investor Signature Page]
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ARMORY ADVISORS LLC
Investment Manager of
Armory Master Fund, Ltd.
And separately Managed Accounts
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By: |
/s/ Jay Burnham
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Name: |
Jay Burnham |
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Title: |
Manager |
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[Co-Investor Signature Page]
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ARMORY MASTER FUND LTD.
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By: |
Armory Advisors LLC, its Investment Manager
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By: |
/s/ Jay Burnham
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Name: |
Jay Burnham |
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Title: |
Manager |
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[Co-Investor Signature Page]
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THE SEAPORT GROUP LLC PROFIT SHARING PLAN
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By: |
Armory Advisors LLC, its Investment Advisor
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By: |
/s/ Jay Burnham
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Name: |
Jay Burnham |
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Title: |
Manager |
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[Co-Investor Signature Page]
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CAPITAL VENTURES INTERNATIONAL
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By: |
Susquehanna Advisors Group, Inc.,
its authorized agent
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By: |
/s/ Joel Greenberg
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Name: |
Joel Greenberg |
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Title: |
Vice President |
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[Co-Investor Signature Page]
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CASPIAN CAPITAL PARTNERS, L.P.
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By: |
Mariner Investment Group, as Investment Advisor
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By: |
/s/ David Corleto
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Name: |
David Corleto |
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Title: |
Principal |
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[Co-Investor Signature Page]
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CASPIAN SELECT CREDIT MASTER FUND, LTD.
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By: |
Mariner Investment Group, as Investment Advisor
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By: |
/s/ David Corleto
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Name: |
David Corleto |
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Title: |
Principal |
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[Co-Investor Signature Page]
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CITADEL SECURITIES LLC
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By: |
/s/ Toby Buchanan
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Name: |
Toby Buchanan |
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Title: |
Authorized Signatory |
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[Co-Investor Signature Page]
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CSS, LLC
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By: |
/s/ Jerry White
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Name: |
Jerry White |
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Title: |
Partner |
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[Co-Investor Signature Page]
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CUMBERLAND PARTNERS
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By: |
CUMBERLAND GP LLC, its General Partner
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By: |
/s/ Barry Konig
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Name: |
Barry Konig |
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Title: |
Member |
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[Co-Investor Signature Page]
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CUMBERLAND BENCHMARKED PARTNERS, L.P.
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By: |
CUMBERLAND BENCHMARKED GP LLC, its General
Partner
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By: |
/s/ Barry Konig
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Name: |
Barry Konig |
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Title: |
Member |
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[Co-Investor Signature Page]
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LONGVIEW PARTNERS B, L.P.
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By: |
LONGVIEW B GP LLC, its General Partner
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By: |
/s/ Barry Konig
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Name: |
Barry Konig |
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Title: |
Member |
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[Co-Investor Signature Page]
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CUMBER INTERNATIONAL S.A.
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By: |
CUMBERLAND ASSOCIATES LLC, as Investment Adviser
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By: |
/s/ Barry Konig
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Name: |
Barry Konig |
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Title: |
Member |
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[Co-Investor Signature Page]
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CYRUS EUROPE MASTER FUND LTD.
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By: |
Cyrus Capital Partners, L.P. as Investment
Manager
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By: |
/s/ David A. Milich
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Name: |
David A. Milich |
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Title: |
Chief Operating Officer |
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[Co-Investor Signature Page]
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CYRUS SELECT OPPORTUNITIES
MASTER FUND, LTD.
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By: |
Cyrus Capital Partners, LP as Investment Manager
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By: |
/s/ David A. Milich
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Name: |
David A. Milich |
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Title: |
Chief Operating Officer |
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[Co-Investor Signature Page]
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CRESCENT 1 L.P.
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By: |
Cyrus Capital Partners, L.P. as Investment
Manager
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By: |
/s/ David A. Milich
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Name: |
David A. Milich |
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Title: |
Chief Operating Officer |
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[Co-Investor Signature Page]
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CRS FUND LTD.
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By: |
Cyrus Capital Partners, L.P. as Investment
Manager
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By: |
/s/ David A. Milich
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Name: |
David A. Milich |
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Title: |
Chief Operating Officer |
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[Co-Investor Signature Page]
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CYRUS OPPORTUNITIES MASTER
FUND II, LTD.
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By: |
Cyrus Capital Partners, L.P. as Investment
Manager
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By: |
/s/ David A. Milich
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Name: |
David A. Milich |
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Title: |
Chief Operating Officer |
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[Co-Investor Signature Page]
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HALBIS DISTRESSED OPPORTUNITIES MASTER FUND, LTD.
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By: |
/s/ Peter Sakon
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Name: |
Peter Sakon |
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Title: |
VP |
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[Co-Investor Signature Page]
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MARINER LDC
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By: |
Mariner Investment Group, as Investment Advisor
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By: |
/s/ David Corleto
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|
|
Name: |
David Corleto |
|
|
|
Title: |
Principal |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
MARINER LDC
|
|
|
|
|
|
By: |
Riva Ridge Capital Management LP,
as Investment Manager
|
|
|
|
|
|
By: |
Riva Ridge GP LLC, GP to the Investment Manager
|
|
|
By: |
/s/ Stephen Golden
|
|
|
|
Name: |
Stephen Golden |
|
|
|
Title: |
Managing Member |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
MERCED PARTNERS LIMITED PARTNERSHIP
|
|
|
|
|
|
By: |
Global Capital Management, Inc., General Partner
|
|
|
By: |
/s/ Thomas G. Rock
|
|
|
|
Name: |
Thomas G. Rock |
|
|
|
Title: |
Authorized Representative |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
MERCED PARTNERS II, L.P.
|
|
|
|
|
|
By: |
Lydiard Partners, L.P., General Partner
|
|
|
|
|
|
By: |
Tanglewood Capital Management, Inc.,
General Partner
|
|
|
By: |
/s/ Thomas G. Rock
|
|
|
|
Name: |
Thomas G. Rock |
|
|
|
Title: |
Authorized Representative |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
NEWFINANCE ALDEN SPV
|
|
|
|
|
|
By: |
Alden Global Capital, its Trading Advisor
|
|
|
By: |
/s/ Jim Puohg
|
|
|
|
Name: |
Jim Puohg |
|
|
|
Title: |
Vice President |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
QVT FUND LP
|
|
|
|
|
|
By: |
QVT Associates GP LLC, its general partner
|
|
|
By: |
/s/ Nick Bruman
|
|
|
|
Name: |
Nick Bruman |
|
|
|
Title: |
Managing Member |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
QUINTESSENCE FUND L.P.
|
|
|
|
|
|
By: |
QVT Associates GP LLC, its general partner
|
|
|
By: |
/s/ Nick Bruman
|
|
|
|
Name: |
Nick Bruman |
|
|
|
Title: |
Managing Member |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
RIVA RIDGE MASTER FUND, LTD.
|
|
|
|
|
|
By: |
Riva Ridge Capital Management LP,
as Investment Manager
|
|
|
|
|
|
By: |
Riva Ridge GP LLC, GP to the Investment Manager
|
|
|
By: |
/s/ Stephen Golden
|
|
|
|
Name: |
Stephen Golden |
|
|
|
Title: |
Managing Member |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
SENECA CAPITAL, L.P.
|
|
|
By: |
/s/ Mike Anastasio
|
|
|
|
Name: |
Mike Anastasio |
|
|
|
Title: |
CFO |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
SILVER POINT CAPITAL, L.P. on behalf of its
affiliates and related funds
|
|
|
By: |
/s/ Michael Gatto
|
|
|
|
Name: |
Michael Gatto |
|
|
|
Title: |
Authorized Person |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
SPECTRUM INVESTMENT PARTNERS, L.P.
|
|
|
|
|
|
By: |
Spectrum Group Management LLC, its general
partner
|
|
|
By: |
/s/ Jeffrey A. Schaffer
|
|
|
|
Name: |
Jeffrey A. Schaffer |
|
|
|
Title: |
Managing Member |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
SIPI MASTER LTD.
|
|
|
|
|
|
By: |
Spectrum Investment Management LLC,
its investment manager
|
|
|
By: |
/s/ Jeffrey A. Schaffer
|
|
|
|
Name: |
Jeffrey A. Schaffer |
|
|
|
Title: |
Managing Member |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
STARK CRITERION MASTER FUND LTD.
|
|
|
|
|
|
By: |
Stark Criterion Management LLC
Its: Investment Manager
|
|
|
By: |
/s/ Donald T. Bobbs
|
|
|
|
Name: |
Donald T. Bobbs |
|
|
|
Title: |
Authorized Signatory |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
STARK MASTER FUND LTD.
|
|
|
|
|
|
By: |
Stark Offshore Management LLC
Its: Investment Manager
|
|
|
By: |
/s/ Donald T. Bobbs
|
|
|
|
Name: |
Donald T. Bobbs |
|
|
|
Title: |
Authorized Signatory |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
UBS Securities LLC (solely with respect to the
Distsressed Debt Trading Group)
|
|
|
By: |
/s/ Daniel S. Fruman
|
|
|
|
Name: |
Daniel S. Fruman |
|
|
|
Title: |
Managing Director |
|
|
|
UBS Securities LLC (solely with respect to the
Distressed Debt Trading Group)
|
|
|
By: |
/s/ Jeffrey Teach
|
|
|
|
Name: |
Jeffrey Teach |
|
|
|
Title: |
MD |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
VENOR CAPITAL MASTER FUND LTD.
|
|
|
By: |
/s/ Michael Wartell
|
|
|
|
Name: |
Michael Wartell |
|
|
|
Title: |
Authorized Signatory |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
WHITEBOX HEDGED HIGH YIELD PARTNERS, L.P.
|
|
|
|
|
|
By: |
Whitebox Hedged High Yield Advisors, LLC, its
General Partner
|
|
|
|
|
|
By: |
Whitebox Advisors, LLC, its Managing Member
|
|
|
By: |
/s/ Jonathan Wood
|
|
|
|
Name: |
Jonathan Wood |
|
|
|
Title: |
COO/CFO |
|
[Co-Investor Signature Page]
|
|
|
|
|
|
WHITEBOX COMBINED PARTNERS, L.P.
|
|
|
|
|
|
By: |
Whitebox Combined Advisors, LLC, its General
Partner
|
|
|
|
|
|
By: |
Whitebox Advisors, LLC, its Managing Member
|
|
|
By: |
/s/ Jonathan Wood
|
|
|
|
Name: |
Jonathan Wood |
|
|
|
Title: |
COO/CFO |
|
|
[Co-Investor Signature Page]
SCHEDULE 1
EQUITY COMMITMENT, PREMIUM AND DAMAGES ALLOTMENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Direct |
|
|
|
|
|
|
Stock Right |
|
|
Aggregate |
|
|
Stock Right |
|
|
|
|
|
|
Subscription |
|
|
Direct Subscription |
|
|
Commitment |
|
|
Commitment |
|
|
Premium |
|
|
Alternate Transaction |
|
Investor |
|
Shares |
|
|
Shares Purchase Price |
|
|
Percentage |
|
|
Percentage |
|
|
Percentage |
|
|
Damages Percentage |
|
Alden Global Distressed Opportunities Fund,
L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allen Arbitrage, L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allen Arbitrage Offshore |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Armory Master Fund Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital Ventures International |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Caspian Capital Partners, L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Caspian Select Credit Master Fund, Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Citadel Securities LLC |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CQS Convertible and Quantitative Strategies
Master Fund Limited |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CQS Directional Opportunities Master Fund
Limited |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Crescent 1 L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CRS Fund Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CSS, LLC |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cumber International S.A. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cumberland Benchmarked Partners, L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cumberland Partners |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cyrus Europe Master Fund Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cyrus Opportunities Master Fund II, Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cyrus Select Opportunities Master Fund, Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deutsche Bank Securities Inc. (Solely with
respect to the Distressed Products Group) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Elliott International, L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Goldman, Sachs & Co., solely with respect
to the High Yield Distressed Investing
Group |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Halbis Distressed Opportunities Master Fund
Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Direct |
|
|
|
|
|
|
Stock Right |
|
|
Aggregate |
|
|
Stock Right |
|
|
|
|
|
|
Subscription |
|
|
Direct Subscription |
|
|
Commitment |
|
|
Commitment |
|
|
Premium |
|
|
Alternate Transaction |
|
Investor |
|
Shares |
|
|
Shares Purchase Price |
|
|
Percentage |
|
|
Percentage |
|
|
Percentage |
|
|
Damages Percentage |
|
Kivu Investment Fund Limited |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LongView Partners B, L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mariner LDC (Caspian) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mariner LDC (Riva Ridge) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Merced Partners II, L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Merced Partners Limited Partnership |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Monarch Master Funding Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NewFinance Alden SPV |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Oak Hill Advisors, L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quintessence Fund L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
QVT Fund LP |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Riva Ridge Master Fund, Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Seneca Capital LP |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Silver Point Capital, L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SIPI Master Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Solus Alternative Asset Management LP |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Spectrum Investment Partners, L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stark Criterion Master Fund Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stark Master Fund Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Liverpool Limited Partnership |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Seaport Group LLC Profit Sharing Plan |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
UBS Securities LLC |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Venor Capital Master Fund Ltd. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Whitebox Combined Partners, L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Whitebox Hedged High Yield Partners, L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL |
|
|
10,834,800 |
|
|
$ |
300,015,612.00 |
|
|
|
100.00 |
% |
|
|
100.00 |
% |
|
|
100.00 |
% |
|
|
100.00 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SCHEDULE 2
ARRANGEMENT PREMIUM ALLOTMENTS
|
|
|
|
|
|
|
Arrangement Premium |
|
Arranger |
|
Percentage |
|
Deutsche Bank Securities, Inc. |
|
|
|
|
Goldman, Sachs & Co. |
|
|
|
|
GLCA/Sagent Advisors |
|
|
|
|
SCHEDULE 3
TRANSACTIONS EXPENSES ESTIMATE
|
|
|
|
|
Deutsche Bank |
|
$ |
0.00 |
|
|
|
|
|
|
Goldman Sachs |
|
$ |
385,000.00 |
|
|
|
|
|
|
Solus LP |
|
$ |
381,000.00 |
|
|
|
|
|
|
Monarch Capital |
|
$ |
0.00 |
|
|
|
|
|
|
Elliott Management |
|
$ |
50,000.00 |
|
|
|
|
|
|
Oak Hill |
|
$ |
10,000.00 |
|
|
|
|
|
|
CQS |
|
$ |
1,000.00 |
|
|
|
|
|
|
White & Case LLP |
|
$ |
4,250,000.00 |
|
|
|
|
|
|
OHorizons |
|
$ |
1,580,000.00 |
|
|
|
|
|
|
Conway MacKenzie |
|
$ |
1,400,000.00 |
|
|
|
|
|
|
Sagent/GLC |
|
$ |
1,125,000.00 |
|
|
|
|
|
|
Akin Gump |
|
$ |
1,250,000.00 |
|
SCHEDULE 4
CONSENTS
None.
SCHEDULE 5
LEAD INVESTORS; NOTICE INFORMATION
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Lead Investor |
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Notice Information |
CQS Convertible and Quantitative
Strategies Master Fund Limited
CQS Directional Opportunities Master
Fund Limited
Kivu Investment Fund Limited
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c/o CQS (US), LLC
152 West 57th Street, 41st Floor
New York, NY 10019
Facsimile: (917) 206-4099
Attention: Mark Unferth
Tim McArdle |
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Deutsche Bank Securities Inc.
(solely with respect to the
Distressed Products Group)
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60 Wall Street
New York, NY 10005
Facsimile: (212) 797-4666
Attention: Tom Higbie
Philip Giordano
James MacInnis |
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Elliott International, L.P.
The Liverpool Limited Partnership
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c/o Elliott Management Corporation
712 Fifth Avenue
35th Floor
New York, NY 10019
Facsimile: (888) 341-0656
Attention: Kimberly A.
Reinhardt-Gonzales
Ross Rosen |
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Goldman, Sachs & Co.
(solely with respect to the High
Yield Distressed Investing Group)
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200 West Street, 6th Floor
New York, NY 10282
Facsimile: (646) 576-3388
Attention: Ned Oakley |
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Monarch Master Funding Ltd
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Monarch Alternative Capital LP
535 Madison Avenue
New York, NY 10022
Facsimile: (866) 401-0532
Attention: Robert Burns, General Counsel |
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Oak Hill Advisors, L.P.
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1114 Avenue of the Americas
27th Floor
New York, NY 10036
Facsimile: (212) 735-5287
Attention: Jeffrey Kirt
Gregg Rubin |
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Solus Alternative Asset Management LP
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430 Park Avenue
New York, NY 10022
Facsimile: (212) 284-4320
Attention: Arthur Kaz |
SCHEDULE 6
CO-INVESTORS; NOTICE INFORMATION
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Co-Investor |
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Notice Information |
Alden Global Distressed Opportunities
Fund, L.P.
NewFinance Alden SPV
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c/o Alden Global Capital
885 Third Avenue, 34th Floor
New York, NY 10022
Facsimile: (212) 702-0145
Attention: General Counsel |
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Allen Arbitrage, L.P.
Allen Arbitrage Offshore
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Allen & Company LLC
711 Fifth Avenue
New York, NY 10022
Facsimile: (212) 508-5839
Attention: Tal Gurion |
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Armory Master Fund Ltd.
The Seaport Group LLC Profit Sharing
Plan
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Armory Advisors
999 Fifth Ave., Suite 450
San Rafael, CA 94901
Facsimile: (415) 259-2745
Attention: Jay Burnham |
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Capital Ventures International
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c/o Susquehanna Advisors Group, Inc.
401 City Avenue, Suite 220
Bala Cynwyd, PA 19004
Facsimile: (610) 747-2132
(610) 617-3850
Attention: Legal Department |
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Caspian Capital Partners, L.P.
Caspian Select Credit Master Fund, Ltd.
Mariner LDC
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500 Mamaroneck Ave, Suite 101
Harrison, NY 10528
Facsimile: (914) 798-4210
Attention: Chris Gebhardt |
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Citadel Securities LLC
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Citadel Securities LLC
601 Lexington Avenue, 45th Floor
New York, NY 10022
Facsimile: (312) 267-7577
Attention: Neal Jhaveri
Toby Buchanan |
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CSS, LLC
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CSS, LLC
175 W Jackson Blvd Suite 440
Chicago, IL 60604
Facsimile: (312) 542-8500
Attention: Jerry White
Mike Moran |
SCHEDULE 6
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Co-Investor |
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Notice Information |
Cumberland Partners
Cumberland Benchmarked Partners, L.P.
LongView Partners B, L.P.
Cumber International S.A.
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Cumberland Associates LLC
1114 Avenue of the Americas, 38th Floor
New York, NY 10036
Facsimile: (212) 703-1450
Attention: Barry Konig |
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Cyrus Europe Master Fund Ltd.
Cyrus Select Opportunities
Master Fund, Ltd.
Crescent 1 L.P.
CRS Fund Ltd.
Cyrus Opportunities Master Fund II, Ltd.
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Cyrus Capital Partners, L.P.
399 Park Avenue, 39th Floor
New York, NY 10022
Facsimile: 212-380-5915
Attention: Stephon Barnes
Anthony Scire |
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Halbis Distressed Opportunities
Master Fund, Ltd.
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HSBC Global Asset Management
452 Fifth Avenue, 18th Floor
New York, NY 10018
Facsimile: (212) 525-2380
Attention: Rick W. Liu, CFA, Vice President
Gene Loughlin |
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Merced Partners Limited Partnership
Merced Partners II, L.P.
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c/o EBF & Associates, L.P.
601 Carlson Parkway, Suite 200
Minnetonka, MN 55305
Facsimile: (952) 476-7201
Attention: Thomas G. Rock
Stuart Brown |
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QVT Fund LP
Quintessence Fund L.P.
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c/o QVT Financial LP
1177 Avenue of the Americas, 9th Floor
New York, NY 10036
Facsimile: (212) 705-8801
Attention: Michael Rosenthal |
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Riva Ridge Master Fund, Ltd.
Mariner LDC
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c/o Riva Ridge Capital Management LP
55 Fifth Avenue, 18th Floor
New York, NY 10003
Facsimile: (646) 284-9919
Attention: Dennis Parks |
SCHEDULE 6
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Co-Investor |
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Notice Information |
Seneca Capital, L.P.
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Seneca Capital L.P.
590 Madison Avenue 9th floor
New York, NY 10022
Facsimile: (212) 826-1108
Attention: Eric Feingold
Tracy Sigal |
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Silver Point Capital, L.P.
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Silver Point Capital, L.P.
2 Greenwich Plaza, 1st Floor
Greenwich, CT 06830
Facsimile: (203) 542-4141
Attention: Jeff Forlizzi |
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Spectrum Investment Partners, L.P.
SIPI Master Ltd.
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c/o Spectrum Group Management LLC
1250 Broadway, Suite 810
New York, NY 10001
Facsimile: (212) 983-2322
Attention: Jeffrey A. Schaffer
David D.R. Bullock |
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With a copy to:
Spectrum Group Management LLC
1250 Broadway, Suite 810
New York, NY 10001
Facsimile: (212) 983-2322
Attention: Stephen C. Jacobs |
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Stark Criterion Master Fund Ltd.
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c/o Stark Criterion Management LLC
3600 S. Lake Drive
St. Francis, WI 53235
Facsimile: (414) 294-7700
Attention: Don Bobbs |
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Stark Master Fund Ltd.
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c/o Stark Offshore Management LLC
3600 S. Lake Drive
St. Francis, WI 53235
Facsimile: (414) 294-7700
Attention: Don Bobbs |
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UBS Securities LLC
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UBS Securities LLC
677 Washington Boulevard
Stamford, CT 06901
Facsimile: (203) 719-0680
Attention: Fixed Income Legal |
SCHEDULE 6
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Co-Investor |
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Notice Information |
Venor Capital Master Fund Ltd.
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Venor Capital Management LP
Times Square Tower
7 Times Square, Suite 3505
New York, NY 10036
Facsimile: (212) 703-2111
Attention: Michael Scott |
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Whitebox Hedged High Yield
Partners, L.P.
Whitebox Combined Partners, L.P.
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Whitebox Advisors
3033 Excelsior Blvd, Suite 300
Minneapolis, MN 55416
Facsimile: (612) 253-6151
Attention: Pete Wiley |
Exhibit D
Exhibit D
EXECUTION COPY
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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) |
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In re:
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) |
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Chapter 11 |
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) |
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VISTEON CORPORATION, et al.,1
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) |
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Case No. 09-11786 (CSS) |
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) |
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Debtors.
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) |
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Jointly Administered |
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) |
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PLAN SUPPORT AGREEMENT
THIS PLAN SUPPORT AGREEMENT IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR A
SOLICITATION OF VOTES WITH RESPECT TO A CHAPTER 11 PLAN OF REORGANIZATION. ANY
SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS
AND/OR PROVISIONS OF THE BANKRUPTCY CODE. ACCEPTANCES OR REJECTIONS WITH
RESPECT TO A CHAPTER 11 PLAN OF REORGANIZATION MAY NOT BE SOLICITED UNTIL A
DISCLOSURE STATEMENT HAS BEEN APPROVED BY THE BANKRUPTCY COURT.
This PLAN SUPPORT AGREEMENT (the Agreement) is made and
entered into as of May 6,
2010, by and among:
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(a) |
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Visteon Corporation and all of its direct and indirect affiliates, that are or
may become a debtor and debtor in possession (collectively, the Debtors) in
the above-captioned chapter 11 cases (the Chapter 11 Cases); |
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(b) |
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the undersigned holders (each, a Consenting 7.00% Senior Note Holder
and collectively, the Consenting 7.00% Senior Note Holders) of certain claims
derived from or based upon the 7.00% senior notes due March 10, 2014, issued by |
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1 |
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The Debtors in these chapter 11 cases, along with the last four
digits of each Debtors federal tax identification number, are: Visteon
Corporation (9512); ARS, Inc. (3590); Fairlane Holdings, Inc. (8091);
GCM/Visteon Automotive Leasing Systems, LLC (4060); GCM/Visteon Automotive
Systems, LLC (7103); Infinitive Speech Systems Corp. (7099); MIG-Visteon
Automotive Systems, LLC (5828); SunGlas, LLC (0711); The Visteon Fund (6029);
Tyler Road Investments, LLC (9284); VC Aviation Services, LLC (2712); VC
Regional Assembly & Manufacturing, LLC (3058); Visteon AC Holdings Corp.
(9371); Visteon Asia Holdings, Inc. (0050); Visteon Automotive Holdings, LLC
(8898); Visteon Caribbean, Inc. (7397); Visteon Climate Control Systems Limited
(1946); Visteon Domestic Holdings, LLC (5664); Visteon Electronics Corporation
(9060); Visteon European Holdings Corporation (5152); Visteon Financial
Corporation (9834); Visteon Global Technologies, Inc. (9322); Visteon Global
Treasury, Inc. (5591); Visteon Holdings, LLC (8897); Visteon International
Business Development, Inc. (1875); Visteon International Holdings, Inc. (4928);
Visteon LA Holdings Corp. (9369); Visteon Remanufacturing Incorporated (3237);
Visteon Systems, LLC (1903); Visteon Technologies, LLC (5291). The location of
the Debtors corporate headquarters and the service address for all the Debtors
is: One Village Center Drive, Van Buren Township, Michigan 48111. |
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Visteon Corporation in the original amount of $450,000,000 under that certain
supplemental indenture dated as of March 10, 2004, by and between Visteon
Corporation and J.P. Morgan Trust Company, N.A., as trustee (the 7.00% Senior
Notes); |
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(c) |
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the undersigned holders (each, a Consenting 8.25% Senior Note Holder
and collectively, the Consenting 8.25% Senior Note Holders) of certain claims
derived from or based upon the 8.25% senior notes due August 1, 2010, issued by Visteon
Corporation in the original amount of $700,000,000 under that certain indenture dated
as of June 23, 2000, by and between Visteon Corporation and Bank One Trust Company,
N.A., as trustee (the 8.25% Senior Notes), who, together with the Consenting
7.00% Senior Note Holders, hold at least two-thirds in amount of the aggregate
principal amount of the 7.00% Senior Notes and 8.25% Senior Notes; and |
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(d) |
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the undersigned holders (each, a Consenting 12.25% Senior Note Holder
and collectively, the Consenting 12.25% Senior Note Holders and together with
the Consenting 7.00% Senior Note Holders and the Consenting 8.25% Senior Note Holders,
the Consenting Senior Note Holders) of at least two-thirds in amount of
certain claims derived from or based upon the 12.25% senior notes due December 31,
2016, issued by Visteon Corporation in the original amount of $206,386,000 under that
certain second supplemental indenture dated as of June 18, 2008, by and among Visteon
Corporation, the guarantors party thereto, and The Bank of New York Trust Company,
N.A., as trustee (the 12.25% Senior Notes and together with the 7.00% Senior
Notes and the 8.25% Senior Notes, the Visteon Notes ). |
The Consenting Senior Note Holders, together with the Debtors, are defined
collectively as the
Parties.
RECITALS
WHEREAS, on May 28, 2009, each of the above-captioned Debtors
filed a voluntary petition for
relief under chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101-1532 (the Bankruptcy
Code) with the United States Bankruptcy Court for the District of Delaware (the
Bankruptcy Court).
WHEREAS, each Consenting Senior Note Holder is a Holder of a Claim,
as defined in section
101(5) of the Bankruptcy Code derived from or based upon the 7.00% Senior Notes (each, a 7.00%
Senior Notes Claim), the 8.25% Senior Notes (each, a 8.25% Senior Notes Claim),
and/or the 12.25% Senior Notes (each, a 12.25% Senior Notes Claim and together with the
7.00% Senior Notes Claims, the 8.25% Senior Notes Claims, Claims held by the Consenting Senior Note
Holders arising under that certain Amended and Restated Credit Agreement dated as of April 10,
2007, as amended, supplemented, or modified from time to time, by and between, Visteon Corporation,
as borrower, JPMorgan Chase Bank, N.A., as administrative agent, Wilmington Trust FSB, as successor
administrative agent and the various
2
banks, financial institutions, and other entities party thereto, as lenders, and General
Unsecured Claims held by the Consenting Senior Note Holders, the Visteon Claims);
WHEREAS, on December 17, 2009, the Debtors filed the Joint
Plan of Reorganization of Visteon
Corporation and Its Debtor Affiliates Pursuant to Chapter 11 of the United States Bankruptcy Code
[Docket No. 1475] and the Disclosure Statement for the Debtors Joint Plan of Reorganization
Pursuant to Chapter 11 of the United States Bankruptcy Code [Docket No. 1476];
WHEREAS, on March 15, 2010, the Debtors filed the First
Amended Joint Plan of Reorganization
of Visteon Corporation and Its Debtor Affiliates Pursuant to Chapter 11 of the United States
Bankruptcy Code [Docket No. 2544] and the First Amended Disclosure Statement for the First Amended
Joint Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code [Docket
No. 2545];
WHEREAS, the Debtors have engaged in good faith negotiations with the
Consenting Senior Note
Holders, including the Consenting Senior Note Holders holding a majority in principal amount,
respectively, of the 7.00% Senior Notes Claims, 8.25% Senior Notes Claims, and 12.25% Senior Notes
Claims held by the Consenting Senior Note Holders, regarding the terms of a further amended joint
plan of reorganization pursuant to chapter 11 of the United States Bankruptcy Code in the form
annexed hereto as Exhibit A (and as may be amended as permitted by Section 2.5(d)
of this Agreement, the Amended Plan);2
WHEREAS, in connection with the rights offering contemplated by the
Rights Offering Sub Plan,
the Debtors are seeking Bankruptcy Court approval of that certain Equity Commitment Agreement, by
and among the Debtors and the Investors (as defined in the Equity Commitment Agreement, the
Investors), dated as of May 6, 2010 (the Equity Commitment Agreement);
WHEREAS, each Consenting Senior Note Holder has reviewed or has had
the opportunity to review
the Amended Plan;
WHEREAS, the Debtors and the Consenting Holders have agreed to
facilitate confirmation and
consummation of the Amended Plan and any and all related transactions in the manner set forth
herein and in the Amended Plan (collectively, the Restructuring);
WHEREAS, to ensure an orderly confirmation process, (a) the
Debtors are prepared to perform
their obligations hereunder subject to the terms and conditions of this Agreement, including, among
other things to seek the Bankruptcy Courts approval of the Disclosure Statement (substantially in
the form attached hereto as Exhibit B, with any such amendments, supplements, changes and
modifications thereto that may be made subject to the provisions hereof, which Disclosure Statement
shall be in such form and substance as is reasonably satisfactory to Requisite Investors (as
defined in the Equity Commitment Agreement, the Requisite Investors) and with any changes
or modifications required by the Bankruptcy Court, the Disclosure Statement) prior to
soliciting votes on the Amended Plan in accordance with section 1125 of the Bankruptcy Code and (b)
the Consenting Senior Note Holders are prepared
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2 |
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Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Amended Plan. |
3
to perform their obligations hereunder subject to the terms and conditions of this Agreement,
including, without limitation, working with the Debtors to obtain Bankruptcy Court approval of this
Agreement and the Amended Plan; and
WHEREAS, in expressing their support for the Agreement and the
Amended Plan (pursuant to the
terms and conditions of this Agreement), the Parties do not desire and do not intend in any way to
derogate or diminish the solicitation requirements of applicable securities and bankruptcy law, or
the fiduciary duties of the Debtors.
NOW, THEREFORE, subject to the provisions of Section 8.7
of this Agreement, in
consideration of the foregoing and the premises, mutual covenants, and agreements set forth herein
and for other good and valuable consideration, the Parties agree as follows:
Section 1. The Amended Plan.
The Amended Plan is incorporated by reference herein and made part of this
Agreement and each
Consenting Senior Note Holder has reviewed or has had the opportunity to review the Amended Plan.
Section 2. Commitments of the Parties Under this Agreement.
2.1 |
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Consenting Senior Note Holders and Debtors Support of Amended Plan. |
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(a) |
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As long as this Agreement shall not have been terminated in accordance with
Section 7 or Section 2.5 hereof, each Consenting Senior Note Holder
agrees that, unless it shall have terminated its obligations hereunder pursuant to
Section 7.1(d) hereof, by having executed and become party to this Agreement,
it shall: |
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(1) |
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support entry of the Disclosure Statement Order (as defined
below); |
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(2) |
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agree to permit disclosure in any disclosure statement and any
filings by the Debtors with the Securities and Exchange Commission of the
contents of this Agreement, including the aggregate 7.00% Senior Notes Claims,
8.25% Senior Notes Claims, and 12.25% Senior Notes Claims held by all
Consenting Senior Note Holders; provided, however, that the
amount of such claims held by any individual Consenting Senior Note Holder
shall be disclosed only to the Debtors and shall not be disclosed by the
Debtors to any other Entity, unless required by applicable law, regulation, or
legal process; and |
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(3) |
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vote all Relevant Claims (as defined below) it holds to accept
the Amended Plan when solicited pursuant to the Disclosure Statement Order by
the Debtors, provided, however, that (a) the Disclosure
Statement shall be substantially in the form attached hereto as Exhibit
B, with any such amendments, supplements, changes and modifications
thereto, which Disclosure Statement shall be in such form and substance as is
reasonably satisfactory to Requisite Investors and with any changes or
modifications required by the Bankruptcy Court; (b) the Amended Plan is in the
form |
4
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attached hereto as Exhibit A except as may be amended pursuant to
Section 2.5(d) of this Agreement; and (c) the Bankruptcy Court has
entered the Disclosure Statement Order. |
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(b) |
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Unless the Debtors and the Consenting Senior Note Holders have agreed, in
writing, to pursue an Alternative Plan (as defined below) and as long as this Agreement
shall not have been terminated in accordance with Section 7 or Section
2.5 hereof, the Debtors (subject in all respects to their fiduciary duties) and
each Consenting Senior Note Holder (so long as such Consenting Senior Note Holder shall
not have terminated its obligations hereunder pursuant to Section 7.1(d)
hereof) further agree that they shall not (as applicable): |
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(1) |
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directly or indirectly seek, solicit, support, or vote in favor
of any other plan, sale, proposal, or offer of dissolution, winding up,
liquidation, reorganization, merger, or restructuring of the Debtors that could
reasonably be expected to prevent, delay, or impede the restructuring of the
Debtors as contemplated by the Amended Plan or that is inconsistent with this
Agreement (collectively, an Alternative Plan); |
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(2) |
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directly or indirectly (a) engage in, continue, or otherwise
participate in any negotiations regarding any Alternative Plan, (b) enter into
a letter of intent, memorandum of understanding, agreement in principle, or
other agreement relating to any Alternative Plan or (c) withhold, withdraw,
qualify, or modify their approval or recommendation of this Agreement, the
Amended Plan, or the Restructuring; |
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(3) |
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object to or otherwise commence any proceeding opposing any of
the terms of the Amended Plan or the Disclosure Statement, including, without
limitation, the findings of the Valuation Analysis (as defined in the
Disclosure Statement), provided that nothing contained herein shall
limit the ability of any Consenting Senior Note Holder to consult with the
Debtors, to appear and be heard, or to file objections, concerning any matter
arising in the Chapter 11 Cases, so long as such consultation, appearance or
objection is not inconsistent with (i) such Consenting Senior Note Holders
obligations under this Agreement or (ii) the terms of the Amended Plan and the
other transactions contemplated by and in accordance with this Agreement and
the Amended Plan; |
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(4) |
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commence any proceeding or prosecute, join in, or otherwise
support any action to oppose or object to entry of the Disclosure Statement
Order; |
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(5) |
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encourage any other Entity to object to, delay, impede, appeal,
or take any other action, directly or indirectly, to interfere with entry of
the Disclosure Statement Order or, after approval thereof, an order of the
Bankruptcy Court confirming the Amended Plan; |
5
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(6) |
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commence any proceeding or prosecute, join in, or otherwise
support any action to oppose or object to approval of the Amended Plan; or |
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(7) |
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take any action that is inconsistent with this Agreement or the
Amended Plan, or that would unreasonably delay approval of the Disclosure
Statement or confirmation of the Amended Plan. |
For the avoidance of doubt, the Claims Conversion Sub Plan shall not be an
Alternative Plan if
implemented or consummated pursuant to and substantially in accordance with the Amended Plan and
not in violation of the Equity Commitment Agreement. Further, the obligations of any Consenting
Senior Note Holder under this Section 2.1 shall apply to all Relevant Claims and Relevant
Interests (each, as defined below) that such Consenting Senior Note Holder has in the Chapter 11
Cases; provided that the obligations under Section 2.1(a)(3) and Section
2.1(b)(1), to the extent it relates to voting, shall apply only to Relevant Claims (as defined
below) and not to the Equity Securities of Visteon Corporation (the Equity Interests),
including the Relevant Interests (as defined below), held by such Consenting Senior Note Holder.
Relevant Claims means the Visteon Claims held by a Consenting Senior Note Holder that it
is legally authorized to make subject to the terms of this Agreement, with the exception of any
such Visteon Claims that such Consenting Senior Note Holder has sold, transferred, or assigned
prior to its execution of this Agreement, whether or not any such sale, transfer, or assignment has
settled as of the date hereof (provided that such sale, transfer, or assignment is actually
consummated). Relevant Interests means the Equity Interests held by a Consenting Senior
Note Holder that it is legally authorized to make subject to the terms of this Agreement, with the
exception of any such Equity Interests that such Consenting Senior Note Holder has sold,
transferred, or assigned prior to its execution of this Agreement, whether or not any such sale,
transfer, or assignment has settled as of the date hereof (provided that such sale,
transfer, or assignment is actually consummated).
2.2 Transfer of Claims, Interests, and Securities.
Each Consenting Senior Note Holder hereby agrees, for so long as this
Agreement shall remain
in effect with regard to such Consenting Senior Note Holder, not to sell, assign, transfer, pledge,
hypothecate or otherwise dispose of, directly or indirectly (each such action, a
Transfer), any of its Relevant Claims or any right related thereto and including any
voting rights associated with such Relevant Claims, unless the transferee thereof delivers an
agreement in writing, in substantially the form of the transfer agreement attached hereto as
Exhibit C (the Transfer Agreement), to the Debtors no later than three (3)
Business Days after the relevant Transfer (each such transferee becoming a Consenting Senior Note
Holder upon the Transfer hereunder); provided, however, that any Transfer of
Relevant Claims to a Consenting Senior Note Holder shall not require the execution of a Transfer
Agreement but shall be subject to the provisions of Section 2.3 hereof.
The Debtors shall promptly acknowledge any such Transfer Agreement in
writing and provide a
copy of that acknowledgement to the transferor; provided, however, that any failure
by the Debtors to acknowledge such Transfer Agreement shall not affect the validity or
enforceability thereof. By their acknowledgement of the relevant Transfer Agreement, the Debtors
shall be deemed to have acknowledged that their obligations to the Consenting Senior
6
Note Holders hereunder shall be deemed to constitute obligations in favor of the relevant
transferee as a Consenting Senior Note Holder hereunder. Any sale, transfer, or assignment of any
Relevant Claims that does not comply with the procedures set forth in this Section 2.2
shall be deemed void ab initio. Notwithstanding the foregoing, execution of a Transfer Agreement
shall not be required for transferees that are broker-dealers or trading desks in their capacity or
to the extent of their holdings as a broker-dealer or market maker of Claims or Equity Interests (a
Market Maker) engaged in market making or riskless back-to-back trades (collectively,
Market Making Activities); provided that execution of a Transfer Agreement under
this Section 2.2 shall be required for the actual purchasers of Claims in such market
transactions. For the avoidance of doubt, no Transfer Agreement shall be required in connection
with a Transfer by any Consenting Senior Note Holder of any Equity Interests.
2.3 Further Acquisition of Visteon Claims and Interests.
This Agreement shall in no way be construed to preclude any Consenting
Senior Note Holder or
any of its affiliates (as defined in section 101(2) of the Bankruptcy Code) from acquiring
additional Relevant Claims or Relevant Interests following its execution of this Agreement;
provided, however, that any such additional Relevant Claims or Relevant Interests
acquired by a Consenting Senior Note Holder shall automatically be deemed to be subject to the
terms of this Agreement. Upon the written request of the Debtors, each Consenting Senior Note
Holder shall, in writing and within five (5) Business Days, provide an accurate and current list of
all Relevant Claims and/or Relevant Interests that it holds at that time, subject to any applicable
confidentiality restrictions and applicable law, including the confidentiality restrictions set
forth in Section 2.1(a)(2) hereof.
Each Consenting Senior Note Holder further agrees that it will not knowingly
permit or cause
any subsidiary or affiliate that it is legally authorized to control, now existing or hereafter
created, to acquire any Claims against or Equity Interests in any of the Debtors without causing
such affiliate to become a Party hereto prior to such acquisition; provided,
however, that notwithstanding anything to the contrary contained in this Agreement, the
foregoing restrictions on a Consenting Senior Note Holder knowingly permitting or causing any
subsidiary or affiliate to acquire any Claims against or Equity Interests in any of the Debtors
without becoming a Party hereto set forth in this paragraph shall not apply to the following
Consenting Senior Note Holders: (a) the High Yield Distressed Investing Group of Goldman, Sachs &
Co. (the High Yield Group), except with respect to the Transfer of Relevant Claims and
Relevant Interests held by the High Yield Group to any subsidiary or affiliate of the High Yield
Group, which Relevant Claims and Relevant Interests shall, for the avoidance of doubt, remain
Relevant Claims and Relevant Interests following any such Transfer, and (b) the Distressed Products
Group of Deutsche Bank Securities Inc. (the Distressed Products Group) except with
respect to the Transfer of Relevant Claims and Relevant Interests held by the Distressed Products
Group to any subsidiary or affiliate of the Distressed Products Group, which Relevant Claims and
Relevant Interests shall, for the avoidance of doubt, remain Relevant Claims and Relevant Interests
following any such Transfer.
Sections 2.2 and 2.3 of this Agreement shall not apply to
Claims or Equity
Interests traded by any subsidiary or affiliate or any trading desk of a Consenting Senior Note
Holder in
7
its capacity or to the extent of its holdings as a Market Maker engaged in Market Making
Activities.
2.4 Implementation of the Amended Plan.
Subject to their fiduciary duties and without limiting the rights of the
Requisite Investors
under the Equity Commitment Agreement, the Debtors shall use their commercially reasonable efforts
to:
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(a) |
|
file a motion with the Bankruptcy Court authorizing the Debtors to execute and
perform under this Agreement within seven (7) days of the date hereof and use their
commercially reasonable efforts to obtain an order from the Bankruptcy Court approving
such motion (the Plan Support Agreement Approval Order); |
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(b) |
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effectuate and consummate the Restructuring on the terms contemplated by the
Amended Plan; |
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(c) |
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file the Disclosure Statement with the Bankruptcy Court, along with a motion,
to the extent necessary, seeking approval of such Disclosure Statement; |
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(d) |
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obtain entry by the Bankruptcy Court of an order approving the Disclosure
Statement in form and substance reasonably acceptable to the Requisite Investors and
finding that the Disclosure Statement satisfies the requirements of Section 1125 of the
Bankruptcy Code (such an order, the Disclosure Statement Order); |
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(e) |
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solicit the requisite acceptances of the Amended Plan in accordance with
section 1125 of the Bankruptcy Code after the Bankruptcy Court has approved the
Disclosure Statement; |
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(f) |
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after entry of the Disclosure Statement Order, move to confirm the Amended Plan
as expeditiously as practicable under the Bankruptcy Code and the Federal Rules of
Bankruptcy Procedure as applicable to the Chapter 11 Cases, promulgated under 28 U.S.C.
§ 2075 and the general, local, and chambers rules of the Bankruptcy Court
(collectively, the Bankruptcy Rules); |
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(g) |
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implement all steps necessary and desirable to obtain the Confirmation Order,
which Confirmation Order shall be consistent in all material respects with the Amended
Plan and shall be in form and substance reasonably acceptable to the Requisite
Investors; |
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(h) |
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take no actions inconsistent with this Agreement, the Amended Plan, or the
expeditious confirmation and consummation of the Amended Plan; and |
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(i) |
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seek to consummate the Amended Plan upon satisfaction of all conditions to
consummation thereof. |
8
2.5 The Debtors Fiduciary Obligations.
Notwithstanding anything to the contrary contained in this Agreement,
subject to the Debtors
obligations under the Equity Commitment Agreement, the Debtors obligations hereunder are subject
at all times to the fulfillment of their respective fiduciary duties. The Debtors may terminate
their obligations under this Agreement by written notice to counsel for the Consenting Senior Note
Holders if the Debtors reasonably determine that (a) the Amended Plan is not in the best interests
of the Debtors estates and continued support of the Amended Plan pursuant to this Agreement would
be inconsistent with the Debtors fiduciary obligations, or (b) the Debtors receive a proposal for
an Alternative Plan and the Debtors reasonably determine that continued support of the Amended Plan
pursuant to this Agreement would be inconsistent with the Debtors fiduciary obligations. Upon a
termination of this Agreement pursuant to this Section 2.5, all obligations of the
Consenting Senior Note Holders hereunder shall immediately terminate without further action or
notice by the Consenting Senior Note Holders.
Section 3. Representations and Warranties of Consenting Senior Note
Holders.
Each of the Consenting Senior Note Holders hereby represents and warrants
that, as of the date
hereof:
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(a) |
|
it is the legal owner, beneficial holder, and/or the investment advisor or
manager for the beneficial holder of such legal or beneficial holders Relevant Claims
and Relevant Interests subject to this Agreement and set forth on its respective
signature page to this Agreement with authority to bind such beneficial holder to the
extent that such Consenting Senior Note Holder is not the beneficial holder
(respectively, the Initial Relevant Claims and Initial Relevant
Interests), provided that such information shall be held subject to the proviso in
Section 2.1(a)(2) hereof; |
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(b) |
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there are no Relevant Claims or Relevant Interests of which it is the holder of
record that are not part of its Initial Relevant Claims and Initial Relevant Interests
unless such Consenting Senior Note Holder does not possess the full power to vote and
dispose of such Claims; and |
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(c) |
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it has full power to vote (with the exception of such Consenting Senior Note
Holders Initial Relevant Interests), dispose of, and compromise the aggregate
principal amount of the Initial Relevant Claims and Initial Relevant Interests. |
Section 4. Mutual Representations, Warranties, and Covenants.
Each Party makes the following representations, warranties, and covenants,
severally and not
jointly as to itself, to each of the other Parties, each of which are continuing representations,
warranties, and covenants:
4.1 Good Faith.
The Parties agree to negotiate in good faith all of the documents and
transactions described
in the Amended Plan and in this Agreement.
9
4.2 Enforceability.
Subject to Section 8.7 of this Agreement and the provisions of
sections 1125 and 1126
of the Bankruptcy Code, this Agreement is a legal, valid, and binding obligation, enforceable
against the Debtors and each Consenting Senior Note Holder in accordance with its terms, except as
enforcement may be limited by applicable laws relating to or limiting creditors rights generally
or by equitable principles relating to enforceability. Notwithstanding anything contained herein
to the contrary, the obligations of each Consenting Senior Note Holder hereunder shall be several
and not joint.
4.3 No Consent or Approval.
Except as expressly provided in this Agreement, no consent or approval is
required by any
other Entity in order for it to carry out the provisions of this Agreement.
4.4 Power and Authority.
It is duly organized, validly existing, and in good standing under the laws
of its
jurisdiction of organization and it has all requisite corporate, partnership, or limited liability
company power and authority to enter into this Agreement and to carry out the transactions
contemplated by, and perform its respective obligations under, this Agreement and the Amended Plan.
4.5 Authorization.
The execution and delivery of this Agreement and the performance of its
obligations hereunder
have been duly authorized by all necessary corporate, partnership, or limited liability company
action.
4.6 Governmental Consents.
Subject to the provisions of Section 8.7 of this Agreement, the
execution, delivery,
and performance by the Parties of this Agreement does not and shall not require any registration or
filing with or consent or approval of, or notice to, or other action to, with or by, any federal,
state, or other governmental authority or regulatory body, except such filings as may be necessary
and/or required under the federal securities laws or as necessary for the approval of the
Disclosure Statement and confirmation of the Amended Plan by the Bankruptcy Court.
4.7 No Conflicts.
The execution, delivery, and performance of this Agreement does not and
shall not: (a) violate
any provision of law, rule, or regulations applicable to it or, in the case of the Debtors, any of
its subsidiaries; (b) violate its certificate of incorporation, bylaws (or other formation
documents in the case of a limited liability company) or, in the case of the Debtors, those of any
of its subsidiaries; or (c) conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any material contractual obligation to which it or, in the
case of the Debtors, any of its subsidiaries is a party.
10
Section 5. No Waiver of Participation and Preservation of Rights.
This Agreement and the Amended Plan are part of a proposed settlement among
the Parties with
respect to the Relevant Claims and Relevant Interests. Except as expressly provided in this
Agreement, nothing herein is intended to, does or shall be deemed in any manner to waive, limit,
impair, or restrict the ability of each of the Consenting Senior Note Holders to protect and
preserve its rights, remedies, and interests, including, but not limited to, its claims against any
of the Debtors, any liens or security interests it may have in any assets of any of the Debtors, or
its full participation in the Chapter 11 Cases so long as such actions are not inconsistent with
the Consenting Senior Note Holders obligations hereunder. Without limiting the foregoing sentence
in any way, if the transactions contemplated by this Agreement or otherwise set forth in the
Amended Plan are not consummated as provided herein or therein, if this Agreement is terminated for
any reason, the Parties each fully reserve any and all of their respective rights, remedies and
interests.
Section 6. Acknowledgement.
THIS AGREEMENT, THE AMENDED PLAN, AND THE TRANSACTIONS CONTEMPLATED HEREIN
AND THEREIN, ARE
THE PRODUCT OF NEGOTIATIONS BETWEEN THE PARTIES AND THEIR RESPECTIVE REPRESENTATIVES. EACH PARTY
HEREBY ACKNOWLEDGES THAT THIS AGREEMENT IS NOT AND SHALL NOT BE DEEMED TO BE A SOLICITATION OF
VOTES FOR THE ACCEPTANCE OF A CHAPTER 11 PLAN FOR THE PURPOSES OF SECTIONS 1125 AND 1126 OF THE
BANKRUPTCY CODE OR OTHERWISE. THE DEBTORS WILL NOT SOLICIT ACCEPTANCES OF THE AMENDED PLAN FROM
ANY CONSENTING SENIOR NOTE HOLDER (OR ANY OTHER PERSON OR ENTITY) UNTIL THE CONSENTING SENIOR NOTE
HOLDERS (OR ANY OTHER PERSON OR ENTITY) HAVE BEEN PROVIDED WITH COPIES OF A DISCLOSURE STATEMENT
APPROVED BY THE BANKRUPTCY COURT. EACH PARTY FURTHER ACKNOWLEDGES THAT NO SECURITIES OF ANY DEBTOR
ARE BEING OFFERED OR SOLD HEREBY AND THAT THIS AGREEMENT DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OF ANY DEBTOR. NOTWITHSTANDING THE FOREGOING
PROVISIONS, NOTHING IN THIS AGREEMENT SHALL REQUIRE ANY PARTY TO TAKE ANY ACTION PROHIBITED BY THE
BANKRUPTCY CODE, THE SECURITIES ACT OF 1933 (AS AMENDED), THE SECURITIES EXCHANGE ACT OF 1934 (AS
AMENDED), ANY RULE OR REGULATIONS PROMULGATED THEREUNDER, OR BY ANY OTHER APPLICABLE LAW OR
REGULATION OR BY AN ORDER OR DIRECTION OF ANY COURT OR ANY STATE OR FEDERAL GOVERNMENTAL AUTHORITY.
Section 7. Termination.
7.1 Termination Events.
This Agreement may be terminated:
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(a) |
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immediately upon the written agreement of the Debtors and the Requisite Senior
Note Holders to terminate this Agreement; |
11
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(b) |
|
by any of the Debtors or the Requisite Senior Note Holders upon three (3)
Business Days written notice to each of the other Parties; provided that such
notice is delivered in accordance with Section 8.11 hereof and received not
more than ten (10) Business Days following the occurrence of any event described in
clause (1) or (2) below, if: |
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(1) |
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any of the Chapter 11 Cases are dismissed or converted to a
case under Chapter 7 of the Bankruptcy Code; or |
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(2) |
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the Bankruptcy Court has entered an order in any of the Chapter
11 Cases appointing an examiner with expanded powers or a trustee under chapter
7 or chapter 11 of the Bankruptcy Code; provided, however, that
the appointment of an examiner pursuant to the motion of that certain ad hoc
committee of equityholders as filed with the Bankruptcy Court on April 2, 2010
shall not give rise to a right to terminate this Agreement; |
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(c) |
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by the Requisite Senior Note Holders, upon three (3) Business Days written
notice to the Debtors (or such lesser time if the voting deadline for the Amended Plan
is to occur, or if the Confirmation Hearing is to commence within such period),
provided that with respect to Sections 7.1(c)(1) and (2), the
Requisite Senior Note Holders shall not be permitted to terminate this Agreement if,
prior to the delivery of such notice, the Debtors shall have filed the relevant
document(s) set forth in Sections 7.1(c)(1) and/or (2) below that,
without the occurrence of such filing, would have constituted a basis for terminating
this Agreement, if: |
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(1) |
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the Debtors fail to file a motion seeking authority to perform
under this Agreement within seven (7) days of the date hereof; |
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(2) |
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the Debtors have not filed the Amended Plan and the Disclosure
Statement with the Bankruptcy Court on or before May 12, 2010 or such later
date as may be agreed to by the Requisite Senior Note Holders; |
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(3) |
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the Debtors have withdrawn the Amended Plan or publicly
announced their intention not to support the Amended Plan or provided written
notice to any Consenting Senior Note Holders (or any of their respective
representatives) of their intention to do so; or |
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(4) |
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any court has entered a final, non-appealable judgment or order
declaring this Agreement or any material portion hereof to be unenforceable; |
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(d) |
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by each Consenting Senior Note Holder, but solely with respect to such
Consenting Senior Note Holder (this Agreement remaining in full force and effect as
among the Debtors and the other Consenting Senior Note Holders) upon three (3) Business
Days written notice to the Debtors (or such lesser time if the voting deadline for the
Amended Plan is to occur, or if the Confirmation Hearing is to commence within such
period) following a material adverse change or modification to the treatment of the
Claims of holders of Visteon Notes under the |
12
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Amended Plan, in the form attached hereto as of the date hereof, that has been
effected without the prior written consent of such Consenting Senior Note Holder; |
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(e) |
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and shall be terminated automatically if the Equity Commitment Agreement has
been validly terminated, subject to, and in accordance with, the Debtors rights
hereunder to commence the Expedited Proceedings (as defined below): |
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(1) |
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by Requisite Investors pursuant to Section 10.1(c)(i) of the
Equity Commitment Agreement; |
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(2) |
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by Requisite Investors pursuant to Section 10.1(c)(iv) of the
Equity Commitment Agreement (excluding a termination of the Equity Commitment
Agreement by Requisite Investors pursuant to Section 10.1(c)(iv) of the Equity
Commitment Agreement in the event of a breach by any Investor);
provided, however, that this Agreement shall not be terminated
pursuant to this Section 7.1(e)(2) in the event of any extension of the
Outside Date (as defined in the Equity Commitment Agreement) pursuant to clause
(A) or (B) of Section 10.1(b)(iii) of the Equity Commitment Agreement, if,
following the date that would otherwise have been the Outside Date (as defined
in the Equity Commitment Agreement) but for such extension, the Equity
Commitment Agreement is terminated by the Requisite Investors pursuant to
Section 10.1(c)(iv) of the Equity Commitment Agreement as a result of any
breach or breaches of the Equity Commitment Agreement by the Debtors that would
cause a failure of any condition set forth in Section 8.1(l) of the Equity
Commitment Agreement; |
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(3) |
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by Requisite Investors pursuant to Section 10.1(c)(vi) of the
Equity Commitment Agreement; |
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(4) |
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by the Debtors pursuant to Section 10.1(b)(ii) of the Equity
Commitment Agreement, unless: |
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(A) |
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the Debtors shall have provided the Lead
Investors (as defined in the Equity Commitment Agreement) with ten (10)
Business Days prior notice of their intent to terminate the Equity
Commitment Agreement (which notice the Debtors hereby agree to so
deliver); |
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(B) |
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the Requisite Investors have failed to exercise
their Plan Cure Rights (as defined below), or have failed to obtain
confirmation of the Rights Offering Sub Plan following their exercise
of such Plan Cure Rights; and |
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(C) |
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following a failure of the Requisite Investors
to exercise the Plan Cure Rights or to obtain confirmation of the
Rights Offering Sub Plan following their exercise of the Plan Cure
Rights, the Claims Conversion Sub Plan shall be confirmable by the
Bankruptcy Court without amendment or with only such amendments as
would |
13
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not require re-solicitation of the holders of Visteon Notes or, if
also made to the Rights Offering Sub Plan, would result in the
confirmation of the Rights Offering Sub Plan. |
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The Requisite Investors Plan Cure Rights pursuant to this
Section 7.1(e)(4) shall be as follows: within the ten (10) Business
Day period following the Lead Investors (as defined in the Equity
Commitment Agreement) receipt of notice of the Debtors intent to terminate
the Equity Commitment Agreement pursuant to Section 10.1(b)(ii) thereof, the
Requisite Investors shall deliver a written amendment or amendments which
are acceptable to the Debtors in their reasonable discretion to the Equity
Commitment Agreement or the Amended Plan, as the case may be (collectively,
the Amendments), that resolve all objections to the Amended Plan
sustained by the Bankruptcy Court (with the exception of those described in
Section Error! Reference source not found. below) in a manner that
either: |
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(i) |
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does not require the Debtors to
re-solicit approval of the Amended Plan; or |
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(ii) |
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if re-solicitation is ordered by
the Bankruptcy Court following the Parties request that no
further solicitation be required, such re-solicitation requires
the Debtors to re-solicit approval of the Amended Plan only from
Holders of 7.00% Senior Note Claims, 8.25% Senior Note Claims,
and 12.25% Senior Note Claims; provided that binding
agreements to support the Amended Plan, as amended by the
Amendments, are delivered to the Debtors by Consenting Senior
Note Holders holding at least two-thirds in aggregate principal
amount of the 7.00% Senior Notes and 8.25% Senior Notes and
two-thirds in aggregate principal amount of the 12.25% Senior
Notes within five (5) Business Days after delivery of the
Amendments; |
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(5) |
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by the Debtors, pursuant to Section 10.1(b)(iii) of the Equity
Commitment Agreement if the conditions in Sections 8.1(h), (i), and (j) thereof
have not been satisfied and the outstanding items which are the cause of such
conditions to not be satisfied (i.e., any outstanding consents,
approvals, notifications, waiting period expirations, etc.) are also necessary
under applicable Law for the Debtors to consummate the Claims Conversion Sub
Plan; |
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(6) |
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by the Debtors pursuant to Section 10.1(d)(ii) of the Equity
Commitment Agreement; or |
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(7) |
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by Requisite Investors pursuant to Section 10.1(c)(ix) of the
Equity Commitment Agreement (any termination of the Equity Commitment |
14
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Agreement described in this Section 7.1(e), a Plan Support
Termination Event); or |
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(f) |
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by Requisite Investors, upon three (3) Business Days written notice to the
Debtors if (i) the Bankruptcy Court shall determine not to approve the Rights Offering
Sub Plan solely on account of issues arising from a Management Agreement (as defined in
the Equity Commitment Agreement) or Exhibits G or L to the Equity Commitment Agreement
and (ii) the Debtors have not filed or delivered, as applicable, such amendments that
are reasonably acceptable to the Requisite Investors to any Management Agreement (as
defined in the Equity Commitment Agreement) or Exhibits G or L to the Equity Commitment
Agreement and/or Amended Plan as may be necessary to resolve all objections with
respect to issues arising from a Management Agreement (as defined in the Equity
Commitment Agreement) or Exhibits G or L to the Equity Commitment Agreement sustained
by the Bankruptcy Court within sixty (60) days following the Bankruptcy Courts
determination not to approve the Rights Offering Sub Plan. |
The provisions of this Section 7.1 are intended solely for the
benefit of the Debtors
and the Consenting Senior Note Holders; provided, however, that a Consenting Senior
Note Holder or a Debtor may not seek to terminate this Agreement based upon a material breach or a
failure of a condition (if any) in this Agreement arising out of its own actions or omissions. The
Parties hereby waive any requirement under section 362 of the Bankruptcy Code to lift the automatic
stay thereunder (the Automatic Stay) in connection with giving any notice described in
this Section 7.1 (and agree not to object to any non-breaching Party seeking to lift the
Automatic Stay in connection with giving any such notice, if necessary). Any such termination (or
partial termination) of this Agreement shall not restrict the Parties rights and remedies for any
breach of this Agreement by any Party, including, but not limited to, the reservation of rights set
forth in Section 5 hereof, and the right of specific performance set forth in Section
8.8. For the avoidance of doubt, except as set forth in Section 7.1(e)(5) hereof, any
termination of the Equity Commitment Agreement by the Debtors pursuant to Section 10.1(b)(iii)
thereof shall not result in a right for any Party to terminate this Agreement.
If this Agreement is terminated or alleged to have been terminated pursuant
to Section
7.1(e) hereof, the Debtors shall have three (3) Business Days to provide notice (such notice,
the Dispute Notice) to the Requisite Investors of their intent to commence expedited
proceedings in the Bankruptcy Court to determine whether a Plan Support Termination Event has
occurred (the Expedited Proceedings). The Consenting Senior Note Holders hereby agree to
consent to the commencement of the Expedited Proceedings and this Agreement shall not be terminated
with respect to the Consenting Senior Note Holders pursuant to Section 7.1(e) hereof
unless and until (A) the Debtors fail to file a motion seeking to commence the Expedited
Proceedings within seven (7) Business Days after receipt of the Dispute Notice by counsel to the
Consenting Senior Note Holders, or (B) a Final Order has been entered determining that a Plan
Support Termination Event has occurred, provided that the Debtors shall not be permitted to
proceed with consummation of the Claims Conversion Sub Plan pending entry of such Final Order. For
the avoidance of doubt, this last paragraph of Section 7.1 shall survive any termination of
this Agreement.
15
7.2 Effects of Termination.
In the event this Agreement is terminated (or is terminated with respect to
any Party), the
Parties hereto (or the Parties with respect to which this Agreement has been terminated, as
applicable) shall not have any continuing liability or obligation under this Agreement and each
Party (or each Party with respect to which this Agreement has been terminated, as applicable) shall
have all the rights and remedies available to it under applicable law; provided,
however, that no such termination shall relieve any Party from liability for its breach or
non-performance of its obligations hereunder prior to the date of termination. Following any
termination of this Agreement (including a termination by a Consenting Senior Note Holder with
respect to such Consenting Senior Note Holder pursuant to Section 7.1(d) hereof), the
Debtors may proceed to seek confirmation of the Amended Plan and shall not be required to
re-solicit acceptances of the Amended Plan to the extent that any such solicitation has occurred;
provided that the Consenting Senior Note Holders shall be deemed to have voted to reject
the Claims Conversion Sub Plan for the purposes of confirmation of the Claims Conversion Sub Plan;
provided further, that to the extent that any Consenting Senior Note Holder has
terminated this Agreement with respect to itself pursuant to Section 7.1(d) hereof, such
Consenting Senior Note Holder shall be deemed to have voted to reject the Amended Plan without
regard to whether the Debtors seek confirmation of the Rights Offering Sub Plan or Claims
Conversion Sub Plan; provided further, that the Debtors shall adjourn the
Confirmation Hearing to the date that is thirty (30) days from the date that this Agreement has
been terminated (or the soonest date thereafter permitted by the Bankruptcy Courts schedule), and,
during such period, the Consenting Senior Note Holders shall have the opportunity to prepare for
the Confirmation Hearing, including by taking discovery and filing pleadings and objections.
Section 8. Miscellaneous Terms.
8.1 Binding Obligation; Assignment.
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(a) |
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Binding Obligation. Subject to the provisions of sections 1125 and 1126 of the
Bankruptcy Code, this Agreement is a legally valid and binding obligation of the
Parties and their respective members, officers, directors, agents, financial advisors,
attorneys, employees, partners, affiliates, successors, assigns, heirs, executors,
administrators, and representatives, other than a trustee or similar representative
appointed in the Chapter 11 Cases, enforceable in accordance with its terms, and shall
inure to the benefit of the Parties and their respective members, officers, directors,
agents, financial advisors, attorneys, employees, partners, affiliates, successors,
assigns, heirs, executors, administrators, and representatives. Nothing in this
Agreement, express or implied, shall give to any Entity, other than the Parties and
their respective members, officers, directors, agents, financial advisors, attorneys,
employees, partners, affiliates, successors, assigns, heirs, executors, administrators,
and representatives, any benefit or any legal or equitable right, remedy or claim under
this Agreement. The agreements, representations, warranties, covenants, and
obligations of each Consenting Senior Note Holder contained in this Agreement are, in
all respects, several, but not joint. |
16
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(b) |
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Assignment. No rights or obligations of any Party under this Agreement may be
assigned or transferred to any other entity except as provided in Section 2.2
hereof. |
8.2 Further Assurances.
The Parties agree to execute and deliver such other instruments and perform
such acts, in
addition to the matters herein specified, as may be reasonably appropriate or necessary, from time
to time, to effectuate the agreements and understandings of the Parties, whether the same occurs
before or after the date of this Agreement.
8.3 Headings.
The headings of all sections of this Agreement are inserted solely for the
convenience of
reference and are not a part of and are not intended to govern, limit, or aid in the construction
or interpretation of any term or provision hereof.
8.4 Governing Law.
THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO
THE CHOICE OF LAWS PRINCIPLES THEREOF.
Further, by its execution and delivery of this Agreement, each of the
Parties hereto hereby
irrevocably and unconditionally agrees that, the Bankruptcy Court shall have exclusive jurisdiction
of all matters arising out of or in connection with this Agreement.
8.5 Complete Agreement, Interpretation, Modification, and Conflicts.
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(a) |
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Complete Agreement. This Agreement constitutes the complete agreement between
the Parties with respect to the subject matter hereof and supersedes all prior
agreements, oral or written, between or among the Parties with respect thereto. |
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(b) |
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Interpretation. This Agreement is the product of negotiation by and among the
Parties. Any Party enforcing or interpreting this Agreement shall interpret it in a
neutral manner. There shall be no presumption concerning whether to interpret this
Agreement for or against any Party by reason of that Party having drafted this
Agreement, or any portion thereof, or caused it or any portion thereof to be drafted. |
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(c) |
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Modification of Plan Support Agreement. This Agreement may only be modified,
altered, amended, or supplemented by an agreement in writing signed by the Debtors and
the Requisite Senior Note Holders; provided, however, that Section
7.1(d) hereof and this Section 8.5(c) shall not be amended without the
consent of each Consenting Senior Note Holder; provided further, that
any other provision hereof conferring rights upon an individual Consenting Senior Note |
17
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Holder, or conditioning the obligations of any such Consenting Senior Note Holder
hereunder, by reference to Section 7.1(d) hereof shall not be amended
without the consent of each Consenting Senior Note Holder; and provided
further that Section 8.14 hereof (and this proviso of this
Section 8.5(c)) shall not be amended without the consent of each Consenting
Senior Note Holder which is a member of the Creditors Committee. |
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(d) |
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Modification of Amended Plan. Subject to the rights set forth in Section
7.1(d) hereof, the Amended Plan may only be modified, altered, amended or
supplemented as set forth in the Equity Commitment Agreement. |
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(e) |
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Conflicts. To the extent there is any conflict between the terms of this
Agreement and the terms of the Equity Commitment Agreement, the rights of the Investors
under the Equity Commitment Agreement shall be governed by the Equity Commitment
Agreement in all respects. |
8.6 Calculation of Visteon Claims.
The Parties acknowledge and agree that on the effective date of the Amended
Plan, the 7.00%
Senior Notes Claims, 8.25% Senior Notes Claims, and 12.25% Senior Notes Claims shall be Allowed in
the aggregate amount of $456.82 million, $211.41 million, and $202.36 million, respectively.
8.7 Execution and Binding Obligations of this Agreement.
This Agreement may be executed and delivered (by facsimile or otherwise) in
any number of
counterparts, each of which, when executed and delivered, shall be deemed an original and all of
which together shall constitute the same agreement. Except as expressly provided in this
Agreement, each individual executing this Agreement on behalf of a Party has been duly authorized
and empowered to execute and deliver this Agreement on behalf of said Party.
This Agreement will become binding and effective on the Parties upon its
execution by (a) the
Debtors, (b) holders of 7.00% Senior Notes and 8.25% Senior Notes holding at least two-thirds in
amount of the aggregate amount of the 7.00% Senior Notes and 8.25% Senior Notes; and (c) holders of
12.25% Senior Notes holding at least two-thirds in amount of the aggregate amount of the 12.25%
Senior Notes; provided that the Debtors obligations hereunder shall be subject to entry of the
Plan Support Agreement Approval Order.
8.8 Specific Performance.
If a Party breaches any obligation, term, or provision of this Agreement,
such Party shall not
be liable for money damages. This Agreement, including, without limitation, the Parties
respective obligations to vote for and support the Amended Plan as provided herein, and to
facilitate its confirmation and consummation as provided herein, is intended as a binding
commitment enforceable in accordance with its terms. It is understood and agreed by each of the
Parties hereto that money damages would not be a sufficient remedy for any breach of this Agreement
by any Party (and in any event is not a remedy available under this Agreement), and
18
each non-breaching Party (as applicable) shall (a) subject to prior approval of the
Disclosure
Statement pursuant to section 1125 of the Bankruptcy Code, with respect to voting for the Amended
Plan as provided herein, and (b) with respect to all other obligations contained herein, in each
case, be entitled solely to specific performance and injunctive or other equitable relief as a
remedy for any such breach.
8.9 Settlement Discussions.
This Agreement and the Restructuring are part of a proposed settlement among
the Parties with
respect to the Relevant Claims and Relevant Interests. Nothing herein shall be deemed an admission
of any kind. To the extent provided by Federal Rule of Evidence 408 and any applicable state rules
of evidence, this Agreement and all negotiations relating thereto shall not be admissible into
evidence in any proceeding other than a proceeding to enforce the terms of this Agreement.
8.10 Consideration.
The Debtors and each Consenting Senior Note Holder hereby acknowledge that
no consideration,
other than that specifically described herein and in the Amended Plan shall be due or paid to the
Consenting Senior Note Holders for their agreement to support confirmation of the Amended Plan in
accordance with the terms and conditions of this Agreement, other than the Debtors agreement to
use commercially reasonable efforts to obtain approval of the Disclosure Statement and to seek
confirmation of the Amended Plan in accordance with the terms and conditions of the Amended Plan.
8.11 Notices.
All notices hereunder shall be deemed given if in writing and hand-delivered
or sent by
courier, by registered or certified mail (return receipt requested), or by electronic mail to the
following addresses (or at such other addresses as shall be specified by like notice):
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(a) |
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if to the Debtors, to: Visteon Corporation, One Village Center Drive, Van Buren
Township, Michigan 48111; Attn.: Michael K. Sharnas (msharnas@visteon.com); with copies
to: (i) Kirkland & Ellis, LLP, 601 Lexington Avenue, New York, NY 10022-4611, Attn.:
Marc Kieselstein, P.C (marc.kieselstein@kirkland.com) and Brian S. Lennon
(brian.lennon@kirkland.com) and (ii) Kirkland & Ellis, LLP, 300 North LaSalle, Chicago,
IL 60654; Attn: James J. Mazza Jr. (james.mazza@kirkland.com); and |
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(b) |
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if to a Consenting Senior Note Holder, including a transferee thereof, to:
(i) White & Case LLP, Wachovia Financial Center, 200 South Biscayne Boulevard, Suite
4900, Miami, Florida 33131, Attn.: Thomas E. Lauria (tlauria@miami.whitecase.com),
(ii) White & Case LLP, 1155 Avenue of the Americas, New York, New York 10036, Attn.:
Gerard Uzzi (guzzi@ny.whitecase.com) and Gregory Pryor (gpryor@ny.whitecase.com),
and (iii) Akin Gump Strauss Hauer & Feld LLP, One Bryant Park, New York, New York
10036, Attn.: Michael Stamer (mstamer@akingump.com) and Arik Preis
(apreis@akingump.com). |
19
Any notice given by hand-delivery, courier, mail, or electronic mail shall
be effective when
received.
8.12 Third Party Beneficiaries.
This Agreement is intended for the benefit of the Parties hereto and no
toher person shall
have any right hereunder.
8.13 Relationship Among the Parties.
It is understood and agreed that no Consenting Senior Note Holder has any
duty of trust or
confidence with any other Consenting Senior Note Holder and there are no commitments arising among
or between the Consenting Senior Note Holders except as expressly provided herein.
8.14 Committee Membership.
Notwithstanding anything to the contrary herein, nothing in this Agreement
shall, or shall be
deemed to, prevent or limit any Consenting Senior Note Holder (or any of its members, officers,
directors, agents, financial advisors, attorneys, employees, partners, affiliates, successors,
assigns, or representatives) from taking any action or refraining from taking any action to
exercise its (or their) fiduciary duties in its capacity as a member of the Creditors Committee.
* * * * *
*
20
EXECUTION COPY
IN WITNESS WHEREOF, the Parties have entered into this Agreement on the day
and year first
above written.
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VISTEON CORPORATION
(on behalf of itself and its Debtor affiliates)
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By: |
/s/ Michael K. Sharnas
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Name: |
Michael K. Sharnas |
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Its: |
Vice President and General Counsel |
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Signature Page to Plan Support Agreement
Dated: May 6, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution:
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CQS Directional Opportunities Master Fund Limited |
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By: /s/ Kevin Jones
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Name:
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Kevin Jones
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Its:
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Authorized Signatory |
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Telephone: |
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Facsimile: |
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Note: Financial Information to be provided on a confidential basis and to be redacted
in court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: May 6, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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Kivu Investment Fund Limited |
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By: |
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/s/ Martin Lancaster |
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Name: |
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Martin Lancaster |
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Its: |
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Director |
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Telephone: |
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1 (345) 943-2828 |
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Facsimile: |
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1 (345) 943-2829 |
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Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: May 6, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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DEUTSCHE BANK SECURITIES INC. (Solely with
respect to the Distressed Products Group) |
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By: |
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/s/ Scott G. Martin |
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Name: |
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Scott G. Martin |
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Its: |
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Managing Director |
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By: |
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/s/ Charles J. Lanktree |
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Name: |
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Charles J. Lanktree |
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Its: |
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Managing Director |
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Telephone: |
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212-250-2578 |
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Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: May 6, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: Elliott International, L.P. |
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By: |
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Elliott International Capital Advisors
Inc., as Attorney-in-Fact |
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By: |
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/s/ Joshua Nadell |
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Name:
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Joshua Nadell |
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Its:
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Vice President |
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Telephone: |
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212 974-6000 |
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Facsimile: |
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212 478-2276 |
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Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: May 6, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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The Liverpool Limited Partnership |
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By: |
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The Liverpool Associates Ltd., as General Partner |
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By: |
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/s/ Joshua Nadell |
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Name: |
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Joshua Nadell |
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Its: |
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Vice President |
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Telephone: |
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212 974-6000 |
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Facsimile: |
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212 478-2276 |
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Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: May 6, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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Goldman, Sachs & Co. (Solely with respect to
the High Yield Distressed Investing Group) |
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By: |
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/s/ Justin Slatky |
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Name: |
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Justin Slatky |
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Its: |
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Managing Director |
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Telephone: |
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212-357-9165 |
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Facsimile: |
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212-428-1631 |
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Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: May 6, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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Monarch Alternative Capital LP (held thru DTC
0005 Goldman) |
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By: |
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/s/ Christopher Santana |
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Name: |
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Christopher Santana |
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Its: |
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Managing Principal |
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Telephone: |
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212 554 1743 |
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Facsimile: |
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866 741 3564 |
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Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: May 6, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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OAK HILL ADVISORS, L.P., on behalf of certain
private funds and separate accounts that it
manages |
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By: |
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/s/ Scott D. Krase |
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Name: |
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Scott D. Krase |
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Its: |
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Authorized Person |
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Telephone: |
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212-326-1553 |
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Facsimile: |
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212-735-5315 |
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Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: May 6, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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SOLA LTD |
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By: |
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/s/ Chris Pucillo |
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Name: |
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Chris Pucillo |
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Its: |
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Director |
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Telephone: |
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212-284-4329 (Ryan Rolfert) |
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Facsimile: |
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212-284-4320 |
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Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: ____________, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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Alden Global Distressed Opportunities Fund, L.P. |
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By: |
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Alden Global Distressed Opportunities Fund GP, LLC |
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By: |
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/s/ Jim Puohg |
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Name: |
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Jim Puohg |
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Its: |
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Vice President |
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Telephone: |
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212.888.7219 |
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Facsimile: |
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212.702.0145 |
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Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
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Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
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Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature
Page to Plan Support Agreement
Dated:
____________, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: NewFinance Alden SPV
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By: |
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Alden Global Capital, its Trading Advisor |
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By: |
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/s/ Jim Puohg |
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Name:
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Jim Puohg
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Its:
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Vice President
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Telephone:
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212.888.7219 |
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Facsimile:
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212.702.0145 |
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Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
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Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: Allen Arbitrage LP |
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By: |
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/s/ Tal Gurion |
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Name:
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Tal Gurion |
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Its:
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Managing Director of Investment Manager |
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Telephone:
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212-339-2555 |
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Facsimile:
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212-508-5839 |
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Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
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Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: Allen Arbitrage Offshore |
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By: |
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/s/ Tal Gurion |
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Name:
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Tal Gurion |
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Its:
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Managing Director of Investment Manager |
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Telephone:
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212-339-2555 |
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Facsimile:
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212-508-5839 |
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Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
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Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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Armory Advisors, LLC,
Investment Manager of
Armory Master Fund Ltd.
and Separately Managed
Accounts
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By: |
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/s/ Jay Burnham |
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Name:
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Jay Burnham
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Its:
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Manager
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Telephone:
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415.259.2744 |
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Facsimile:
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415.259.2745 |
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Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
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Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated:
_____________, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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CAPITAL VENTURES INTERNATIONAL |
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By: |
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Susquehanna Advisors Group, Inc., its authorized agent |
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By: |
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/s/ Joel Greenberg |
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Name:
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Joel Greenberg |
|
|
|
|
Its:
|
|
Vice President |
|
|
|
|
Telephone:
|
|
610-617-2600 |
|
|
|
|
Facsimile:
|
|
610-147-2081 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: |
|
CASPIAN CAPITAL PARTNERS, L.P. |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ David Corleto |
|
|
|
|
|
|
|
|
|
Name:
|
|
David Corleto |
|
|
|
|
Its:
|
|
Principal |
|
|
|
|
Telephone: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Facsimile:
|
|
914-777-3363 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: |
|
CASPIAN SELECT CREDIT MASTER FUND, LTD. |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Tal Gurion |
|
|
|
|
|
|
|
|
|
Name:
|
|
Tal Gurion |
|
|
|
|
Its:
|
|
Managing Director of Investment Manager |
|
|
|
|
Telephone:
|
|
212-339-2555 |
|
|
|
|
Facsimile:
|
|
212-508-5839 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: Citadel Securities LLC |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Toby Buchanan |
|
|
|
|
|
|
|
|
|
Name:
|
|
Toby Buchanan |
|
|
|
|
Its:
|
|
Authorized Signatory |
|
|
|
|
Telephone:
|
|
(646) 403-8333 |
|
|
|
|
Facsimile:
|
|
(312) 267-7577 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: CSS, LLC |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Jerry White |
|
|
|
|
|
|
|
|
|
Name:
|
|
Jerry White |
|
|
|
|
Its:
|
|
Partner |
|
|
|
|
Telephone:
|
|
312 542 8552 |
|
|
|
|
Facsimile:
|
|
312 542 8500 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: Cumberland Associates LLC |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Barry Konig |
|
|
|
|
|
|
|
|
|
Name:
|
|
Barry Konig |
|
|
|
|
Its:
|
|
Member |
|
|
|
|
Telephone:
|
|
212-536-9758 |
|
|
|
|
Facsimile:
|
|
212-703-1450 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: _____________, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: Cyrus Europe Master Fund, Ltd. |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ David A. Milich |
|
|
|
|
|
|
|
|
|
Name:
|
|
David A. Milich |
|
|
|
|
Its:
|
|
Chief Operating Officer |
|
|
|
|
Telephone:
|
|
(212) 380-5800 |
|
|
|
|
Facsimile:
|
|
(212) 380-5801 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: _____________, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: Cyrus Select Opportunities Master Fund, Ltd. |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ David A. Milich |
|
|
|
|
|
|
|
|
|
Name:
|
|
David A. Milich |
|
|
|
|
Its:
|
|
Chief Operating Officer |
|
|
|
|
Telephone:
|
|
(212) 380-5800 |
|
|
|
|
Facsimile:
|
|
(212) 380-5801 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: _____________, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: Crescent 1, L.P. |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ David A. Milich |
|
|
|
|
|
|
|
|
|
Name:
|
|
David A. Milich |
|
|
|
|
Its:
|
|
Chief Operating Officer |
|
|
|
|
Telephone:
|
|
(212) 380-5800 |
|
|
|
|
Facsimile:
|
|
(212) 380-5801 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: _____________, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: CRS Fund, Ltd. |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ David A. Milich |
|
|
|
|
|
|
|
|
|
Name:
|
|
David A. Milich |
|
|
|
|
Its:
|
|
Chief Operating Officer |
|
|
|
|
Telephone:
|
|
(212) 380-5800 |
|
|
|
|
Facsimile:
|
|
(212) 380-5801 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: _____________, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: Cyrus Opportunities Master Fund II, Ltd. |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ David A. Milich |
|
|
|
|
|
|
|
|
|
Name:
|
|
David A. Milich |
|
|
|
|
Its:
|
|
Chief Operating Officer |
|
|
|
|
Telephone:
|
|
(212) 380-5800 |
|
|
|
|
Facsimile:
|
|
(212) 380-5801 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: Halbis Distressed Opportunities Master Fund Ltd. |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Peter Sakon |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Peter Sakon |
|
|
|
|
Its:
|
|
VP |
|
|
|
|
Telephone:
|
|
212-525-6780 |
|
|
|
|
Facsimile:
|
|
212-525-2326 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: MARINER LDC |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ David Corleto |
|
|
|
|
|
|
|
|
|
Name:
|
|
David Corleto |
|
|
|
|
Its:
|
|
Principal |
|
|
|
|
Telephone: |
|
|
|
|
|
|
Facsimile:
|
|
914-777-3363 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name of Institution: MARINER LDC |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Stephen Golden |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
Stephen Golden |
|
|
|
|
|
|
Its:
|
|
|
|
Managing Member of
Investment Manager |
|
|
|
|
|
|
Telephone: |
|
646-284-9901 |
|
|
|
|
|
|
Facsimile: |
|
646-284-9919 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
|
|
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: _____________, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name of Institution: |
|
Merced Partners Limited
Partnership |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Thomas G. Rock |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
Thomas G. Rock |
|
|
|
|
|
|
Its: |
|
|
|
Authorized Representative |
|
|
|
|
|
|
Telephone: |
|
952-476-7200 |
|
|
|
|
|
|
Facsimile: |
|
952-476-7201 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
|
|
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: _____________, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name of Institution: Merced Partners II, L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Thomas G. Rock |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
Thomas G. Rock |
|
|
|
|
|
|
Its:
|
|
|
|
Authorized Representative |
|
|
|
|
|
|
Telephone: |
|
952-476-7200 |
|
|
|
|
|
|
Facsimile: |
|
952-476-7201 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
|
|
Note: Financial Information to be provided on a confidential basis and to be redacted in court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: _____________, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name of Institution: QVT Fund LP |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
QVT Associates GP, LLC, its general partner |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Nick Bruman |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
Nick Bruman |
|
|
|
|
|
|
Its:
|
|
|
|
Managing Member |
|
|
|
|
|
|
Telephone: |
|
212 705 8800 |
|
|
|
|
|
|
Facsimile: |
|
212 705 8801 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
|
|
Note: Financial Information to be provided on a confidential basis and to be redacted in court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: _____________, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name of Institution: Quintessence Fund L.P. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
QVT Associates GP LLC, its general partner |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Nick Bruman |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
Nick Bruman |
|
|
|
|
|
|
Its:
|
|
|
|
Managing Member |
|
|
|
|
|
|
Telephone:
|
|
212 705 8800 |
|
|
|
|
|
|
Facsimile:
|
|
212 705 8801 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
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|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
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|
Note: Financial Information to be provided on a confidential basis and to be redacted in court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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Riva Ridge Master Fund, Ltd. |
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By: |
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/s/ Stephen Golden |
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Name: |
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Stephen Golden |
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Its: |
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Managing Member of Investment Manager |
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Telephone: |
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646-284-9901 |
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Facsimile: |
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646-284-9919 |
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Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
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Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
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Note: Financial Information to be provided on a confidential basis and to be redacted in court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: _____________, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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Seneca Capital LP and Seneca Capital
International Ltd. |
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By: |
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/s/ Michael Anastasio |
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Name: |
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Michael Anastasio |
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Its: |
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CFO, Seneca Capital Investments, LP |
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Telephone: |
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212-888-2999 |
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Facsimile: |
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212-826-1108 |
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Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
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|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
|
|
Note: Financial Information to be provided on a confidential basis and to be redacted in court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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Silver Point Capital, L.P. on behalf of its
affiliates and related funds |
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By: |
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/s/ Michael Gatto |
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Name: |
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Michael Gatto |
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Its: |
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Authorized Person |
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Telephone: |
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(203) 542-4200 |
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Facsimile: |
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(203) 542-4141 |
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|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
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|
|
|
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|
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
|
|
Note: Financial Information to be provided on a confidential basis and to be redacted in court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: May 3, 2010
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CONSENTING SENIOR NOTE HOLDER |
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Name of Institution: |
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Spectrum Investment Partners L.P. |
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By: |
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Spectrum Group Management LLC |
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By: |
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/s/ Jeffrey A. Schaffer |
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Name: |
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Jeffrey A. Schaffer |
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Its: |
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Managing Member |
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Telephone: |
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(212) 687-9555 |
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Facsimile: |
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(212) 983-2322 |
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|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
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|
|
|
|
|
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|
|
|
|
|
|
|
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|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
|
|
Note: Financial Information to be provided on a confidential basis and to be redacted in court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: May 3, 2010
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|
CONSENTING SENIOR NOTE HOLDER |
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|
Name of Institution: SIPI MASTER LTD. |
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By: |
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/s/ Jeffrey A. Schaffer |
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Name:
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|
Jeffrey A. Schaffer |
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Its:
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|
Managing Member |
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Telephone: |
|
(212) 687-9555 |
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Facsimile: |
|
(212) 983-2322 |
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|
|
|
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|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated:
_____________, 2010
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|
CONSENTING SENIOR NOTE HOLDER |
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|
|
Name of Institution: Stark Criterion Master Fund Ltd. |
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By: |
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Stark Criterion Management LLC, its Investment Manager |
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By: |
|
/s/ Donald T. Bobbs |
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|
Name:
|
|
Donald T. Bobbs |
|
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|
|
Its:
|
|
Authorized Signatory |
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|
|
Telephone:
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|
+1 (414) 294-7000 |
|
|
|
|
Facsimile:
|
|
+1 (414) 294-7700 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated:
_____________, 2010
|
|
|
|
|
|
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|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: Stark Master Fund Ltd. |
|
|
|
|
|
|
|
|
|
By: |
|
Stark Offshore Management LLC, its Investment Manager |
|
|
|
|
|
|
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|
|
By: |
|
/s/ Donald T. Bobbs |
|
|
|
|
|
|
|
|
|
Name:
|
|
Donald T. Bobbs |
|
|
|
|
Its:
|
|
Authorized Signatory |
|
|
|
|
Telephone:
|
|
+1 (414) 294-7000 |
|
|
|
|
Facsimile:
|
|
+1 (414) 294-7700 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: |
|
UBS Securities (solely with respect to the Distressed Debt Trading Group) |
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Daniel S. Frommer |
|
/s/ Jeff Teach |
|
|
|
|
|
|
|
|
|
|
|
Name: Daniel S. Frommer
|
/ |
Jeff Teach |
|
|
|
|
Its: Managing Director
|
/ |
MD |
|
|
|
|
Telephone: 203-719-4670 |
|
|
|
|
|
|
Facsimile: |
|
|
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: May 3, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: VENOR CAPITAL MASTER FUND, LTD. |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Michael Wartell |
|
|
|
|
|
|
|
|
|
Name:
|
|
Michael Wartell |
|
|
|
|
Its:
|
|
Authorized Signatory |
|
|
|
|
Telephone:
|
|
212-703-2130 |
|
|
|
|
Facsimile:
|
|
212-703-2111 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated:
_____________, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: |
|
Whitebox Hedged High Yield Partners, L.P. |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Jonathan Wood |
|
|
|
|
|
|
|
|
|
Name:
|
|
Jonathan Wood |
|
|
|
|
Its:
|
|
COO / CFO |
|
|
|
|
Telephone:
|
|
612-253-6071 |
|
|
|
|
Facsimile:
|
|
612-253-6100 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated:
_____________, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: Whitebox Combined Partners, LP |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Jonathan Wood |
|
|
|
|
|
|
|
|
|
Name:
|
|
Jonathan Wood |
|
|
|
|
Its:
|
|
COO / CFO |
|
|
|
|
Telephone:
|
|
612-253-6071 |
|
|
|
|
Facsimile:
|
|
612-253-6100 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: April 30, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER |
|
|
|
|
|
|
|
|
|
Name of Institution: |
|
Brencourt Credit Opportunities Master, Ltd. |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Gerald Aquino |
|
|
|
|
|
|
|
|
|
Name:
|
|
Gerald Aquino |
|
|
|
|
Its:
|
|
Authorized Signatory |
|
|
|
|
Telephone:
|
|
212-313-9727 |
|
|
|
|
Facsimile:
|
|
212-313-9787 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
Dated: May 5, 2010
|
|
|
|
|
|
|
|
|
CONSENTING SENIOR NOTE HOLDER1 |
|
|
|
|
|
|
|
|
|
Name of Institution: Advent Capital Management, LLC |
|
|
|
|
|
|
|
|
|
By: |
|
/s/ Robert Palme |
|
|
|
|
|
|
|
|
|
Name:
|
|
Robert Palme |
|
|
|
|
Its:
|
|
Managing Director |
|
|
|
|
Telephone:
|
|
212-475-0645 |
|
|
|
|
Facsimile:
|
|
212-480-9655 |
|
|
|
|
|
|
|
|
|
Aggregate outstanding principal amount of Senior
Notes Claims that are Relevant Claims: |
|
|
|
|
|
|
|
|
|
Description and amount of each additional Claim or
Equity Interest that is a Relevant Claim or Relevant
Interest other than Senior Notes Claims: |
Note: Financial Information to be provided on a confidential basis and to be redacted in
court filings and to the extent not redacted, filed under seal.
Signature Page to Plan Support Agreement
|
|
|
1 |
|
Notwithstanding the various provisions in this Agreement that indicate that the terms of the
Agreement will cover current and future holdings, the Parties to the Agreement agree and understand that the
above-signed Consenting Senior Note Holder is only agreeing to execute this Agreement with respect to the
holdings listed hereto, and may hold other Claims and Interests which are not and will not be subject to the provisions of
this Agreement. |
Exhibit E
Exhibit E
CASH RECOVERY BACKSTOP AGREEMENT
THIS CASH RECOVERY BACKSTOP AGREEMENT (this Agreement), dated as of May 6, 2010, is
made by and among Visteon Corporation (Visteon, and together with its debtor affiliates,
the Debtors), on the one hand and the entities set forth on Schedule 1 hereto
(each referred to herein individually as a Signatory and collectively as the
Signatories), on the other hand. Visteon and each Signatory is referred to herein as a
Party and collectively, the Parties. Except as otherwise provided below,
capitalized terms used herein and not defined herein have the meanings ascribed to them in the
Equity Commitment Agreement (as defined below).
RECITALS
WHEREAS, on May 28, 2009, the Debtors commenced jointly administered proceedings under chapter
11 of the United States Code, 11 U.S.C. §§ 101-1532, as may be amended from time to time in the
United States Bankruptcy Court for the District of Delaware;
WHEREAS, Visteon is party to that certain Equity Commitment Agreement, dated as of the date
hereof, with the Investors listed on Schedule 1 thereto (the Equity Commitment
Agreement);
WHEREAS, the Debtors intend to propose and submit the Plan to the Bankruptcy Court for its
approval;
WHEREAS, the Plan provides for a distribution to each Non-Eligible Holder of its Cash Amount
on partial account of such Non-Eligible Holders Allowed Claim (each capitalized term in this
WHEREAS clause not otherwise defined herein is defined in the Plan); and
WHEREAS, each of the Signatories hereto commit, severally and not jointly, to provide to the
Debtors such Signatorys Distributable Commitment Percentage (as defined below) of the Cash
Recovery Backstop Amount (as defined below), in exchange for Visteon issuing to such Signatory such
Signatorys Distributable Commitment Percentage of the Cash Recovery Subscription Equity (as
defined in the Plan).
NOW THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which
are hereby acknowledged, the Debtors and the Signatories agree as follows:
ARTICLE I.
AVAILABLE EQUITY SECURITIES
Section 1.1. Available Equity Securities. In the event that a Non-Eligible Holder of
an Allowed Senior Notes Claim (as defined in the Plan) validly completes and delivers an Election
Form (as defined in the Plan) by the Election Form Deadline (as defined in the Rights Offering
Procedures (as defined in the Plan)), in accordance with
the terms of the Rights Offering Procedures, confirming that such Non-Eligible Holder is not
an Accredited Investor, Visteon shall, promptly (and in no event more than five (5) Business Days)
following the Election Form Deadline, deliver to each Signatory a written notice (the
Notice) setting forth: (i) the aggregate Cash Amount to be delivered to all Non-Eligible
Holders, (ii) the Cash Recovery Subscription Equity, (iii) the product of the Purchase Price per
share multiplied by the number of shares of New Visteon Common Stock (as defined in the Plan)
constituting the Cash Recovery Subscription Equity ((i) and (iii) together, the Cash Recovery
Backstop Amount), and (iv) such Signatorys Distributable Commitment Percentage. For purposes
of this Agreement, Distributable Commitment Percentage means the percentage as set forth
on Schedule 1 hereto.
1
Section 1.2. Commitment. Each Signatory hereby irrevocably commits to, severally and
not jointly, subscribe for 100% of its Distributable Commitment Percentage of the Cash Recovery
Subscription Equity, as set forth in, and in accordance with, Article VI of the Plan and pay to
Visteon its Distributable Commitment Percentage of the Cash Recovery Backstop Amount. Each
Signatory shall make payments pursuant to such obligations, and receive their Distributable
Commitment Percentage of the Cash Recovery Subscription Equity in exchange therefor, as set forth
in, and in accordance with, Article VI of the Plan (in the form attached to the Equity Commitment
Agreement), subject to the termination of this Agreement pursuant to Article V hereof.
Section 1.3. Issuance and Delivery of Acquired Securities. All Cash Recovery
Subscription Equity purchased by a Signatory pursuant to Section 1.2 (the Acquired
Securities) will be issued on the Effective Date and delivered as soon as practicable
thereafter by Visteon to each Signatory or other entity designated under Section 1.5 hereof with
all issue, stamp, transfer, sales and use, or similar Taxes or duties that are due and payable (if
any) in connection with such delivery duly paid by Visteon.
Section 1.4. Actions. Visteon and each Signatory shall take or cause to be taken all
such commercially reasonable actions as may be necessary in order to consummate the transactions
contemplated by this Agreement.
Section 1.5. Transfer, Designation and Assignment Rights. Each Signatory shall have
the right to (i) designate that some or all of its Acquired Securities be issued in the name of and
delivered to, one or more Related Purchasers, (ii) assign all or any portion of its Distributable
Commitment Percentage of the Cash Recovery Subscription Equity to a Related Purchaser, and/or (iii)
enter into an Additional Investor Agreement with an Ultimate Purchaser to purchase all or any
portion of a Signatorys Acquired Securities and/or Distributable Commitment Percentage of the Cash
Recovery Subscription Equity and may designate by written notice to Visteon that some or all of its
Acquired Securities be issued in the name of and delivered directly to, such Ultimate Purchasers,
provided, in the case of each of the foregoing clauses (i), (ii) and (iii), in accordance with the
terms and conditions of Section 3.6 of the Equity Commitment Agreement other than subsection (c) of
Section 3.6 of the Equity Commitment Agreement.
2
ARTICLE II.
VISTEON REPRESENTATIONS AND WARRANTIES
Visteon represents and warrants to, and agrees with, each of the Signatories as set forth
below. Except for representations, warranties and agreements that are expressly limited as to
their date, each representation, warranty and agreement shall be deemed made as of the date hereof
and as of the Effective Date.
Section 2.1. Corporate Power and Authority.
(a) Visteon has or, to the extent executed in the future, shall have when executed the
requisite corporate power and authority to enter into, execute and deliver this Agreement and,
subject to entry of the Confirmation Order and the expiration, or waiver by the Bankruptcy Court,
of the fourteen (14) day period set forth in Bankruptcy Rules 6004(h) and 3020(e), respectively, to
perform its obligations hereunder, including the issuance of the Cash Recovery Subscription Equity.
Visteon has or, to the extent executed in the future, shall have when executed, taken all
necessary corporate action required for the due authorization, execution, delivery and performance
by it of this Agreement, including the issuance of the Cash Recovery Subscription Equity.
Section 2.2. Execution and Delivery; Enforceability. This Agreement has been, or
prior to its execution and delivery will be, duly and validly executed and delivered by Visteon,
and, upon the entry of the Approval Order and the expiration, or waiver by the Bankruptcy Court, of
the fourteen (14) day period set forth in Bankruptcy Rule 6004(h), such document will constitute
the valid and binding obligations of Visteon, enforceable against Visteon in accordance with its
terms.
Section 2.3. No Conflict / Consents and Approvals. Sections 5.5, 5.6 and 5.7 of the
Equity Commitment Agreement are hereby incorporated by reference, and made a part of this
Agreement; provided, that in lieu of references therein to the Equity Commitment Agreement,
the Plan and/or the Transaction Agreements, any such references shall refer to this Agreement;
provided, further, that in lieu of the words Investor Shares and the Shares
therein, such references shall refer to the words Acquired Securities; provided,
further, that in lieu of the words Investors and the Rights Holders therein, such
references shall refer to the word Signatories; and provided, further, that in
lieu of the words Investor or Investors therein, such references shall refer to the words
Signatory or Signatories, as applicable.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE SIGNATORIES
Each Signatory represents and warrants as to itself only, and agrees with, as of the date
hereof, Visteon, severally and not jointly, as set forth below.
Section 3.1. Incorporation. Such Signatory is a legal entity duly organized, validly
existing and, if applicable, in good standing (or the equivalent thereof) under the laws of its
jurisdiction of incorporation or organization.
3
Section 3.2. Corporate Power and Authority. Such Signatory has the requisite
corporate, limited partnership or limited liability company power and authority to enter into,
execute and deliver this Agreement and to perform its obligations hereunder and has taken all
necessary corporate, limited partnership or limited liability company action required for the due
authorization, execution, delivery and performance by it of this Agreement.
Section 3.3. Execution and Delivery. This Agreement (i) has been, or prior to its
execution and delivery will be, duly and validly executed and delivered by such Signatory and (ii)
upon the entry of the Approval Order and the expiration, or waiver by the Bankruptcy Court of the
fourteen (14) day period set forth in Bankruptcy Rule 6004(h), will constitute the valid and
binding obligations of such Signatory, enforceable against such Signatory in accordance with its
terms.
Section 3.4. No Conflict / Consents and Approvals. Sections 6.4 and 6.5 of the Equity
Commitment Agreement are hereby incorporated by reference, and made a part of this Agreement;
provided, that in lieu of references therein to the Equity Commitment Agreement, the Plan
and/or the Transaction Agreements, such references shall refer to this Agreement; provided,
further, that in lieu of the words Investor or Investors therein, such references shall
refer to the words Signatory or Signatories, as applicable; provided, further,
that in lieu of the word Party therein, such references shall refer to the Parties hereto; and
provided, further, that in lieu of the words Allocated Portion of the Investor
Shares therein, such references shall refer to the words Distributable Commitment Percentage of
the Cash Recovery Subscription Equity.
Section 3.5. No Registration / Purchasing Intent / Sophistication, Investigation.
Sections 6.6, 6.7 and 6.8 of the Equity Commitment Agreement are hereby incorporated by reference,
and made a part of this Agreement; provided, that in lieu of the words Investor or
Investors therein, such references shall refer to the words Signatory or Signatories, as
applicable; and provided, further, that in lieu of the words Investor Shares
therein, such references shall refer to the words Acquired Securities.
ARTICLE IV.
INDEMNIFICATION AND CONTRIBUTION
Section 4.1. Indemnification Obligations / Indemnification Procedure / Settlement /
Contribution. Sections 9.1 through and including 9.6 of the Equity Commitment Agreement are
hereby incorporated by reference, and made a part of this Agreement; provided, that in lieu
of references therein to the Equity Commitment Agreement and/or the Rights Offering, such
references shall refer to this Agreement; provided, further, that in lieu of the
words Investor or Investors therein, such references shall refer to the words Signatory or
Signatories, as applicable; provided, further, that in lieu of the words
Breaching Investor therein, such references shall refer to the words Breaching Signatory;
provided, further, that in lieu of the words Investor Shares therein, such
references shall refer to the words Acquired Securities; provided, further, that
the last sentence of Section 9.4 therein is not incorporated herein; provided,
further, that in lieu of the words Purchase Price therein, such references shall refer to
the words the price paid by such Indemnified Person per Acquired Security received by such
Indemnified Person; and provided, further, that in lieu of references therein to
Article IX, such references shall refer to this Section 4.1.
4
Section 4.2. Survival of Representations and Warranties. Notwithstanding any
investigation at any time made by or on behalf of any Party, all representations, warranties and
agreements made in this Agreement will survive the execution and delivery of this Agreement, except
that the representations incorporated by reference in Section 2.3 hereof from Section 5.6 and 5.7
of the Equity Commitment Agreement will survive only for a period of two (2) years after the
Effective Date.
ARTICLE V.
TERMINATION
Section 5.1. Termination. This Agreement will be automatically terminated and the
transactions contemplated hereby will be abandoned effective upon the termination of the Equity
Commitment Agreement in accordance with its terms.
Section 5.2. Effect of Termination. Upon termination under this Article V, all rights
and obligations of the Parties under this Agreement shall terminate without any liability of any
Party to any other Party except that the provisions of the covenants and agreements made by the
Parties herein under this Article V and Article VI will survive indefinitely in accordance with
their terms.
ARTICLE VI.
MISCELLANEOUS
Section 6.1. Notices. All notices and other communications in connection with this
Agreement will be in writing and will be deemed given (and will be deemed to have been duly given
upon receipt) if delivered personally, sent via electronic facsimile (with confirmation), mailed by
registered or certified mail (return receipt requested) or delivered by an express courier (with
confirmation) to the Parties at the following addresses (or at such other address for a Party as
will be specified by like notice):
(a) If to Visteon:
Visteon Corporation
One Village Center Drive
Van Buren Township, Michigan 48111
Facsimile: (734) 710-7112
Attention: William G. Quigley, III
Chief Financial Officer
5
with a copy (which shall not constitute notice) to:
Pachulski Stang Ziehl & Jones LLP
919 North Market Street, 17th Floor
Wilmington, Delaware 19899-8705
Facsimile: (302) 652-4400
Attention: Laura Davis Jones
James E. ONeill
Mark M. Billion
and
Kirkland & Ellis LLP
300 North LaSalle
Chicago, Illinois 60654
Facsimile: (312) 862-2200
Attention: James H. M. Sprayregen, P.C.
James J. Mazza, Jr.
Gerald T. Nowak, P.C.
Howard Norber
and
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Facsimile: (212) 446-4900
Attention: Marc Kieselstein, P.C.
Brian S. Lennon
(b) If to any Signatory:
To the address listed on such Signatorys signature page hereto;
with a copy (which shall not constitute notice) to:
Dechert LLP
1095 Avenue of the Americas
New York, New York 10036
Facsimile: (212) 698-3599
Attention: Michael Sage
Derek Winokur
and
6
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, New York 10036
Facsimile: (212) 872-1002
Attention: Arik Preis
with a further copy (which shall not constitute notice) to:
White & Case LLP
Wachovia Financial Center
200 South Biscayne Boulevard
Suite 4900
Miami, Florida 33131
Facsimile: (305) 358-5744
Attention: Thomas E Lauria
and
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Facsimile: (212) 354-8113
Attention: Gerard Uzzi
Gregory Pryor
Section 6.2. Specific Performance / Limitation on Remedies. Section 11.9 of the
Equity Commitment Agreement is hereby incorporated by reference, and made a part of this Agreement;
provided, that in lieu of the words Investor and Investors therein, such references
shall refer to the words Signatory and Signatories; provided, further, that in
lieu of references therein to the Rights Offering or the Equity Commitment Agreement, such
references shall refer to this Agreement; provided, further, that in lieu of
references therein to Section 11.9, such references shall refer to this Section 6.2;
provided, further, that in lieu of references therein to Article IX, such
references shall refer to Section 4.1; provided, further, that references therein
to Section 4.2 shall be deemed deleted.
Section 6.3. Assignment; Third Party Beneficiaries. Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be assigned by any Party (whether
by operation of Law or otherwise) without the prior written consent of Visteon and the Requisite
Signatories, other than an assignment by a Signatory in accordance with Section 1.5. For purposes
of this Agreement, Requisite Signatories means the Signatories holding an aggregate Distributable
Commitment Percentage of greater than fifty percent (50%). This Agreement (including the documents
and instruments referred to in this Agreement) is not intended to and does not confer upon any
Person other than the Parties any legal or equitable right, remedy, or claim under or with respect
to this Agreement or any provision of this Agreement.
7
Section 6.4. Amendment and Waiver. Any provision of this Agreement may be amended or
waived only in a writing signed by each of the Signatories and Visteon. No waiver of any provision
hereunder or any breach or default thereof shall extend to or affect in any way any other provision
or prior or subsequent breach or default.
Section 6.5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAWS RULES
THEREOF. THE PARTIES CONSENT AND AGREE THAT ANY ACTION TO ENFORCE THIS AGREEMENT OR ANY DISPUTE,
WHETHER SUCH DISPUTES ARISE IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY SHALL BE BROUGHT EXCLUSIVELY IN THE
BANKRUPTCY COURT. THE PARTIES CONSENT TO AND AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
BANKRUPTCY COURT. EACH OF THE PARTIES HEREBY WAIVES AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (I) SUCH PARTY IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF THE BANKRUPTCY COURT, (II) SUCH PARTY AND SUCH PARTYS PROPERTY IS
IMMUNE FROM ANY LEGAL PROCESS ISSUED BY THE BANKRUPTCY COURT OR (III) ANY LITIGATION OR OTHER
PROCEEDING COMMENCED IN THE BANKRUPTCY COURT IS BROUGHT IN AN INCONVENIENT FORUM. THE PARTIES
HEREBY AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR
PROCEEDING TO AN ADDRESS PROVIDED IN WRITING BY THE RECIPIENT OF SUCH MAILING, OR IN SUCH OTHER
MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE
ANY OBJECTIONS TO SERVICE ACCOMPLISHED IN THE MANNER HEREIN PROVIDED.
Section 6.6. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ALL RIGHTS TO TRIAL BY
JURY IN ANY JURISDICTION IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE AMONG
THE PARTIES UNDER THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
Section 6.7. Counterparts. This Agreement may be executed in any number of
counterparts, all of which will be considered one and the same agreement and will become effective
when counterparts have been signed by each of the Parties and delivered to each other Party
(including via facsimile or other electronic transmission), it being understood that each Party
need not sign the same counterpart.
8
Section 6.8. Effectiveness. This Agreement is expressly contingent on, and shall
automatically become effective on such date as both (i) the Approval Order has been entered by the
Bankruptcy Court and (ii) each Party to this Agreement has executed this Agreement;
provided, that no Party has rejected, terminated or repudiated this Agreement prior to the
entry of the Approval Order by the Bankruptcy Court; provided,
further, that Visteons obligations under Sections 7.1, 7.2(b)(i) and 7.2(b)(ii) of the Equity
Commitment Agreement shall be effective and in full force and effect upon the execution of the
Equity Commitment Agreement by the parties thereto.
[Remainder of page intentionally blank.]
9
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first above
written.
COMPANY
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VISTEON CORPORATION
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By: |
/s/ Michael K. Sharnas
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Name: |
Michael K. Sharnas |
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Title: |
Vice President and General Counsel |
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SIGNATORY
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ALDEN GLOBAL DISTRESSED OPPORTUNITIES FUND, L.P.
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By: |
/s/ Jim Phuog
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Name: |
Jim Phuog |
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Title: |
VP |
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Address:
c/o Alden Global Capital
885 Third Avenue, 34th Floor
New York, NY 10022
Facsimile: (212) 702-0145
Attention: General Counsel
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
NEWFINANCE ALDEN SPV
By: Alden Global Capital, its Trading Partner
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By: |
/s/ Jim Phuog
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Name: |
Jim Phuog |
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Title: |
Vice President |
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Address:
c/o Alden Global Capital
885 Third Avenue, 34th Floor
New York, NY 10022
Facsimile: (212) 702-0145
Attention: General Counsel
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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ALLEN ARBITRAGE, L.P.
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By: |
/s/ Tal Gurion
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Name: |
Tal Gurion |
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Title: |
Managing Director of Investment Manager |
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Address:
Allen & Company LLC
711 Fifth Avenue
New York, NY 10022
Facsimile: (212) 508-5839
Attention: Tal Gurion
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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ALLEN ARBITRAGE OFFSHORE
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By: |
/s/ Tal Gurion
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Name: |
Tal Gurion |
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Title: |
Managing Director of Investment Manager |
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Address:
Allen & Company LLC
711 Fifth Avenue
New York, NY 10022
Facsimile: (212) 508-5839
Attention: Tal Gurion
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
ARMORY MASTER FUND LTD.
By: Armory Advisors LLC
Its: Investment Manager
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By: |
/s/ Jay Burnham
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Name: |
Jay Burnham |
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Title: |
Manager |
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Address:
Armory Advisors
999 Fifth Ave., Suite 450
San Rafael, CA 94901
Facsimile: (415) 259-2745
Attention: Jay Burnham
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
THE SEAPORT GROUP LLC PROFIT SHARING PLAN
By: Armory Advisors LLC
Its: Investment Advisor
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By: |
/s/ Jay Burnham
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Name: |
Jay Burnham |
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Title: |
Manager |
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Address:
Armory Advisors
999 Fifth Ave., Suite 450
San Rafael, CA 94901
Facsimile: (415) 259-2745
Attention: Jay Burnham
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
CAPITAL VENTURES INTERNATIONAL
By: Susquehanna Advisors Group, Inc., its authorized
agent
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By: |
/s/ Joel Greenberg
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Name: |
Joel Greenberg |
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Title: |
Vice President |
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Address:
c/o Susquehanna Advisors Group, Inc.
401 City Avenue, Suite 220
Bala Cynwyd, PA 19004
Facsimile: (610) 747-2132
(610) 617-3850
Attention: Legal Department
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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CASPIAN CAPITAL PARTNERS, L.P.
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By: |
/s/ David Corleto
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Name: |
David Corleto |
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Title: |
Principal |
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Address:
500 Mamaroneck Ave, Suite 101
Harrison, NY 10528
Facsimile: (914) 798-4210
Attention: Chris Gebhardt
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
CASPIAN SELECT CREDIT MASTER FUND, LTD.
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By: |
/s/ David Corleto
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Name: |
David Corleto |
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Title: |
Principal |
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Address:
500 Mamaroneck Ave, Suite 101
Harrison, NY 10528
Facsimile: (914) 798-4210
Attention: Chris Gebhardt
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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MARINER LDC
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By: |
/s/ David Corleto
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Name: |
David Corleto |
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Title: |
Principal |
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Address:
500 Mamaroneck Ave, Suite 101
Harrison, NY 10528
Facsimile: (914) 798-4210
Attention: Chris Gebhardt
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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CITADEL SECURITIES LLC
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By: |
/s/ Christopher L. Ramsay
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Name: |
Christopher L. Ramsay |
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Title: |
Authorized Signatory |
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Address:
Citadel Securities LLC
601 Lexington Avenue, 45th Floor
New York, NY 10022
Facsimile: (312) 267-7577
Attention: Neal Jhaveri
Toby Buchanan
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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CSS, LLC
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By: |
/s/ Jerry White
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Name: |
Jerry White |
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Title: |
Partner |
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Address:
CSS, LLC
175 W Jackson Blvd Suite 440
Chicago, IL 60604
Facsimile: (312) 542-8500
Attention: Jerry White
Mike Moran
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
CUMBERLAND PARTNERS
By: CUMBERLAND GP LLC, its General Partner
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By: |
/s/ Barry Konig
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Name: |
Barry Konig |
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Title: |
Member |
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Address:
Cumberland Associates LLC
1114 Avenue of the Americas, 38th Floor
New York, NY 10036
Facsimile: (212) 703-1450
Attention: Barry Konig
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
CUMBERLAND BENCHMARKED PARTNERS, L.P.
By: CUMBERLAND BENCHMARKED GP LLC, its General
Partner
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By: |
/s/ Barry Konig
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Name: |
Barry Konig |
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Title: |
Member |
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Address:
Cumberland Associates LLC
1114 Avenue of the Americas, 38th Floor
New York, NY 10036
Facsimile: (212) 703-1450
Attention: Barry Konig
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
LONGVIEW PARTNERS B, L.P.
By: LONGVIEW B GP LLC, its General Partner
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By: |
/s/ Barry Konig
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Name: |
Barry Konig |
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Title: |
Member |
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Address:
Cumberland Associates LLC
1114 Avenue of the Americas, 38th Floor
New York, NY 10036
Facsimile: (212) 703-1450
Attention: Barry Konig
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
CUMBER INTERNATIONAL S.A.
By: CUMBERLAND ASSOCIATES LLC, as Investment Advisor
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By: |
/s/ Barry Konig
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Name: |
Barry Konig |
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Title: |
Member |
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Address:
Cumberland Associates LLC
1114 Avenue of the Americas, 38th Floor
New York, NY 10036
Facsimile: (212) 703-1450
Attention: Barry Konig
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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CYRUS EUROPE MASTER FUND LTD.
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By: |
/s/ David A. Milich
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Name: |
David A. Milich |
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Title: |
Chief Operating Officer |
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Address:
Cyrus Capital Partners, L.P.
399 Park Avenue, 39th Floor
New York, NY 10022
Facsimile: 212-380-5915
Attention: Stephon Barnes
Anthony Scire
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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CYRUS SELECT OPPORTUNITIES MASTER FUND, LTD.
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By: |
/s/ David A. Milich
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Name: |
David A. Milich |
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Title: |
Chief Operating Officer |
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Address:
Cyrus Capital Partners, L.P.
399 Park Avenue, 39th Floor
New York, NY 10022
Facsimile: 212-380-5915
Attention: Stephon Barnes
Anthony Scire
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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CRESCENT 1 L.P.
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By: |
/s/ David A. Milich
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Name: |
David A. Milich |
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Title: |
Chief Operating Officer |
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Address:
Cyrus Capital Partners, L.P.
399 Park Avenue, 39th Floor
New York, NY 10022
Facsimile: 212-380-5915
Attention: Stephon Barnes
Anthony Scire
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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CRS FUND LTD.
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By: |
/s/ David A. Milich
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Name: |
David A. Milich |
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Title: |
Chief Operating Officer |
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Address:
Cyrus Capital Partners, L.P.
399 Park Avenue, 39th Floor
New York, NY 10022
Facsimile: 212-380-5915
Attention: Stephon Barnes
Anthony Scire
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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CYRUS OPPORTUNITIES MASTER FUND II, LTD.
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By: |
/s/ David A. Milich
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Name: |
David A. Milich |
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Title: |
Chief Operating Officer |
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Address:
Cyrus Capital Partners, L.P.
399 Park Avenue, 39th Floor
New York, NY 10022
Facsimile: 212-380-5915
Attention: Stephon Barnes
Anthony Scire
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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HALBIS DISTRESSED OPPORTUNITIES MASTER FUND, LTD.
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By: |
/s/ Peter Sakon
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Name: |
Peter Sakon |
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Title: |
VP |
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Address:
HSBC Global Asset Management
452 Fifth Avenue, 18th Floor
New York, NY 10018
Facsimile: (212) 525-2380
Attention: Rick W. Liu, CFA,
Vice President
Gene Loughlin
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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MERCED PARTNERS LIMITED PARTNERSHIP
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By: |
/s/ Thomas G. Rock
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Name: |
Thomas G. Rock |
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Title: |
Authorized Representative |
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Address:
c/o EBF & Associates, L.P.
601 Carlson Parkway, Suite 200
Minnetonka, MN 55305
Facsimile: (952) 476-7201
Attention: Thomas G. Rock
Stuart Brown
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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MERCED PARTNERS II, L.P.
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By: |
/s/ Thomas G. Rock
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Name: |
Thomas G. Rock |
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Title: |
Authorized Representative |
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Address:
c/o EBF & Associates, L.P.
601 Carlson Parkway, Suite 200
Minnetonka, MN 55305
Facsimile: (952) 476-7201
Attention: Thomas G. Rock
Stuart Brown
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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QVT FUND LP
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By:
|
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/s/ Nick Bruman
|
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/s/ Tracy Fu |
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Name: Nick Bruman
|
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Tracy Fu |
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Title: Managing Member
|
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Managing Member |
Address:
c/o QVT Financial LP
1177 Avenue of the Americas, 9th Floor
New York, NY 10036
Facsimile: (212) 705-8801
Attention: Michael Rosenthal
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
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QUINTESSENCE FUND L.P. |
|
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By:
|
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/s/ Nick Bruman
|
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/s/ Tracy Fu |
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Name: Nick Bruman
|
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Tracy Fu |
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Title: Managing Member
|
|
Managing Member |
Address:
c/o QVT Financial LP
1177 Avenue of the Americas, 9th Floor
New York, NY 10036
Facsimile: (212) 705-8801
Attention: Michael Rosenthal
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
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RIVA RIDGE MASTER FUND, LTD.
|
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By: |
/s/ Stephen Golden
|
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Name: |
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Title: |
|
|
Address:
c/o Riva Ridge Capital Management LP
55 Fifth Avenue, 18th Floor
New York, NY 10003
Facsimile: (646) 284-9919
Attention: Dennis Parks
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
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MARINER LDC
|
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By: |
/s/ Stephen Golden
|
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|
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Name: |
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Title: |
|
|
Address:
c/o Riva Ridge Capital Management LP
55 Fifth Avenue, 18th Floor
New York, NY 10003
Facsimile: (646) 284-9919
Attention: Dennis Parks
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
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|
|
SENECA CAPITAL, L.P.
|
|
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By: |
/s/ Mike Anastasio
|
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|
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Name: |
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|
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Title: |
|
|
Address:
Seneca Capital L.P.
590 Madison Avenue 9th floor
New York, NY 10022
Facsimile: (212) 826-1108
Attention: Eric Feingold
Tracy Sigal
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
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|
|
SILVER POINT CAPITAL, L.P.
|
|
|
By: |
/s/ Michael Gatto
|
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|
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Name: |
Michael Gatto |
|
|
|
Title: |
Authorized Person |
|
Address:
Silver Point Capital, L.P.
2 Greenwich Plaza, 1st Floor
Greenwich, CT 06830
Facsimile: (203) 542-4141
Attention: Jeff Forlizzi
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
SPECTRUM INVESTMENT PARTNERS, L.P.
By: Spectrum Group Management LLC
|
|
|
|
|
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|
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By: |
/s/ Jeffrey A. Schaffer
|
|
|
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Name: |
Jeffrey A. Schaffer |
|
|
|
Title: |
Managing Member |
|
Address:
c/o Spectrum Group Management LLC
1250 Broadway, Suite 810
New York, NY 10001
Facsimile: (212) 983-2322
Attention: Jeffrey A. Schaffer
David D.R. Bullock
With a copy to:
Spectrum Group Management LLC
1250 Broadway, Suite 810
New York, NY 10001
Facsimile: (212) 983-2322
Attention: Stephen C. Jacobs
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
SIPI MASTER LTD.
By: Spectrum Investment
Management LLC
|
|
|
|
|
|
By: |
/s/ Jeffrey A. Schaffer
|
|
|
|
Name: |
Jeffrey A. Schaffer |
|
|
|
Title: |
Managing Member |
|
Address:
c/o Spectrum Group Management LLC
1250 Broadway, Suite 810
New York, NY 10001
Facsimile: (212) 983-2322
Attention: Jeffrey A. Schaffer
David D.R. Bullock
With a copy to:
Spectrum Group Management LLC
1250 Broadway, Suite 810
New York, NY 10001
Facsimile: (212) 983-2322
Attention: Stephen C. Jacobs
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
|
|
|
|
STARK MASTER FUND LTD.
|
|
|
By: |
/s/ Donald T. Bobbs
|
|
|
|
Name: |
Stark Offshore Management LLC |
|
|
|
Title: |
Investment Manager |
|
|
|
By: |
Donald T. Bobbs Authorized Signatory |
Address:
c/o Stark Offshore Management LLC
3600 S. Lake Drive
St. Francis, WI 53235
Facsimile: (414) 294-7700
Attention: Don Bobbs
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
|
|
|
|
STARK CRITERION MASTER FUND LTD.
|
|
|
By: |
/s/ Donald T. Bobbs
|
|
|
|
Name: |
Stark Criterion Management LLC |
|
|
|
Title: |
Investment Manager |
|
|
|
By: |
Donald T. Bobbs Authorized Signatory |
Address:
c/o Stark Criterion Management LLC
3600 S. Lake Drive
St. Francis, WI 53235
Facsimile: (414) 294-7700
Attention: Don Bobbs
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
UBS SECURITIES LLC (Solely with respect to the
Distressed Debt Trading Group)
|
|
|
|
|
|
By: |
/s/ Daniel S. Fruman
|
|
|
|
Name: |
Daniel S. Fruman |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
By: |
/s/ Jeffrey Teach
|
|
|
|
Name: |
Jeffrey Teach |
|
|
|
Title: |
MD |
|
Address:
UBS Securities LLC
677 Washington Boulevard
Stamford, CT 06901
Facsimile: (203) 719-0680
Attention: Fixed Income Legal
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
|
|
|
|
VENOR CAPITAL MASTER FUND LTD.
|
|
|
By: |
/s/ Michael Wartell
|
|
|
|
Name: |
Michael Wartell |
|
|
|
Title: |
Authorized Signatory |
|
Address:
c/o Venor Capital Management LP
Times Square Tower
7 Times Square, Suite 3505
New York, NY 10036
Facsimile: (212) 703-2111
Attention: Michael Scott
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
|
|
|
|
WHITEBOX HEDGED HIGH YIELD PARTNERS, L.P.
|
|
|
By: |
/s/ Mark Strefling
|
|
|
|
Name: |
Mark Strefling |
|
|
|
Title: |
CLO |
|
Whitebox Hedged High Yield Partners, LP
Whitebox Hedged High Yield Advisors, LLC
Whitebox Advisors, LLC
Address:
Whitebox Advisors
3033 Excelsior Blvd, Suite 300
Minneapolis, MN 55416
Facsimile: (612) 253-6151
Attention: Pete Wiley
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
|
|
|
|
WHITEBOX COMBINED
PARTNERS, L.P.
|
|
|
By: |
/s/ Mark Strefling
|
|
|
|
Name: |
Mark Strefling |
|
|
|
Title: |
CLO |
|
Whitebox Hedged High Yield Partners, LP
Whitebox Hedged High Yield Advisors, LLC
Whitebox Advisors, LLC
Address:
Whitebox Advisors
3033 Excelsior Blvd, Suite 300
Minneapolis, MN 55416
Facsimile: (612) 253-6151
Attention: Pete Wiley
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
|
|
|
|
CQS CONVERTIBLE AND QUANTITATIVE STRATEGIES
MASTER FUND LIMITED
|
|
|
By: |
/s/ Tara Glaser
|
|
|
|
Name: |
Tara Glaser |
|
|
|
Title: |
Authorized Signatory |
|
Address:
c/o CQS (US), LLC
152 West 57th Street, 41st Floor
New York, NY 10019
Facsimile: (917) 206-4099
Attention: Mark Unferth
Tim McArdle
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
|
|
|
|
CQS DIRECTIONAL OPPORTUNITIES MASTER FUND LIMITED
|
|
|
By: |
/s/ Tara Glaser
|
|
|
|
Name: |
Tara Glaser |
|
|
|
Title: |
Authorized Signatory |
|
Address:
c/o CQS (US), LLC
152 West 57th Street, 41st Floor
New York, NY 10019
Facsimile: (917) 206-4099
Attention: Mark Unferth
Tim McArdle
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
|
|
|
|
KIVU INVESTMENT FUND LIMITED
|
|
|
By: |
/s/ Peter M. Fletcher
|
|
|
|
Name: |
Peter M. Fletcher |
|
|
|
Title: |
Director |
|
Address:
c/o CQS (US), LLC
152 West 57th Street, 41st Floor
New York, NY 10019
Facsimile: (917) 206-4099
Attention: Mark Unferth
Tim McArdle
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
DEUTSCHE BANK SECURITIES INC.
(SOLELY WITH RESPECT TO THE DISTRESSED PRODUCTS GROUP)
|
|
|
|
|
|
By: |
/s/ Ray Costa
|
|
|
|
Name: |
Ray Costa |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
By: |
/s/ Charles J. Lanktree
|
|
|
|
Name: |
Charles J. Lanktree |
|
|
|
Title: |
|
|
Address:
60 Wall Street
New York, NY 10005
Facsimile: (212) 797-4666
Attention: Tom Higbie
Philip Giordano
James MacInnis
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
|
|
|
|
ELLIOTT INTERNATIONAL, L.P.
|
|
|
By: |
/s/ Joshua Nadell
|
|
|
|
Name: |
Joshua Nadell |
|
|
|
Title: |
Vice President |
|
Address:
c/o Elliott Management Corporation
712 Fifth Avenue
35th Floor
New York, NY 10019
Facsimile: (888) 341-0656
Attention: Kimberly A. Reinhardt Gonzales Ross Rosen
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
|
|
|
|
THE LIVERPOOL LIMITED PARTNERSHIP
|
|
|
By: |
/s/ Joshua Nadell
|
|
|
|
Name: |
Joshua Nadell |
|
|
|
Title: |
Vice President |
|
Address:
c/o Elliott Management Corporation
712 Fifth Avenue
35th Floor
New York, NY 10019
Facsimile: (888) 341-0656
Attention: Kimberly A. Reinhardt Gonzales Ross Rosen
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
GOLDMAN, SACHS & CO.
(SOLELY WITH RESPECT TO THE HIGH YIELD DISTRESSED INVESTING GROUP)
|
|
|
|
|
|
By: |
/s/ Justin Slatky
|
|
|
|
Name: |
Justin Slatky |
|
|
|
Title: |
Managing Director |
|
Address:
200 West Street, 6th Floor
New York, NY 10282
Facsimile: (646) 576-3388
Attention: Ned Oakley
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
|
|
|
|
MONARCH MASTER FUNDING LTD
|
|
|
By: |
/s/ Michael A. Weinstock
|
|
|
|
Name: |
Michael A. Weinstock |
|
|
|
Title: |
Managing Principal |
|
Address:
Monarch Alternative Capital LP
535 Madison Avenue
New York, NY 10022
Facsimile: (866) 401-0532
Attention: Robert Burns,
General Counsel
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
|
|
|
|
|
|
OAK HILL ADVISORS, L.P.
|
|
|
By: |
/s/ Scott D. Krase
|
|
|
|
Name: |
Scott D. Krase |
|
|
|
Title: |
Authorized Signatory |
|
Address:
1114 Avenue of the Americas
27th Floor
New York, NY 10036
Facsimile: (212) 735-5287
Attention: Jeffrey Kirt
Gregg Rubin
Signature Page to Cash Recovery Option Backstop Agreement
SIGNATORY
SOLUS ALTERNATIVE ASSET MANAGEMENT LP
|
|
|
|
|
|
By: |
/s/ Nicholas Signorile
|
|
|
|
Name: |
Nicholas Signorile |
|
|
|
Title: |
COO/CFO |
|
Address:
430 Park Avenue
New York, NY 10022
Facsimile: (212) 284-4320
Attention: Arthur Kaz
Signature Page to Cash Recovery Option Backstop Agreement
SCHEDULE 1
DISTRIBUTABLE COMMITMENT PERCENTAGES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Distributable |
|
|
$ Cash Backstop |
|
Commitment |
Signatory |
|
Commitment |
|
Percentage |
Alden Global Distressed Opportunities Fund, L.P. |
|
|
|
|
|
|
|
|
Allen Arbitrage, L.P. |
|
|
|
|
|
|
|
|
Allen Arbitrage Offshore |
|
|
|
|
|
|
|
|
Armory Master Fund Ltd. |
|
|
|
|
|
|
|
|
Capital Ventures International |
|
|
|
|
|
|
|
|
Caspian Capital Partners, L.P. |
|
|
|
|
|
|
|
|
Caspian Select Credit Master Fund, Ltd. |
|
|
|
|
|
|
|
|
Citadel Securities LLC |
|
|
|
|
|
|
|
|
CQS Convertible and Quantitative Strategies
Master Fund Limited |
|
|
|
|
|
|
|
|
CQS Directional Opportunities Master Fund Limited |
|
|
|
|
|
|
|
|
Crescent 1 L.P. |
|
|
|
|
|
|
|
|
CRS Fund Ltd. |
|
|
|
|
|
|
|
|
CSS, LLC |
|
|
|
|
|
|
|
|
Cumber International S.A. |
|
|
|
|
|
|
|
|
Cumberland Benchmarked Partners, L.P. |
|
|
|
|
|
|
|
|
Cumberland Partners |
|
|
|
|
|
|
|
|
Cyrus Europe Master Fund Ltd. |
|
|
|
|
|
|
|
|
Cyrus Opportunities Master Fund II, Ltd. |
|
|
|
|
|
|
|
|
Cyrus Select Opportunities Master Fund, Ltd. |
|
|
|
|
|
|
|
|
Deutsche Bank Securities Inc. (Solely with
respect to the Distressed Products Group) |
|
|
|
|
|
|
|
|
Elliott International, L.P. |
|
|
|
|
|
|
|
|
Goldman, Sachs & Co. (Solely with respect to the
High Yield Distressed Investing Group) |
|
|
|
|
|
|
|
|
Halbis Distressed Opportunities Master Fund Ltd. |
|
|
|
|
|
|
|
|
Kivu Investment Fund Limited |
|
|
|
|
|
|
|
|
LongView Partners B, L.P. |
|
|
|
|
|
|
|
|
Mariner LDC (Caspian) |
|
|
|
|
|
|
|
|
Mariner LDC (Riva Ridge) |
|
|
|
|
|
|
|
|
Merced Partners II, L.P. |
|
|
|
|
|
|
|
|
Merced Partners Limited Partnership |
|
|
|
|
|
|
|
|
Monarch Master Funding Ltd. |
|
|
|
|
|
|
|
|
NewFinance Alden SPV |
|
|
|
|
|
|
|
|
Oak Hill Advisors, L.P. |
|
|
|
|
|
|
|
|
Quintessence Fund L.P. |
|
|
|
|
|
|
|
|
QVT Fund LP |
|
|
|
|
|
|
|
|
Riva Ridge Master Fund, Ltd. |
|
|
|
|
|
|
|
|
SCHEDULE 1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Distributable |
|
|
|
$ Cash Backstop |
|
|
Commitment |
|
Signatory |
|
Commitment |
|
|
Percentage |
|
Seneca Capital LP |
|
|
|
|
|
|
|
|
Silver Point Capital, L.P. |
|
|
|
|
|
|
|
|
SIPI Master Ltd. |
|
|
|
|
|
|
|
|
Solus Alternative Asset Management LP |
|
|
|
|
|
|
|
|
Spectrum Investment Partners, L.P. |
|
|
|
|
|
|
|
|
Stark Criterion Master Fund Ltd. |
|
|
|
|
|
|
|
|
Stark Master Fund Ltd. |
|
|
|
|
|
|
|
|
The Seaport Group LLC Profit Sharing Plan |
|
|
|
|
|
|
|
|
The Liverpool Limited Partnership |
|
|
|
|
|
|
|
|
UBS Securities LLC |
|
|
|
|
|
|
|
|
Venor Capital Master Fund Ltd. |
|
|
|
|
|
|
|
|
Whitebox Combined Partners, L.P. |
|
|
|
|
|
|
|
|
Whitebox Hedged High Yield Partners, L.P. |
|
|
|
|
|
|
|
|
TOTAL
|
|
$ |
50,000,000.00 |
|
|
|
100.00000 |
% |
Exhibit F
Exhibit F
EXHIBIT I
FORM OF REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this Agreement) is made as of [ ],
2010 by and among Visteon Corporation, a Delaware corporation (the Company), and the
parties identified as Investors on the signature page hereto and any parties identified
on the signature page of any joinder agreements executed and delivered pursuant to Section
12 or Section 13 hereof (each, including the Investors, a Holder and,
collectively, the Holders). Capitalized terms used but not otherwise defined herein are
defined in Section 1 hereof.
RECITALS:
WHEREAS the Company proposes to issue the New Common Stock (as defined below) pursuant to, and
upon the terms set forth in, the Plan of Reorganization of Visteon Corporation and certain of its
Subsidiaries and Affiliates (the Plan) under chapter 11 of the United States Code, 11
U.S.C. §§ 101-1532. In accordance with the Plan, the Company agrees for the benefit of the
Holders, as follows:
NOW, THEREFORE, in accordance with the Plan, and in consideration of the premises and the
mutual covenants contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each of the Holders hereby agree as
follows:
Section 1. Definitions.
Affiliate of any particular Person means any other Person directly or indirectly
controlling, controlled by or under common control with such particular Person.
Agreement has the meaning specified in the first paragraph hereof.
Automatic Shelf Registration Statement means an automatic shelf registration
statement as defined in Rule 405 promulgated under the Securities Act.
Beneficial Ownership and terms of similar import shall be as defined under and
determined pursuant to Rule 13d-3 promulgated under the Exchange Act.
Business Day means each Monday, Tuesday, Wednesday, Thursday and Friday that is not
a day on which banking institutions in New York City are generally authorized or obligated by law
or executive order to close.
Commission means the United States Securities and Exchange Commission or any
successor governmental agency.
Company has the meaning specified in the first paragraph hereof.
Company Notice has the meaning specified in Section 2(c).
1
control (including the terms controlling, controlled by and under common
control with) means, unless otherwise noted, the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person, whether through the
ownership of voting shares, by contract, or otherwise.
Counsel to the Holders means, one counsel selected from time to time by the Holders
of a majority of the Registrable Securities.
Demand Notice has the meaning specified in Section 2(c).
Determination Date has the meaning specified in Section 2(g).
Disclosure Package means, with respect to any offering of securities, (i) the
preliminary prospectus, (ii) each Free Writing Prospectus and (iii) all other information, in each
case, that is deemed, under Rule 159 promulgated under the Securities Act, to have been conveyed to
purchasers of securities at the time of sale of such securities (including a contract of sale).
Effective Date has the meaning assigned to such term in the Plan.
Equity Commitment Agreement means that certain Equity Commitment Agreement dated as
of May 6, 2010, among the Company and the other parties thereto.
Exchange Act means the Securities Exchange Act of 1934, as amended from time to
time.
FINRA means the Financial Industry Regulatory Authority, Inc.
Follow-On Registration Notice has the meaning specified in Section 2(h)(i).
Follow-On Shelf has the meaning specified in Section 2(h)(i).
Form S-3 Shelf has the meaning specified in Section 2(a).
Free Writing Prospectus means any free writing prospectus as defined in Rule 405
promulgated under the Securities Act.
Hedging Counterparty means a broker-dealer registered under Section 15(b) of the
Exchange Act or an Affiliate thereof.
2
Hedging Transaction means any transaction involving a security linked to the
Registrable Securities or any security that would be deemed to be a derivative security (as
defined in Rule 16a-l(c) promulgated under the Exchange Act) with respect to the Registrable
Securities or any transaction (even if not a security) which would (were it a security) be
considered such a derivative security, or which transfers some or all of the economic risk of
ownership of the Registrable Securities, including any forward contract, equity swap, put or call,
put or call equivalent position, collar, non-recourse loan, sale of an exchangeable security or
similar transaction. For the avoidance of doubt, the following transactions shall be deemed
to be Hedging Transactions:
(i) transactions by a Holder in which a Hedging Counterparty engages in short sales of
Registrable Securities pursuant to a prospectus and may use Registrable Securities to close
out its short position;
(ii) transactions pursuant to which a Holder sells short Registrable Securities
pursuant to a prospectus and delivers Registrable Securities to close out its short
position;
(iii) transactions by a Holder in which the Holder delivers, in a transaction exempt
from registration under the Securities Act, Registrable Securities to the Hedging
Counterparty who will then publicly resell or otherwise transfer such Registrable Securities
pursuant to a prospectus or an exemption from registration under the Securities Act; and
(iv) a loan or pledge of Registrable Securities to a Hedging Counterparty who may then
become a selling stockholder and sell the loaned shares or, in an event of default in the
case of a pledge, sell the pledged shares, in each case, in a public transaction pursuant to
a prospectus.
Holder and Holders have the meanings give to those terms in the first
paragraph hereof.
Holder Free Writing Prospectus means each Free Writing Prospectus prepared by or on
behalf of the relevant Holder or used or referred to by such Holder in connection with the offering
of Registrable Securities.
Investors has the meaning specified in the first paragraph hereof.
Lock-Up Period has the meaning specified in Section 4(a).
Losses has the meaning specified in Section 8(d).
NASDAQ means the The NASDAQ Stock Market.
New Common Stock means the shares of common stock, par value $.01 per share, of the
Company issued on and after the Effective Date and any additional shares of such common stock paid,
issued or distributed in respect of any such shares by way of a stock dividend, stock split or
distribution, or in connection with a combination of shares, and any such security into which such
New Common Stock shall have been converted or exchanged in connection with a recapitalization,
reorganization, reclassification, merger, consolidation, exchange, distribution or otherwise.
Other Holders has the meaning specified in Section 3(a).
Person means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization, a governmental entity or any department, agency or political subdivision thereof
or any other entity.
3
Piggyback Takedown has the meaning specified in Section 3(a).
Plan has the meaning specified in the Recitals.
Prospectus means the prospectus used in connection with a Registration Statement.
Registrable Securities means at any time any shares of New Common Stock issued or
issuable on or after the Effective Date to any Holder hereto, including, without limitation, any
New Common Stock issued pursuant to the Plan or upon the conversion, exercise or exchange, as
applicable, of any other securities and/or interests (including for avoidance of doubt the Rights
(as defined in the Plan)) issued pursuant to the Plan, any New Common Stock issued pursuant to the
Guaranty Warrants (as defined in the Plan) and any New Common Stock issued pursuant to the Direct
Commitment (as defined in the Plan), and any securities paid, issued or distributed in respect of
any such New Common Stock by way of stock dividend, stock split or distribution, or in connection
with a combination of shares, recapitalization, reorganization, merger or consolidation, or
otherwise, but excluding shares of New Common Stock acquired in the open market after the Effective
Date; provided, however, that as to any Registrable Securities, such securities
shall cease to constitute Registrable Securities upon the earliest to occur of: (w) the date on
which such securities are disposed of pursuant to an effective registration statement under the
Securities Act; (x) the date on which such securities are disposed of pursuant to Rule 144 (or any
successor provision) promulgated under the Securities Act; (y) with respect to the Registrable
Securities held by any Holder (or its Affiliates), any time that such Holder Beneficially Owns
Registrable Securities representing less than 5% of the then outstanding New Common Stock and is
permitted sell such Registrable Securities under Rule 144(b)(1); and (z) the date on which such
securities cease to be outstanding. For the purposes of this Agreement, a Person shall be deemed
to be a holder of Registrable Securities whenever such Person has the right to acquire such
Registrable Securities (upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitation upon the exercise of such right),
whether or not such acquisition has been effected.
Registration Expenses means all expenses (other than underwriting discounts and
commissions) arising from or incident to the registration of Registrable Securities in compliance
with this Agreement, including, without limitation, (i) Commission, stock exchange, FINRA and other
registration and filing fees, (ii) all fees and expenses incurred in connection with complying with
any securities or blue sky laws (including, without limitation, fees, charges and disbursements of
counsel in connection with blue sky qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) the fees, charges and disbursements of counsel to
the Company and of its independent public accountants and any other accounting and legal fees,
charges and expenses incurred by the Company (including, without limitation, any expenses arising
from any special audits or comfort letters required in connection with or incident to any
registration), (v) the fees and expenses incurred in connection with the listing of the Registrable
Securities on the New York Stock Exchange, NASDAQ (or any other national securities exchange) or
the quotation of Registrable Securities on any inter-dealer
quotation system, (vi) the fees and expenses incurred in connection with any road show
for underwritten offerings and (vii) reasonable fees, charges and disbursements of Counsel to the
Holders, including, for the avoidance of doubt, any expenses of Counsel to the Holders in
connection with the filing or amendment of any Registration Statement, Prospectus or Free Writing
Prospectus hereunder.
4
Registration Statement means any registration statement filed hereunder or in
connection with a Piggyback Takedown.
Rights Offering means the rights offering conducted pursuant to the Plan in
accordance with the Rights Offering Procedures.
Rights Offering Procedures means the document attached as an Exhibit to the Equity
Commitment Agreement setting forth the procedures for the Rights Offering.
Securities Act means the Securities Act of 1933, as amended from time to time.
Selling Expenses means the underwriting fees, discounts, selling commissions and
stock transfer taxes applicable to all Registrable Securities registered by the Holders and legal
expenses not included within the definition of Registration Expenses.
Shelf has the meaning specified in Section 2(a).
Shelf Registration means a registration of securities pursuant to a registration
statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under
the Securities Act (or any successor rule then in effect).
Shelf Takedown means either an Underwritten Shelf Takedown or a Piggyback Takedown.
Suspension Period has the meaning specified in Section 2(e)(ii).
Underwritten Shelf Takedown has the meaning specified in Section 2(b).
Well-Known Seasoned Issuer means a well-known seasoned issuer under Rule 405
promulgated under the Securities Act.
Section 2. Shelf Registrations.
(a) Filing. The Company shall use its reasonable best efforts to file within fourteen
(14) Business Days after the Effective Date a registration statement on any permitted form that
qualifies, and is available for, the resale of Registrable Securities, with the Commission in
accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor
rule then in effect) (the Shelf). The Company shall use its reasonable best efforts to
cause the Shelf to become effective as promptly thereafter as practicable. The Company shall
include in the Shelf all Registrable Securities with respect to which the Company has received
written requests for inclusion therein at least five (5) Business Days prior to the date of filing
5
pursuant to a registration notice and questionnaire provided to holders under the Rights Offering Procedures; provided, however, that in order to be named as a selling securityholder each
Holder must furnish to the Company in writing such information in writing as may be reasonably
requested by the Company for the purpose of including such Holders Registrable Securities in the
Shelf (the Selling Holder Information). The Company shall include in the Shelf Selling
Holder Information received by, to the extent necessary and in a manner so that upon effectiveness
of the Shelf, the Holder shall be named, to the extent required by the rules promulgated under the
Securities Act by the Commission, as a selling securityholder and be permitted to deliver (or be
deemed to deliver) a prospectus relating to the Shelf to purchasers of the Registrable Securities
in accordance with applicable law, and shall, if requested, within five (5) Business Days of any
request, amend or supplement the Shelf such that the plan of distribution or other related
information reflects transactions proposed to be conducted by any Holder. If the Company files an
amended version of the Shelf, the Company shall include in such Shelf Selling Holder Information
that was not included in any previous filed version of the Shelf. The Company shall use its
reasonable best efforts to convert any Shelf that is on a Form S-1 (including any Follow-On Shelf)
to a Registration Statement on Form S-3 (the Form S-3 Shelf) as soon as practicable after
the Company is eligible to use Form S-3. If any Registrable Securities remain issued and
outstanding after three (3) years following the initial effective date of such Shelf (the
Initial Shelf Effective Date), the Company shall, prior to the expiration of such Shelf,
file a new Shelf covering such Registrable Securities and shall thereafter use its reasonable best
efforts to cause to be declared effective as promptly as practical, such new Shelf. The Company
shall maintain the effectiveness of the Shelf in accordance with the terms hereof for so long as
any Registrable Securities remain issued and outstanding.
(b) Requests for Underwritten Shelf Takedowns. At any time and from time to time
after the Shelf has been declared effective by the Commission, any one or more Holders of
Registrable Securities may request to sell all or any portion of their Registrable Securities in an
underwritten offering (including an at-the-market offering or a registered direct offering)
that is registered pursuant to the Shelf (each, an Underwritten Shelf Takedown);
provided that in the case of each such Underwritten Shelf Takedown such Holder or Holders
will be entitled to make such demand only if the total offering price of the Registrable Securities
to be sold in such offering (including piggyback shares and before deduction of underwriting
discounts) is reasonably expected to exceed, in the aggregate, $75 million.
(c) Demand Notices. All requests for Underwritten Shelf Takedowns shall be made by
giving written notice to the Company (the Demand Notice). Each Demand Notice shall
specify the approximate number of Registrable Securities to be sold in the Underwritten Shelf
Takedown and the expected price range (net of underwriting discounts and commissions) of such
Underwritten Shelf Takedown. Within five (5) Business Days after receipt of any Demand Notice, the
Company shall send written notice of such requested Underwritten Shelf Takedown to all other
Holders of Registrable Securities (the Company Notice) and, subject to the provisions of
Section 2(d) below, shall include in such Underwritten Shelf Takedown all Registrable
Securities with respect to which the Company has received written requests for inclusion therein
within fifteen (15) Business Days after sending the Company Notice.
6
(d) Priority on Underwritten Shelf Takedowns. The Company shall not include in any
Underwritten Shelf Takedown any securities which are not Registrable Securities without the prior
written consent of the Holders of a majority of the Registrable Securities
requested to be included in the Underwritten Shelf Takedown. If the managing underwriters for
such Underwritten Shelf Takedown advise the Company in writing that in their opinion the number of
Registrable Securities and, if permitted hereunder, other securities requested to be included in
such Underwritten Shelf Takedown exceeds the number of Registrable Securities and other securities,
if any, which can be sold in an orderly manner in such offering within a price range acceptable to
the Holders of a majority of the Registrable Securities requested to be included in the
Underwritten Shelf Takedown, the Company shall include in such Underwritten Shelf Takedown the
number of Registrable Securities which can be so sold in the following order of priority: (i)
first, the Registrable Securities requested to be included in such Underwritten Shelf
Takedown by the Holders, which in the opinion of such underwriter can be sold in an orderly manner
within the price range of such offering, pro rata among the respective Holders of such Registrable
Securities on the basis of the number of Registrable Securities held by each such Holder, and (ii)
second, other securities, including securities that the Company proposes to register for
its own account, requested to be included in such Underwritten Shelf Takedown to the extent
permitted hereunder.
(e) Restrictions on Underwritten Shelf Takedowns and Use of Registration Statement.
(i) The Company shall not be obligated to effect more than (x) three (3)
Underwritten Shelf Takedowns during any period of twelve (12) consecutive months
during the first two-year period after the Effective Date, and (y) two (2)
Underwritten Shelf Takedowns during any period of twelve (12) consecutive months
following the first two-year period after the Effective Date, and, in either case,
shall not be obligated to effect an Underwritten Shelf Takedown within one-hundred
twenty (120) days after the pricing of a previous Underwritten Shelf Takedown.
(ii) Upon written notice to the Holders of Registrable Securities, the Company
shall be entitled to suspend, for a period of time (each, a Suspension
Period), the use of any Registration Statement or Prospectus and shall not be
required to amend or supplement the Registration Statement, any related Prospectus
or any document incorporated therein by reference if the Company determines in its
reasonable good faith judgment, after consultation with counsel, that the
Registration Statement or any Prospectus may contain an untrue statement of a
material fact or omits any fact necessary to make the statements in the Registration
Statement or Prospectus not misleading; provided that (A) there are no more
than three (3) Suspension Periods in any 12-month period, (B) the duration of all
Suspension Periods may not exceed ninety (90) days in the aggregate in any twelve
(12)-month period, (C) the duration of any one period may not exceed sixty (60)
days, (D) at least thirty (30) days must elapse between Suspension Periods, and (E)
the Company shall use its good faith efforts to amend the Registration Statement
and/or Prospectus to correct such untrue statement or omission as promptly as
reasonably practicable unless, commencing on or after date that is (60) days after
the initial effective date of the first Shelf filed pursuant to Section 2(a), such
amendment would reasonably be expected to have a material adverse effect on any
proposal or plan of the Company to effect a merger,
acquisition, disposition, financing, reorganization, recapitalization or
similar transaction, in each case that is material to the Company.
7
(f) Selection of Underwriters. The Holders of a majority of the Registrable
Securities requested to be included in an Underwritten Shelf Takedown shall have the right to
select the investment banker(s) and manager(s) to administer the offering (which shall consist of
one (1) or more reputable nationally recognized investment banks), subject to the Companys
approval, which shall not be unreasonably withheld, conditioned or delayed.
(g) Automatic Shelf Registration. Upon the Company becoming a Well-Known Seasoned
Issuer, (i) the Company shall give written notice to all of the Holders as promptly as practicable
but in no event later than twenty (20) days thereafter, and such notice shall describe, in
reasonable detail, the basis on which the Company has become a Well-Known Seasoned Issuer, and (ii)
the Company shall, as promptly as practicable, register, under an Automatic Shelf Registration
Statement, the sale of all of the Registrable Securities in accordance with the terms of this
Agreement. The Company shall use its reasonable best efforts to file such Automatic Shelf
Registration Statement as promptly as practicable, but in no event later than thirty (30) days
after it becomes a Well-Known Seasoned Issuer, and to cause such Automatic Shelf Registration
Statement to remain effective thereafter until there are no longer any Registrable Securities. The
Company shall give written notice of filing such Registration Statement to all of the Holders as
promptly as practicable thereafter. At any time after the filing of an Automatic Shelf
Registration Statement by the Company, if the Company is no longer a Well-Known Seasoned Issuer
(the Determination Date), within twenty (20) days after such Determination Date, the
Company shall (A) give written notice thereof to all of the Holders and (B) file a Registration
Statement on an appropriate form (or a post-effective amendment converting the Automatic Shelf
Registration Statement to an appropriate form) covering all of the Registrable Securities, and use
reasonable best efforts to have such Registration Statement declared effective as promptly as
practicable (but in no event more than thirty (30) days) after the date the Automatic Shelf
Registration Statement is no longer useable by the Holders to sell their Registrable Securities.
(h) Additional Selling Stockholders and Additional Registrable Securities.
(i) If the Company is not a Well-Known Seasoned Issuer, within twenty (20) days
after a written request by one or more Holders of Registrable Securities to register
for resale any additional Registrable Securities owned by such Holders, the Company
shall file a Registration Statement substantially similar to the Shelf then
effective, if any (each, a Follow-On Shelf), to register for resale such
Registrable Securities. The Company shall give written notice (the Follow-On
Registration Notice) of the filing of the Follow-On Shelf at least seven (7)
days prior to filing the Follow-On Shelf to all Holders of Registrable Securities
whose Registrable Securities are not already the subject of a Shelf and shall
include in such Follow-On Shelf all Registrable Securities with respect to which the
Company has received written requests for inclusion therein within ten (10) days
after sending the Follow-On Registration Notice. Notwithstanding the foregoing, the
Company shall not be required to file a Follow-On Shelf (x) if the aggregate
8
amount
of Registrable Securities requested to be registered on such Follow-On Shelf by all Holders that have not yet been registered represent less
than 1% of the then outstanding New Common Stock or (y) if the Company has filed a
Follow-On Shelf in the prior ninety (90) days. The Company shall use reasonable
best efforts to cause such Follow-On Shelf to be declared effective as promptly as
practicable and in any event within sixty (60) days of filing such Follow-On Shelf.
Any Registrable Securities requested to be registered pursuant to this Section
2(h)(i) that have not been registered on a Shelf or pursuant to Section
3 below at the time the Follow-On Shelf is filed shall be registered pursuant to
such Follow-On Shelf.
(ii) If the Company is a Well-Known Seasoned Issuer, within five (5) Business
Days after a written request by one or more Holders of Registrable Securities to
register for resale any additional Registrable Securities owned by such Holders, the
Company shall make all necessary filings to include such Registrable Securities in
the Automatic Shelf Registration Statement filed pursuant to Section 2(g).
(iii) If a Form S-3 Shelf or Automatic Shelf Registration Statement is
effective, within five (5) Business Days after written request therefor by a Holder
of Registrable Securities, the Company shall file a prospectus supplement or current
report on Form 8-K to add such Holder as a selling stockholder in such Form S-3
Shelf or Automatic Shelf Registration Statement to the extent permitted under the
rules and regulations promulgated by the Commission.
(i) Other Registration Rights. Except as expressly contemplated by the Plan, the
Company represents and warrants that it is not a party to, or otherwise subject to, any other
agreement granting registration rights to any other Person with respect to any securities of the
Company. The Company shall not hereafter enter into any agreement with respect to its securities
which (x) is inconsistent with or violates the rights granted to the Holders of Registrable
Securities in this Agreement, or (y) grants any Person the right to request the Company to register
any securities of the Company, except for such rights as are not more favorable than the rights
granted to the Holders of Registrable Securities hereunder.
Section 3. Piggyback Takedowns.
(a) Right to Piggyback. Whenever the Company proposes to offer any of its New Common
Stock (a Piggyback Takedown) pursuant to a registration statement in any underwritten
offering of New Common Stock (including an at-the-market offering or a registered direct
offering) whether for its own account or for the account of holders of the Companys securities
(other than the Investors) (Other Holders), the Company shall send prompt written notice
to all Holders of Registrable Securities of its intention to effect such Piggyback Takedown. In
the case of a Piggyback Takedown that is an underwritten offering under a shelf registration
statement, such notice shall be sent not less than ten (10) Business Days prior to the expected
date of commencement of marketing efforts for such Piggyback Takedown. In the case of a Piggyback
Takedown that is an underwritten offering under a registration statement that is not a shelf
registration statement, such notice shall be given
9
not less than ten (10) Business Days prior to
the expected date of filing of such registration statement. The Company shall, subject to the provisions of Sections 3(b) and (c) below,
include in such Piggyback Takedown, as applicable, all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within seven (7) Business Days
after sending the Companys notice and shall file any post effective amendment or prospectus
supplement necessary to include such Registrable Securities. Notwithstanding anything to the
contrary contained herein, the Company may determine not to proceed with any Piggyback Takedown
upon written notice to the Holders of Registrable Securities requesting to include their
Registrable Securities in such Piggyback Takedown.
(b) Priority on Primary Piggyback Takedowns. If a Piggyback Takedown is an
underwritten primary registration on behalf of the Company, and the managing underwriters for such
Piggyback Takedown advise the Company in writing that in their reasonable opinion the number of
securities requested to be included in such Piggyback Takedown exceeds the number which can be sold
in an orderly manner in such offering within a price range acceptable to the Company, the Company
shall include in such Piggyback Takedown the number which can be so sold in the following order of
priority: (i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such Piggyback Takedown by the Holders (pro rata
among the Holders of such Registrable Securities on the basis of the number of Registrable
Securities requested to be included by each such Holder), and (iii) third, other securities
requested to be included in such Piggyback Takedown.
If, as a result of the proration provisions of this Section 3(b), any Holder shall not
be entitled to include all Registrable Securities in a Piggyback Takedown that such Holder has
requested be included, such Holder may elect to withdraw its request to include Registrable
Securities in such Piggyback Takedown or may reduce the number requested to be included;
provided, however, that (A) such request must be made in writing prior to the
execution of the underwriting agreement and (B) such withdrawal shall be irrevocable and, after
making such withdrawal, such Holder shall no longer have any right to include Registrable
Securities in the Piggyback Takedown as to which such withdrawal was made.
(c) Priority on Secondary Piggyback Takedowns. If a Piggyback Takedown is an
underwritten secondary registration on behalf of Other Holders, and the managing underwriters
advise the Company in writing that in their opinion the number of securities requested to be
included in such Piggyback Takedown exceeds the number which can be sold in an orderly manner in
such offering within a price range acceptable to the Other Holders, the Company shall include in
such registration the number which can be so sold in the following order of priority: (i)
first, the securities requested to be included therein by the Other Holders requesting such
registration, (ii) second, the Registrable Securities requested to be included in such
Piggyback Takedown by the Holders (pro rata among the Holders of such Registrable Securities on the
basis of the number of Registrable Securities requested to be included by each such Holder), and
(iii) third, other securities requested to be included in such registration.
If, as a result of the proration provisions of this Section 3(c), any Holder shall not
be entitled to include all Registrable Securities in a Piggyback Takedown that such Holder has
requested be included, such Holder may elect to withdraw its request to include Registrable
Securities in such Piggyback Takedown or may reduce the number requested to be included;
provided, however, that (A) such request must be made in writing prior to the
execution of the
underwriting agreement and (B) such withdrawal shall be irrevocable and, after making such
withdrawal, such Holder shall no longer have any right to include Registrable Securities in the
Piggyback Takedown as to which such withdrawal was made.
10
(d) Selection of Underwriters. If any Piggyback Takedown is an underwritten primary
registration on behalf of the Company, the Company will have the sole right to select the
investment banker(s) and manager(s) for the offering. If any Piggyback Takedown is an underwritten
secondary registration on behalf of Other Holders, the Company or the Other Holders, in accordance
with any agreement governing such registration, will have the sole right to select the investment
banker(s) and manager(s) for the offering.
Section 4. Holdback Agreements.
(a) Holders of Registrable Securities. In connection with any Shelf Takedown or other
underwritten public offering of equity securities by the Company (a Company Underwritten
Offering), if requested by the managing underwriter for such offering, each Holder who
Beneficially Owns five percent (5%) or more of the outstanding shares of New Common Stock and any
other Holder participating in such offering agrees to enter into a lock-up agreement containing
customary restrictions on transfers of equity securities of the Company (except with respect to
such securities as are proposed to be offered pursuant to the Shelf Takedown or underwritten public
equity offering), or any securities convertible into or exchangeable or exercisable for such
securities, without prior written consent from the Company, during the seven (7) days prior to and
the 90-day period beginning on the date of pricing of such Shelf Takedown (subject to extension in
connection with any earnings release or other release of material information pursuant to FINRA
Rule 2711(f) to the extent applicable) (the Lock-Up Period); provided, that the
Holders shall not be subject to the provisions hereof unless the Companys directors, officers,
Holders who Beneficially Owns five percent (5%) or more of the outstanding shares of New Common
Stock and any other Holders participating in such offering shall have signed lock-up agreements
containing substantially similar terms with the managing underwriter and if any such person shall
be subject to a shorter lock-up period, receives more advantageous terms relating to the Lock-Up
Period or receives a waiver of its lock-up period from the Company or an underwriter, then the
Lock-Up Period shall be such shorter period, on such more advantageous terms and shall receive the
benefit of that waiver; provided, further, that nothing herein will prevent (i) any
Holder that is a partnership, limited liability company or corporation from making a distribution
of Registrable Securities to the partners, members or stockholders thereof, the transfer by a
Holder that is an investment advisor managing a separately managed account to the owner of the
separately managed account, or a transfer to an Affiliate that is otherwise in compliance with the
applicable securities laws, so long as such distributees or transferees agree to be bound by the
restrictions set forth in this Section 4(a), (ii) the exercise, exchange or conversion of
any security exercisable or exchangeable for, or convertible into, New Common Stock, provided the
New Common Stock issued upon such exercise or conversion shall be subject to the restrictions set
forth in this Section 4(a), or (iii) any Holder from continuing market-making or other
trading activities as a broker-dealer in the ordinary course of business; provided,
further, that there shall be a period of at least thirty (30) days between the end of any
Lock-Up Period and the pricing date of any subsequent Company Underwritten Offering. If requested
by the managing underwriter, each Holder agrees to execute a lock-up agreement in favor of the
Companys underwriters to such effect and, in any event, that
the Companys underwriters in any relevant Shelf Takedown shall be third party beneficiaries
of this Section 4(a). The provisions of this Section 4(a) will no longer apply to
a Holder once such Holder ceases to hold Registrable Securities.
11
(b) The Company. In connection with any Shelf Takedown, the Company shall not effect
any public sale or distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities (except pursuant to registrations on Form S-8 or
Form S-4 under the Securities Act), during the seven (7) days prior to and the 90-day period
beginning on the date of pricing of such Shelf Takedown (subject to extension in connection with
any earnings release or other release of material information pursuant to FINRA Rule 2711(f) to the
extent applicable).
Section 5. Company Undertakings. Whenever Registrable Securities are registered
pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the
registration and the sale of such Registrable Securities as soon as reasonably practicable in
accordance with the intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) before filing a Registration Statement or Prospectus, any amendments or supplements
thereto or any issuer free writing prospectus as such term is defined under Rule 433 promulgated
under the Securities Act, at the Companys expense, furnish to Counsel to the Holders copies of all
such documents, other than documents that are incorporated by reference, proposed to be filed and
such other documents reasonably requested by the Holders and provide a reasonable opportunity for
review and comment on such documents by Counsel to the Holders;
(b) notify each Holder of Registrable Securities of the effectiveness of each Registration
Statement and prepare and file with the Commission such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as may be necessary to keep
such Registration Statement effective for a period ending on the date on which all Registrable
Securities have been sold under the Registration Statement applicable to such Shelf Registration or
have otherwise ceased to be Registrable Securities, and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
(c) refrain from naming any Holder as an underwriter in a registration statement, without
first obtaining such Holders written consent;
(d) furnish to each seller of Registrable Securities, and the managing underwriters (if any),
without charge, such number of copies of the applicable Registration Statement, each amendment and
supplement thereto, the Prospectus included in such Registration Statement (including each
preliminary Prospectus, final Prospectus, and any other Prospectus (including any Prospectus filed
under Rule 424, Rule 430A or Rule 430B promulgated under the Securities Act and any issuer free
writing prospectus as such term is defined under Rule 433 promulgated under the Securities Act)),
all exhibits and other documents filed therewith and such other documents as such seller or such
managing underwriters (if any) may reasonably request including in order to facilitate the
disposition of the Registrable
Securities owned by such seller, and upon request, a copy of any and all transmittal letters
or other correspondence to or received from, the Commission or any other governmental authority
relating to such offer;
12
(e) use its reasonable best efforts (i) to register or qualify such Registrable Securities
under such other securities or blue sky laws of such jurisdictions as any seller reasonably
requests, (ii) to keep such registration or qualification in effect for so long as such
Registration Statement remains in effect, and (iii) to do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller (provided that the
Company shall not be required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation
in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction);
(f) notify each seller of such Registrable Securities, Counsel to the Holders and the managing
underwriters (if any) (i) at any time when a Prospectus relating to the applicable Registration
Statement is required to be delivered under the Securities Act, (A) upon discovery that, or upon
the happening of any event as a result of which, such Registration Statement, or the Prospectus or
Free Writing Prospectus relating to such Registration Statement, or any document incorporated or
deemed to be incorporated therein by reference contains an untrue statement of a material fact or
omits any fact necessary to make the statements in the Registration Statement or the Prospectus or
Free Writing Prospectus relating thereto not misleading or otherwise requires the making of any
changes in such Registration Statement, Prospectus, Free Writing Prospectus or document, and, at
the request of any such seller and subject to Section 2(e)(ii) hereof, the Company shall
promptly prepare a supplement or amendment to such Prospectus or Free Writing Prospectus, furnish a
reasonable number of copies of such supplement or amendment to each seller of such Registrable
Securities, Counsel to the Holders and the managing underwriters (if any) and file such supplement
or amendment with the Commission so that, as thereafter delivered to the purchasers of such
Registrable Securities, such Prospectus or Free Writing Prospectus as so amended or supplemented
shall not contain an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading, (B) as soon as the Company becomes aware of any request
by the Commission or any Federal or state governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or Free Writing Prospectus covering Registrable
Securities or for additional information relating thereto, (C) as soon as the Company becomes aware
of the issuance or threatened issuance by the Commission of any stop order suspending or
threatening to suspend the effectiveness of a Registration Statement covering the Registrable
Securities or (D) of the receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any Registrable Security for sale in any
jurisdiction, or the initiation or threatening of any proceeding for such purpose; and (ii) when
each Registration Statement or any amendment thereto has been filed with the Commission and when
each Registration Statement or the related Prospectus or Free Writing Prospectus or any Prospectus
supplement or any post-effective amendment thereto has become effective;
13
(g) shall comply with all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as reasonably practicable after the
effective date of the registration statement (and in any event within 90 days after the end of
such 12 month period described hereafter), an earnings statement, which need not be audited,
covering the period of at least 12 consecutive months beginning with the first day of the Companys
first calendar quarter after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(h) subject to Section 7.4 of the Equity Commitment Agreement, use its reasonable best efforts
to cause all such Registrable Securities (i) if the New Common Stock is then listed on a securities
exchange, to continue to be so listed, (ii) if the New Common Stock is not then listed on a
securities exchange, to, as promptly as practicable (subject to the limitations set forth in the
Plan), and in no event later than the effective date of the Shelf filed pursuant to Section
2(a), be listed on a national securities exchange if so requested in writing by the holders of
a majority in interest of the outstanding Registrable Securities, and (iii) to be registered with
or approved by such other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of the Registrable Securities;
(i) provide and cause to be maintained a transfer agent and registrar for all such Registrable
Securities from and after the effective date of the applicable Registration Statement;
(j) enter into and perform under such customary agreements (including underwriting agreements
in customary form, including customary representations and warranties and provisions with respect
to indemnification and contribution) and take such other actions as may be reasonably requested by
the selling Holders or the managing underwriter, if any, to expedite the offer for sale or
disposition of the Registrable Securities;
(k) (A) subject to each selling Holder to whom the comfort letter is addressed providing a
customary representation letter to the independent registered public accounting firm of the Company
in form and substance reasonably satisfactory to such accountants, use its reasonable best efforts
to obtain customary comfort letters from such accountants (to the extent deliverable in
accordance with their professional standards) addressed to such selling Holder (to the extent
consistent with Statement on Auditing Standards No. 100 of the American Institute of Certified
Public Accountants) and the managing underwriter, if any, in customary form and covering matters of
the type customarily covered in comfort letters in connection with underwritten
offerings; (B) use its reasonable best efforts to obtain opinions of counsel to the Company (such
counsel being reasonably satisfactory to the managing underwriter, if any) and updates thereof
covering matters customarily covered in opinions of counsel in connection with underwritten
offerings, addressed to each selling Holder and the managing underwriter, if any, provided,
that the delivery of any 10b-5 statement may be conditioned on the prior or concurrent delivery
of a comfort letter pursuant to subsection (A) above; and (C) provide officers certificates and
other customary closing documents customarily delivered in connection with underwritten offerings
and reasonably requested by the managing underwriter, if any; provided that the Company
shall only be required to comply with this clause (k) in connection with, (x) the initial
effective date of the first Shelf filed pursuant to Section 2(a), (y) an Underwritten Shelf
Takedown or Piggyback Takedown and (z) on each date of filing of a Form 10-K, or amendment thereto,
and Form 10-Q, or amendment thereto, by the Company with respect to each of the Companys six
consecutive fiscal quarters starting with the first Form 10-K
or Form 10-Q filed following the initial effective date of the first Shelf filed pursuant to
Section 2(a).
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(l) take all such other actions as the Holders of a majority of the Registrable Securities
included in such Shelf Takedown or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities (including effecting a stock
split, a combination of shares, or other recapitalization) and provide reasonable cooperation,
including causing appropriate officers to attend and participate in road shows and other
information meetings organized by the underwriters, if any;
(m) upon reasonable notice and at reasonable times during normal business hours, make
available for inspection and copying by any Holder of Registrable Securities, Counsel to the
Holders, any underwriter participating in any disposition pursuant to a Registration Statement or
Shelf Takedown, and any underwriters counsel, as applicable, all financial and other records and
pertinent corporate documents of the Company, and cause the Companys officers, directors,
employees and independent accountants to supply all information and participate in any due
diligence sessions reasonably requested by any such Holder, Counsel to the Holders, underwriter or
underwriters counsel in connection with such Registration Statement or Shelf Takedown, as
applicable;
(n) permit any Holder of Registrable Securities, Counsel to the Holders, any underwriter
participating in any disposition pursuant to a Registration Statement, and any other attorney,
accountant or other agent retained by such Holder of Registrable Securities or underwriter, to
participate (including, but not limited to, reviewing, commenting on and attending all meetings) in
the preparation of such Registration Statement and any Prospectus supplements relating to a Shelf
Takedown, if applicable;
(o) in the event of the issuance or threatened issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending or preventing the use of any
related Prospectus or suspending the qualification of any New Common Stock included in such
Registration Statement for sale in any jurisdiction, the Company shall use its reasonable best
efforts promptly to (i) prevent the issuance of any such stop order, and in the event of such
issuance, to obtain the withdrawal of such order and (ii) obtain the withdrawal of any order
suspending or preventing the use of any related Prospectus or Free Writing Prospectus or suspending
qualification of any Registrable Securities included in such Registration Statement for sale in any
jurisdiction at the earliest practicable date;
(p) with respect to each Free Writing Prospectus or other materials to be included in the
Disclosure Package, ensure that no Registrable Securities be sold by means of (as defined in Rule
159A(b) promulgated under the Securities Act) such Free Writing Prospectus or other materials
without the prior written consent of a majority of the Holders of the Registrable Securities that
are being sold pursuant to such Free Writing Prospectus, which Free Writing Prospectuses or other
materials shall be subject to the review of Counsel to the Holders; provided,
however, the Company shall not be responsible or liable for any breach by a Holder that has
not obtained the prior written consent of the Company pursuant to Section 13(p);
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(q) provide a CUSIP number for the Registrable Securities prior to the effective date of the
first Registration Statement including Registrable Securities;
(r) promptly notify in writing the Holders, the sales or placement agent, if any, therefor and
the managing underwriters (if any) of the securities being sold, (i) when such Registration
Statement or related Prospectus or Free Writing Prospectus or any Prospectus amendment or
supplement or post-effective amendment has been filed, and, with respect to any such Registration
Statement or any post-effective amendment, when the same has become effective and (ii) of any
written comments by the Commission and by the blue sky or securities commissioner or regulator of
any state with respect thereto;
(s) (i) prepare and file with the Commission such amendments and supplements to each
Registration Statement as may be necessary to comply with the provisions of the Securities Act,
including post-effective amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable time period required hereunder and
if applicable, file any Registration Statements pursuant to Rule 462(b) promulgated under the
Securities Act; (ii) cause the related Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then
in force) promulgated under the Securities Act; (iii) comply with the provisions of the Securities
Act and the Exchange Act and any applicable securities exchange or other recognized trading market
with respect to the disposition of all securities covered by such Registration Statement during
such period in accordance with the intended methods of disposition by the sellers thereof set forth
in such Registration Statement as so amended or in such Prospectus as so supplemented; and (iv)
provide additional information related to each Registration Statement as requested by, and obtain
any required approval necessary from, the Commission or any Federal or state governmental
authority;
(t) provide officers certificates and other customary closing documents;
(u) cooperate with each Holder of Registrable Securities and each underwriter participating in
the disposition of such Registrable Securities and underwriters counsel in connection with any
filings required to be made with FINRA;
(v) within the deadlines specified by the Securities Act, make all required filing fee
payments in respect of any Registration Statement or Prospectus used under this Agreement (and any
offering covered thereby);
(w) if requested by any participating Holder of Registrable Securities or the managing
underwriters (if any), promptly include in a Prospectus supplement or amendment such information as
the Holder or managing underwriters (if any) may reasonably request, including in order to permit
the intended method of distribution of such securities, and make all required filings of such
Prospectus supplement or such amendment as soon as reasonably practicable after the Company has
received such request;
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(x) in the case of certificated Registrable Securities, cooperate with the participating
Holders of Registrable Securities and the managing underwriters (if any) to facilitate the timely
preparation and delivery of certificates (not bearing any legends)
representing Registrable Securities to be sold after receiving written representations from
each participating Holder that the Registrable Securities represented by the certificates so
delivered by such Holder will be transferred in accordance with the Registration Statement, and
enable such Registrable Securities to be in such denominations and registered in such names as the
Holders or managing underwriters (if any) may reasonably request at least two (2) Business Days
prior to any sale of Registrable Securities; and use its reasonable best efforts to take all other
actions necessary to effect the registration and sale of the Registrable Securities contemplated
hereby;
(y) use its reasonable best efforts to take all other actions necessary to effect the
registration and sale of the Registrable Securities contemplated hereby.
Section 6. Registration Expenses. All Registration Expenses shall be borne by the Company.
All Selling Expenses relating to Registrable Securities registered shall be borne by the Holders
of such Registrable Securities pro rata on the basis of the number of Registrable Securities sold.
Section 7. Hedging Transactions.
(a) The Company agrees that, in connection with any proposed Hedging Transaction, if, in the
reasonable judgment of Counsel to the Holders, it is necessary or desirable to have a Registration
Statement under the Securities Act cover such Hedging Transaction or sales or transfers (whether
short or long) of Registrable Securities in connection therewith, then the Company shall use its
reasonable best efforts to take such actions (which may include the filing of a prospectus
supplement to include additional or changed information that is material or is otherwise required
to be disclosed, including a description of such Hedging Transaction, the name of the Hedging
Counterparty, identification of the Hedging Counterparty or its Affiliates as underwriters or
potential underwriters, if applicable, or any change to the plan of distribution, as may reasonably
be required to have such Hedging Transaction or sales or transfers of Registrable Securities in
connection therewith covered by a Registration Statement under the Securities Act in a manner
consistent with the rights and obligations of the Company hereunder.
(b) All Registration Statements in which Holders may include Registrable Securities under this
Agreement shall be subject to the provisions of this Section 7. The selection of any
Hedging Counterparty shall not be subject to Section 2(f), but the Hedging Counterparty
shall be selected by the Holders of a majority of the Registrable Securities subject to the Hedging
Transaction that is proposed to be effected.
(c) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate
thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required
to provide customary indemnities to the Company regarding the plan of distribution and like
matters.
(d) The Company further agrees to include, under the caption Plan of Distribution (or the
equivalent caption), in each Registration Statement, and any related Prospectus (to the extent such
inclusion is permitted under applicable Commission regulations and is consistent with comments
received from the Commission during any Commission review of the Registration Statement), language
substantially in the form of Schedule I hereto and to
include in each prospectus supplement filed in connection with any proposed Hedging
Transaction language mutually agreed upon by the Company, the relevant Holders and the Hedging
Counterparty describing such Hedging Transaction.
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(e) In connection with a Hedging Transaction, each Hedging Counterparty shall be treated in
the same manner as a managing underwriter for purposes of Section 5 of this Agreement.
Section 8. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder of Registrable Securities,
the Affiliates, directors, officers, employees, members, managers and agents of each such Holder
and each Person who controls any such Holder within the meaning of either the Securities Act or the
Exchange Act, to the fullest extent permitted by applicable law, from and against any and all
losses, claims, damages, liabilities and expenses to which they or any of them may become subject
insofar as such losses, claims, damages, liabilities and expenses (or actions in respect thereof)
arise out of or are based upon any violation of the Securities Act, Exchange Act or state
securities laws, or upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement as originally filed or in any amendment thereof, or the
Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus
included in any such Registration Statement, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in the case of the
Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus
included in any such Registration Statement, in light of the circumstances under which they were
made) not misleading, and agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action (whether or not the indemnified party is a party
to any proceeding); provided, however, that the Company will not be liable in any
case to the extent that any such loss, claim, damage, liability or expense arises (i) out of or is
based upon any such untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information furnished to the Company
by or on behalf of any such Holder specifically for inclusion therein including, without
limitation, any notice and questionnaire, or (ii) out of sales of Registrable Securities made
during a Suspension Period after notice is given pursuant to Section 2(e)(ii) hereof. This
indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Holder severally (and not jointly) agrees to indemnify and hold harmless the Company
and each of its Affiliates, directors, employees, members, managers and agents and each Person who
controls the Company within the meaning of either the Securities Act or the Exchange Act, to the
fullest extent permitted by applicable law, from and against any and all losses, claims, damages or
liabilities to which they or any of them may become subject insofar as such losses, claims, damages
or liabilities arise out of or are based upon any violation of the Securities Act, Exchange Act or
state securities laws, upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement as originally filed or in any
18
amendment thereof, or in the
Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in
any amendment thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Disclosure Package, or any preliminary, final or
summary Prospectus or Free Writing Prospectus included in any such Registration Statement, in light
of the circumstances under which they were made) not misleading, to the extent, but only to the
extent, that any such untrue statement or alleged untrue statement or omission or alleged omission
is contained in any written information relating to such Holder furnished to the Company by or on
behalf of such Holder specifically for inclusion therein; provided, however, that
the total amount to be indemnified by such Holder pursuant to this Section 8(b) shall be
limited to the net proceeds (after deducting underwriters discounts and commissions) received by
such Holder in the offering to which such Registration Statement or Prospectus relates.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent such action
and such failure results in material prejudice to the indemnifying party and forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, except as provided in the next sentence, after notice from the
indemnifying party to such indemnified party of its election to so assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal expenses of other
counsel or any other expenses subsequently incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying
partys rights in the prior sentence, the indemnified party shall have the right to employ its own
counsel (and one local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. No indemnifying party shall, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out of the same general
circumstances or allegations, be liable for the fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all indemnified parties. An indemnifying party
shall not be liable under this Section 8 to any indemnified party regarding any settlement
or
19
compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent is consented to by such indemnifying party. No indemnifying
party, in the defense of any such claim or litigation, shall, except with the consent of each
indemnified party, consent to entry of any judgment or enter into any settlement or compromise
unless such settlement or compromise (i) includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such proceeding and (ii) does not
include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(d) In the event that the indemnity provided in Section 8(a) or Section 8(b)
above is unavailable to or insufficient to hold harmless an indemnified party for any reason, then
each applicable indemnifying party agrees to contribute to the aggregate losses, claims, damages
and liabilities (including, without limitation, legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively, Losses) to which such
indemnifying party may be subject in such proportion as is appropriate to reflect the relative
fault of the indemnifying party on the one hand and the indemnified party on the other in
connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault 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 indemnifying party on the
one hand or the indemnified party on the other and the parties relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission. The parties agree
that it would not be just and equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Holders of Registrable Securities or any agents or
underwriters or all of them 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 above in this
Section 8(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this
Section 8(d) shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each Person who controls any Holder of Registrable Securities, agent or
underwriter within the meaning of either the Securities Act or the Exchange Act and each director,
officer, employee and agent of any such Holder, agent or underwriter shall have the same rights to
contribution as such Holder, agent or underwriter, and each Person who controls the Company within
the meaning of either the Securities Act or the Exchange Act and each officer and director of the
Company shall have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this Section 8(d). Notwithstanding the foregoing, the
total amount to be contributed by any Holder pursuant to this Section 8(d) shall be limited
to the net proceeds (after deducting underwriters discounts and commissions) received by such
Holder in the offering to which such Registration Statement or Prospectus relates.
20
(e) The provisions of this Section 8 will remain in full force and effect, regardless
of any investigation made by or on behalf of any Holder of Registrable Securities or the Company or
any of the officers, directors or controlling Persons referred to in this Section 8 hereof,
and will survive the transfer of Registrable Securities.
(f) To the extent any indemnification by an indemnifying party is prohibited or limited by
law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for
which it would otherwise be liable under Section 8 to the fullest extent permitted by law;
provided, however, that: (i) no Person involved in the sale of Registrable
Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) in connection with such sale shall be entitled to contribution from any
Person involved in such sale of Registrable Securities who was not guilty of fraudulent
misrepresentation; and (ii) contribution by any seller of Registrable Securities shall be limited
in amount to the net amount of proceeds received by such seller from the sale of such Registrable
Securities pursuant to such Shelf Registration.
Section 9. Participation in Underwritten Offering/Sale of Registrable Securities.
(a) It shall be a condition precedent to the obligations of the Company to include Registrable
Securities of any Holder in any Registration Statement or prospectus, as the case may be, that such
Holder shall timely furnish to the Company (as a condition precedent to such Holders participation
in such registration) its Selling Holder Information in accordance with the terms hereof. Each
selling Holder shall timely provide the Company with such information as may be reasonably
requested to enable the Company to prepare a supplement or post-effective amendment to any Shelf
Registration or a supplement to any prospectus relating to such Shelf Registration.
(b) No Person may participate in any underwritten offering hereunder unless such Person (i)
agrees to sell such Persons securities on the basis provided in any underwriting arrangements in
customary form entered into pursuant to this Agreement and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
(c) Each Person that has securities registered on a Registration Statement filed hereunder
agrees that, upon receipt of any notice contemplated in Section 2(e)(ii), such Person will
forthwith discontinue the disposition of its Registrable Securities pursuant to the applicable
Registration Statement.
Section 10. Private Sale and Legends.
(a) Except as provided in Section 4, the Company agrees that nothing in this Agreement shall
prohibit the Holders, at any time and from time to time, from selling or otherwise transferring
Registrable Securities or other shares of New Common Stock pursuant to a private sale or other
transaction which is not registered pursuant to the Securities Act. To the extent requested by a
Holder, the Company shall take all reasonable steps necessary to assist and cooperate with such
Holder to facilitate such sale or transfer, including delivery to the Holders of
a customary opinion regarding the availability of an exemption from the Securities Act for the
Holders for such sale.
21
(b) At the request of a Holder, the Company shall remove from each certificate evidencing
Registrable Securities any legend if the Company is reasonably satisfied (based upon an opinion of
counsel or, in the case of a Holder that is not an Affiliate of the Company proposing to transfer
such securities pursuant to Rule 144(b)(1) of the Securities Act, other evidence) that the
securities evidenced thereby may be publicly sold without registration under the Securities Act.
Section 11. Rule 144 and Rule 144A; Other Exemptions. With a view to making available
to the Holders of Registrable Securities the benefits of Rule 144 and Rule 144A promulgated under
the Securities Act and other rules and regulations of the Commission that may at any time permit a
Holder of Registrable Securities to sell securities of the Company to the public without
registration, the Company covenants that it will (i) use its reasonable best efforts to file in a
timely manner all reports and other documents required, if any, to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted thereunder and (ii) make
available information necessary to comply with Rule 144 and Rule 144A, if available with respect to
resales of the Registrable Securities under the Securities Act, at all times, all to the extent
required from time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions provided by (x) Rule
144 and Rule 144A promulgated under the Securities Act (if available with respect to resales of the
Registrable Securities), as such rules may be amended from time to time or (y) any other rules or
regulations now existing or hereafter adopted by the Commission. Immediately flowing the Effective
Date, the Company shall become or remain an issuer required to file reports pursuant to either
Section 13(a) or Section 15(d) of the Exchange Act. Furthermore, the Company shall use reasonable
best efforts to make the Registrable Securities Depository Trust Company (DTC) eligible and to
include upon issuance the Registrable Securities for trading and transfer on The PORTAL Alliance
LLCs trading platform.
Section 12. Transfer of Registration Rights. The rights of a Holder hereunder may be
transferred, assigned, or otherwise conveyed on a pro rata basis in connection with any transfer,
assignment, or other conveyance of Registrable Securities to any transferee or assignee;
provided that all of the following additional conditions are satisfied: (a) such transfer
or assignment is effected in accordance with applicable securities laws; (b) such transferee or
assignee agrees in writing to become subject to the terms of this Agreement by delivering to the
Company a duly executed joinder agreement in form attached hereto as Exhibit A; and (c) the
Company is given written notice by such Holder of such transfer or assignment, stating the name and
address of the transferee or assignee and identifying the Registrable Securities with respect to
which such rights are being transferred or assigned.
Section 13. Joinder. Any Person who demonstrates that it is a Holder as of the
Effective Date may acquire the rights of a Holder hereunder if it agrees in writing to become
subject to the terms of this Agreement as a Holder by delivering to the Company a duly executed
joinder agreement in form attached hereto as Exhibit A.
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Section 14. Amendment, Modification and Waivers; Further Assurances.
(a) Amendment. The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given, without the written consent of the Company and the
Holders holding at least fifty percent (50%) of the Registrable Securities then issued and
outstanding; provided that in the event that such amendment, modification, supplement, waiver or
consent would treat a Holder or group of Holders in a manner different from any other Holders, then
such amendment or waiver will require the consent of such Holder or the Holders of a majority of
the Registrable Securities of such group adversely treated.
(b) Effect of Waiver. No waiver of any terms or conditions of this Agreement shall
operate as a waiver of any other breach of such terms and conditions or any other term or
condition, nor shall any failure to enforce any provision hereof operate as a waiver of such
provision or of any other provision hereof. No written waiver hereunder, unless it by its own
terms explicitly provides to the contrary, shall be construed to effect a continuing waiver of the
provisions being waived and no such waiver in any instance shall constitute a waiver in any other
instance or for any other purpose or impair the right of the party against whom such waiver is
claimed in all other instances or for all other purposes to require full compliance with such
provision. The failure of any party to enforce any provision of this Agreement shall not be
construed as a waiver of such provision and shall not affect the right of such party thereafter to
enforce each provision of this Agreement in accordance with its terms.
(c) Further Assurances. Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party hereto may reasonably
require in order to effectuate the terms and purposes of this Agreement.
Section 15. Miscellaneous.
(a) Remedies; Specific Performance. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically, to recover damages caused by
reason of any breach of any provision of this Agreement and to exercise all other rights existing
in their favor. The parties hereto agree and acknowledge that money damages would 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 for, and obtain from
any such court, specific performance and/or injunctive relief (without posting any bond or other
security) in order to enforce or prevent violation of the provisions of this Agreement and shall
not be required to prove irreparable injury to such party or that such party does not have an
adequate remedy at law with respect to any breach of this Agreement (each of which elements the
parties admit). The parties hereto further agree and acknowledge that each and every obligation
applicable to it contained in this Agreement shall be specifically enforceable against it and
hereby waives and agrees not to assert any defenses against an action for specific performance of
their respective obligations hereunder. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies available under this Agreement or
otherwise.
23
(b) Successors and Assigns. All covenants and agreements in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto (including any trustee in bankruptcy) whether so
expressed or not. In addition, whether or not any express assignment has been made, the
provisions of this Agreement which are for the benefit of purchasers or Holders of Registrable
Securities are also for the benefit of, and enforceable by, any subsequent Holder of Registrable
Securities. No assignment or delegation of this Agreement by the Company, or any of the Companys
rights, interests or obligations hereunder, shall be effective against any Holder without the prior
written consent of such Holder.
(c) Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
(d) Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
(e) Descriptive Headings; Interpretation; No Strict Construction. The descriptive
headings of this Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement. Whenever required by the context, any pronoun used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns,
pronouns, and verbs shall include the plural and vice versa. 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 the terms thereof, and, if applicable, hereof. The words
include, includes or including in this Agreement shall be deemed to be followed by without
limitation. The use of the words or, either or any shall not be exclusive. The parties
hereto have participated jointly in the negotiation and drafting of this Agreement. If an
ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
All references to laws, rules, regulations and forms in this Agreement shall be deemed to be
references to such laws, rules, regulations and forms, as amended from time to time or, to the
extent replaced, the comparable successor thereto in effect at the time. All references to
agencies, self-regulatory organizations or governmental entities in this Agreement shall be deemed
to be references to the comparable successors thereto from time to time.
(f) Governing Law. This Agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the laws of the State of New York, without giving
effect to any choice of law or conflict of law rules or provisions (whether of the State of New
York or any other jurisdiction) to the extent such rules or provisions would cause the application
of the laws of any jurisdiction other than the State of New York.
24
(g) Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when (a) delivered personally to the recipient, (b) telecopied or sent by facsimile
to the recipient, or (c) one (1) Business Day after being sent to the recipient by
reputable overnight courier service (charges prepaid). Such notices, demands and other
communications shall be sent to the Company at the address set forth below and to any Holder of
Registrable Securities at the address set forth on the signature page hereto, or at such address or
to the attention of such other Person as the recipient party has specified by prior written notice
to the sending party. The Companys address is:
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Visteon Corporation |
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One Village Center Drive |
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Van Buren Township, Michigan 48111 |
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Facsimile:
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(734) 710-7112 |
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Attention:
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Chief Financial Officer |
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with copies (which shall not constitute notice) to: |
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Pachulski Stang Ziehl & Jones LLP |
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919 North Market Street, 17th Floor |
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Wilmington, Delaware 19899-8705 |
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Facsimile:
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(302) 652-4400 |
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Attention:
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Laura Davis Jones |
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James E. ONeill |
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Mark M. Billion |
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and |
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Kirkland & Ellis LLP |
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300 North LaSalle |
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Chicago, Illinois 60654 |
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Facsimile:
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(312) 862-2200 |
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Attention:
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James H. M. Sprayregen, P.C. |
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James J. Mazza, Jr. |
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Gerald T. Nowak, P.C. |
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Howard Norber |
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and |
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Kirkland & Ellis LLP |
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601 Lexington Avenue |
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New York, New York 10022 |
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Facsimile:
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(212) 446-4900 |
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Attention:
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Marc Kielselstein, P.C. |
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Brian S. Lennon |
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Notices to the Holders shall be sent to: |
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White & Case LLP |
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Wachovia Financial Center |
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200 South Biscayne Boulevard |
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Suite 4900 |
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Miami, Florida 33131 |
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Facsimile:
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(305) 358-5744 |
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Attention:
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Thomas E. Lauria |
25
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and |
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White & Case LLP |
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1155 Avenue of the Americas |
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New York, New York 10036 |
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Facsimile:
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(212) 354-8113 |
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Attention:
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Gerard Uzzi |
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Gregory Pryor |
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Colin Diamond |
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and |
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Akin Gump Strauss Hauer & Feld LLP |
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One Bryant Park |
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New York, New York 10036 |
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Facsimile:
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(212) 872-1002 |
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Attention:
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Michael Stamer |
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Arik Preis |
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Tony Feuerstein |
If any time period for giving notice or taking action hereunder expires on a day that is not a
Business Day, the time period shall automatically be extended to the Business Day immediately
following such Saturday, Sunday or legal holiday.
(h) Delivery by Facsimile. This Agreement, the agreements referred to herein, and
each other agreement or instrument entered into in connection herewith or therewith or contemplated
hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by
means of a facsimile machine or other electronic means, shall be treated in all manner and respects
as an original agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. At the request of
any party hereto or to any such agreement or instrument, each other party hereto or, thereto shall
reexecute original forms thereof and deliver them to all other parties. No party hereto or to any
such agreement or instrument shall raise the use of a facsimile machine or other electronic means
to deliver a signature or the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine or other electronic means as a defense to the
formation or enforceability of a contract and each such party forever waives any such defense.
26
(i) Waiver of Jury Trial. Each of the parties to this Agreement hereby agrees to
waive its respective rights to a jury trial of any claim or cause of action based upon or arising
out of this Agreement. The scope of this waiver is intended to be all-encompassing of any and all
disputes that may be filed in any court and that relate to the subject matter of this Agreement,
including contract claims, tort claims and all other common law and statutory claims. Each party
hereto acknowledges that this waiver is a material inducement to enter into this Agreement,
that each has already relied on this waiver in entering into this Agreement, and that each will
continue to rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel and that it
knowingly and voluntarily waives its jury trial rights following consultation with legal counsel.
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER
THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 15(i) AND EXECUTED
BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement may be
filed as a written consent to a trial by the court.
(j) Arms Length Agreement. Each of the parties to this Agreement agrees and
acknowledges that this Agreement has been negotiated in good faith, at arms length, and not by any
means prohibited by law.
(k) Sophisticated Parties; Advice of Counsel. Each of the parties to this Agreement
specifically acknowledges that (i) it is a knowledgeable, informed, sophisticated Person capable of
understanding and evaluating the provisions set forth in this Agreement and (ii) it has been fully
advised and represented by legal counsel of its own independent selection and has relied wholly
upon its independent judgment and the advice of such counsel in negotiating and entering into this
Agreement.
(l) Entire Agreement. This Agreement, together with the schedules and exhibits
attached hereto, and any certificates, documents, instruments and writings that are delivered
pursuant hereto, constitutes the entire agreement and understanding of the parties in respect of
the subject matter hereof and supersedes all prior understandings, agreements or representations by
or among the parties, written or oral, to the extent they relate in any way to the subject matter
hereof.
(m) Attorneys Fees. In the event of litigation or other proceedings in connection
with or related to this Agreement, the prevailing party in such litigation or proceeding shall be
entitled to reimbursement from the opposing party of all reasonable expenses, including, without
limitation, reasonable attorneys fees and expenses of investigation in connection with such
litigation or proceeding.
(n) FWP Consent. No Holder shall use a Holder Free Writing Prospectus without the
prior written consent of the Company, which consent shall not be unreasonably withheld.
(o) No Required Sale. Nothing in this Agreement shall be deemed to create an
independent obligation on the part of any Holder to sell any Registrable Securities pursuant to any
effective registration statement.
(p) Termination. The obligations of the Company and of any Holder, other than those
obligations contained in Section 8, shall terminate with respect to the Company and such
Holder as soon as such Holder no longer holds any Registrable Securities.
27
(q) No Third-Party Beneficiaries or Other Right. Nothing herein shall grant to or
create in any person not a party hereto, or any such persons dependents or heirs, any right to any
benefits hereunder or any remedies hereunder, and no such party shall be entitled to sue any party
to this Agreement with respect thereto; provided, however, that the Affiliates,
directors, officers, employees, members, managers and agents of each indemnified party and each
Person who controls any such Indemnified Party within the meaning of either the Securities Act or
the Exchange Act are intended third-party beneficiaries of Section 8 and shall have the right,
power, and authority to enforce the provisions thereof as though they were a party hereto.
* * *
28
IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of
the date first written above.
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VISTEON CORPORATION |
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By: |
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Its: |
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CQS CONVERTIBLE AND QUANTITATIVE STRATEGIES MASTER FUND LIMITED |
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By: |
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Title:
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Authorized Signatory |
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CQS DIRECTIONAL OPPORTUNITIES MASTER FUND LIMITED |
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By: |
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Title:
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Authorized Signatory |
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DEUTSCHE BANK SECURITIES INC. |
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(Solely with Respect to the Distressed Products Group) |
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By: |
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By: |
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ELLIOTT INTERNATIONAL, L.P. |
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By: |
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Elliott International Capital Advisors Inc., as
Attorney-in-Fact |
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By: |
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Name:
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Elliot Greenberg |
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Title:
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Vice President |
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GOLDMAN, SACHS & CO., |
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solely with respect to the |
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High Yield Distressed Investing Group |
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By: |
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KIVU INVESTMENT FUND LIMITED |
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By: |
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Title:
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Director |
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MONARCH MASTER FUNDING LTD |
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MONARCH ALTERNATIVE CAPITAL LP, its investment advisor |
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By: |
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Name:
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Christopher Santana |
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Title:
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Managing Principal |
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OAK HILL ADVISORS, L.P., on behalf of
certain private funds and separate accounts
that it manages |
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By: |
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SOLUS ALTERNATIVE ASSET MANAGEMENT LP, as investment
advisor to its private funds |
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By: |
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THE LIVERPOOL LIMITED PARTNERSHIP |
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Liverpool Associates, Ltd., as General Partner |
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By: |
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Name:
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Elliot Greenberg |
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Title:
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Vice President |
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ALDEN GLOBAL DISTRESSED OPPORTUNITIES FUND, L.P. |
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By: |
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Alden Global Distressed Opportunities Fund GP,
LLC, its general partner |
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By: |
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ALLEN ARBITRAGE, L.P. |
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By: |
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Name:
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Tal Gurion |
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Title:
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Managing Director of Investment Manager |
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ALLEN ARBITRAGE OFFSHORE |
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Name:
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Tal Gurion |
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Title:
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Managing Director of Investment Manager |
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ARMORY MASTER FUND LTD. |
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Armory Advisors LLC, its Investment Manager |
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By: |
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Name:
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Jay Burnham |
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Title:
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Manager |
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THE SEAPORT GROUP LLC PROFIT SHARING PLAN |
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Armory Advisors LLC, its Investment Advisor |
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By: |
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Name:
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Jay Burnham |
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Title:
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Manager |
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CAPITAL VENTURES INTERNATIONAL |
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By: |
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Susquehanna Advisors Group, Inc., |
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its authorized agent |
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By: |
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CASPIAN CAPITAL PARTNERS, L.P. |
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Mariner Investment Group, as Investment Advisor |
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By: |
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Name:
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David Corleto |
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Title:
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Principal |
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CASPIAN SELECT CREDIT MASTER FUND, LTD. |
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Mariner Investment Group, as Investment Advisor |
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By: |
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Name:
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David Corleto |
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Title:
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Principal |
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CITADEL SECURITIES LLC |
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By: |
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Name: |
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Title: |
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CSS, LLC |
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By: |
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Name:
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Jerry White |
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Title:
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Partner |
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CUMBERLAND PARTNERS |
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CUMBERLAND GP LLC, its General Partner |
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By: |
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Name: |
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Title: |
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CUMBERLAND BENCHMARKED PARTNERS, L.P. |
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CUMBERLAND BENCHMARKED GP LLC, its General
Partner |
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By: |
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Name: |
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Title: |
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LONGVIEW PARTNERS B, L.P. |
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LONGVIEW B GP LLC, its General Partner |
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By: |
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Name: |
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Title: |
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CUMBER INTERNATIONAL S.A. |
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CUMBERLAND ASSOCIATES LLC, as Investment Adviser |
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By: |
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Name: |
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Title: |
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CYRUS EUROPE MASTER FUND LTD. |
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Cyrus Capital Partners, L.P. as Investment
Manager |
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By: |
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Name: |
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Title: |
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CYRUS SELECT OPPORTUNITIES MASTER FUND, LTD. |
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Cyrus Capital Partners, LP as Investment Manager |
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By: |
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Name: |
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Title: |
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CRESCENT 1 L.P. |
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By: |
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Cyrus Capital Partners, L.P. as Investment
Manager |
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By: |
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Name: |
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Title: |
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CRS FUND LTD. |
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By: |
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Cyrus Capital Partners, L.P. as Investment
Manager |
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By: |
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Name: |
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Title: |
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CYRUS OPPORTUNITIES MASTER FUND II, LTD. |
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By: |
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Cyrus Capital Partners, L.P. as Investment
Manager |
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By: |
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Name: |
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Title: |
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HALBIS DISTRESSED OPPORTUNITIES MASTER FUND, LTD. |
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By: |
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Name: |
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Title: |
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MARINER LDC |
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By: |
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Mariner Investment Group, as Investment Advisor |
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By: |
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Name:
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David Corleto |
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Title:
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Principal |
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MARINER LDC |
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By: |
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Riva Ridge Capital Management LP, |
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as Investment Manager |
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By: |
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Riva Ridge GP LLC, GP to the Investment Manager |
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By: |
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Name: |
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Title: |
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MERCED PARTNERS LIMITED PARTNERSHIP |
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By: |
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Global Capital Management, Inc., General Partner |
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By: |
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Name:
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Thomas G. Rock |
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Title:
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Authorized Representative |
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MERCED PARTNERS II, L.P. |
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By: |
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Lydiard Partners, L.P., General Partner |
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By: |
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Tanglewood Capital Management, Inc., |
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General Partner |
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By: |
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Name:
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Thomas G. Rock |
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Title:
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Authorized Representative |
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NEWFINANCE ALDEN SPV |
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By: |
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Alden Global Capital, its Trading Advisor |
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By: |
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Name: |
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Title: |
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QVT FUND LP |
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By: |
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QVT Associates GP LLC, its general partner |
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By: |
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Name: |
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Title: |
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QUINTESSENCE FUND L.P. |
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By: |
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QVT Associates GP LLC, its general partner |
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By: |
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Name: |
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Title: |
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RIVA RIDGE MASTER FUND, LTD. |
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By: |
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Riva Ridge Capital Management LP, |
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as Investment Manager |
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By: |
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Riva Ridge GP LLC, GP to the Investment Manager |
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By: |
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Name: |
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Title: |
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SENECA CAPITAL, L.P. |
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By: |
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Name:
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Mike Anastasio |
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Title:
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CFO |
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SILVER POINT CAPITAL, L.P. on behalf of its
affiliates and related funds |
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By: |
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Name: |
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Title: |
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SPECTRUM INVESTMENT PARTNERS, L.P. |
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By: |
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Spectrum Group Management LLC, its general
partner |
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By: |
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Name:
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Jeffrey A. Schaffer |
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Title:
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Managing Member |
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SIPI MASTER LTD. |
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By: |
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Spectrum Investment Management LLC, |
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its investment manager |
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By: |
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Name:
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Jeffrey A. Schaffer |
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Title:
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Managing Member |
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STARK CRITERION MASTER FUND LTD. |
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By: |
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Stark Criterion Management LLC |
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Its: |
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Investment Manager |
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By: |
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Name: |
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Title: |
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STARK MASTER FUND LTD. |
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By: |
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Stark Offshore Management LLC |
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Its: |
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Investment Manager |
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By: |
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Name: |
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Title: |
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UBS Securities LLC |
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By: |
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UBS Securities LLC |
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VENOR CAPITAL MASTER FUND LTD. |
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Michael Wartell |
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Authorized Signatory |
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WHITEBOX HEDGED HIGH YIELD PARTNERS, L.P. |
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Whitebox Hedged High Yield Advisors, LLC, its
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Whitebox Advisors, LLC, its Managing Member |
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WHITEBOX COMBINED PARTNERS, L.P. |
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Whitebox Combined Advisors, LLC, its General
Partner |
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Whitebox Advisors, LLC, its Managing Member |
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SCHEDULE I
PLAN OF DISTRIBUTION
A selling stockholder may also enter into hedging and/or monetization transactions. For
example, a selling stockholder may:
(a) enter into transactions with a broker-dealer or affiliate of a broker-dealer or
other third party in connection with which that other party will become a selling
stockholder and engage in short sales of the common stock under this prospectus, in which
case the other party may use shares of common stock received from the selling stockholder to
close out any short positions;
(b) itself sell short common stock under this prospectus and use shares of common stock
held by it to close out any short position;
(c) enter into options, forwards or other transactions that require the selling
stockholder to deliver, in a transaction exempt from registration under the Securities Act,
common stock to a broker-dealer or an affiliate of a broker-dealer or other third party who
may then become a selling stockholder and publicly resell or otherwise transfer that common
stock under this prospectus; or
(d) loan or pledge common stock to a broker-dealer or affiliate of a broker-dealer or
other third party who may then become a selling stockholder and sell the loaned shares or,
in an event of default in the case of a pledge, become a selling stockholder and sell the
pledged shares, under this prospectus.
EXHIBIT A
FORM OF JOINDER AGREEMENT
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement, dated as of
_____, 2010 (as
such agreement may have been or may be amended from time to time) (the Registration Rights
Agreement), by and among Visteon Corporation, a Delaware corporation (the Company),
each of the other parties signatory thereto and any other parties identified on the signature pages
of any joinder agreements substantially similar to this joinder agreement executed and delivered
pursuant to Section 11 of the Registration Rights Agreement. Capitalized terms used but not
otherwise defined herein have the meanings set forth in the Registration Rights Agreement.
In consideration of the transfer to the undersigned of Registrable Securities of the Company,
the undersigned represents that it is a transferee of [insert name of transferor] and agrees that,
as of the date written below, the undersigned shall become a party to the Registration Rights
Agreement, and shall be fully bound by, and subject to, all of the covenants, terms and conditions
of the Registration Rights Agreement as though an original party thereto.
[SIGNATURE PAGE FOLLOWS]
Executed as of the
_____
day of ,
_____.
TRANSFEREE: [insert name of transferee]
Acknowledged and agreed by:
VISTEON CORPORATION