Visteon Corporation One Village Center Drive Van Buren Township, MI 48111 May 11, 2011
Exhibit 10.1
May 11, 2011
Xx. Xxxxx Xxxxx
Xxxxx Global Distressed Opportunities Master Fund, L.P.
c/o Alden Global Capital
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx Global Distressed Opportunities Master Fund, L.P.
c/o Alden Global Capital
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Xx. Xxxxx:
This letter constitutes the agreement (the “Agreement”) among Alden Global Distressed
Opportunities Master Fund, L.P., a Cayman Islands limited partnership, on behalf of itself and its
affiliated funds, persons and entities, both current and future (collectively, “Alden”),
and Visteon Corporation, a Delaware corporation (the “Company”).
WHEREAS, the Company and Alden have agreed that it is in their mutual interests to enter into
this Agreement, among other things, to set forth certain agreements concerning the composition of
the board of directors of the Company (the “Board”); and
WHEREAS, Xx. Xxxxxxx X. Xxxxxxx, Xx. has announced that he is resigning from the Board
effective May 20, 2011.
NOW, THEREFORE, in consideration of the promises and the representations, warranties and
agreements contained herein, and other good and valuable consideration, the parties hereto mutually
agree as follows:
1. Upon issuance of the press release referred to in Section 7, Alden shall withdraw its
notice of intent to nominate individuals for election to the Board at the Company’s 2011 annual
meeting of stockholders (the “2011 Annual Meeting”).
2. As promptly as practicable following the 2011 Annual Meeting, but in any event no later
than August 1, 2011, the Board, pursuant to the powers granted to the Board under Article Eighth of
the Second Amended and Restated Certificate of Incorporation of the Company (the
“Charter”), shall increase the size of the Board by one (such that there will be ten total
seats on the Board and there will be two vacancies following Xx. Xxxxxxx’x resignation and the
increase in the size of the Board) and appoint two persons selected by the Board from a pool of
candidates recommended by Alden (such persons selected by the Board, the “Appointed
Directors”) to fill the two vacancies on the Board and to serve in such capacity from such date
of appointment through the date of the Company’s 2012 annual meeting of stockholders (the “2012
Annual Meeting”). Alden shall recommend candidates who possess the skills and qualifications
necessary (it being understood that a candidate’s age shall not be a basis which precludes such
candidate from being added to the pool by Alden) to serve on the board of directors of a large
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public company, and the Board shall act reasonably and consistent with its fiduciary duties in
evaluating such candidates. Alden is initially proposing three candidates, which it has identified
to the Board, for consideration by the Board. The Board shall advise Alden no later than 5 business
days after the 2011 Annual Meeting whether it will appoint two of such candidates to the Board. If
the Board declines to appoint two of such candidates to the Board, Alden shall continue to
recommend new candidates as promptly as practicable until the Board has appointed two such
candidates as the Appointed Directors. The Board shall respond to Alden within 20 days of any such
recommendation as to its decision.
3. Concurrently with the appointment of the Appointed Directors, the Board shall, consistent
with its fiduciary duties, consider in good faith each Appointed Director’s skills and
qualifications and appoint an Appointed Director to each of the following committees of the Board:
the Corporate Governance and Nominating Committee, the Finance Committee and the Organization and
Compensation Committee.
4. Alden shall (a) in the case of all shares of the Company’s common stock (the “Common
Stock”) owned of record by it as of the record date for the 2011 Annual Meeting (the
“Record Date”), and (b) in the case of all shares of Common Stock beneficially owned by
Alden as of the Record Date (whether held in street name or by some other arrangement, but
excluding any shares it may be deemed to beneficially own by virtue of its owning cash-settled
total return equity and warrant swaps), instruct the record holder to: in each case at the 2011
Annual Meeting, (i) publicly support and vote for the election of each of the incumbent directors;
(ii) publicly support and vote for ratification of PricewaterhouseCoopers LLP as the Company’s
independent registered public accounting firm for fiscal year 2011; and (iii) vote to abstain or
against any shareholder nominations for director or shareholder proposals (whether made pursuant to
Rule 14a-8 or Rule 14a-4 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) which are not approved and recommended by the Board. The Company represents that it is
not aware of any shareholder nominations for directors or shareholder proposals to be voted on at
the 2011 Annual Meeting.
5. Alden shall not, except as otherwise set forth in this Agreement, from the date of this
Agreement until the earlier of (i) (A) 90 days prior to the date of the 2012 Annual Meeting,
provided, that if a notice to the Secretary of the Company (the “ Secretary”) of nominations
of directors for election to the Board or the proposal of business at the 2012 Annual Meeting must
be received prior to such date to be considered timely, such date shall instead be 30 days prior to
the date on which such notice must be received by the Secretary to be considered timely, if by such
date either (x) the Corporate Governance and Nominating Committee of the Company has not notified
Alden and each of the Appointed Directors that it has resolved to recommend to the Board that the
Board nominate, and the Board has agreed to nominate, each of the Appointed Directors for election
to the Board at the 2012 Annual Meeting, or (y) the Corporate Governance and Nominating Committee
of the Company has so notified Alden and each of the Appointed Directors but (1) either of the
Appointed Directors has declined to stand for election as a Company nominee and has notified the
Company of same or (2) Alden has, within 5 business days of receiving such notification by the
Company, notified the Company that it requests that the Board not renominate the Appointed
Directors; or (B) the date immediately following the 2012 Annual Meeting if (x) the Board has
agreed to renominate each of the Appointed Directors
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for election at the 2012 Annual Meeting, (y) both of the Appointed Directors has agreed to
stand for election as a Company nominee and has notified the Company of same, and (z) Alden has
explicitly agreed to the renomination of, or has not requested that the Company not renominate, the
Appointed Directors; or (ii) such date that the Company has materially breached any of its
commitments or obligations under this Agreement, except that if such material breach can be cured,
Alden shall provide written notice to the Company that the Company has materially breached its
commitments or obligations under this Agreement and the Company shall have an additional 10 days
after the date of such written notice within which to cure its material breach (the “Standstill
Period”):
(a) make, or in any way participate, directly or indirectly, in any “solicitation” (as such
term is used in the proxy rules of the Securities and Exchange Commission (the “SEC”)) of
proxies or consents, conduct or suggest any binding or nonbinding referendum or resolution or seek
to advise, encourage or influence any individual, partnership, corporation, limited liability
company, group, association or entity (collectively, a “Person”) with respect to the voting
of any of the Common Stock;
(b) initiate, propose or otherwise “solicit” (as such term is used in the proxy rules of the
SEC) shareholders of the Company for the approval of shareholder proposals, or cause or encourage
any Person to initiate any such shareholder proposal;
(c) propose or nominate, or cause or encourage any Person to propose or nominate, any
candidates to stand for election to the Board, or seek the removal of any member of the Board;
(d) form, join or otherwise participate in any “partnership, limited partnership, syndicate or
other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common
Stock, other than a group consisting of members of Alden, or deposit any shares of Common Stock in
a voting trust or similar arrangement, or subject any shares of Common Stock to any voting
agreement or pooling arrangement, or grant any proxy with respect to any shares of Common Stock
(other than to a designated representative of the Company pursuant to a proxy statement of the
Company);
(e) seek to call, or to request the call of, or call a special meeting of the shareholders of
the Company, or make a request for a list of the Company’s shareholders or other Company records;
(f) take any public action alone or in concert with others to control or seek to control, or
to influence or seek to influence, the management, the Board or the policies of the Company;
provided, however, that nothing herein shall prohibit Alden from complying with
legal or regulatory requirements, including, without limitation, the filing of any report or
schedule required to be filed with the SEC; or
(g) otherwise take, or solicit, cause or encourage others to take, any action inconsistent
with any of the foregoing.
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For the avoidance of doubt, any actions of an Appointed Director taken in his or her capacity
as a member of the Board or any committee thereof shall not be deemed to violate the foregoing
clauses (a) through (g).
6. The Company represents and warrants that, at all times since October 1, 2010, including the
date hereof, the Company has been in an Unrestricted Period (as defined in the Charter) and does
not reasonably expect that the Company will enter an Unrestricted Period prior to June 30, 2011.
7. The Company shall issue a press release in the form attached hereto as Exhibit A (the
“Press Release”) as soon as practicable on or after the date hereof, but in no event later
than May 12, 2011, and the Company shall file with the SEC a corresponding Form 8-K that includes
both the Press Release and this Agreement.
8. The Company and Alden each acknowledge and agree that (a) a breach or a threatened breach
by either party may give rise to irreparable injury inadequately compensable in damages and
accordingly each party shall be entitled to injunctive relief, without proof of actual damages, to
prevent a breach or threatened breach of the provisions hereof and to enforce specifically the
terms and provisions hereof in any state or federal court having jurisdiction, (b) neither party
shall plead in defense for any such relief that there would be an adequate remedy at law, (c) any
applicable right or requirement that a bond be posted by either party is waived and (d) such
remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in
addition to all other remedies available at law or in equity.
9. All notices and other communications under this Agreement shall be in writing and shall be
given (and shall be deemed to have been duly given upon receipt) by delivery in person or by
facsimile, or by Federal Express or registered or certified mail, postage pre-paid, return receipt
requested, as follows:
| If to the Company: |
| Visteon Corporation Xxx Xxxxxxx Xxxxxx Xxxxx Xxx Xxxxx Xxxxxxxx, XX 00000 Attn: General Counsel |
| with a copy (which shall not constitute notice) to: |
| Xxxxxxxx & Xxxxx LLP 000 Xxxxx XxXxxxx Xxxxxxx, XX 00000 Attn: Xxxxxx Xxxxx |
May 11, 2011
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| If to Alden: |
| Alden Global Distressed Opportunities Master Fund, L.P. c/o Alden Global Capital 000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 Attn: Xxxxx Xxxxx |
| with a copy (which shall not constitute notice) to: |
| Xxxxxxx Xxxx & Xxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 |
| Attn: | Xxxx Xxxxxxxxxx Xxxxx Xxxxxxxxx |
10. This Agreement may be executed by the signatories hereto in separate counterparts, each of
which when so executed and delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
11. This Agreement shall be governed by and construed in accordance with the laws of the State
of Delaware, without regard to its conflict of laws principles. The parties hereto consent to
personal jurisdiction and venue in any action to enforce this Agreement in any court of competent
jurisdiction located in New York, New York.
12. This Agreement constitutes the only agreement between Alden and the Company with respect
to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written. This Agreement shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns. This Agreement may not be assigned by
any party without the express written consent of the other party or parties. No amendment,
modification, supplement or waiver of any provision of this Agreement may in any event be effective
unless in writing and signed by the party or parties affected thereby. Alden acknowledges that the
U.S. securities laws prohibit any person who has access to material nonpublic information from
trading while in possession of such information or providing that information to others in certain
circumstances.
13. The Company represents and warrants that (a) the Company has the power and authority to
execute, deliver and carry out the terms and provisions of this Agreement and to consummate the
transactions contemplated hereby, and (b) this Agreement has been duly and validly authorized,
executed and delivered by the Company, constitutes a valid and binding obligation and agreement of
the Company and is enforceable against the Company in accordance with its terms.
14. Alden represents and warrants that (a) it has the power and authority to execute, deliver
and carry out the terms and provisions of this Agreement and to consummate the transactions
contemplated hereby, and (b) this Agreement has been duly and validly authorized,
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executed and delivered by Alden, constitutes a valid and binding obligation and
agreement of Alden and is enforceable against Alden in accordance with its terms.
15. Alden, for the benefit of the Company and each of the Company’s controlling persons,
officers, directors, stockholders, agents, affiliates, employees, attorneys and assigns, past and
present, in their capacity as such (the Company and each such person being a “Company Released
Person”), hereby forever waives and releases, and covenants not to xxx, any of the Company
Released Persons for any and all claims, causes of action, actions, judgments, liens, debts,
contracts, indebtedness, damages, losses, liabilities, rights, interests and demands of whatsoever
kind or character (other than fraud) (collectively, “Claims”) based on any event, fact,
act, omission, or failure to act by the Company Released Persons, whether known or unknown,
occurring or existing prior to the date hereof; provided, however, this waiver and
release and covenant not to xxx shall not include any Claims (i) arising out of or related to any
obligations under, or breach of, this Agreement, or (ii) any acts which are criminal;
provided, further, that this waiver and release shall not prohibit Alden’s
receipt of proceeds in any class action lawsuit initiated by a Person unaffiliated with Alden on
the same basis as the Company’s other non-initiating stockholders within such class. The Company,
for the benefit of Alden and each of its controlling persons, officers, directors, stockholders,
agents, affiliates, employees, attorneys and assigns, past and present, in their capacity as such
(each such person being an “Alden Released Person”), hereby forever waives and releases and
covenants not to xxx, for any Claim based on any event, fact, act, omission or failure to act by
such Alden Released Person, whether known or unknown, occurring or existing prior to the date
hereof; provided, however, this waiver and release and covenant not to xxx shall
not include any Claims arising out of or related to any obligations under, or breach of, this
Agreement and does not extend to acts which are criminal.
16. During the Standstill Period, Alden shall not solicit, cause or encourage others to, make
any comments or statements regarding the Company or its current or former officers, directors or
employees, which are derogatory or detrimental to, or which disparage, any of the Company or its
current or former officers, directors or employees, provided, however, that nothing
in this Agreement to the contrary shall prohibit Alden from (i) making public statements (including
statements contemplated by Rule 14a-1(1)(2)(iv) under the Exchange Act), (ii) engaging in
discussions with other stockholders or (iii) soliciting, or encouraging or participating in the
solicitation of, proxies or consents with respect to voting securities of the Company (so long as
such discussions are in compliance with subsection 5(d) hereof) in each case with respect to any
transaction that has been publicly announced by the Company involving (1) the recapitalization of
the Company, (2) an acquisition, disposition or sale of assets or a business by the Company where
the consideration to be received or paid in such transaction has a value of $800 million or more or
(3) a change of control of the Company. During the Standstill Period, neither the Company nor any
of its officers or directors shall, nor shall any of them solicit, cause or encourage others to,
make any comments or statements regarding Alden or any of its respective partners, officers,
directors or employees, which are derogatory or detrimental to, or which disparage, any of them.
The foregoing shall not apply to compelled testimony, either by legal process, subpoena or
otherwise, or to communications that are required by an applicable fiduciary or legal obligation
including, without limitation, (i) those communications that are
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that are subject to contractual provisions providing for confidential disclosure
and (ii) the filing of any report or schedule that is required by law to be
filed with the SEC.
[signature page follows]
| Very truly yours, VISTEON CORPORATION |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
Accepted and agreed to:
ALDEN GLOBAL DISTRESSED
OPPORTUNITIES MASTER FUND, L.P., on
behalf of itself and its affiliates
OPPORTUNITIES MASTER FUND, L.P., on
behalf of itself and its affiliates
By: Alden Global Capital Limited, its investment
manager
By: Alden Global Capital, a division of Xxxxx Management, LLC, as service provider to Alden Global
Capital Limited
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | General Counsel | |||
