FORM OF REGISTRATION RIGHTS AGREEMENT
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).
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“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.
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“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.
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“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.
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“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
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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 Holder’s 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.
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(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.
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(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 Company’s
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
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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 Company’s 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
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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 Company’s 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.
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(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 Company’s 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
Company’s underwriters to such effect and, in any event, that
the Company’s 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 Company’s 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 Holder’s 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;
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(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 Company’s
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 Company’s 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 underwriter’s counsel, as applicable, all financial and other records and
pertinent corporate documents of the Company, and cause the Company’s 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
underwriter’s 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);
15
(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;
16
(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.
17
(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
party’s 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 0000 Xxx) 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 Holder’s 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 Person’s 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
LLC’s 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.
22
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 Company’s
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 Company’s address is:
| Visteon Corporation | ||||
| Xxx Xxxxxxx Xxxxxx Xxxxx | ||||
| Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000 | ||||
| Facsimile: | (000) 000-0000 | |||
| Attention: | Chief Financial Officer | |||
| with copies (which shall not constitute notice) to: | ||||
| Xxxxxxxxx Xxxxx Xxxxx & Xxxxx LLP | ||||
| 000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx | ||||
| Xxxxxxxxxx, Xxxxxxxx 00000-0000 | ||||
| Facsimile: | (000) 000-0000 | |||
| Attention: | Xxxxx Xxxxx Xxxxx | |||
| Xxxxx X. X’Xxxxx | ||||
| Xxxx X. Billion | ||||
| and | ||||
| Xxxxxxxx & Xxxxx LLP | ||||
| 000 Xxxxx XxXxxxx | ||||
| Xxxxxxx, Xxxxxxxx 00000 | ||||
| Facsimile: | (000) 000-0000 | |||
| Attention: | Xxxxx X. X. Xxxxxxxxxx, P.C. | |||
| Xxxxx X. Xxxxx, Xx. | ||||
| Xxxxxx X. Xxxxx, P.C. | ||||
| Xxxxxx Xxxxxx | ||||
| and | ||||
| Xxxxxxxx & Xxxxx LLP | ||||
| 000 Xxxxxxxxx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Facsimile: | (000) 000-0000 | |||
| Attention: | Marc Kielselstein, P.C. | |||
| Xxxxx X. Xxxxxx | ||||
| Notices to the Holders shall be sent to: | ||||
| White & Case LLP | ||||
| Wachovia Financial Center | ||||
| 000 Xxxxx Xxxxxxxx Xxxxxxxxx | ||||
| Xxxxx 0000 | ||||
| Xxxxx, Xxxxxxx 00000 | ||||
| Facsimile: | (000) 000-0000 | |||
| Attention: | Xxxxxx X. Xxxxxx | |||
25
| and | ||||
| White & Case LLP | ||||
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Facsimile: | (000) 000-0000 | |||
| Attention: | Xxxxxx Xxxx | |||
| Xxxxxxx Xxxxx | ||||
| Xxxxx Xxxxxxx | ||||
| and | ||||
| Akin Gump Xxxxxxx Xxxxx & Xxxx LLP | ||||
| Xxx Xxxxxx Xxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Facsimile: | (000) 000-0000 | |||
| Attention: | Xxxxxxx Xxxxxx | |||
| Xxxx Xxxxx | ||||
| Xxxx Xxxxxxxxxx | ||||
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) Arm’s Length Agreement. Each of the parties to this Agreement agrees and
acknowledges that this Agreement has been negotiated in good faith, at arm’s 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 person’s dependents or heirs, any right to any
benefits hereunder or any remedies hereunder, and no such party shall be entitled to xxx 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.
| VISTEON CORPORATION | ||||||
| By: | ||||||
| Its: | ||||||
| CQS CONVERTIBLE AND QUANTITATIVE STRATEGIES MASTER FUND LIMITED | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | Authorized Signatory | |||||||
| CQS DIRECTIONAL OPPORTUNITIES MASTER FUND LIMITED | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | Authorized Signatory | |||||||
| DEUTSCHE BANK SECURITIES INC. | ||||||||
| (Solely with Respect to the Distressed Products Group) | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| XXXXXXX INTERNATIONAL, L.P. | ||||||||
| By: | Xxxxxxx International Capital Advisors Inc., as Attorney-in-Fact | |||||||
| By: | ||||||||
| Name: | Xxxxxx Xxxxxxxxx | |||||||
| Title: | Vice President | |||||||
| XXXXXXX, XXXXX & CO., | ||||||||
| solely with respect to the | ||||||||
| High Yield Distressed Investing Group | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| KIVU INVESTMENT FUND LIMITED | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | Director | |||||||
| MONARCH MASTER FUNDING LTD | ||||||||
| By: | MONARCH ALTERNATIVE CAPITAL LP, its investment advisor | |||||||
| By: | ||||||||
| Name: | Xxxxxxxxxxx Xxxxxxx | |||||||
| Title: | Managing Principal | |||||||
| OAK HILL ADVISORS, L.P., on behalf of certain private funds and separate accounts that it manages | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| SOLUS ALTERNATIVE ASSET MANAGEMENT LP, as investment advisor to its private funds | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| THE LIVERPOOL LIMITED PARTNERSHIP | ||||||||
| By: | Liverpool Associates, Ltd., as General Partner | |||||||
| By: | ||||||||
| Name: | Xxxxxx Xxxxxxxxx | |||||||
| Title: | Vice President | |||||||
| ALDEN GLOBAL DISTRESSED OPPORTUNITIES FUND, L.P. | ||||||||
| By: | Alden Global Distressed Opportunities Fund GP, LLC, its general partner |
|||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| XXXXX ARBITRAGE, L.P. | ||||||||
| By: | ||||||||
| Name: | Tal Gurion | |||||||
| Title: | Managing Director of Investment Manager | |||||||
| XXXXX ARBITRAGE OFFSHORE | ||||||||
| By: | ||||||||
| Name: | Tal Gurion | |||||||
| Title: | Managing Director of Investment Manager | |||||||
| ARMORY MASTER FUND LTD. | ||||||||
| By: | Armory Advisors LLC, its Investment Manager | |||||||
| By: | ||||||||
| Name: | Xxx Xxxxxxx | |||||||
| Title: | Manager | |||||||
| THE SEAPORT GROUP LLC PROFIT SHARING PLAN | ||||||||
| By: | Armory Advisors LLC, its Investment Advisor | |||||||
| By: | ||||||||
| Name: | Xxx Xxxxxxx | |||||||
| Title: | Manager | |||||||
| CAPITAL VENTURES INTERNATIONAL | ||||||||
| By: | Susquehanna Advisors Group, Inc., | |||||||
| its authorized agent | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| CASPIAN CAPITAL PARTNERS, L.P. | ||||||||
| By: | Mariner Investment Group, as Investment Advisor | |||||||
| By: | ||||||||
| Name: | Xxxxx Xxxxxxx | |||||||
| Title: | Principal | |||||||
| CASPIAN SELECT CREDIT MASTER FUND, LTD. | ||||||||
| By: | Mariner Investment Group, as Investment Advisor | |||||||
| By: | ||||||||
| Name: | Xxxxx Xxxxxxx | |||||||
| Title: | Principal | |||||||
| CITADEL SECURITIES LLC | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| CSS, LLC | ||||||||
| By: | ||||||||
| Name: | Xxxxx Xxxxx | |||||||
| Title: | Partner | |||||||
| CUMBERLAND PARTNERS | ||||||||
| By: | CUMBERLAND GP LLC, its General Partner | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| CUMBERLAND BENCHMARKED PARTNERS, L.P. | ||||||||
| By: | CUMBERLAND BENCHMARKED GP LLC, its General Partner |
|||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| LONGVIEW PARTNERS B, L.P. | ||||||||
| By: | LONGVIEW B GP LLC, its General Partner | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| XXXXXX INTERNATIONAL S.A. | ||||||||
| By: | CUMBERLAND ASSOCIATES LLC, as Investment Adviser | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| CYRUS EUROPE MASTER FUND LTD. | ||||||||
| By: | Cyrus Capital Partners, L.P. as Investment Manager | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| CYRUS SELECT OPPORTUNITIES MASTER FUND, LTD. | ||||||||
| By: | Cyrus Capital Partners, LP as Investment Manager | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| CRESCENT 1 L.P. | ||||||||
| By: | Cyrus Capital Partners, L.P. as Investment Manager | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| CRS FUND LTD. | ||||||||
| By: | Cyrus Capital Partners, L.P. as Investment Manager | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| CYRUS OPPORTUNITIES MASTER FUND II, LTD. | ||||||||
| By: | Cyrus Capital Partners, L.P. as Investment Manager | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| HALBIS DISTRESSED OPPORTUNITIES MASTER FUND, LTD. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| MARINER LDC | ||||||||
| By: | Mariner Investment Group, as Investment Advisor | |||||||
| By: | ||||||||
| Name: | Xxxxx Xxxxxxx | |||||||
| Title: | Principal | |||||||
| MARINER LDC | ||||||||
| By: | Riva Ridge Capital Management LP, | |||||||
| as Investment Manager | ||||||||
| By: | Riva Ridge GP LLC, GP to the Investment Manager | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| MERCED PARTNERS LIMITED PARTNERSHIP | ||||||||
| By: | Global Capital Management, Inc., General Partner | |||||||
| By: | ||||||||
| Name: | Xxxxxx X. Rock | |||||||
| Title: | Authorized Representative | |||||||
| MERCED PARTNERS II, L.P. | ||||||||
| By: | Lydiard Partners, L.P., General Partner | |||||||
| By: | Tanglewood Capital Management, Inc., | |||||||
| General Partner | ||||||||
| By: | ||||||||
| Name: | Xxxxxx X. Rock | |||||||
| Title: | Authorized Representative | |||||||
| NEWFINANCE ALDEN SPV | ||||||||
| By: | Alden Global Capital, its Trading Advisor | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| QVT FUND LP | ||||||||
| By: | QVT Associates GP LLC, its general partner | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| QUINTESSENCE FUND L.P. | ||||||||
| By: | QVT Associates GP LLC, its general partner | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| 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: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| SENECA CAPITAL, L.P. | ||||||||
| By: | ||||||||
| Name: | Xxxx Xxxxxxxxx | |||||||
| Title: | CFO | |||||||
| SILVER POINT CAPITAL, L.P. on behalf of its affiliates and related funds | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| SPECTRUM INVESTMENT PARTNERS, L.P. | ||||||||
| By: | Spectrum Group Management LLC, its general partner |
|||||||
| By: | ||||||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||||||
| Title: | Managing Member | |||||||
| SIPI MASTER LTD. | ||||||||
| By: | Spectrum Investment Management LLC, | |||||||
| its investment manager | ||||||||
| By: | ||||||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||||||
| Title: | Managing Member | |||||||
| XXXXX CRITERION MASTER FUND LTD. | ||||||||
| By: | Xxxxx Criterion Management LLC | |||||||
| Its: | Investment Manager | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| XXXXX MASTER FUND LTD. | ||||||||
| By: | Xxxxx Offshore Management LLC | |||||||
| Its: | Investment Manager | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| UBS Securities LLC | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| UBS Securities LLC | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| VENOR CAPITAL MASTER FUND LTD. | ||||||||
| By: | ||||||||
| Name: | Xxxxxxx Xxxxxxx | |||||||
| Title: | Authorized Signatory | |||||||
| 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: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| WHITEBOX COMBINED PARTNERS, L.P. | ||||||||
| By: | Whitebox Combined Advisors, LLC, its General Partner |
|||||||
| By: | Whitebox Advisors, LLC, its Managing Member | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
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]
| By: | ||||||
| Name: | ||||||
| Title: |
Address:
|
||||
Acknowledged and agreed by:
VISTEON CORPORATION
By:
|
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Name: |
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Title: |
