Exhibit 10.3
VISTEON "A" TRANSACTION AGREEMENT
dated as of
September 12, 2005
between
FORD MOTOR COMPANY
and
VISTEON CORPORATION
TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
Section 1.01. Definitions.............................................. 1
Section 1.02. Other Definitional and Interpretative Provisions......... 4
ARTICLE 2
TRANSACTIONS
Section 2.01. Transactions............................................. 5
Section 2.02. Closing.................................................. 6
Section 2.03. Deliveries at Closing.................................... 6
Section 2.04. Certain Adjustments...................................... 8
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF VISTEON
Section 3.01. Corporate Existence and Power............................ 8
Section 3.02. Corporate Authorization.................................. 8
Section 3.03. Governmental Authorization............................... 9
Section 3.04. Noncontravention......................................... 9
Section 3.05. Capitalization........................................... 9
Section 3.06. Valid Issuance........................................... 10
Section 3.07. Litigation............................................... 10
Section 3.08. Taxes.................................................... 10
Section 3.09. Finders' Fees............................................ 10
Section 3.10. No Other Representations or Warranties................... 11
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF FORD
Section 4.01. Corporate Existence and Power............................ 11
Section 4.02. Corporate Authorization.................................. 11
Section 4.03. Governmental Authorization............................... 11
Section 4.04. Noncontravention......................................... 12
Section 4.05. Purchase for Investment; Accredited Investor; Resale..... 12
Section 4.06. Litigation............................................... 12
Section 4.07. Finders' Fees............................................ 13
Section 4.08. No Other Representations or Warranties................... 13
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ARTICLE 5
COVENANTS OF FORD AND VISTEON
Section 5.01. Commercially Reasonable Efforts; Further Assurances...... 13
Section 5.02. Certain Filings.......................................... 13
Section 5.03. Public Announcements..................................... 14
Section 5.04. NYSE Listing............................................. 14
Section 5.05. Multimedia Repair Services............................... 14
Section 5.06. Notices of Certain Events................................ 14
ARTICLE 6
CONDITIONS TO CLOSING
Section 6.01. Conditions to Obligations of Ford and Visteon............ 15
Section 6.02. Conditions to Obligation of Ford......................... 15
Section 6.03. Conditions to Obligation of Visteon...................... 16
ARTICLE 7
SURVIVAL; INDEMNIFICATION
Section 7.01. Survival................................................. 17
Section 7.02. Indemnification.......................................... 17
Section 7.03. Indemnification Procedures and other Provisions relating
to Indemnification Claims................................ 18
Section 7.04. No Double Recovery....................................... 19
ARTICLE 8
TERMINATION
Section 8.01. Grounds for Termination.................................. 19
Section 8.02. Effect of Termination.................................... 20
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices.................................................. 20
Section 9.02. Amendments and Waivers................................... 22
Section 9.03. Expenses................................................. 22
Section 9.04. Successors and Assigns................................... 22
Section 9.05. Governing Law............................................ 22
Section 9.06. Dispute Resolution....................................... 23
Section 9.07. Jurisdiction............................................. 23
Section 9.08. WAIVER OF JURY TRIAL..................................... 24
Section 9.09. Counterparts; Effectiveness; Third Party Beneficiaries... 24
Section 9.10. Entire Agreement......................................... 24
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Section 9.11. Severability............................................. 24
Section 9.12. Specific Performance..................................... 25
Exhibit A Container Agreement
Exhibit B Employee Transition Agreement Amendment
Exhibit C Escrow Agreement
Exhibit D Europe FCSD Relationship Agreement
Exhibit E Ford-Visteon IP License Agreement
Exhibit F Ford-Visteon Purchase and Supply Agreement
Exhibit G Reimbursement Agreement
Exhibit H Stockholder Agreement
Exhibit I Tooling Agreement
Exhibit J Warrant
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VISTEON "A" TRANSACTION AGREEMENT
VISTEON "A" TRANSACTION AGREEMENT (this "AGREEMENT") dated as of September
12, 2005 between Ford Motor Company, a Delaware corporation ("FORD"), and
Visteon Corporation, a Delaware corporation ("VISTEON").
WITNESSETH:
WHEREAS, Ford and Visteon are parties to a Master Agreement (the "MASTER
AGREEMENT") dated as of the date hereof pursuant to which, among other things,
(i) Ford and Visteon have agreed to enter into this Agreement and to consummate,
subject to the terms and conditions set forth herein, the transactions
contemplated hereby, (ii) Ford and Visteon have agreed, subject to the condition
set forth in Section 1(ii) of the Master Agreement, to enter into a Secured
Promissory Note (the "SECURED PROMISSORY NOTE") pursuant to which Ford shall
extend to Visteon a short-term loan in the amount of $250 million, (iii) Visteon
has agreed to enter into a Contribution Agreement (the "CONTRIBUTION AGREEMENT")
with VFH Holdings, Inc., a Delaware corporation (the "COMPANY"), whereby, among
other things, and subject to the terms and conditions set forth therein, Visteon
has agreed to contribute to one or more newly-formed, wholly-owned Subsidiaries
of the Company certain assets and properties, and the Company has agreed to
assume certain liabilities as set forth therein, and (iv) Ford and Visteon have
agreed to enter into a Visteon "B" Purchase Agreement (the "VISTEON "B" PURCHASE
AGREEMENT") whereby, among other things, and subject to the terms and conditions
set forth therein, Ford has agreed to purchase from Visteon, and Visteon has
agreed to sell to Ford, all of the issued and outstanding shares of common stock
of the Company.
NOW THEREFORE, in consideration of the above premises and the mutual
covenants herein contained, and for other good and valuable consideration given
by each party hereto to the other, the sufficiency and receipt of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
DEFINITIONS
Section .01. Definitions. (a)Capitalized terms used but otherwise not
defined herein shall have the meanings assigned to them in the Contribution
Agreement.
(b) The following terms, as used herein, have the following meanings:
"1933 ACT" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"CLOSING DATE" means the date of the Closing.
"CONTAINER AGREEMENT" means the Amended and Restated Container Agreement
substantially in the form of Exhibit A hereto.
"DISCLOSURE SCHEDULE" means the disclosure schedule delivered by Visteon to
Ford on the date hereof as attached hereto.
"EMPLOYEE TRANSITION AGREEMENT AMENDMENT" means the Second Amendment to the
Amended and Restated Employee Transition Agreement between Ford and Visteon
dated as of April 1, 2000 and restated as of December 19, 2003 and amended as of
the date hereof substantially in the form of Exhibit B hereto.
"ESCROW AGREEMENT" means the Escrow Agreement substantially in the form of
Exhibit C hereto.
"ESCROW AGENT" means the escrow agent under the Escrow Agreement.
"EUROPE FCSD RELATIONSHIP AGREEMENT" means the Visteon/Ford Customer
Service Division European Relationship Agreement substantially in the form of
Exhibit D hereto.
"FORD MATERIAL ADVERSE EFFECT" means a material adverse effect on the
ability of Ford to perform its obligations under this Agreement or to consummate
the transactions contemplated by this Agreement.
"FORD-VISTEON IP LICENSE AGREEMENT" means the Intellectual Property License
Agreement substantially in the form of Exhibit E hereto.
"FORD-VISTEON PURCHASE AND SUPPLY AGREEMENT" means the Purchase and Supply
Agreement Regarding Sales of Components by Visteon to Ford substantially in the
form of Exhibit F hereto.
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended.
"NYSE" means the New York Stock Exchange, Inc.
"REIMBURSEMENT AGREEMENT" means the Reimbursement Agreement substantially
in the form of Exhibit G hereto.
"SEC" means the Securities and Exchange Commission.
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"STOCKHOLDER AGREEMENT" means the Stockholder Agreement substantially in
the form of Exhibit H hereto.
"TOOLING AGREEMENT" means the Tooling Agreement substantially in the form
of Exhibit I hereto.
"VISTEON "A" TRANSACTION DOCUMENTS" means:
(i) this Agreement;
(ii) the Container Agreement;
(iii) the Employee Transition Agreement Amendment;
(iv) the Escrow Agreement;
(v) the Europe FCSD Relationship Agreement;
(vi) the Ford-Visteon IP License Agreement;
(vii) the Ford-Visteon Purchase and Supply Agreement;
(viii) the Reimbursement Agreement;
(ix) the Stockholder Agreement;
(x) the Tooling Agreement;
(xi) the Warrant; and
(xii) any and all other agreements and documents required to be
delivered by any party hereto prior to or at Closing pursuant to the terms
of this Agreement.
"VISTEON COMMON STOCK" means the common stock, par value $1.00 per share,
of Visteon.
"VISTEON MATERIAL ADVERSE EFFECT" means a material adverse effect on (i)
the condition (financial or otherwise), business, assets or results of
operations of Visteon and its Affiliates (taken as whole, excluding the
Business) or (ii) the ability of Visteon to perform its obligations under this
Agreement or to consummate the transactions contemplated by this Agreement,
other than, in each case of clauses (i) and (ii), an effect to the extent
resulting from any one or more of the following: (A) any change in the United
States or foreign economies or securities or financial markets in general; (B)
any change that generally affects any industry in which Visteon competes,
including changes in the price of energy,
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supplies and raw materials; (C) any change arising in connection with
hostilities, acts of war, sabotage or terrorism or military actions or any
material escalation or material worsening of any such hostilities, acts of war,
sabotage or terrorism or military actions existing or underway as of the date
hereof (but only to the extent not disproportionately impacting or affecting
Visteon); (D) any volume reductions in Ford's business with Visteon; or (E) the
loss of customers, suppliers or employees resulting from the public announcement
of this Agreement, compliance with the terms of this Agreement or the
consummation of the transactions contemplated by this Agreement.
"WARRANT" means the Warrant to purchase shares of Visteon Common Stock
substantially in the form of Exhibit J hereto.
"WARRANT SHARES" means the shares of Visteon Common Stock issued or
issuable upon exercise of the Warrant.
(c) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
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Agreement Preamble
Ford Preamble
Closing .02
Company Recitals
Contribution Agreement Recitals
Escrow Account 2.03
Master Agreement Recitals
Secured Promissory Note Recitals
Visteon Preamble
Visteon "B" Purchase Agreement Recitals
Warranty Breach .02
Section .02. Other Definitional and Interpretative Provisions. The words
"hereof", "herein" and "hereunder" and words of like import used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof. References to Articles, Sections, Exhibits and Schedules are to
Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise
specified. All Exhibits and Schedules annexed hereto or referred to herein are
hereby incorporated in and made a part of this Agreement as if set forth in full
herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise
defined therein, shall have the meanings assigned to such terms in this
Agreement. Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. Whenever the words "include",
"includes" or
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"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation", whether or not they are in fact followed by
those words or words of like import. "Writing", "written" and comparable terms
refer to printing, typing and other means of reproducing words (including
electronic media) in a visible form. References in this Agreement to any
agreement or contract are to that agreement or contract as amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof;
provided that with respect to any agreement or contract listed on any schedules
hereto, all such amendments, modifications or supplements are to be deemed
included in such agreement or contract only if listed in the appropriate
schedule. References in this Agreement to any Person include the successors and
permitted assigns of that Person. References in this Agreement from or through
any date mean, unless otherwise specified, from and including or through and
including, respectively.
TRANSACTIONS
Section .01. Transactions. Upon the terms and subject to the conditions of
this Agreement, the parties agree to consummate the following transactions at
the Closing:
(i) Warrant Issuance and Entry into Stockholder Agreement. Visteon
shall issue the Warrant to Ford, in consideration of the payment by Ford of
$100 million in cash, which amount is included in the funds to be deposited
by Ford in the Escrow Account at Closing pursuant to Section .03(b) of this
Agreement, and Ford and Visteon shall enter into the Stockholder Agreement.
(ii) Visteon Restructuring Costs. To assist Visteon in the
restructuring of its businesses (other than the Business), Ford shall enter
into the Escrow Agreement and the Reimbursement Agreement pursuant to which
Ford will reimburse Visteon with respect to certain restructuring and
separation costs incurred or to be incurred by Visteon in connection
therewith.
(iii) Termination of Existing Ford-Visteon Purchase and Supply
Agreement and Entry into New Ford-Visteon Purchase and Supply Agreement.
Ford and Visteon shall (A) terminate the Purchase and Supply Agreement
between Ford and Visteon dated as of December 19, 2003 and (B) enter into
the Ford-Visteon Purchase and Supply Agreement.
(iv) Entry into Employee Transition Agreement Amendment. Ford and
Visteon shall enter into the Employee Transition Agreement Amendment.
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(v) Entry into Container Agreement. Ford and Visteon shall enter into
the Container Agreement.
(vi) Entry into Tooling Agreement. Ford and Visteon shall enter into
the Tooling Agreement.
(vii) Entry into New Intellectual Property License Agreement. Ford and
Visteon shall enter into (or cause their appropriate Subsidiaries,
including, in the case of Visteon, Visteon Global Technologies, Inc., to
enter into, as applicable) the Ford-Visteon IP License Agreement.
(viii) Entry into Europe FCSD Relationship Agreement. Ford and Visteon
shall enter into the Europe FCSD Relationship Agreement.
(ix) Other Agreements. The parties shall enter into the other Visteon
"A" Transaction Documents to which they are a party.
(x) Termination of 2003 Relationship Agreement. Ford and Visteon
hereby agree that, effective as of the Closing, the 2003 Relationship
Agreement dated as of December 19, 2003 between Ford and Visteon shall be
automatically terminated without further action and shall be of no further
force and effect.
(xi) Chesterfield Employee Transition Reimbursement Arrangements. Ford
hereby fully, unconditionally, completely, irrevocably and forever releases
Visteon, effective as of the Closing, of its obligation to reimburse Ford
for the costs of pension- and OPEB-related liabilities, the Ford Attrition
Programs and the Ford Transfer Opportunities set forth in Sections 5.1, 7.1
and 7.2, respectively, of the Chesterfield Transition and Stewardship
Agreement dated as of April 1, 2003 among Xxxxxxx Controls, Inc., Visteon
and Ford.
Section .02. Closing. The closing (the "CLOSING") of the transactions
contemplated by Section .01 shall take place at the offices of Xxxxxx Xxxxxxx
PLLC, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, after satisfaction of the
conditions set forth in 0 (or waiver thereof by the party entitled to waive such
condition) on the day immediately following the closing of the Contribution
Agreement, or at such other time or place as Ford and Visteon may agree.
Section .03. Deliveries at Closing. (a) Deliveries by Ford to Visteon. At
the Closing, Ford shall deliver (or cause to be delivered) to Visteon a
counterpart of each of the following Visteon "A" Transaction Documents duly
executed by Ford (or Affiliate of Ford, as appropriate):
(A) Container Agreement.
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(B) Employee Transition Agreement Amendment.
(C) Escrow Agreement.
(D) Europe FCSD Relationship Agreement.
(E) Ford-Visteon IP License Agreement.
(F) Ford-Visteon Purchase and Supply Agreement.
(G) Reimbursement Agreement.
(H) Stockholder Agreement.
(I) Tooling Agreement.
(J) Warrant.
(b) Deposit by Ford into the Restructuring Escrow Account. At the Closing,
Ford shall deposit, or shall cause to be deposited, $400 million into a separate
account (the "ESCROW ACCOUNT") with the Escrow Agent by wire transfer of
immediately available funds to be held pursuant to the terms of the Escrow
Agreement. Notwithstanding the preceding sentence, if the Closing Date is not a
Business Day, the amount of cash to be deposited by Ford pursuant to this clause
(b) shall be deposited into the Escrow Account on the next Business Day
following the Closing Date. If Ford fails to make such deposit on such next
Business Day, the transactions contemplated hereby shall be unwound and the
Closing shall be deemed not to have been consummated.
(c) Deliveries by Visteon to Ford. At the Closing, Visteon shall deliver
(or cause to be delivered) to Ford a counterpart of each of the following
Visteon "A" Transaction Documents duly executed by Visteon (or Affiliate of
Visteon, as appropriate):
(A) Container Agreement.
(B) Employee Transition Agreement Amendment.
(C) Escrow Agreement.
(D) Europe FCSD Relationship Agreement.
(E) Ford-Visteon IP License Agreement.
(F) Ford-Visteon Purchase and Supply Agreement.
(G) Reimbursement Agreement.
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(H) Stockholder Agreement.
(I) Tooling Agreement.
(J) Warrant.
Section .04. Certain Adjustments. If, during the period between the date of
this Agreement and the Closing, there shall be (other than the contribution of
the Business by Visteon to Subsidiaries of the Company pursuant to the
Contribution Agreement) any reclassification, restructuring, business
combination, spin-off, recapitalization, stock split or combination, exchange or
readjustment of shares, stock dividend thereon with a record date during such
period or other similar transaction involving Visteon Common Stock or all or
substantially all of Visteon's consolidated assets, then an appropriate
adjustment shall be made to each of the number of Warrant Shares, exercise price
of the Warrant, and, if applicable, amount and/or type of consideration
contemplated in Section .01.
REPRESENTATIONS AND WARRANTIES OF VISTEON
Visteon represents and warrants to Ford as of the date hereof and as of the
Closing Date (subject to any exceptions disclosed on the correspondingly
numbered section of the Disclosure Schedule) that:
Section .01. Corporate Existence and Power. Visteon is a corporation duly
incorporated, validly existing and in good standing under the laws of Delaware
and has all corporate powers required to carry on its business as now conducted.
Section .02. Corporate Authorization. The execution, delivery and
performance by Visteon (and each of its Affiliates that is or will be a party to
any Visteon "A" Transaction Document) of this Agreement and each other Visteon
"A" Transaction Document to which it is a party and the consummation of the
transactions contemplated hereby and thereby are within its corporate powers and
have been duly authorized by all necessary corporate action on the part of
Visteon or such Affiliate. This Agreement and each other Visteon "A" Transaction
Document to which Visteon or any of its Affiliates is or will be a party
constitutes or will constitute when executed (assuming the due authorization,
execution and delivery by the other parties thereto) a valid and binding
agreement of Visteon and such Affiliates, enforceable against Visteon (or such
Affiliates) in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of
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equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
Section .03. Governmental Authorization. The execution, delivery and
performance by Visteon (and each of its Affiliates that is or will be a party to
any Visteon "A" Transaction Document) of this Agreement and each other Visteon
"A" Transaction Document to which it is a party and the consummation of the
transactions contemplated hereby and thereby require no material authorization
by, or material filing with, any Governmental Authority other than (i)
compliance with any applicable requirements of the HSR Act, (ii) compliance with
any applicable requirements of state securities laws in connection with the sale
and issuance of the Warrant and the Warrant Shares and (iii) compliance with any
applicable requirements of the 1933 Act in connection with Visteon fulfilling
its registration obligations under the Stockholder Agreement.
Section .04. Noncontravention. (a) The execution, delivery and performance
by Visteon (and each of its Affiliates that is or will be a party to any Visteon
"A" Transaction Document) of this Agreement and each other Visteon "A"
Transaction Document to which it is a party and the consummation of the
transactions contemplated hereby and thereby do not and will not (i) violate its
certificate of incorporation or bylaws or other organizational documents, (ii)
assuming compliance with the matters referred to in Section .03, violate in any
material respect any applicable law, rule, regulation, judgment, injunction,
order or decree or (iii) require any consent or other action by any Person
under, constitute a default under, or give rise to any right of termination,
cancellation or acceleration of any of its rights or obligations or to a loss of
any benefit to which it is entitled under any provision of any material
agreement or other instrument binding upon it except, in the case of this clause
(iii), as would not reasonably be expected to have, individually or in the
aggregate, a Visteon Material Adverse Effect.
(b) Without limiting the generality of Section .04(a), and assuming the
accuracy of Ford's representations and warranties set forth in Section .05, the
offering, issuance and sale of the Warrant and the Warrant Shares hereunder is
not, and at the time of issuance of will not be, in violation, breach or
contravention of the 1933 Act or any rule or other requirement of, or any
criteria for listing or continued trading through, the NYSE.
Section .05. Capitalization. (a) The authorized capital stock of Visteon
consists of 500,000,000 shares of Visteon Common Stock. As of September 8, 2005,
there were outstanding (i) 128,693,929 shares of Visteon Common Stock (including
2,431,632 employee restricted shares) and (ii) employee stock options to
purchase an aggregate of 15,386,755 shares of Visteon Common Stock (of which
options to purchase an aggregate of 10,959,152 shares of Visteon Common
9
Stock are exercisable). All outstanding shares of capital stock of Visteon have
been duly authorized and validly issued and are fully paid and nonassessable.
(b) Except as set forth in Section .05(a), as of September 8, 2005, there
were no outstanding (i) shares of capital stock or voting securities of Visteon,
(ii) securities of Visteon convertible into or exchangeable for shares of
capital stock or voting securities of Visteon or (iii) options, "phantom" stock
rights, stock appreciation rights, stock-based performance units or other rights
to acquire from Visteon, or other obligations of Visteon to issue, any capital
stock, voting securities or securities convertible into or exchangeable for
capital stock or voting securities of Visteon. There are no outstanding
obligations of Visteon or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any of the securities referred to in clause (i), (ii) or (iii)
above.
Section .06. Valid Issuance. The Warrant to be issued pursuant to this
Agreement and the Warrant Shares to be issued thereunder have been duly
authorized and, when issued and delivered in accordance with the terms of this
Agreement or the Warrant (as applicable), will have been validly issued free and
clear of all Liens (other than transfer restrictions under applicable securities
laws and transfer and other restrictions under the terms of the Warrant or
Stockholder Agreement) and will be fully paid and nonassessable and the issuance
thereof is not subject to any preemptive or other similar right.
Section .07. Litigation. Except as publicly disclosed in the reports filed
or furnished by Visteon to the SEC prior to the date hereof, there is no action,
suit, investigation, inquiry or proceeding pending against, or to the knowledge
of Visteon, threatened against or affecting, Visteon or any of its Affiliates or
any of their respective properties by or before any Governmental Authority
which, individually or in the aggregate, if determined or resolved adversely in
accordance with the plaintiff's demands, would reasonably be expected to have a
Visteon Material Adverse Effect or which in any manner challenges or seeks to
prevent, enjoin or materially delay the transactions contemplated by this
Agreement.
Section .08. Taxes. Visteon and its Subsidiaries have timely filed all
material Tax Returns required to be filed on or before the date hereof and have
paid all material Taxes due in connection with the taxable periods to which such
Tax Returns relate. There is no action, suit, claim, audit or similar proceeding
now proposed in writing or to the knowledge of Visteon pending against or with
respect to Visteon or any Subsidiary in respect of any material Tax.
Section .09. Finders' Fees. There is no investment banker, broker, finder
or other intermediary that has been retained by or is authorized to act on
behalf of Visteon or any of its Affiliates who might be entitled to any fee or
commission from Ford or any of its Affiliates in connection with the
transactions contemplated by this Agreement.
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Section .10. No Other Representations or Warranties. Except for the
representations and warranties contained in this Agreement (as modified by the
Disclosure Schedule), or in the other agreements referred to in Section .10,
neither Visteon nor any other Person makes any other express or implied
representation or warranty with respect to Visteon, its Subsidiaries and the
transactions contemplated by this Agreement, and Visteon disclaims any other
such representations or warranties, whether made by Visteon, any Subsidiary of
Visteon or any of their respective officers, directors, employees, agents or
representatives. Nothing in this Section .10 shall impair or limit in any way
any of the rights or remedies of Ford and its Affiliates set forth in this
Agreement or in the other agreements referred to in Section .10 or relating to
or arising out of any fraud or willful misrepresentation.
REPRESENTATIONS AND WARRANTIES OF XXXX
Xxxx represents and warrants to Visteon as of the date hereof and as of the
Closing Date that:
Section .01. Corporate Existence and Power. Ford is a corporation duly
incorporated, validly existing and in good standing under the laws of Delaware
and has all corporate powers required to carry on its business as now conducted.
Section .02. Corporate Authorization. The execution, delivery and
performance by Ford (and each of its Affiliates that is or will be a party to
any Visteon "A" Transaction Document) of this Agreement and each other Visteon
"A" Transaction Document to which it is a party and the consummation of the
transactions contemplated hereby and thereby are within its corporate powers and
have been duly authorized by all necessary corporate action on the part of Ford
or such Affiliate. This Agreement and each other Visteon "A" Transaction
Document to which Ford or any of its Affiliates is or will be a party
constitutes or will constitute when executed (assuming the due authorization,
execution and delivery by the other parties thereto) a valid and binding
agreement of Ford and such Affiliates, enforceable against Ford (or such
Affiliates) in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
Section .03. Governmental Authorization. The execution, delivery and
performance by Ford (and each of its Affiliates that is or will be a party to
any Visteon "A" Transaction Document) of this Agreement and each other Visteon
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"A" Transaction Document to which it is a party and the consummation of the
transactions contemplated hereby and thereby require no material authorization
by, or material filing with, any Governmental Authority other than compliance
with any applicable requirements of the HSR Act.
Section .04. Noncontravention. The execution, delivery and performance by
Ford (and each of its Affiliates that is or will be a party to any Visteon "A"
Transaction Document) of this Agreement and each other Visteon "A" Transaction
Document to which it is a party and the consummation of the transactions
contemplated hereby and thereby do not and will not (i) violate its certificate
of incorporation or bylaws or other organizational documents or (ii) assuming
compliance with the matters referred to in Section .03, violate in any material
respect any applicable law, rule, regulation, judgment, injunction, order or
decree or (iii) require any consent or other action by any Person under,
constitute a default under, or give rise to any right of termination,
cancellation or acceleration of any of its rights or obligations or to a loss of
any benefit to which it is entitled under any provision of any material
agreement or other instrument binding upon it except, in the case of this clause
(iii), as would not reasonably be expected to have, individually or in the
aggregate, a Ford Material Adverse Effect.
Section .05. Purchase for Investment; Accredited Investor; Resale. Ford is
purchasing the Warrant and the Warrant Shares for investment for its own account
and not with a view to, or for sale in connection with, any distribution
thereof. Ford (either alone or together with its advisors) has sufficient
knowledge and experience in financial and business matters so as to be capable
of evaluating the merits and risks of its investment in the Warrant and the
Warrant Shares and is capable of bearing the economic risks of such investment.
Ford is an "accredited investor" within the meaning of Rule 501 of the 1933 Act.
Ford acknowledges that Visteon has indicated that the Warrant and the Warrant
Shares have not been registered under the 1933 Act, and that the Warrant Shares
will bear a legend stating that such securities have not been registered under
the 1933 Act and may not be sold or transferred in the absence of such
registration or an exemption from such registration.
Section .06. Litigation. Except as publicly disclosed in the reports filed
or furnished by Ford to the SEC prior to the date hereof, there is no action,
suit, investigation, inquiry or proceeding pending against, or to the knowledge
of Ford, threatened against or affecting, Ford or any of its Affiliates or any
of their respective properties by or before any Governmental Authority which,
individually or in the aggregate, if determined or resolved adversely in
accordance with the plaintiff's demands, would reasonably be expected to have a
Ford Material Adverse Effect or which in any manner challenges or seeks to
prevent, enjoin or materially delay the transactions contemplated by this
Agreement.
12
Section .07. Finders' Fees. There is no investment banker, broker, finder
or other intermediary that has been retained by or is authorized to act on
behalf of Ford or any of its Affiliates who might be entitled to any fee or
commission from Visteon or any of its Affiliates in connection with the
transactions contemplated by this Agreement.
Section .08. No Other Representations or Warranties. Except for the
representations and warranties contained in this Agreement, or in the other
agreements referred to in Section .10, neither Ford nor any other Person makes
any other express or implied representation or warranty with respect to Ford,
its Subsidiaries and the transactions contemplated by this Agreement, and Ford
disclaims any other such representations or warranties, whether made by Ford,
any Subsidiary of Ford or any of their respective officers, directors,
employees, agents or representatives. Nothing in this Section .08 shall impair
or limit in any way any of the rights or remedies of Visteon and its Affiliates
set forth in this Agreement or in the other agreements referred to in Section
..10 or relating to or arising out of any fraud or willful misrepresentation.
COVENANTS OF FORD AND VISTEON
Section .01. Commercially Reasonable Efforts; Further Assurances. Subject
to the terms and conditions of this Agreement, Ford and Visteon will use their
respective commercially reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary or desirable under
applicable laws and regulations to consummate the transactions contemplated by
this Agreement. Ford and Visteon agree to execute and deliver such other
documents, certificates, agreements and other writings and to take such other
actions as may be necessary or desirable in order to consummate or implement
expeditiously the transactions contemplated by this Agreement.
Section .02. Certain Filings. Ford and Visteon shall cooperate with one
another (i) in determining whether any action by or in respect of, or filing
with, any Governmental Authority is required, or any actions, consents,
approvals or waivers are required to be obtained from parties to any material
contracts, in connection with the consummation of the transactions contemplated
by this Agreement and (ii) in taking such actions or making any such filings,
furnishing information required in connection therewith and seeking timely to
obtain any such actions, consents, approvals or waivers. Filing fees
attributable to the filings made pursuant to this Section .02 shall be borne by
the party responsible for making the filing, or if one joint filing is required,
the applicable filing fee shall be equally borne by Ford and Visteon.
13
Section .03. Public Announcements. The parties agree to consult with each
other before issuing any press release or making any public statement with
respect to this Agreement or the transactions contemplated hereby and, except
for (i) any press releases and public statements the making of which may be
required by applicable law or any listing agreement with any national securities
exchange, (ii) confidential disclosures to rating agencies and (iii) disclosures
made to lenders and underwriters that enter into a confidentiality agreement
substantially comparable to the Confidentiality Agreement, no party shall issue
any such press release or make any such public statement without the prior
consent of the other party.
Section .04. NYSE Listing. Visteon shall use its reasonable efforts to
cause the Warrant Shares to be approved for listing on the NYSE, subject to
official notice of issuance, prior to the Closing Date.
Section .05. Multimedia Repair Services. From the date hereof, Ford and
Visteon shall negotiate in good faith the terms of a statement of work for
multimedia repair services to be provided by Visteon to Ford from and after the
Closing. The statement of work shall contain the detail listed in Schedule 5.05.
In the event the parties are unable to agree on such statement of work prior to
the Closing, Ford's standard nonproduction global terms shall apply to the
provision of such services.
Section .06. Notices of Certain Events. Each party shall promptly notify
the other party of:
(a) any written notice or other written communication from any Person
alleging that the consent of such Person is or may be required in
connection with the transactions contemplated by this Agreement or the
other Visteon "A" Transaction Documents;
(b) any notice or other communication from any Governmental Authority
in connection with the transactions contemplated by this Agreement or the
other Visteon "A" Transaction Documents;
(c) any actions, suits, claims, investigations, inquiries or
proceedings commenced or, to its knowledge, threatened that relate to the
consummation of the transactions contemplated by this Agreement or the
other Visteon "A" Transaction Documents or that, if pending on the date of
this Agreement, would have been required to be disclosed pursuant to
Section .07 (in the case of Visteon) or Section .06 (in the case of Ford);
and
(d) any circumstance, event or action the existence, occurrence or
taking of which would result in any representation or warranty made by
14
such party in this Agreement not being true and correct and which, if not
cured, would result in the failure of the condition set forth in Section
.02(a)(ii) (in the case of Visteon) or Section .03(a)(ii) (in the case of
Ford).
No notice or disclosure by a party pursuant to this Section shall be deemed
to amend or supplement the Disclosure Schedule or to prevent, cure or operate as
a waiver of any misrepresentation or breach of warranty.
CONDITIONS TO CLOSING
Section .01. Conditions to Obligations of Ford and Visteon. The obligations
of Ford and Visteon to consummate the Closing are subject to the satisfaction or
waiver by both parties of the following conditions:
(a) The closing under the Contribution Agreement shall have been
consummated.
(b) The closing under the Visteon "B" Purchase Agreement shall have
been consummated (or be capable of being consummated contemporaneously with
the Closing).
(c) No provision of any applicable law or regulation and no judgment,
injunction, order or decree by any Governmental Authority shall prohibit
(including as a result of the failure to obtain, take or make any required
authorization or similar action by or in respect of or filings with any
Governmental Authority) the consummation of the Closing.
Section .02. Conditions to Obligation of Ford. The obligation of Ford to
consummate the Closing is subject to the satisfaction of the following further
conditions:
(a) (i) Visteon shall have performed in all material respects all of
its obligations hereunder required to be performed by it on or prior to the
Closing Date, (ii)(A) the representations and warranties of Visteon
contained in Sections 3.02, .05 and .06 shall be true and correct at and as
of the Closing Date as if made at and as of such date, subject to de
minimis exceptions in the case of Section .05 and (B) all other
representations and warranties of Visteon contained in this Agreement and
in any other Visteon "A" Transaction Document and in any certificate
delivered by Visteon pursuant hereto, disregarding all qualifications and
exceptions contained therein relating to materiality or Visteon Material
Adverse Effect, shall be true and correct at and as of the Closing Date as
if made at and as of such date (except that representations and warranties
that relate
15
to a specific date shall only be required to be true and correct as of such
date) except as would not, individually or in the aggregate, have a Visteon
Material Adverse Effect, and (iii) Ford shall have received a certificate
signed by the chief financial officer of Visteon to the foregoing effect.
(b) There shall not be pending any action or proceeding by any
Governmental Authority, that challenges or seeks to make illegal, to
materially delay or otherwise directly or indirectly to prohibit the
consummation of the transactions contemplated by this Agreement or seeks to
obtain material damages from Ford or its Affiliates in connection with this
transaction.
(c) Visteon shall have paid in full to Ford all outstanding amounts
owing to Ford under the Secured Promissory Note (or such amounts shall have
been set-off in full pursuant to Section 2.03(a)(i) of the Visteon "B"
Purchase Agreement).
(d) There shall not have been, since the date of this Agreement, any
event, occurrence, development or state of circumstances or facts which,
individually or in the aggregate, has had or would reasonably be expected
to have a Visteon Material Adverse Effect; provided that Ford and Visteon
agree that, notwithstanding anything in the Contribution Agreement to the
contrary, Visteon shall not be required to consummate the closing under the
Contribution Agreement unless Ford shall have delivered to Visteon, at
Visteon's request, a certificate signed by the chief financial officer of
Ford that, as of the date of such closing, Ford is not aware of any event,
occurrence, development or state of circumstances or facts that would
result in a failure of the conditions set forth in this Section 6.02(d) or
Section 6.02(a)(ii)(B); provided, further that Visteon's chief financial
officer shall have (immediately prior to such delivery by Ford to Visteon)
provided to Ford a certificate signed by the chief financial officer of
Visteon to the same effect.
(e) If Ford shall have given notice of a breach or failure to perform
pursuant to Section .01(a)(iv)(B) and Visteon shall not have cured such
breach.
(f) Ford shall have received all documents and instruments to be
received by Ford pursuant to Section .03(c).
Section .03. Conditions to Obligation of Visteon. The obligation of Visteon
to consummate the Closing is subject to the satisfaction of the following
further conditions:
16
(a) (i) Ford shall have performed in all material respects all of its
obligations hereunder required to be performed by it on or prior to the
Closing Date, (ii)(A) the representations and warranties of Ford contained
in Section .02 shall be true and correct at and as of the Closing Date as
if made at and as of such date and (B) all other representations and
warranties of Ford contained in this Agreement and in any other Visteon "A"
Transaction Document and in any certificate delivered by Ford pursuant
hereto, shall be true and correct in all material respects at and as of the
Closing Date as if made at and as of such date (except that representations
and warranties that relate to a specific date shall only be required to be
true and correct as of such date), and (iii) Visteon shall have received a
certificate signed by the chief financial officer of Ford to the foregoing
effect.
(b) Visteon shall have received all documents and instruments to be
received by Visteon pursuant to Section .03(a), and, only if the Closing
Date is a Business Day, Ford shall have made the deposit into the Escrow
Account pursuant to Section .03(b).
SURVIVAL; INDEMNIFICATION
Section .01. Survival. The representations and warranties of the parties
hereto contained in this Agreement or in any officer's certificate delivered
pursuant hereto or in connection herewith shall survive the Closing until the
eighteen month anniversary of the Closing Date; provided that (i) the
representations and warranties in Sections 3.01, .02, .06, .01, .02, and 4.05
shall survive indefinitely or until the latest date permitted by applicable law
and (ii) the representations and warranties in Section 3.08 shall survive until
the third anniversary of the Closing Date. The covenants and agreements of the
parties hereto contained in this Agreement or in any officer's certificate
delivered pursuant hereto or in connection herewith shall survive the Closing
indefinitely or for the shorter period explicitly specified therein, except that
for such covenants and agreements that survive for such shorter period, breaches
thereof shall survive indefinitely or until the latest date permitted by law.
Notwithstanding the preceding sentence, any breach of covenant, agreement,
representation or warranty in respect of which indemnity may be sought under
this Agreement shall survive the time at which it would otherwise terminate
pursuant to the preceding sentence, if written notice of the inaccuracy thereof
giving rise to such right of indemnity (setting forth the basis therefor in
reasonable detail) shall have been given to the party against whom such
indemnity may be sought prior to such time.
Section .02. Indemnification. (a) Effective at and after the Closing,
Visteon hereby indemnifies Ford and its Affiliates against and agrees to hold
each
17
of them harmless from any and all Damages, incurred or suffered by Ford or any
of its Affiliates arising out of (A) any misrepresentation or breach of any
warranty (disregarding all qualifications and exceptions contained therein
relating to materiality or material adverse effect) (each such misrepresentation
and breach of warranty a "WARRANTY BREACH") by Visteon or its Affiliates in this
Agreement or any other Visteon "A" Transaction Documents or (B) any breach of
covenant or agreement made or to be performed by Visteon or its Affiliates
pursuant to this Agreement or any other Visteon "A" Transaction Documents;
provided that with respect to indemnification by Visteon for Warranty Breaches
(other than in cases of Sections 3.01, .02, .06 and .09 and other than in cases
of fraud or willful misrepresentation) pursuant to this Section .02(a), (i)
Visteon shall not be liable unless the aggregate amount of Damages with respect
to such Warranty Breaches (together with all amounts paid or payable by Visteon
with respect to Warranty Breaches under Section 8.02 of the Contribution
Agreement and Section 7.02 of the Visteon "B" Purchase Agreement) exceeds $3
million (in which case Visteon shall only be liable to the extent of such
excess) and (ii) Visteon's maximum liability (together with all amounts paid or
payable by Visteon with respect to Warranty Breaches under Section 8.02 of the
Contribution Agreement and Section 7.02 of the Visteon "B" Purchase Agreement)
shall not exceed $30 million in the aggregate.
(b) Effective at and after the Closing, Ford hereby indemnifies Visteon and
its Affiliates against and agrees to hold each of them harmless from any and all
Damages incurred or suffered by Visteon or any of its Affiliates arising out of
(A) any Warranty Breach by Ford or its Affiliates of this Agreement or any other
Visteon "A" Transaction Documents or (B) breach of covenant or agreement made or
to be performed by Ford or its Affiliates pursuant to this Agreement or any
other Visteon "A" Transaction Documents; provided that with respect to
indemnification by Ford for Warranty Breaches (other than in cases of Sections
4.01, .02, 4.05 and .07 and other than in cases of fraud or willful
misrepresentation) pursuant to this Section .02(b), (i) Ford shall not be liable
unless the aggregate amount of Damages with respect to such Warranty Breaches
(together with all amounts paid or payable by Ford with respect to Warranty
Breaches under Section 7.02 of the Visteon "B" Purchase Agreement) exceeds $3
million (in which case Ford shall only be liable to the extent of such excess)
and (ii) Ford's maximum liability (together with all amounts paid or payable by
Ford with respect to Warranty Breaches under Section 7.02 of the Visteon "B"
Purchase Agreement) shall not exceed $30 million in the aggregate.
Section .03. Indemnification Procedures and other Provisions relating to
Indemnification Claims. The procedures set forth in Section 8.03 of the
Contribution Agreement, and the provisions set forth in Sections 8.04, 8.05,
8.06 and 8.07 of the Contribution Agreement shall apply, mutatis mutandis, with
respect to any claim for indemnification under this Agreement.
18
Section .04. No Double Recovery. Notwithstanding anything herein to the
contrary, no indemnified party shall be entitled to indemnification under any
provision of this Agreement for any amount to the extent such indemnified party
or its Affiliate has been indemnified for such amount pursuant to this
Agreement, the other Visteon "A" Transaction Documents, the Visteon "B" Purchase
Agreement, the other Visteon "B" Transaction Documents (as defined in the
Visteon "B" Purchase Agreement), the Contribution Agreement, the other
Contribution Agreement Transaction Documents, the Confidentiality Agreement or
any other agreement, contract or instrument executed in connection herewith or
therewith.
TERMINATION
Section .01. Grounds for Termination. (a) This Agreement may be terminated
at any time prior to the Closing:
(i) by mutual written agreement of Visteon and Ford;
(ii) by either Ford or Visteon, if any applicable law or regulation
makes consummation of the transactions contemplated hereby illegal or
otherwise prohibited or if consummation of the transactions contemplated
hereby would violate any nonappealable final order, decree or judgment of
any Governmental Authority having competent jurisdiction;
(iii) by Visteon if Ford shall have breached or failed to perform in
any material respect any of its representations, warranties or covenants
contained in this Agreement, which breach or failure to perform (A) is
incapable of being cured by Ford prior to the Outside Date or is not cured
by the earlier of (x) 30 Business Days following written notice to Ford by
Visteon of such breach and (y) the Outside Date and (B) if not cured would
result in a failure of any condition set forth in Section .03(a); or
(iv) by Ford if (A) Visteon shall have breached or failed to perform
in any material respect any of its representations, warranties or covenants
contained in this Agreement, which breach or failure to perform (1) is
incapable of being cured by Visteon prior to the Outside Date or is not
cured by the earlier of (x) 30 Business Days following written notice to
Visteon by Ford of such breach and (y) the Outside Date and (2) if not
cured would result in a failure of any condition set forth in Section
.02(a), or (B) Visteon shall have breached or failed to perform in any
material respect any of its covenants contained in Sections 6.1 (but only,
in the case of clause (c) thereof, to the extent such breach or failure to
perform is of
19
its performance obligations under the existing agreements referred to in
such clause), 6.2 and 6.5 of the Funding Agreement between Ford and Visteon
dated as of March 10, 2005, as amended and, other than in the case of such
breach of Section 6.1(a) thereof (if such breach relates to the quantity or
timing of the supply of components), such breach is not cured within 15
days after written notice thereof has been given by Ford to Visteon.
The party desiring to terminate this Agreement pursuant to clauses (ii),
(iii) or (iv) shall give notice of such termination to the other party.
(b) This Agreement shall automatically terminate and be of no further force
and effect upon (A) termination of the Contribution Agreement in accordance with
its terms if such termination is in compliance with Section 5.08 of the Visteon
"B" Purchase Agreement or (B) termination of the Visteon "B" Purchase Agreement
in accordance with its terms.
Section .02. Effect of Termination. If this Agreement is terminated as
permitted by Section .01, such termination shall be without liability of either
party (or any stockholder, director, officer, employee, agent, consultant or
representative of such party) to the other party to this Agreement; provided
that if such termination shall result from the (i) willful failure of either
party to fulfill a condition to the performance of the obligations of the other
party, (ii) failure to perform a covenant of this Agreement or (iii) breach by
either party hereto of any representation or warranty or agreement contained
herein, such party shall be fully liable for any and all Damages incurred or
suffered by the other party as a result of such failure or breach. The
provisions of this Section .02, Section .03, and 0 shall survive any termination
hereof pursuant to Section .01.
MISCELLANEOUS
Section .01. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission and e-mail
transmission, so long as a receipt of such e-mail is requested and received) and
shall be given,
20
if to Ford, to:
Ford Motor Company
Office of the Secretary
One American Road
00xx Xxxxx Xxxxx Xxxxxxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx.
Facsimile No.: (000) 000-0000
E-mail: xxxxxxx@xxxx.xxx
with a copy to:
Ford Motor Company
Office of the General Counsel
One American Road
320 World Headquarters
Dearborn, Michigan 48126
Attention: Xxxxxx X. Xxxx
Facsimile No.: (000) 000-0000
E-mail: xxxxx@xxxx.xxx
and to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
E-mail: xxxx.xxxxxxxx@xxx.xxx
if to Visteon, to:
Visteon Corporation
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, General Counsel
Facsimile No.: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxx.xxx
21
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
E-mail: xxxxxxx.xxxxxxxx@xxxx.xxx
or such other address, facsimile number or e-mail address as such party may
hereafter specify for the purpose by notice to the other parties hereto. All
such notices, requests and other communications shall be deemed received on the
date of receipt by the recipient thereof if received prior to 5:00 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
Section .02. Amendments and Waivers. (a) Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed, in the case of an amendment, by each party to this Agreement, or
in the case of a waiver, by the party against whom the waiver is to be
effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
Section .03. Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
Section .04. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns; provided that neither party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of each other party hereto. Ford may,
however, without the consent of Visteon, but with notice to Visteon, assign all
or a part of its right to acquire at Closing all or a portion of the Warrant to
any of its Affiliates; provided that such assignment shall not relieve Ford of
its obligations hereunder.
Section .05. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Michigan, without regard to
the conflicts of law rules of such state.
22
Section .06. Dispute Resolution. If a dispute arises between the parties
relating to this Agreement, the following shall be the sole and exclusive
procedure for enforcing the terms hereof and for seeking relief, including
damages, injunctive relief and specific performance:
(i) The parties promptly shall hold a meeting of senior executives
with decision-making authority to attempt in good faith to negotiate a
mutually satisfactory resolution of the dispute; provided that no party
shall be under any obligation whatsoever to reach, accept or agree to any
such resolution; provided further that no such meeting shall be deemed to
vitiate or reduce the obligations and liabilities of the parties or be
deemed a waiver by a party hereto of any remedies to which such party would
otherwise be entitled.
(ii) If the parties are unable to negotiate a mutually satisfactory
resolution as provided above, then upon request by either party, the matter
shall be submitted to binding arbitration before a sole arbitrator in
accordance with the CPR Rules, including discovery rules, for
Non-Administered Arbitration. Within five Business Days after the selection
of the arbitrator, each party shall submit its requested relief to the
other party and to the arbitrator with a view toward settling the matter
prior to commencement of discovery. If no settlement is reached, then
discovery shall proceed. Upon the conclusion of discovery, each party shall
again submit to the arbitrator its requested relief (which may be modified
from the initial submission) and the arbitrator shall select only the
entire requested relief submitted by one party or the other, as the
arbitrator deems most appropriate. The arbitrator shall not select one
party's requested relief as to certain claims or counterclaims and the
other party's requested relief as to other claims or counterclaims. Rather,
the arbitrator must only select one or the other party's entire requested
relief on all of the asserted claims and counterclaims, and the arbitrator
shall enter a final ruling that adopts in whole such requested relief. The
arbitrator shall limit his/her final ruling to selecting the entire
requested relief he/she considers the most appropriate from the requests
submitted by the parties.
(iii) Arbitration shall take place in the City of Dearborn, Michigan
unless the parties agree otherwise or the arbitrator selected by the
parties orders otherwise. Punitive or exemplary damages shall not be
awarded. This Section .06 is subject to the Federal Arbitration Act, 28
U.S.C.A. Section 1, et seq., and judgment upon the award rendered by the
arbitrator may be entered by any court having jurisdiction.
Section .07. Jurisdiction. Subject to Section .06, the parties hereto agree
that any suit, action or proceeding seeking to enforce any provision of, or
based on any matter arising out of or in connection with, this Agreement or the
23
transactions contemplated hereby shall be brought in any federal court sitting
in Michigan or any Michigan State court sitting in Xxxxx County or Oakland
County, Michigan, so long as one of such courts shall have subject matter
jurisdiction over such suit, action or proceeding, and that any cause of action
arising out of this Agreement shall be deemed to have arisen from a transaction
of business in the State of Michigan. Each of the parties hereby irrevocably
consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
in any such court or any objection that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Process in
any such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such court.
Section .08. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section .09. Counterparts; Effectiveness; Third Party Beneficiaries. This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. Until and
unless each party has received a counterpart hereof signed by the other party
hereto, this Agreement shall have no effect and no party shall have any right or
obligation hereunder (whether by virtue of any other oral or written agreement
or other communication). No provision of this Agreement is intended to confer
any rights, benefits, remedies, obligations, or liabilities hereunder upon any
Person other than the parties hereto and their respective successors and
permitted assigns under Section .04.
Section .10. Entire Agreement. This Agreement and the other agreements
referred to in Section 8 of the Master Agreement constitute the entire agreement
between the parties with respect to the subject matter of such agreements and
supersede all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter of such agreements.
Section .11. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic
24
or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. Upon such a determination, the
parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
Section .12. Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof in
the courts specified in Section .07.
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
FORD MOTOR COMPANY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
VISTEON CORPORATION
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
