EXHIBIT 3.1
FORM OF
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
Pursuant to Section 303 of the
Delaware General Corporation Law
Visteon Corporation (the Corporation), a corporation organized and existing under the General
Corporation Law of the State of Delaware (the GCL), does hereby certify as follows:
(1) The name of the Corporation is Visteon Corporation. The Corporation was originally
incorporated under the name Visteon Automotive Systems, Inc. The original certificate of
incorporation of the Corporation was filed with the office of the Secretary of State of the State
of Delaware on January 5, 2000.
(2) The original certificate of incorporation of the Corporation was amended by that certain
Amended and Restated Certificate of Incorporation of the Corporation filed with the Secretary of
State of the State of Delaware on June 28, 2000 (the Amended Certificate).
(3) The Corporation filed its Fifth Amended Joint Plan of Reorganization of Visteon
Corporation and its Debtor Affiliates Pursuant to Chapter 11 of the United States Bankruptcy Code
which, pursuant to chapter 11 of the United States Code, 11
U.S.C. §§ 101-1532, was confirmed by an order dated August 31, 2010, of the United States
Bankruptcy Court for the District of Delaware (including any supplements thereto, the Confirmed
Plan), and that such order provides for the making and filing of this Second Amended and Restated
Certificate of Incorporation.
(4) This Second Amended and Restated Certificate of Incorporation was duly adopted by the
Corporation in accordance with Section 303 of the GCL.
(5) This Second Amended and Restated Certificate of Incorporation restates and integrates and
further amends the Amended Certificate.
(6) The text of the Amended Certificate is amended and restated in its entirety as follows:
FIRST
: The name of the Corporation is Visteon Corporation (the Corporation).
SECOND
: The address of the registered office of the Corporation in the State of
Delaware is 2711 Centerville Road, in
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the City of Wilmington, County of New Castle. The name of
its registered agent at that address is Corporation Service Company.
THIRD
: The purpose of the Corporation is to engage in any lawful act or activity for
which a corporation may be organized under the General Corporation Law of the State of Delaware
(the GCL).
FOURTH
: (a)
Authorized Capital Stock
. The total number of shares of stock
which the Corporation shall have authority to issue is three hundred million (300,000,000) shares of capital stock, consisting of (i) two hundred fifty million
(250,000,000) shares of common stock, par value $0.01 per share (the Common Stock) and (ii) fifty
million (50,000,000) shares of preferred stock, par value $0.01 per share (the Preferred Stock).
The holders of shares of Common Stock shall not have cumulative voting rights. No holder of shares
of Common Stock shall be entitled to preemptive or subscription rights.
(b)
Preferred Stock
. The Board of Directors is hereby expressly authorized to provide
for the issuance of all or any shares of the Preferred Stock in one or more classes or series, and
to fix for each such class or series such voting powers, full or
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limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as shall be stated and expressed in the
resolution or resolutions adopted by the Board of Directors providing for the issuance of such
class or series, including, without limitation, the authority to provide that any such class or
series may be (i) subject to redemption at such time or times and at such price or prices; (ii)
entitled to receive dividends (which may be cumulative or non-cumulative) at such rates, on such
conditions, and at such times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or any other series; (iii) entitled to such rights upon the
dissolution of, or upon any distribution of the assets of, the Corporation; or (iv) convertible
into, or exchangeable for, shares of any other class or classes of stock, or of any other series of
the same or any other class or classes of stock, of the Corporation at such price or
prices or at such rates of exchange and with such adjustments; all as may be stated in such
resolution or resolutions.
(c)
Power to Sell and Purchase Shares
. Subject to the requirements of applicable law,
the Corporation shall have the power
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to issue and sell all or any part of any shares of any class
of stock herein or hereafter authorized to such persons, and for such consideration, as the Board
of Directors shall from time to time, in its discretion, determine, whether or not greater
consideration could be received upon the issue or sale of the same number of shares of another
class, and as otherwise permitted by law. Subject to the requirements of applicable law, the
Corporation shall have the power to purchase any shares of any class of stock herein or hereafter
authorized from such persons, and for such consideration, as the Board of Directors shall from time
to time, in its discretion, determine, whether or not less consideration could be paid upon the
purchase of the same number of shares of another class, and as otherwise permitted by law.
(d)
Limitation on Non-Voting Equity Securities
. Notwithstanding anything herein to
the contrary, the Corporation shall not issue any class of non-voting equity securities unless and
solely to the extent permitted by section 1123(a)(6) of the United States Bankruptcy Code (the
Bankruptcy Code) as in effect on the date of filing this Second Amended and Restated Certificate
of Incorporation with the Secretary of State of the State of Delaware.
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FIFTH:
5% Ownership Limit.
(a) For purposes of this Article FIFTH and Articles SIXTH and SEVENTH (collectively, the Tax
Articles), the following terms shall have the meanings indicated (and any references to any
portions of Treasury Regulation § 1.382-2T shall include any successor provisions):
5% Transaction
means any Transfer of Corporation Securities described in
clause (1) or (2) of Paragraph (b) of this Article FIFTH, subject to the provision
of such Paragraph (b) of this Article FIFTH.
An
Affiliate
of any Person means any other Person, that, directly or
indirectly through one or more intermediaries, controls or is controlled by, or is
under common control with, such Person; and, for the purposes of this definition
only, control (including the terms controlling, controlled by and under
common control with) means the possession, direct or indirect, of the power to
direct or cause the direction of the management, policies or activities of a
Person
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whether through the ownership of securities, by contract or agency or
otherwise.
Associate
has the meaning ascribed to such term in Rule 12b-2 under the
Exchange Act.
Board Approval
means the written approval of a Transfer by the Board of
Directors (or a duly authorized committee thereof).
Notwithstanding the foregoing, a transferee or transferor shall be deemed to have
received Board Approval if either:
(i) the Corporation is in an Unrestricted Period, or
(ii) the Corporation is in a Restricted Period and the Board of Directors (or
a duly authorized committee thereof) does not deliver a written disapproval of the
Transfer within 10 (ten) days of the receipt of the notice of the proposed
Transfer.
During a Restricted Period, the Board of Directors (or a duly authorized committee
thereof) shall authorize a 5%
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Transaction unless it determines in good faith that
such 5% Transaction (and any related transaction) will (i) result in an owner
shift of more than 35 percentage points during the relevant testing period for
purposes of Section 382 of the Code, or increases the amount of owner shift
further above 35 percentage points during such period, or (ii) materially
jeopardize the ability of the Corporation or its subsidiaries to make use of the
Tax Benefits. Nevertheless, the Board of Directors (or a duly authorized
committee thereof) may authorize a 5% Transaction in any circumstance (including,
for example, in a circumstance that such Transfer will result in the loss of Tax
Benefits) if the Board of Directors (or a duly authorized committee thereof)
determines that such Transfer is in the best interests of the Corporation or its
subsidiaries.
Code
means the Internal Revenue Code of 1986, as amended.
Corporation Securities
means (i) shares of Common Stock, (ii) shares of
Preferred Stock (other than preferred
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stock described in Section 1504(a)(4) of the
Code), (iii) warrants, rights, or options (including options within the meaning of
Treasury Regulation § 1.382-2T(h)(4)(v)) to purchase stock of the Corporation, and
(iv) any other interest that would be treated as stock of the Corporation
pursuant to Treasury Regulation § 1.382-2T(f)(18).
Effective Date
means October 1, 2010.
Exchange Act
means the Securities Exchange Act of 1934, as amended, or
any successor act thereto.
Five-Percent Shareholder
means a Person or group of Persons that is
identified as a 5-percent shareholder of the Corporation pursuant to Treasury
Regulation § 1.382-2T(g) other than a direct public group as defined in Treasury
Regulation § 1.382-2T(j)(2)(ii).
Market Capitalization
means the total fair value of the Corporations
outstanding equity securities, determined by the most recent public trading price of such
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securities or reasonably estimated fair value if such securities are not traded publicly.
Market Capitalization Threshold
means the lesser of: (i) $1,500,000,000
or (ii) 80% of the Corporations Market Capitalization at the close of trading on
the first trading day after the Effective Date. Notwithstanding the following,
after the first anniversary of the Effective Date and not more than annually
thereafter, the Board of Directors (or a duly authorized committee thereof) may
set an alternative Market Capitalization Threshold equal to an amount that the
Board of Directors (or a duly authorized committee thereof) determines in good
faith is an amount that is necessary to protect against a loss of Tax Benefits
that the Corporation or its subsidiaries is reasonably expected to utilize.
Percentage Stock Ownership
means the percentage Stock Ownership interest
as determined in accordance with Treasury Regulation § 1.382-2T(g), (h), (j) and
(k).
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Person
means any individual, firm, corporation or other legal entity,
and includes any successor (by merger or otherwise) of such entity.
Prohibited Transfer
means any purported Transfer of Corporation
Securities to the extent that such Transfer is prohibited and/or void under this
Article FIFTH.
Restricted Period
means any period of time beginning when the
Corporations Market Capitalization falls below the Market Capitalization
Threshold and ending when the Corporations Market Capitalization has been above
the Market Capitalization Threshold for 30 (thirty) consecutive calendar days.
The Corporation shall promptly issue a broadly distributed press release
announcing that the Restricted Period has begun or has terminated.
Tax Benefit
means the net operating loss carryovers, capital loss
carryovers, general business credit carryovers, alternative minimum tax credit
carryovers and foreign tax credit carryovers, as well as any loss
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or deduction attributable to a net unrealized built-in loss within the meaning of Section
382, of the Corporation or any direct or indirect subsidiary thereof.
Transfer
means, with respect to any Person other than the Corporation,
any direct or indirect sale, transfer, assignment, conveyance, pledge or other
disposition, other than a sale, transfer, assignment, conveyance, pledge or other
disposition to a wholly owned subsidiary of the transferor, or, if the transferor
is wholly owned by a Person, to a wholly owned subsidiary of such Person. A Transfer also
shall include the creation or grant of an option (including an option within the
meaning of Treasury Regulation § 1.382-2T(h)(4)(v)).
Unrestricted Period
means any period of time that is not a Restricted
Period.
(b) In order to preserve the Tax Benefits, from and after the Effective Date, any attempted
Transfer of Corporation Securities prior to the earlier of (i) December 31, 2019, (ii) the
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repeal, amendment or modification of Section 382 of the Code (and any comparable successor provision)
(Section 382) in such a way as to render the restrictions imposed by Section 382 no longer
applicable to the Corporation, (iii) the beginning of a taxable year of the Corporation (or any
successor thereof) in which no Tax Benefits are available, and (iv) the date on which the
limitation amount imposed by Section 382 in the event of an ownership change of the Corporation, as
defined in Section 382, would not be materially less than the net operating loss carryforward or
net unrealized built-in loss of the Corporation (the Restriction Release Date) or any attempted
Transfer of Corporation Securities pursuant to an agreement entered into prior to the Restriction
Release Date, shall be prohibited and void
ab initio
to the extent that, as a result of such
Transfer (or any series of Transfers of which such Transfer is a part), either (1) any Person or
group of Persons shall become a Five-Percent Shareholder or (2) the Percentage Stock
Ownership interest in the Corporation of any Five-Percent Shareholder shall be increased;
provided, that this Paragraph (b) of this Article FIFTH shall not apply to, nor shall any other
provision in this Restated Certificate prohibit, restrict or limit in any way, the issuance of
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Corporation Securities by the Corporation in accordance with the Fifth Amended Joint Plan of
Reorganization of the Corporation dated August 31, 2010 (the Chapter 11 Plan).
(c) The restrictions set forth in Paragraph (b) of this Article FIFTH shall not apply to an
attempted Transfer that is a 5% Transaction if either the transferor or the transferee (1) gives
written notice of such Transfer to the Board of Directors (or a duly authorized committee thereof);
and (2) obtains Board Approval.
(d) Each certificate representing shares of Common Stock issued prior to the Restriction
Release Date shall contain the legend set forth on
Exhibit A
hereto, evidencing the
restrictions set forth in the Tax Articles.
SIXTH
: Treatment of Excess Securities.
(a) No employee or agent of the Corporation shall record any Prohibited Transfer, and the
purported transferee of such a Prohibited Transfer (the Purported Transferee) shall not be
recognized as a stockholder of the Corporation for any purpose whatsoever in respect of the
Corporation Securities which are the
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subject of the Prohibited Transfer (the Excess Securities).
Until the Excess Securities are acquired by another person in a Transfer that is not a Prohibited
Transfer, the Purported Transferee shall not be entitled with respect to such Excess
Securities to any rights of stockholders of the Corporation, including, without limitation, the
right to vote such Excess Securities and to receive dividends or distributions, whether liquidating
or otherwise, in respect thereof, if any. Once the Excess Securities have been acquired in a
Transfer that is not a Prohibited Transfer, the Corporation Securities shall cease to be Excess
Securities. For this purpose, any transfer of Excess Securities not in accordance with the
provisions of this Article SIXTH shall also be a Prohibited Transfer.
(b) If the Board of Directors determines that a Transfer of Corporation Securities constitutes
a Prohibited Transfer then, upon written demand by the Corporation, the Purported Transferee shall
transfer or cause to be transferred any certificate or other evidence of ownership of the Excess
Securities within the Purported Transferees possession or control, together with any dividends or
other distributions that were received by the Purported Transferee from the Corporation with
respect to the Excess
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Securities (Prohibited Distributions), to an agent designated by the Board
of Directors (the Agent). The Agent shall thereupon sell to a buyer or buyers, which may include
the Corporation, the Excess Securities transferred to it in one or more arms-length transactions
(over the New York Stock Exchange or other national securities exchange on which the Corporation
Securities may be traded, if possible, or otherwise privately); provided, however, that the Agent
shall effect such sale or sales in an orderly fashion and shall not be required to effect any such
sale within any specific time frame if, in the Agents discretion, such sale
or sales would disrupt the market for the Corporation Securities or otherwise would adversely
affect the value of the Corporation Securities. If the Purported Transferee has resold the Excess
Securities before receiving the Corporations demand to surrender Excess Securities to the Agent,
the Purported Transferee shall be deemed to have sold the Excess Securities for the Agent, and
shall be required to transfer to the Agent any Prohibited Distributions and proceeds of such sale,
except to the extent that the Corporation grants written permission to the Purported Transferee to
retain a portion of such sales proceeds not exceeding the amount that the
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Purported Transferee would have received from the Agent pursuant to Paragraph (c) of this Article SIXTH if the Agent
rather than the Purported Transferee had resold the Excess Securities.
(c) The Agent shall apply any proceeds of a sale by it of Excess Securities and, if the
Purported Transferee had previously resold the Excess Securities, any amounts received by it from a
Purported Transferee as follows: (x) first, such amounts shall be paid to the Agent to the extent
necessary to cover its costs and expenses incurred in connection with its duties hereunder; (y)
second, any remaining amounts shall be paid to the Purported Transferee, up to (1) the amount paid
by the Purported Transferee for the Excess Securities, or, if the Purported Transferee received the
Excess Securities by gift, inheritance, or similar Transfer, (2) the fair market value of the
Excess Securities (calculated as follows: (A) if the Corporation Securities are listed or admitted
to trading on any stock exchange, on the basis of the closing market price for the Corporation
Securities on the day before the Prohibited Transfer, (B) if the Corporation Securities are not listed or admitted to
trading on any stock exchange but are traded in the over-the-counter market, based upon the
difference between
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the highest bid and lowest asked prices, as such prices are reported by the
National Association of Securities Dealers through its NASDAQ system or any successor system on the
day before the Prohibited Transfer or, if none, on the last preceding day for which such quotations
exist, or (C) if the Corporation Securities are neither listed nor admitted to trading on any stock
exchange nor traded in the over-the-counter market, then as determined in good faith by the Board
of Directors as of the time of the Prohibited Transfer to the Purported Transferee), which amount
(or fair market value) shall be determined by the Board of Directors; and (z) third, any remaining
amounts, subject to the limitations imposed by the following proviso, shall be paid to one or more
organizations qualifying under Section 501(c)(3) of the Code (or any comparable successor
provision) (Section 501(c)(3)) selected by the Board of Directors; provided, however, that if the
Excess Securities (including any Excess Securities arising from a previous Prohibited Transfer not
sold by the Agent in a prior sale or sales), represent a 5% or greater Percentage Stock Ownership
in any class of Corporation Securities, then any such remaining amounts to the extent attributable
to the disposition of the portion of such Excess
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Securities exceeding a 4.99% Percentage Stock Ownership interest in such class shall be paid to two or more organizations qualifying under
Section 501(c)(3) selected by the Board of Directors. The recourse of any Purported Transferee in
respect of any Prohibited Transfer shall be limited to the amount payable to the
Purported Transferee pursuant to clause (y) of the preceding sentence. In no event shall the
proceeds of any sale of Excess Securities pursuant to this Paragraph (c) of this Article SIXTH
inure to the benefit of the Corporation, except to the extent used to cover costs and expenses
incurred by the Agent in performing its duties hereunder.
(d) If the Purported Transferee fails to surrender the Excess Securities or the proceeds of a
sale thereof to the Agent within thirty days from the date on which the Corporation makes a written
demand pursuant to Paragraph (b) of this Article SIXTH, then the Corporation shall use its best
efforts to enforce the provisions hereof, including the institution of legal proceedings to compel
the surrender. Nothing in this Paragraph (d) of this Article SIXTH shall (i) be deemed
inconsistent with any Transfer of the Excess Securities provided in Article FIFTH and this Article
SIXTH being void
ab initio
, (ii) preclude the Corporation in its discretion from
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bringing legal proceedings without a prior demand or (iii) cause any failure of the Corporation to act within the
time periods set forth in Paragraph (e) of this Article SIXTH to constitute a waiver or loss of any
right of the Corporation under Article FIFTH and this Article SIXTH.
(e) The Corporation shall make the written demand described in Paragraph (b) of Article FIFTH
within thirty days of the date on which the Board of Directors determines that the attempted
Transfer would result in Excess Securities;
provided, however, that if the Corporation makes such demand at a later date, the provisions
of Article FIFTH and this Article SIXTH shall apply nonetheless.
SEVENTH
: (a)
Board Authority
. The Board of Directors shall have the power
to determine all matters necessary for assessing compliance with Articles FIFTH and SIXTH,
including, without limitation, (i) the identification of Five-Percent Shareholders, (ii) whether a
Transfer is a 5% Transaction or a Prohibited Transfer, (iii) the Percentage Stock Ownership in the
Corporation of any Five-Percent Shareholder, (iv) whether an instrument constitutes a Corporation
Security, (v) the Corporations
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Market Capitalization, (vi) whether the Corporation is in a
Restricted Period, (vii) the amount (or fair market value) due to a Purported Transferee pursuant
to clause (y) Paragraph (c) of Article SIXTH, and (viii) any other matters which the Board of
Directors determines to be relevant; and the good faith determination of the Board of Directors on
such matters shall be conclusive and binding for all purposes of Articles FIFTH and SIXTH.
(b)
Reliance
. To the fullest extent permitted by law, the Corporation and the members
of the Board of Directors shall be fully protected in relying in good faith upon the information,
opinions, reports or statements of the chief executive officer, the chief financial officer, the
chief accounting officer or the corporate controller of the Corporation and the Corporations legal
counsel, independent auditors, transfer agent, investment bankers or other employees and agents in
making the determinations and findings contemplated by Articles FIFTH
and SIXTH. The members of the Board of Directors shall not be responsible for any good faith
errors made in connection therewith. For purposes of determining the existence and identity of,
and the amount of any Corporation Securities owed by any stockholder, the Corporation is entitled
to rely on the
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existence and absence of filings of Schedule 13D or 13G under the Securities and
Exchange Act of 1934, as amended (or similar filings), as of any date, subject to its actual
knowledge of the ownership of Corporation Securities.
(c)
Obligations to Provide Information
. As a condition to the registration of the
Transfer of any Corporation Securities, any Person who is a beneficial, legal or record holder of
Corporation Securities, and any proposed transferee and any Person controlling, controlled by or
under common control with the proposed transferee, shall provide such information as the
Corporation may reasonably request from time to time in order to determine compliance with Articles
FIFTH and SIXTH or the status of the Tax Benefits of the Corporation and the Corporation shall keep
such information confidential.
(d)
Benefits of the Tax Articles
. Nothing in the Tax Articles shall be construed to
give to any Person other than the Agent any legal or equitable right, remedy or claim under the Tax
Articles. The Tax Articles shall be for the sole and exclusive benefit of the Corporation and the
Agent.
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(e)
Severability
. The purpose of the Tax Articles is to facilitate the Corporations
ability to maintain or preserve its Tax Benefits. If any provisions
of the Tax Articles or the application of any such provision to any Person or under any
circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision
of the Tax Articles.
(f)
Waiver
. With regard to any power, remedy or right provided herein or otherwise
available to the Corporation or the Agent under the Tax Articles, (i) no waiver will be effective
unless expressly contained in a writing signed by the waiving party; and (ii) no alteration,
modification or impairment will be implied by reason of any previous waiver, extension of time,
delay or omission in exercise, or other indulgence.
EIGHTH
: The following provisions are inserted for the management of the business and
the conduct of the affairs of the Corporation, and for further definition, limitation and
regulation of the powers of the Corporation and of its directors and stockholders:
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(a) The business and affairs of the Corporation shall be managed by or under the direction of
the Board of Directors.
(b) The Board of Directors shall consist of not less than three (3) nor more than fifteen (15)
members, the exact number of which shall be fixed from time to time by resolution adopted by the
affirmative vote of a majority of the active Board of Directors;
provided
,
however
,
that the number of director positions on the Board of Directors initially shall be nine (9) and
shall consist of the nine (9)
individuals (such individuals comprising the Initial Board) selected pursuant to the Board
Selection Term Sheet that is part of the Confirmed Plan. To the extent that not all nine (9)
members of the Initial Board are so selected prior to the effective date of the Confirmed Plan,
such resulting vacancies on the Initial Board shall be filled subsequent to the effective date of
the Confirmed Plan in accordance with the Board Selection Term Sheet.
(c) Each director on the Initial Board (and any directors elected to fill vacancies or newly
created directorships following the effective date of the Confirmed Plan and prior to the annual
meeting of stockholders of the Corporation to be held in 2011) shall serve until the annual meeting
of stockholders of the
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Corporation to be held in 2011, subject to such directors earlier death,
resignation or removal. In no case will a decrease in the number of directors shorten the term of
any incumbent director.
(d) A director shall hold office until the following annual meeting of the stockholders and
until his or her successor shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office.
(e) Election of the directors need not be by written ballot unless the Bylaws shall so
provide. If authorized by the Board of Directors, any requirement of a written ballot shall be
satisfied by a ballot submitted by electronic transmission, provided that any such electronic
transmission must either set forth or be submitted with information from which it can be determined
that the electronic
transmission was authorized by the stockholder or proxy holder.
(f) Subject to the terms of any one or more classes or series of Preferred Stock, any vacancy
on the Board of Directors that results from an increase in the number of directors may be filled by
a majority of the Board of Directors then in office,
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provided that a quorum is present, and any
other vacancy occurring on the Board of Directors (except as otherwise provided in this Article
EIGHTH, including any vacancy on the Initial Board occurring as of the Effective Date, which
vacancy shall be filled in accordance with the Board Selection Term Sheet) may be filled by a
majority of the Board of Directors then in office, even if less than a quorum, or by a sole
remaining director. Any director or the whole Board of Directors may be removed from office at any
time, with or without cause. Except as otherwise prohibited by law, the stockholders may remove
any director and fill any vacancy on the Board of Directors created by such removal.
Notwithstanding the foregoing, whenever the holders of any one or more classes or series of
Preferred Stock issued by the Corporation shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of stockholders, the election, term of
office, removal, filling of vacancies and other features of such directorships shall be governed by
the terms of this Second Amended and Restated Certificate of Incorporation applicable thereto.
(g) The Board of Directors shall maintain at least the following four committees, to be
comprised of directors that are not
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employees of the Corporation: (i) an organization and compensation committee, (ii) an audit
committee, (iii) a corporate governance and nominating committee and (iv) a finance committee
(the duties of which shall include, without limitation, the evaluation of any bona fide proposal or
offer from any party (other than the Corporation) that could reasonably be expected to result in, a
major acquisition, disposition, divestiture, sale, merger or similar major transaction, or any
major financing transaction, in each case for recommendation to the full Board of Directors).
(h) In addition to the powers and authority hereinbefore or by statute expressly conferred
upon them, the directors are hereby empowered to exercise all such powers and do all such acts and
things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of
the GCL, this Second Amended and Restated Certificate of Incorporation, and any Bylaws adopted by
the stockholders.
NINTH
: No director shall be personally liable to the Corporation or any of its
stockholders for monetary damages for
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breach of fiduciary duty as a director, except to the extent
such exemption from liability or limitation thereof is not permitted under the GCL as the same
exists or may hereafter be amended. If the GCL is amended hereafter to authorize the further
elimination or limitation of the liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent authorized by the GCL, as so
amended. Any repeal or modification of this Article NINTH by the stockholders of the Corporation
shall not adversely affect any right or protection of a director of the Corporation existing at the time
of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.
TENTH
: The Corporation shall indemnify its directors and officers to the fullest
extent authorized or permitted by law, as now or hereafter in effect, and such right to
indemnification shall continue as to a person who has ceased to be a director or officer of the
Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal
representatives;
provided
,
however
, that, except for proceedings to enforce rights
to indemnification, the Corporation shall not be obligated to indemnify
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any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding
(or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized
or consented to by the Board of Directors. The right to indemnification conferred by this Article
TENTH shall include the right to be paid by the Corporation the expenses incurred in defending or
otherwise participating in any proceeding in advance of its final disposition.
The Corporation may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to employees and agents of the
Corporation similar to those conferred in this Article TENTH to directors and officers of the
Corporation.
The rights to indemnification and to the advance of expenses conferred in this Article TENTH
shall not be exclusive of any other right which any person may have or hereafter acquire under this
Second Amended and Restated Certificate of Incorporation, the Bylaws of the Corporation, any statute, agreement, vote of
stockholders or disinterested directors or otherwise.
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The Corporation may maintain insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or of another corporation or a partnership, joint
venture, limited liability company, trust or other enterprise against any expense, liability or
loss, whether or not the Corporation would have the power to indemnify such person against such
expense, liability or loss under the GCL.
To the fullest extent permitted by Section 122(17) of the GCL, the Corporation, on behalf of
itself and its subsidiaries, renounces any interest or expectancy of the Corporation and its
subsidiaries in, or in being offered an opportunity to participate in, any business opportunity of
any nature or type that is from time to time presented to, or comes to the attention of, any of the
Investors (as such term is defined in the Confirmed Plan) or any of their respective officers,
directors, agents, stockholders, members, partners, affiliates and subsidiaries (other than the
Corporation and its subsidiaries or any of their directors or officers acting as such (to the
extent the business opportunity is brought to such director or officer solely in that capacity)),
even if the opportunity is one that the Corporation or its subsidiaries might reasonably be deemed
to have
30
pursued or had the ability or desire to pursue if granted the opportunity to do so; and no
such person shall be liable to the Corporation or any of its subsidiaries for breach of any
fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such
person pursues or acquires such business opportunity, directs such business opportunity to another
person or fails to present such business opportunity, or
information regarding such business opportunity, to the Corporation or its subsidiaries. Any
person purchasing or otherwise acquiring any interest in any shares of stock of the Corporation
shall be deemed to have notice of and consented to the provisions of this paragraph of this Article
TENTH.
The provisions of this Article TENTH shall be deemed to be a contract right between the
Corporation and each person that is entitled to indemnification or advancement of expenses pursuant
to this Article TENTH at any time while this Article TENTH and relevant provisions of the GCL or
other applicable law are in effect, and any repeal or modification of this Article TENTH or any
such law shall not in any way diminish or adversely affect any rights to indemnification or to the
advancement of expenses of a director or officer of the Corporation existing at the time of such
repeal or
31
modification with respect to any acts, omissions, transactions or facts occurring prior
to such repeal or modification.
ELEVENTH
: Special meetings of the stockholders of the Corporation may be called (i)
by the Board of Directors, (ii) by the Chairman of the Board of Directors, (iii) by the President
or (iv) upon the request of the holders of at least twenty percent (20%) of the voting power of all
shares of capital stock of the Corporation entitled generally to vote on the election of directors
of the Corporation (without reference to any terms of any preferred stock providing for special
voting rights or restrictions with respect to particular matters) (the
Voting Stock
) then
outstanding. The affirmative vote of the holders of a majority of the Voting Stock
shall be required to alter, amend or repeal, or to adopt any provision inconsistent with, this
Article ELEVENTH or Article II, Section 3 of the Bylaws.
TWELFTH
: Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of stockholders of the
Corporation, and the ability of the stockholders to consent in writing to the taking of any action
is hereby specifically denied.
32
THIRTEENTH
: Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept (subject to any
provision contained in the GCL) outside the State of Delaware at such place or places as may be
designated from time to time by the Board of Directors or in the Bylaws of the Corporation.
FOURTEENTH
: In furtherance and not in limitation of the powers conferred upon it by
the laws of the State of Delaware, the Board of Directors shall have the power to adopt, amend,
alter or repeal the Corporations Second Amended and Restated Bylaws (as amended, the
Bylaws
). The affirmative vote of at least a majority of the entire Board of Directors
shall be required to adopt, amend, alter or repeal the Bylaws. The Corporations Bylaws also may
be adopted, amended, altered or repealed by the stockholders of the Corporation.
FIFTEENTH
: The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Second Amended and Restated Certificate of Incorporation in the manner
now or hereafter prescribed in this Second Amended and Restated Certificate of Incorporation, the
Corporations Bylaws or the GCL,
33
and all rights herein conferred upon stockholders are granted subject to such
reservation;
provided
,
however
, that in addition to any other vote of stockholders
(if any) required by law and notwithstanding that a lower vote (or no vote) of stockholders would
otherwise be required, if any provision of this Second Amended and Restated Certificate of
Incorporation other than this Article FIFTEENTH requires a particular vote of stockholders in order
to take the action specified in such provision, then such vote of stockholders shall be required in
order to amend, alter, change or repeal any provision inconsistent with such provision of this
Second Amended and Restated Certificate of Incorporation.
34
EXHIBIT A
Form of Common Stock Legend
The shares of Visteon Corporation Common Stock represented by this Certificate are issued pursuant
to the Fifth Amended Joint Plan of Reorganization for Visteon Corporation, as confirmed by the
United States Bankruptcy Court for the District of Delaware. The transfer of securities
represented hereby is subject to restriction pursuant to Articles FIFTH, SIXTH and SEVENTH of the
Second Amended and Restated Certificate of Incorporation of Visteon Corporation. Visteon
Corporation will furnish a copy of its Second Amended and Restated Certificate of Incorporation to
the holder of record of this Certificate without charge upon written request addressed to Visteon
Corporation at its principal place of business.
EXHIBIT 3.2
FORM OF
SECOND AMENDED AND RESTATED
BYLAWS
of
VISTEON CORPORATION
A Delaware Corporation
TABLE OF CONTENTS
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Page
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ARTICLE I OFFICES
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1
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Section 1.
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Registered Office
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1
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Section 2.
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Other Offices
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1
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ARTICLE II MEETINGS OF STOCKHOLDERS
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1
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Section 1.
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Place of Meetings
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1
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Section 2.
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Annual Meetings
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1
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Section 3.
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Special Meetings
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2
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Section 4.
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Notice of Meetings; Postponement or Cancellation
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3
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Section 5.
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Conduct of Meetings
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5
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Section 6.
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Quorum
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5
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Section 7.
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Proxies
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6
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Section 8.
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Voting
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7
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Section 9.
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Nature of Business at Meetings of Stockholders
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8
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Section 10.
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List of Stockholders Entitled to Vote
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13
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Section 11.
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Stock Ledger
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13
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Section 12.
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Record Date
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13
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Section 13.
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Inspectors of Election
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14
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ARTICLE III DIRECTORS
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15
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Section 1.
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Number and Election of Directors
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15
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Section 2.
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Nomination of Directors
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16
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Section 3.
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Vacancies
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19
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Section 4.
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Duties and Powers
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20
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Section 5.
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Organization
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20
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Section 6.
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Resignations and Removals of Directors
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21
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Section 7.
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Meetings
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21
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Section 8.
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Quorum
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22
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Section 9.
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Actions of Board
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22
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Section 10.
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Meetings by Means of Conference Telephone
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22
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Section 11.
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Committees
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23
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Section 12.
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Compensation
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23
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Section 13.
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Interested Directors
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24
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ARTICLE IV OFFICERS
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25
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Section 1.
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General
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25
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Section 2.
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Election
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25
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Section 3.
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Voting Securities Owned by the Corporation
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25
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Section 4.
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Chairman of the Board of Directors
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26
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Section 5.
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President
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26
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Section 6.
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Vice Presidents
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27
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i
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Page
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Section 7.
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Secretary
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27
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Section 8.
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Treasurer
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28
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Section 9.
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Assistant Secretaries
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29
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Section 10.
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Assistant Treasurers
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29
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Section 11.
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Other Officers
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29
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ARTICLE V STOCK
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30
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Section 1.
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Uncertificated Stock; Form of Certificates
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30
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Section 2.
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Signatures
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30
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Section 3.
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Lost, Destroyed, Stolen or Mutilated Certificates
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30
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Section 4.
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Transfers
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31
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Section 5.
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Transfer and Registry Agents
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32
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Section 6.
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Beneficial Owners
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32
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ARTICLE VI NOTICES
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32
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Section 1.
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Notices
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32
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Section 2.
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Waivers of Notice
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33
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ARTICLE VII GENERAL PROVISIONS
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34
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Section 1.
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Dividends
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34
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Section 2.
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Disbursements
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34
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Section 3.
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Fiscal Year
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34
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Section 4.
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Corporate Seal
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34
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Section 5.
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Form of Records
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35
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ARTICLE VIII INDEMNIFICATION
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35
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Section 1.
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Power to Indemnify in Actions, Suits or Proceedings Other than Those by or in the
Right of the Corporation
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35
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Section 2.
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Power to Indemnify in Actions, Suits or
Proceedings by or in the Right of the Corporation
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36
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Section 3.
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Authorization of Indemnification
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37
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Section 4.
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Good Faith Defined
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38
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Section 5.
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Indemnification by a Court
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38
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Section 6.
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Expenses Payable in Advance
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39
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Section 7.
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Nonexclusivity of Indemnification and Advancement of Expenses
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39
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Section 8.
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Insurance
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40
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Section 9.
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Certain Definitions
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40
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Section 10.
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Survival of Indemnification and Advancement of Expenses
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41
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Section 11.
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Limitation on Indemnification
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41
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Section 12.
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Indemnification of Agents
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41
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ARTICLE IX AMENDMENTS
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42
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Section 1.
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Amendments
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42
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Section 2.
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Entire Board of Directors
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42
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ii
FORM OF
SECOND AMENDED AND RESTATED
BYLAWS
OF
VISTEON CORPORATION
(hereinafter called the Corporation)
ARTICLE I
OFFICES
Section 1.
Registered Office
. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2.
Other Offices
. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the Board of Directors may from time to
time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1.
Place of Meetings
. Meetings of the stockholders for the election
of directors or for any other purpose shall be held at such time and place, either within or
without the State of Delaware, or solely by means of remote communication, as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2.
Annual Meetings
. The annual meetings of stockholders shall be held
on such date and at such time as shall be designated from time to time by the Board of Directors
1
and stated in the notice of the meeting, at which meetings the stockholders shall elect
directors, and transact such other business as may properly be brought before the meeting. Written
notice of the annual meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting.
Section 3.
Special Meetings
. (a) Unless otherwise prescribed by law or by
the certificate of incorporation of the Corporation, as amended and restated from time to time (the
Certificate of Incorporation), special meetings of stockholders, for any purpose or purposes, may
be called only (i) by the Chairman of the Board of Directors, (ii) by the President, (iii) by the
Board of Directors, pursuant to a resolution approved by the Board of Directors, or (iv) by the
Secretary of the Corporation, following his or her receipt of one or more written demands to call a
special meeting of the stockholders in accordance with, and subject to, this Section 3 from
stockholders of record who hold, in the aggregate, at least twenty (20) percent of the voting power
of all shares of capital stock of the Corporation entitled generally to vote on the election of
directors (without reference to any terms of any preferred stock providing for special voting
rights or restrictions with respect to particular matters) then outstanding (the Voting Stock).
Any stockholder seeking to call a special meeting of stockholders shall comply with the notice,
administrative and other requirements of Section 9 of Article II in addition to the other
requirements set forth in this Article II. The provisions set forth in this Section 3 may not be
repealed or amended in any respect or in any manner, including by any merger or consolidation of
the Corporation with any other corporation (other than a Non-Affiliated Transaction), unless the
surviving corporations certificate of incorporation or bylaws contains a provision to the same
effect as this Section 3, except by the affirmative vote of the holders of a majority of the Voting
Stock, subject to the terms of any series of
2
preferred stock that may at the time be outstanding. For the purpose of these Second Amended
and Restated Bylaws, a Non-Affiliated Transaction shall mean a merger or consolidation with a
person or entity that is not an Affiliate (as such term is defined in Section 12b-2 of the
Securities and Exchange Act of 1934, as amended) of the Corporation and which results in either (i)
the Voting Stock of the Corporation outstanding immediately prior thereto representing immediately
thereafter (either by remaining outstanding or by being converted into voting securities of the
surviving or acquiring entity) less than a majority of the combined voting power of the Voting
Stock of the Corporation or such surviving, acquiring or resulting entity outstanding immediately
after such transaction or (ii) a majority of the Corporations directors ceasing to be directors of
the surviving, acquiring or resulting entity after the completion of such transaction.
Section 4.
Notice of Meetings; Postponement or Cancellation
. Written notice of a
meeting of stockholders, stating the place, if any, day and hour of the meeting, the means of
remote communications, if any, by which stockholders and proxy holders may be deemed to be present
in person and vote at such meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called, shall be given, either personally or by mail, by the Corporation
not less than ten (10) calendar days nor more than sixty (60) calendar days before the date of the
meeting to each stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be given when deposited in the United States mail with postage thereon prepaid,
addressed to the stockholder at such persons address as it appears on the stock transfer books of
the Corporation. Without limiting the manner by which notice otherwise may be given effectively to
stockholders, any notice to stockholders given by the Corporation under applicable law, the
Certificate of Incorporation or these Second Amended and Restated By-Laws shall be effective if
given by a form of electronic transmission if consented to by the stockholder to
whom the notice is given. Any such
3
consent shall be revocable by the stockholder by written notice
to the Corporation. Any such consent shall be deemed to be revoked if (a) the Corporation is
unable to deliver by electronic transmission two (2) consecutive notices by the Corporation in
accordance with such consent and (b) such inability becomes known to the Secretary or Assistant
Secretary of the Corporation or to the transfer agent, or other person responsible for the giving
of notice;
provided
,
however
, that the inadvertent failure to treat such inability
as a revocation shall not invalidate any meeting or other action. Notice given by electronic
transmission, as described above, shall be deemed given: (i) if by facsimile telecommunication,
when directed to a number at which the stockholder has consented to receive notice; (ii) if by
electronic mail, when directed to an electronic mail address at which the stockholder has consented
to receive notice; (iii) if by a posting on an electronic network, together with separate notice to
the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of
such separate notice; and (iv) if by any other form of electronic transmission, when directed to
the stockholder. Only such business shall be conducted at a special meeting of stockholders of
which notice (or any supplement thereto) shall have been given in accordance herewith. Any proper
matter for stockholder action may be brought before any meeting of stockholders. Meetings may be
held without notice if all stockholders entitled to vote are present, or if notice is waived in
accordance with Section 2 of Article VI by those not present or not provided notice. Any meeting
of the stockholders of the Corporation, other than a special meeting called at the request of
holders of shares of the Corporation in accordance with Section 3 of this Article II, may be
postponed or cancelled by resolution of the Board of Directors upon public notice given prior to
the date previously scheduled for such meeting of stockholders. A meeting of the stockholders
called at the request of holders of shares in the Corporation in
accordance with Section 3, may not be postponed or cancelled, except with the written consent of
the holders of
4
shares requesting such meeting.
Section 5.
Conduct of Meetings
. The Board of Directors may adopt by resolution
such rules and regulations for the conduct of any meeting of the stockholders as it shall deem
appropriate, which rules and regulations shall not be inconsistent with the Certificate of
Incorporation or these Second Amended and Restated By-Laws. Except to the extent inconsistent with
such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of the
stockholders shall have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the chairman of the meeting, may include, without limitation, the
following: (a) the establishment of an agenda or order of business for the meeting; (b) the
determination of when the polls shall open and close for any given matter to be voted on at the
meeting; (c) rules and procedures for maintaining order at the meeting and the safety of those
present; (d) limitations on attendance at or participation in the meeting to stockholders of record
of the Corporation, their duly authorized and constituted proxies or such other persons as the
chairman of the meeting shall determine; (e) restrictions on entry to the meeting after the time
fixed for the commencement thereof; and (f) limitations on the time allotted to questions or
comments by participants. If the Chairman of the Board of Directors (or, in his absence, the
President) is unable to attend any meeting of stockholders (or if there be no Chairman of the Board
of Directors (or, in his absence, the President)), the stockholders of the Corporation present in
person or by proxy at such meeting shall appoint a chairman for such meeting.
Section 6.
Quorum
. Except as otherwise required by law or by the Certificate
of Incorporation, the holders of a majority of the capital stock issued and outstanding and
entitled to
5
vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business. A quorum, once established,
shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however,
such quorum shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have been transacted at the
meeting as originally noticed. If the adjournment is for more than thirty (30) days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting not less than ten (10)
nor more than sixty (60) days before the date of the meeting.
Section 7.
Proxies
. Any stockholder entitled to vote may do so in person or
by his or her proxy appointed by an instrument in writing subscribed by such stockholder or by his
or her attorney thereunto authorized, delivered to the Secretary of the meeting; provided, however,
that no proxy shall be voted or acted upon after three years from its date, unless said proxy
provides for a longer period. Without limiting the manner in which a stockholder may authorize
another person or persons to act for him or her as proxy, either of the following shall constitute
a valid means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another person or persons to act
for him or her as proxy. Execution may be accomplished by the stockholder
or his or her authorized officer, director, employee or agent signing such writing or
causing
6
his or her signature to be affixed to such writing by any reasonable means,
including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons to act for him or her as
proxy by transmitting or authorizing the transmission of a telegram or other means of
electronic transmission to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly authorized by the
person who will be the holder of the proxy to receive such transmission, provided that any
such telegram or other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the telegram or other
electronic transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission
authorizing another person or persons to act as proxy for a stockholder may be substituted or used
in lieu of the original writing or transmission for any and all purposes for which the original
writing or transmission could be used; provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire original writing or transmission.
Section 8.
Voting
.
(a) At all meetings of the stockholders at which a quorum is present, except as otherwise
required by law, the Certificate of Incorporation or these Second Amended and Restated Bylaws, any
other question brought before any meeting of stockholders (except with respect to the vote for the
election of directors which shall be governed by Section 1 of Article III) shall be decided by the
affirmative vote of the holders of a majority of the total number of votes of the capital stock
present in person or represented by proxy and entitled to vote on such question, voting as a
single class.
7
(b) The Board of Directors, in its discretion, or the chairman of the meeting of stockholders,
in his or her discretion, may require that any votes cast at such meeting shall be cast by written
ballot, which may be deemed satisfied by a ballot submitted by electronic transmission.
Section 9.
Nature of Business at Meetings of Stockholders
. (a) At any meeting
of the stockholders, only such business shall be conducted as shall have been properly brought
before the meeting. To be properly brought before a meeting, business must be (i) brought before
the meeting by the Corporation and specified in the notice of meeting given by or at the direction
of the Board of Directors, (ii) brought before the meeting by or at the direction of the Board of
Directors, or (iii) otherwise properly brought before the meeting by a stockholder who (A) was a
stockholder of record (and, with respect to any beneficial owner, if different, on whose behalf
such business is proposed, only if such beneficial owner was the beneficial owner of shares of the
Corporation) both at the time of giving the notice provided for in this Section 9 and at the time
of the meeting, (B) is entitled to vote at the meeting, and (C) has complied with this Section 9 as
to such business. Except for proposals properly made in accordance with Rule 14a-8 under the
Exchange Act, and included in the notice of meeting given by or at the direction of the Board of
Directors, the foregoing clause (iii) shall be the exclusive means for a stockholder to propose
business to be brought before any meeting of the stockholders. Stockholders seeking to nominate
persons for election to the Board must comply with Section 2 of Article III and this Section 9
shall not be applicable to nominations except as expressly provided in Section 2 of Article III.
(b) Without qualification, for business to be properly brought before an annual meeting by a
stockholder, the stockholder must (i) provide Timely Notice (as defined below) thereof
in writing and in proper form to the Secretary of the Corporation, and (ii) provide any
updates or supplements to such notice at the times and in the forms required by this Section 9. To
be timely, a
8
stockholders notice must be delivered to, or mailed and received at, the principal
executive offices of the Corporation not less than ninety (90) days nor more than one hundred
twenty (120) days prior to the one-year anniversary of the preceding years annual meeting;
provided
,
however
, that if the date of the annual meeting is more than thirty (30)
days before or more than thirty (30) days after such anniversary date, notice by the stockholder to
be timely must be so delivered, or mailed and received, not later than the ninetieth
(90
th
) day prior to such meeting or, if later, the tenth (10
th
) day following
the day on which public disclosure of the date of such meeting was first made (such notice within
such time periods, Timely Notice). Notwithstanding the preceding sentence, for purposes of
determining whether a stockholders notice is Timely Noticed, for the annual meeting of
stockholders in 2011, the stockholders notice must have been received no later than March 1, 2011.
Subject to the information requirements of this Section 9, any special meeting called by
stockholders pursuant to Section 3 shall be preceded by a notice of such stockholders to the
Secretary, which shall be delivered to, or mailed and received at, the principal executive offices
of the Corporation not less than ninety (90) days or more than one hundred twenty (120) days prior
to the date specified in such notice for such special meeting. The date for such
stockholder-called special meeting shall be as specified in such notice and the location shall be
as determined by the Board of Directors. In no event shall any adjournment of a meeting or the
announcement thereof commence a new time period for the giving of Timely Notice as described above.
(c) To be in proper form for purposes of this Section 9, a stockholders notice to the
Secretary shall set forth:
(i) As to each Proposing Person (as defined below), (A) the name and address of such
Proposing Person (including, if applicable, the name and address that appear on the
Corporations books and records); and (B) the class or series and number of shares of
9
the
Corporation that are, directly or indirectly, owned of record or beneficially owned (within
the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Persons (the disclosures
to be made pursuant to the foregoing clauses (A) and (B) are referred to as Stockholder
Information);
(ii) As to each Proposing Person, any information relating to such Proposing Person
that would be required to be disclosed in a proxy statement or other filing required to be
made in connection with solicitations of proxies or consents by such Proposing Person in
support of the business proposed to be brought before the meeting pursuant to Section 14(a)
of the Exchange Act (the disclosures to be made pursuant to the foregoing clause are
referred to as Disclosable Interests); provided, however, that Disclosable Interests shall
not include any such disclosures with respect to the ordinary course business activities of
any broker, dealer, commercial bank, trust company or other nominee who is a Proposing
Person solely as a result of being the stockholder directed to prepare and submit the notice
required by these Second Amended and Restated Bylaws on behalf of a beneficial owner;
(iii) As to each item of business that the stockholder proposes to bring before the
meeting, (A) a reasonably brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and any material interest
in such business of each Proposing Person, (B) the text of the proposal or business
(including the text of any resolutions proposed for consideration), and (C) a reasonably
detailed description of all agreements, arrangements and understandings (x) between or
among any of the Proposing Persons or (y) between or among any Proposing Person and any
10
other person or entity (including their names) in connection with the proposal of such
business by such stockholder; and
(iv) As to each Proposing Person, a representation that such Proposing Person intends
to appear in person or by proxy at the meeting to bring such business before the meeting.
For purposes of this Section 9, the term Proposing Person shall mean (i) the stockholder
providing the notice of business proposed to be brought before a meeting and (ii) the beneficial
owner or beneficial owners, if different, on whose behalf the notice of the business proposed to be
brought before the meeting is made.
(d) A stockholder providing notice of business proposed to be brought before a meeting shall
further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 9 shall be true and correct as of
the record date for the meeting and as of the date that is ten (10) business days prior to the
meeting or any adjournment or postponement thereof, and such update and supplement shall be
delivered to, or mailed and received by, the Secretary at the principal executive offices of the
Corporation not later than five (5) business days after the record date for the meeting (in the
case of the update and supplement required to be made as of the record date), and not later than
eight (8) business days prior to the date for the meeting, if practicable (or, if not practicable,
on the first practicable date prior to) any adjournment or postponement thereof (in the case of the
update and supplement required to be made as of ten (10) business days prior to the meeting or any
adjournment or postponement thereof).
(e) Notwithstanding anything in these Second Amended and Restated Bylaws to the contrary, no
business shall be conducted at any meeting except in accordance with this Section 9;
11
provided,
however, that once business has been properly brought before a meeting, nothing in this Section 9
shall be deemed to preclude discussion by any stockholder of such business. The chairman of the
meeting shall, if the facts warrant, determine that the business was not properly brought before
the meeting in accordance with this Section 9, and if he or she should so determine, he or she
shall so declare to the meeting and any such business not properly brought before the meeting shall
not be transacted; provided, that any stockholder proposing to bring any such business before any
such meeting is informed of any deficiency in such procedures as soon as practicable and given a
reasonably opportunity to cure any such deficiency.
(f) This Section 9 is expressly intended to apply to any business proposed to be brought
before any meeting of stockholders other than any proposal made pursuant to Rule 14a-8 under the
Exchange Act. In addition to the requirements of this Section 9 with respect to any business
proposed to be brought before a meeting, each Proposing Person shall comply with all applicable
requirements of the Exchange Act with respect to any such business. Nothing in this Section 9
shall be deemed to affect the rights of stockholders to request inclusion of proposals in the
Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(g) For purposes of these Second Amended and Restated Bylaws, public disclosure shall mean
disclosure in a press release reported by a national news service or in a document publicly filed
by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d)
of the Exchange Act.
(h) The provisions set forth in this Section 9 may not be repealed or amended in any respect
or in any manner, including by any merger or consolidation of the Corporation with any
other corporation (other than a Non-Affiliated Transaction), unless the surviving
corporations certificate of incorporation or bylaws contains a provision to the same effect as
this Section 9, except
12
by the affirmative vote of the holders of a majority of the Voting Stock,
subject to the terms of any series of preferred stock that may at the time be outstanding.
Section 10.
List of Stockholders Entitled to Vote
. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting, for a period of at
least ten (10) days prior to the meeting: (a) on a reasonably accessible electronic network,
provided that the information required to gain access to such list is provided with the notice of
meeting. The list shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder of the Corporation who is present.
Section 11.
Stock Ledger
. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock ledger, the list
required by Section 9 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of stockholders
Section 12.
Record Date
. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date,
which
record date shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors and which record date: (1) in the case of determination of
stockholders
13
entitled to vote at any meeting of stockholders or adjournment thereof, shall not be
more than sixty (60) nor less than ten (10) days before the date of such meeting; and (2) in the
case of any other action, shall not be more than sixty (60) days prior to such other action. If no
record date is fixed: (1) the record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; and (2) the record date for determining
stockholders for any other purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 13.
Inspectors of Election
. In advance of any meeting of
stockholders, the Board by resolution or the Chairman or President shall appoint one or more
inspectors of election to act at the meeting and make a written report thereof. One or more other
persons may be designated as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is present, ready and willing to act at a meeting of stockholders, the
Chairman of the meeting shall appoint one or more inspectors to act at the meeting. Unless
otherwise required by law, inspectors may be officers, employees or agents of the Corporation.
Each inspector, before entering upon the discharge of his or her duties, shall take and sign an
oath faithfully to execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspector shall have the duties prescribed by law and shall take
charge of the polls and, when the
vote is completed, shall make a certificate of the result of the vote taken and of such other
facts as may be required by law.
14
ARTICLE III
DIRECTORS
Section 1.
Number and Election of Directors
. (a) The Board of Directors shall consist of not
less than three (3) nor more than fifteen (15) members, the exact number of which shall be
determined from time to time by resolution adopted by the Board of Directors; provided, however,
that the number of directors initially shall be nine (9) and shall consist of the nine (9)
individuals (such individuals comprising the Initial Board) selected pursuant to the Board
Selection Term Sheet that is part of the Joint Plan of Reorganization of the Corporation confirmed
by an order dated August 31, 2010, of the United States Bankruptcy Court for the District of
Delaware (including any supplements thereto) (as may be amended, supplemented or otherwise modified
from time to time, the Plan). To the extent that not all nine (9) members of the Initial Board
are so selected prior to the effective date of the Plan, such resulting vacancies on the Initial
Board shall be filled subsequent to the effective date of the Plan in accordance with the Board
Selection Term Sheet. Except as provided in Section 1 or Section 3 of this Article III, directors
shall be elected by the stockholders at the annual meeting of stockholders or at a special meeting
of stockholders called for such purpose. A plurality of the votes cast in favor of a nominee at
any such meeting shall be required for, and sufficient to, elect a director. Directors need not be
stockholders.
(b) Each director on the Initial Board (and any directors elected to fill vacancies or newly
created directorships following the effective date of the Plan and prior to the annual meeting of
stockholders of the Corporation to be held in 2011) shall serve until the annual meeting of
stockholders of the Corporation to be held in 2011 (which shall be held not later than June 30,
2011), subject to such directors earlier death, resignation or removal. At each annual meeting of
15
stockholders thereafter, all directors shall be elected for terms expiring at the next annual
meeting of stockholders and until such directors successors shall have been elected and qualified.
Section 2.
Nomination of Directors
. (a) Nominations of any person for election to the Board
of Directors at an annual meeting or at a special meeting (but only if the election of directors is
a matter specified in the notice of meeting given by or at the direction of the person calling such
special meeting) may be made at such meeting only (i) by or at the direction of the Board of
Directors, including by any committee or persons appointed by the Board of Directors, or (ii) by a
stockholder who (A) was a stockholder of record (and, with respect to any beneficial owner, if
different, on whose behalf such nomination is proposed to be made, only if such beneficial owner
was the beneficial owner of shares of the Corporation) both at the time of giving the notice
provided for in this Section 2 and at the time of the meeting, (B) is entitled to vote at the
meeting, and (C) has complied with this Section 2 as to such nomination. The foregoing clause (ii)
shall be the exclusive means for a stockholder to make any nomination of a person or persons for
election to the Board of Directors at an annual meeting or special meeting.
(b) Without qualification, if the election of directors is a matter specified in the notice of
meeting given by or at the direction of the person calling such meeting, then for a stockholder to
make any nomination of a person or persons for election to the Board of Directors at a meeting, the
stockholder must (i) provide timely notice thereof in writing and in proper form to the Secretary
of the Corporation at the principal executive offices of the Corporation, and (ii) provide any
updates or supplements to such notice at the times and in the forms required by this Section 2. To
be timely, a stockholders notice for nominations to be made at a meeting must be delivered to, or
mailed and received at, the principal executive offices of the Corporation not earlier than the one
hundred twentieth (120
th
) day prior to such meeting and not later than the ninetieth
(90
th
) day prior to
16
such meeting or, if later, the tenth (10
th
) day following the day on which public
disclosure (as defined in Section 9 of Article II) of the date of such meeting was first made. In
no event shall any adjournment of a meeting or the announcement thereof commence a new time period
for the giving of a stockholders notice as described above.
(c) To be in proper form for purposes of this Section 2, a stockholders notice to the
Secretary shall set forth the following:
(i) As to each Nominating Person (as defined below), the Stockholder Information (as
defined in Section 9(c)(i) of Article II, except that for purposes of this Section 2 the
term Nominating Person shall be substituted for the term Proposing Person in all places
it appears in Section 9(c)(i) of Article II);
(ii) As to each Nominating Person, any Disclosable Interests (as defined in Section
9(c)(ii) of Article II, except that for purposes of this Section 2 the term
Nominating Person shall be substituted for the term Proposing Person in all
places it appears in Section 9(c)(ii) of Article II); and
(iii) As to each person whom a Nominating Person proposes to nominate for election as a
director, (A) all information with respect to such proposed nominee that would be required
to be set forth in a stockholders notice pursuant to this Section 2 if such proposed
nominee were a Nominating Person, (B) all information relating to such proposed nominee that
is required to be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors in a contested election
pursuant to Section 14(a) under the Exchange Act (including such proposed nominees written
consent to being named in the proxy statement as a nominee and to serving as a director if
elected) and (C) a description of all direct and indirect compensation and
17
other material monetary agreements, arrangements and understandings during the past
three years, and any other material relationships, between or among any Nominating Person,
on the one hand, and each proposed nominee, his or her respective affiliates and associates,
on the other hand, including, without limitation, all information that would be required to
be disclosed pursuant to Item 404 under Regulation S-K if such Nominating Person were the
registrant for purposes of such rule and the proposed nominee were a director or executive
officer of such registrant.
For purposes of this Section 2, the term Nominating Person shall mean (i) the stockholder
providing the notice of the nomination proposed to be made at the meeting and (ii) the beneficial
owner or beneficial owners, if different, on whose behalf the notice of the nomination proposed to
be made at the meeting is made.
(d) A stockholder providing notice of any nomination proposed to be made at a meeting shall
further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 2 shall be true and correct as of
the record date for the meeting and as of the date that is ten (10) business days prior to the
meeting or any adjournment or postponement thereof, and such update and supplement shall be
delivered to, or mailed and received by, the Secretary at the principal executive offices of the
Corporation not later than five (5) business days after the record date for the meeting (in the
case of the update and supplement required to be made as of the record date), and not later than
eight (8) business days prior to the date for the meeting, if practicable (or, if not practicable,
on the first practicable date prior to) any adjournment or postponement thereof (in the case of the
update and supplement required to be made as often (10) business days prior to the meeting or any
adjournment or postponement thereof).
18
(e) Notwithstanding anything in these Second Amended and Restated Bylaws to the contrary, no
person shall be eligible for election as a director of the Corporation unless nominated in
accordance with this Section 2. The chairman of the meeting shall, if the facts warrant, determine
that a nomination was not properly made in accordance with this Section 2, and if he or she should
so determine, he or she shall so declare such determination to the meeting and the defective
nomination shall be disregarded; provided, that any Nominating Person is informed of any deficiency
in such nomination procedures as soon as practicable and given a reasonably opportunity to cure any
such deficiency.
(f) To be eligible to be a nominee for election as a director of the Corporation, the proposed
nominee must deliver (in accordance with the time periods prescribed for delivery of notice under
this Section 2) to the Secretary at the principal executive offices of the Corporation a written
consent to being named as a nominee and to serve as a director if elected.
(g) In addition to the requirements of this Section 2 with respect to any nomination proposed
to be made at a meeting, each Nominating Person shall comply with all applicable requirements of
the Exchange Act with respect to any such nominations.
(h) The provisions set forth in this Section 2 may not be repealed or amended in any respect
or in any manner, including by any merger or consolidation of the Corporation with any other
corporation (other than a Non-Affiliated Transaction), unless the surviving corporations
certificate of incorporation or bylaws contains a provision to the same effect as this Section 2,
except by the affirmative vote of the holders of a majority of the Voting Stock, subject to the
terms of any series of preferred stock that may at the time be outstanding.
Section 3.
Vacancies
. Subject to the terms of any one or more classes or series of preferred
stock, any vacancy on the Board of Directors that results from an increase in the
19
number of directors may be filled by a majority of the directors then in office, provided that a quorum
is present, and any other vacancy occurring on the Board of Directors that is not filled by
stockholders in accordance with Section 6 of this Article III may be filled by a majority of the
Board of Directors then in office, even if less than a quorum, or by a sole remaining director.
Notwithstanding the foregoing, (i) any vacancies on the Initial Board occurring as of the effective
date of the Plan shall be filled in accordance with the Board Selection Term Sheet and (ii)
whenever the holders of any one or more class or classes or series of preferred stock of the
Corporation shall have the right, voting separately as a class, to elect directors at an annual or
special meeting of stockholders, the election, term of office, removal, filling of vacancies and
other features of such directorships shall be governed by the Certificate of Incorporation.
Section 4.
Duties and Powers
. The business of the Corporation shall be managed by or under
the direction of the Board of Directors which may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or
by these Second Amended and Restated Bylaws required to be exercised or done by the stockholders.
Section 5.
Organization
. At each meeting of the Board of Directors, the Chairman of the Board
of Directors, or, in his or her absence, a director chosen by a majority of the directors present,
shall act as Chairman. The Secretary of the Corporation shall act as Secretary at each meeting of
the Board of Directors. In case the Secretary shall be absent from any meeting of the Board of
Directors, an Assistant Secretary shall perform the duties of Secretary at such meeting; and in the
absence from any such meeting of the Secretary and all the Assistant Secretaries, the Chairman of
the meeting may appoint any person to act as Secretary of the meeting.
20
Section 6.
Resignations and Removals of Directors
. Any director of the Corporation may resign
at any time, by giving written notice to the Chairman of the Board of Directors, the President or
the Secretary of the Corporation. Such resignation shall take effect at the time therein specified
or, if no time is specified, immediately; and, unless otherwise specified in such notice, the
acceptance of such resignation shall not be necessary to make it effective. Except as otherwise
required by law and subject to the rights, if any, of the holders of shares of preferred stock then
outstanding, any director or the entire Board of Directors may be removed from office at any time,
with or without cause. Except as otherwise prohibited by laws, the stockholders may remove any
director and fill any vacancy on the Board of Directors created by such removal; provided, that
whenever any director shall have been elected by the holders of any class or series of stock of the
Corporation voting separately as a class or series under the provisions of the Certificate of
Incorporation, such director may be removed and the vacancy filled only by the holders of that
class or series of stock. The provisions set forth in this Section 6 may not be repealed or
amended in any respect or in any manner, including by any merger or consolidation of the
Corporation with any other corporation (other than a Non-Affiliated Transaction), unless the
surviving corporations certificate of incorporation or bylaws contains a provision to the same
effect as this Section 6, except by the affirmative vote of the holders of a majority of the Voting
Stock, subject to the terms of any series of preferred stock that may at the time be outstanding.
Section 7.
Meetings
. The Board of Directors may hold meetings, both regular and special,
either within or without the State of Delaware. Regular meetings of the Board of Directors may be
held at such time and at such place as may from time to time be determined by the Board of
Directors and, unless required by resolution of the Board of Directors, without notice. Special
meetings of the Board of Directors may be called by the Chairman of the Board of Directors,
21
the Vice Chairman, if there be one, or any three (3) directors then in office. Upon request by
the person or persons authorized to call a special meeting, the Secretary shall give any required
notice for the meeting. Notice thereof stating the place, date and hour of the meeting shall be
given to each director either by mail not less than forty-eight (48) hours before the date of the
meeting, by telephone, facsimile or any other form of electronic transmission consented to by the
director on twenty-four (24) hours notice, or on such shorter notice as the person or persons
calling such meeting may deem necessary or appropriate in the circumstances.
Section 8.
Quorum
. Except as may be otherwise required by law, the Certificate of
Incorporation or these Second Amended and Restated Bylaws, at all meetings of the Board of
Directors, a majority of the entire Board of Directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting of the time and place of the
adjourned meeting, until a quorum shall be present.
Section 9.
Actions of Board
. Unless otherwise provided by the Certificate of Incorporation or
these Second Amended and Restated Bylaws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if
all the members of the Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 10.
Meetings by Means of Conference Telephone
. Unless otherwise provided by the
Certificate of Incorporation or these Second Amended and Restated Bylaws,
22
members of the Board of Directors, or any committee designated by the Board of Directors, may participate in
a meeting of the Board of Directors or such committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant to this Section 9 shall constitute presence in
person at such meeting.
Section 11.
Committees
. The Board of Directors may, by resolution passed by a majority of the
entire Board of Directors, designate one or more committees, each committee to consist of one or
more of the directors of the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or disqualified member
at any meeting of any such committee. In the absence or disqualification of a member of a
committee, and in the absence of a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the place of any absent
or disqualified member. Any committee, to the extent permitted by law and provided in the
resolution establishing such committee, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the Corporation. Each
committee shall keep regular minutes and report to the Board of Directors when required.
Section 12.
Compensation
. The directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting
of the Board of Directors or a stated salary, or such other emoluments as the Board of Directors
shall from time to time determine. No such payment shall preclude any director from
23
serving the Corporation in any other capacity and receiving compensation therefor. Members of
special or standing committees may be allowed like compensation for attending committee meetings.
Section 13.
Interested Directors
. No contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or transaction, or solely
because such persons or their votes are counted for such purpose if (i) the material facts as to
such persons or their relationship or interest and as to the contract or transaction are disclosed
or are known to the Board of Directors or the committee, and the Board of Directors or committee in
good faith authorizes the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the
material facts as to such persons or their relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the stockholders; or
(iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common
or interested directors may be counted in determining the presence of a quorum at a meeting of the
Board of Directors or of a committee which authorizes the contract or transaction.
24
ARTICLE IV
OFFICERS
Section 1.
General
. The officers of the Corporation shall be chosen by the Board of Directors
and shall be a President, a Secretary and a Treasurer. The Board of Directors, in its discretion,
may also choose a Chairman of the Board of Directors (who must be a director) and one or more Vice
Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices
may be held by the same person, unless otherwise prohibited by law, the Certificate of
Incorporation or these Second Amended and Restated Bylaws. The officers of the Corporation need
not be stockholders of the Corporation nor, except in the case of the Chairman of the Board of
Directors, need such officers be directors of the Corporation.
Section 2.
Election
. The Board of Directors at its meeting held on the date of each Annual
Meeting of Stockholders shall elect the officers of the Corporation who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall be determined from
time to time by the Board of Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation or removal. Any
officer elected by the Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall
be filled by the Board of Directors.
Section 3.
Voting Securities Owned by the Corporation
. Powers of attorney, proxies, waivers
of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the President or any
Vice President and any such officer may, in the name of and on behalf of the Corporation, take all
such action as any such officer may deem advisable to vote in person or by proxy at any meeting
25
of security holders of any corporation in which the Corporation may own securities and at any
such meeting shall possess and may exercise any and all rights and power incident to the ownership
of such securities and which, as the owner thereof, the Corporation might have exercised and
possessed if present. The Board of Directors may, by resolution, from time to time confer like
powers upon any other person or persons.
Section 4.
Chairman of the Board of Directors
. The Chairman of the Board of Directors, if
there be one, shall preside at all meetings of the stockholders and of the Board of Directors.
Except where by law the signature of the President is required, the Chairman of the Board of
Directors shall possess the same power as the President to sign all contracts, certificates and
other instruments of the Corporation which may be authorized by the Board of Directors. During the
absence or disability of the President, the Chairman of the Board of Directors shall exercise all
the powers and discharge all the duties of the President. The Chairman of the Board of Directors
shall also perform such other duties and may exercise such other powers as from time to time may be
assigned to him or her by these Second Amended and Restated Bylaws or by the Board of Directors.
Section 5.
President
. The President shall, subject to the control of the Board of Directors
and, if there be one, the Chairman of the Board of Directors, have general supervision of the
business of the Corporation and shall see that all orders and resolutions of the Board of Directors
are carried into effect. In the absence of the Chairman of the Board of Directors, or if there be
none, the President shall preside at all meetings of the stockholders. The President shall execute
all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under
the seal of the Corporation, except where required or permitted by law to be otherwise signed and
executed and except that the other officers of the Corporation may sign and execute documents when
so authorized by these Second Amended and Restated Bylaws, the Board of Directors or the President.
26
In the absence or disability of the Chairman of the Board of Directors, or if there be none,
the President shall preside at all meetings of the stockholders and the Board of Directors. The
President shall also perform such other duties and may exercise such other powers as from time to
time may be assigned to him or her by these Second Amended and Restated Bylaws or by the Board of
Directors.
Section 6.
Vice Presidents
. At the request of the President or in his or her absence or in
the event of his or her inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President or the Vice Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there be no Chairman of the Board of Directors and
no Vice President, the Board of Directors shall designate the officer of the Corporation who, in
the absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President.
Section 7.
Secretary
. The Secretary shall attend all meetings of the Board of Directors and
all meetings of stockholders and record all the proceedings thereat in a book or books to be kept
for that purpose; the Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform such other duties as
may be prescribed by the Board of Directors or President, under whose supervision the Secretary
shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the Board of Directors, and if there be no
Assistant
27
Secretary, then either the Board of Directors or the President may choose another officer to cause such
notice to be given. The Secretary shall have custody of the seal of the Corporation and the
Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to
any instrument requiring it and when so affixed, it may be attested by the signature of the
Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and to attest the
affixing by his or her signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
Section 8.
Treasurer
. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of the office of Treasurer and for the
restoration to the Corporation, in case of the Treasurers death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of whatever kind in
the Treasurers possession or under control of the Treasurer belonging to the Corporation.
28
Section 9.
Assistant Secretaries
. Except as may be otherwise provided in these Second Amended
and Restated Bylaws, Assistant Secretaries, if there be any, shall perform such duties and have
such powers as from time to time may be assigned to them by the Board of Directors, the President,
any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in
the event of his or her disability or refusal to act, shall perform the duties of the Secretary,
and when so acting, shall have all the powers of and be subject to all the restrictions upon the
Secretary.
Section 10.
Assistant Treasurers
. Assistant Treasurers, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Board of Directors,
the President, any Vice President, if there be one, or the Treasurer, and in the absence of the
Treasurer or in the event of the Treasurers disability or refusal to act, shall perform the duties
of the Treasurer, and when so acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer
shall give the Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the duties of the office of
Assistant Treasurer and for the restoration to the Corporation, in case of the Assistant
Treasurers death, resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in the Assistant Treasurers possession or under control
of the Assistant Treasurer belonging to the Corporation.
Section 11.
Other Officers
. Such other officers as the Board of Directors may choose shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors. The Board of Directors may delegate to any other officer of the
29
Corporation the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1.
Uncertificated Stock; Form of Certificates
. Except as otherwise provided in a
resolution approved by the Board of Directors, all shares of stock of the Corporation issued after
the date hereof shall be uncertificated shares of stock. In the event the Board of Directors
elects to provide in a resolution that certificates shall be issued to represent any shares of
stock of the Corporation, every holder of stock in the Corporation shall be entitled to have a
certificate signed, in the name of the Corporation, (i) by the Chairman of the Board of Directors,
the President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by
such holder of stock in the Corporation.
Section 2.
Signatures
. Any or all of the signatures on a certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
Section 3.
Lost, Destroyed, Stolen or Mutilated Certificates
. The Board of Directors may
direct a new certificate to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a
condition
30
precedent to the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or such persons legal representative, to advertise the same in such manner as the
Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 4.
Transfers
. Stock of the Corporation shall be transferable in the manner prescribed
by law and in these Second Amended and Restated Bylaws. Transfers of stock shall be made on the
books of the Corporation only by the person named in the certificate or on the books of the
Corporation (in the case of uncertificated stock) or by such persons attorney lawfully constituted
in writing. No transfer of stock of the Corporation shall be valid until such transfer has been
entered on the books of the Corporation by an entry showing from and to whom such stock is
transferred, and (i) if the stock is certificated, the transfer shall not be valid until and upon
the surrender of the certificate, duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, to the Corporation or the transfer agent of the Corporation
and cancellation of the certificate representing the same or (ii) if the stock is uncertificated,
the transfer shall not be valid unless accompanied by a duly executed stock transfer power or other
proper transfer instructions from the registered owner of such uncertificated shares of stock.
Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for
shares of stock of the Corporation duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, the Corporation shall cancel the old certificate and issue a
new certificate, if the stock is to be certificated, to the person or persons entitled thereto,
unless such person or persons requests, in writing to the Corporation or the transfer agent, that
such shares be uncertificated.
31
Section 5.
Transfer and Registry Agents
. The Corporation may from time to time maintain one
or more transfer offices or agencies and registry offices or agencies at such place or places as
may be determined from time to time by the Board of Directors.
Section 6.
Beneficial Owners.
The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1.
Notices
. Whenever written notice is required by law, the Certificate of
Incorporation or these Second Amended and Restated Bylaws, to be given to any director, member of a
committee or stockholder, such notice may be given by mail, addressed to such director, member of a
committee or stockholder, at such persons address as it appears on the records of the Corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may also be given personally, by
facsimile or by any other form of electronic transmission consented to by the director or
stockholder to whom the notice is given, in accordance with applicable law. Notice to directors
may also be given by telephone. Without limiting the manner by which notice otherwise may be given
effectively to stockholders, and except as prohibited by applicable law, any notice given by the
Corporation under any provision of applicable law, the Certificate of Incorporation, or these
Second Amended and Restated Bylaws shall be effective if given by a single
32
written notice to stockholders who share an address if consented to by the stockholders at that address to whom such
notice is given. Any such consent shall be revocable by the stockholder by written notice to the
Corporation. Any stockholder who fails to object in writing to the Corporation, within sixty (60)
days of having been given written notice by the Corporation of its intention to send the single notice
permitted under this Section 1 of Article VI, shall be deemed to have consented to receiving such
single written notice.
Section 2.
Waivers of Notice
.
(a) Except as otherwise specifically permitted by these Second Amended and Restated Bylaws,
whenever any notice is required by law, the Certificate of Incorporation or these Second Amended
and Restated Bylaws, to be given to any director, member of a committee or stockholder, a waiver
thereof in writing, signed, by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting, present by person or represented by proxy, shall constitute a waiver of notice of such
meeting, except where the person attends the meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting is not lawfully
called or convened.
(b) Neither the business to be transacted at, nor the purpose of, any regular or special
meeting of the stockholders, directors or members of a committee of directors need be specified in
any written waiver of notice unless so required by law, the Certificate of Incorporation or these
Second Amended and Restated Bylaws.
33
ARTICLE VII
GENERAL PROVISIONS
Section 1.
Dividends
. Subject to the requirements of the GCL and the provisions of the
Certificate of Incorporation, dividends upon the capital stock of the Corporation may be declared
by the Board of Directors at any regular or special meeting of the Board of Directors, and may be
paid in cash, in property, or in shares of the Corporations capital stock. Before payment of any
dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a
reserve or reserves to meet contingencies, or for purchasing any of the shares of capital stock,
warrants, rights, options, bonds, debentures, notes, scrip or other securities or evidences of
indebtedness of the Corporation, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for any other proper purpose, and the Board of Directors may modify
or abolish any such reserve.
Section 2.
Disbursements
. All checks or demands for money and notes of the Corporation shall
be signed by such officer or officers or such other person or persons as the Board of Directors may
from time to time designate.
Section 3.
Fiscal Year
. The fiscal year of the Corporation shall be fixed by resolution of
the Board of Directors.
Section 4.
Corporate Seal
. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words Corporate Seal, Delaware. The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
34
Section 5.
Form of Records
. Any records maintained by the Corporation in the regular course
of its business, including its stock ledger, books of account, and minute books, may be kept on, or
by means of, or be in the form of, any information storage device or method, provided that the
records so kept can be converted into clearly legible paper form within a reasonable time.
ARTICLE VIII
INDEMNIFICATION
Section 1.
Power to Indemnify in Actions, Suits or Proceedings Other than Those by or in the
Right of the Corporation
. (a)Subject to Section 3 of this Article VIII, the Corporation, to the
fullest extent permitted and in the manner required, by the laws of the State of Delaware as in
effect from time to time shall indemnify in accordance with the following provisions of this
Article VIII, any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (including any appeal thereof), whether
civil, criminal, administrative, regulatory or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that such person is or was a director, officer,
executive or managerial employee of the Corporation, or is or was serving at the request of, or to
serve the interests of, the Corporation as a director, officer, partner, member, trustee,
fiduciary, executive, managerial employee or agent of another corporation, partnership, joint
venture, limited liability company, trust, employee benefit plan or other enterprise, including any
charitable or not for profit public service organization or trade association (an Affiliated
Entity), against expenses (including attorneys fees and disbursements), judgments, fines,
penalties and amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good faith and in a manner
such person reasonably believed to be in or not
35
opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, such person had no reasonable cause to
believe his or her conduct was unlawful; provided, however, that the Corporation shall not be
obligated to indemnify against any amount paid in settlement unless the Corporation has consented
to such settlement. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that such person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
(b) The Corporation may indemnify any employee or agent of the Corporation in the manner and
to the same or a lesser extent that it shall indemnify any director, officer, executive or
managerial employee under Section 1(a) of this Article VIII.
Section 2.
Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation
. (a) Subject to Section 3 of this Article VIII, the Corporation, to the fullest extent
permitted and in the manner required, by the laws of the State of Delaware as in effect from time
to time shall indemnify in accordance with the following provisions of this Article VIII, any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit (including any appeal thereof) by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that such person is or was a director,
officer, executive or managerial employee of the Corporation, or is or was serving at the request
of, or to serve the interests of, the Corporation as a director, officer, partner, member, trustee,
fiduciary, executive, managerial employee or agent of an Affiliated Entity against expenses
(including attorneys fees and disbursements) actually and reasonably incurred by such person in connection
36
with such action or suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the Corporation; except that
no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem
proper.
(b) The Corporation may indemnify any employee or agent of the Corporation in the manner and
to the same or a lesser extent that it shall indemnify any director, officer, executive or
managerial employee under Section 2(a) of this Article VIII.
Section 3.
Authorization of Indemnification
. Any indemnification under this Article VIII
(unless ordered by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer or employee is proper in
the circumstances because such person has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be made
(a) by a majority vote of the directors who are not parties to such action, suit or proceeding,
even though less than a quorum, or by majority vote of the members of a committee of the Board of
Directors composed of at least three (3) members each of whom is not a party to such action, suit
or proceeding; (b) if there are no such directors, or if such committee is not established or
obtainable, or if such directors so direct, by independent legal counsel in a written opinion; or
(c) by the stockholders. To the extent, however, that a director, officer or employee of the
Corporation has been successful on the merits or otherwise in defense of any action, suit or
proceeding described in
37
Section 1 or Section 2 of this Article VIII, or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses (including attorneys
fees and disbursements) actually and reasonably incurred by such person in connection therewith,
without the necessity of authorization in the specific case.
Section 4.
Good Faith Defined
. For purposes of any determination under Section 3 of this
Article VIII, a person shall be deemed to have acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the Corporation, or, with
respect to any criminal action or proceeding, to have had no reasonable cause to believe his or her
conduct was unlawful, if such persons action is based on the records or books of account of the
Corporation or an Affiliated Entity, or on information supplied to such person by the officers of
the Corporation or an Affiliated Entity in the course of their duties, or on the advice of legal
counsel for the Corporation or an Affiliated Entity or on information or records given or reports
made to the Corporation or an Affiliated Entity by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the Corporation or an Affiliated
Entity. The provisions of this Section 4 shall not be deemed to be exclusive or to limit in any
way the circumstances in which a person may be deemed to have met the applicable standard of
conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 5.
Indemnification by a Court
. Notwithstanding any contrary determination in the
specific case under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director, officer, executive or managerial employee may apply to the
Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the
State of Delaware for indemnification to the extent otherwise permissible under Sections 1 and 2 of
this Article VIII. The basis of such indemnification by a court shall be a
38
determination by such court that indemnification of the director, officer, executive or managerial employee is proper in
the circumstances because such person has met the applicable standards of conduct set forth in
Sections 1 or 2 of this Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the director, officer,
executive or managerial employee seeking indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification pursuant to this Section 5 shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the director,
officer, executive or managerial employee seeking indemnification shall also be entitled to be paid
the expense of prosecuting such application.
Section 6.
Expenses Payable in Advance
. Expenses incurred by a director, officer, executive
or managerial employee in defending or investigating a threatened or pending action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such director, officer,
executive or managerial employee to repay such amount if it shall ultimately be determined that
such person is not entitled to be indemnified by the Corporation as authorized in this Article
VIII.
Section 7.
Nonexclusivity of Indemnification and Advancement of Expenses
. The indemnification
and advancement of expenses provided by or granted pursuant to this Article VIII shall not be
deemed exclusive of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under the Certificate of Incorporation or any Bylaw, agreement, contract,
vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied)
of any court of competent jurisdiction or otherwise, both as to action in such persons official
capacity and as to action in another capacity while holding such
39
office, it being the policy of the
Corporation that indemnification of the persons specified in Section 1 and Section 2 of this
Article VIII shall be made to the fullest extent permitted by law. The provisions of this Article
VIII shall not be deemed to preclude the indemnification of any person who is not specified in
Section 1 or Section 2 of this Article VIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the GCL, or otherwise.
Section 8.
Insurance
. The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or of another corporation or
a partnership, joint venture, limited liability company, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the GCL.
Section 9.
Certain Definitions
. For purposes of this Article VIII, references to the
Corporation shall include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to indemnify its directors,
officers, executives and managerial employees, so that any person who is or was a director,
officer, executive or managerial employee of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer, executive or managerial
employee of another corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, including any charitable or not for profit public service or organization or trade
association, shall stand in the same position under the provisions of this Article VIII with
respect to the resulting or surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued. For purposes of this Article
VIII, references to fines shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and
40
references to serving at the request of the Corporation shall include
any service as a director, officer, executive, managerial employee or agent of the Corporation
which imposes duties on, or involves services by, such director, officer, executive, managerial
employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner not opposed to the best interests of
the Corporation as referred to in this Article VIII.
Section 10.
Survival of Indemnification and Advancement of Expenses
. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has ceased to be a
director, officer or employee and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11.
Limitation on Indemnification
. Notwithstanding anything contained in this Article
VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be
governed by Section 5 hereof), the Corporation shall not be obligated to indemnify any director,
officer or employee (or his or her heirs, executors or personal or legal representatives) or
advance expenses in connection with a proceeding (or part thereof) initiated by such person unless
such proceeding (or part thereof) was authorized or consented to by the Board of Directors.
Section 12.
Indemnification of Agents
. The Corporation may, to the extent authorized from
time to time by the Board of Directors, provide rights to indemnification and to the advancement of
expenses to other employees and agents of the Corporation similar to those
41
conferred in this Article VIII to directors, officers, executives and managerial employees of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1.
Amendments
. These Second Amended and Restated Bylaws may be altered, amended or
repealed, in whole or in part, or new Bylaws may be adopted by the Board of Directors or by the
stockholders as provided in these Second Amended and Restated Bylaws, the Certificate of
Incorporation or the GCL; provided, however, that in addition to any other vote of
stockholders (if any) required by law and notwithstanding that a lower vote (or no vote) of
stockholders would otherwise be required, if any provision of these Second Amended and Restated
Bylaws requires a particular vote of stockholders in order to take the action specified in such
provision, then such vote of stockholders shall be required in order to amend, alter, change or
repeal any provision inconsistent with such provision of these Second Amended and Restated Bylaws.
Section 2.
Entire Board of Directors
. As used in this Article IX and in these Second Amended
and Restated Bylaws generally, the term entire Board of Directors means the total number of
directors which the Corporation would have if there were no vacancies.
42
EXHIBIT 10.1
FORM OF
WARRANT AGREEMENT
by and between
VISTEON CORPORATION
and
MELLON INVESTOR SERVICES LLC,
as Warrant Agent
Dated as of October 1, 2010
FORM OF
WARRANT AGREEMENT
This WARRANT AGREEMENT (as amended, supplemented, amended and restated or otherwise modified
from time to time, this
Warrant Agreement
), is entered into as of October 1, 2010, by and
between VISTEON CORPORATION, a Delaware corporation (the
Company
), and Mellon Investor
Services LLC, a New Jersey limited liability company (operating with the service name BNY Mellon
Shareowner Services), as warrant agent (together with any successor appointed pursuant to
Section 20
hereof, the
Warrant Agent
).
WHEREAS
, pursuant to the terms and conditions of the Fifth Amended Joint Plan of
Reorganization of Visteon Corporation and its debtor affiliates pursuant to chapter 11 of title 11
of the United States Code (the
Bankruptcy Code
) filed on August 31, 2010 in the United
States Bankruptcy Court for the District of Delaware, Case No. 09-11786 (CSS) (as may be amended,
supplemented or otherwise modified from time to time, the
Plan
), the Company proposes to
issue Warrants (the
Warrants
) entitling the holders thereof to purchase up to 1,577,951
shares of common stock, par value $0.01 per share, of the Company (
Common Stock
) together
with any other securities, cash or other property that may be issuable upon exercise of a Warrant
as shall result from the adjustments specified in
Section 12
hereof at an exercise price of
$58.80 per share of Common Stock, as may be adjusted pursuant to
Section 12
hereof (the
Exercise Price
);
WHEREAS
, the Warrants are being issued pursuant to, and upon the terms and conditions set
forth in, the Plan in an offering in reliance on the exemption from the registration requirements
of the Securities Act of 1933, as amended (the
Securities Act
) afforded by section 1145
of the Bankruptcy Code or Section 4(2) of the Securities Act, and of any applicable state
securities or blue sky laws;
WHEREAS
, the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing so to act, in connection with the issuance of Warrants and other matters
as expressly provided herein; and
WHEREAS
, for purposes of this Warrant Agreement, person shall be interpreted broadly to
include an individual, firm, corporation, partnership, joint venture, association, joint stock
company, limited liability company, limited liability partnership, national banking association,
trust, trustee, estate, unincorporated organization, government, governmental unit, agency, or
political subdivision thereof, or other entity and shall include any successor (by merger or
otherwise) of such person.
NOW, THEREFORE
, in consideration of the premises and the mutual agreements herein set forth,
the parties hereto agree as follows:
SECTION 1
Appointment of Warrant Agent
.
The Company hereby appoints the Warrant Agent
to act as warrant agent for the Company in respect of the Warrants upon the express terms and
subject to the express conditions herein set forth (and no implied terms or conditions), and the
Warrant Agent hereby accepts such appointment, upon the express terms and express conditions
hereinafter set forth.
SECTION 2
Issuance of Warrants
.
In accordance with
Section 5
hereof and the
Plan and subject to the next sentence, the Company will cause to be issued to the Depository (as
defined below), one or more Global Warrant Certificates (as defined below) evidencing the Warrants.
At the election of a holder of Warrants and in lieu of holding Warrants through the Depository,
such holder may elect to be issued Warrants by book-entry registration on the books and records of
the Warrant Agent (
Book-Entry Warrants
) and such Warrants shall be evidenced by
statements issued by the Warrant Agent from time to time to the registered holder of book-entry
Warrants reflecting such book-entry position (the
Warrant Statement
). Each Warrant
entitles the holder, upon proper exercise and payment of the applicable Exercise Price, to receive
from the Company, one share of Common Stock (as may be adjusted pursuant to
Section 12
hereof). The shares of Common Stock or (as provided pursuant to
Section 12
hereof) other
shares of capital stock deliverable upon proper exercise of the Warrants are referred to
herein as the
Warrant Shares
. The words
holder
or
holders
as used
herein in respect of any Warrants or Warrant Shares, shall mean the registered holder or registered
holders thereof.
SECTION 3
Warrant Certificates
.
Subject to
Section 6
hereof, the Warrants
shall be issued (1) via book-entry registration on the books and records of the Warrant Agent and
evidenced by a Warrant Statement, and/or (2) in the form of one or more global certificates (the
Global Warrant Certificates
), the forms of election to exercise and of assignment to be
printed on the reverse thereof, in substantially the form set forth in
Exhibit A
attached
hereto. The Warrant Statements and Global Warrant Certificates may bear such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this
Warrant Agreement, and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules and regulations
of the Depository (as hereinafter defined), any law or with any rules made pursuant thereto or with
any rules of any securities exchange or as may, consistently herewith, be determined by (i) in the
case of Global Warrant Certificates, the Appropriate Officers (as hereinafter defined) executing
such Global Warrant Certificates, as evidenced by their execution of the Global Warrant
Certificates, or (ii) in the case of a Warrant Statement, any Appropriate Officer, and all of which
shall be reasonably acceptable to the Warrant Agent. The Global Warrant Certificates shall be
deposited on or after the date hereof with, or, so long as the Warrant Agent is Mellon Investor
Services LLC, with The Bank of New York Mellon as custodian for, The Depository Trust Company (the
Depository
) and registered in the name of Cede & Co., as the Depositorys nominee. Each
Global Warrant Certificate shall represent such number of the outstanding Warrants as specified
therein, and each shall provide that it shall represent the aggregate amount of outstanding
Warrants from time to time endorsed thereon and that the aggregate amount of outstanding Warrants
represented thereby may from time to time be reduced or increased, as appropriate, in accordance
with the terms of this Warrant Agreement.
SECTION 4
Execution of Warrant Certificates
.
Global Warrant Certificates shall be
signed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, any Vice
President, its Secretary or any Assistant Secretary (each, an
Appropriate Officer
). Each
such signature upon the Global Warrant Certificates may be in the form of a facsimile or other
electronically transmitted signature (including, without limitation, electronic transmission in
portable document format (.pdf)) of any such Appropriate Officer and may be imprinted or otherwise
reproduced on the Global Warrant Certificates and for that purpose the Company may adopt and use
the facsimile or other electronically transmitted signature of any Appropriate Officer who shall
have been an Appropriate Officer at the time of entering into this Warrant Agreement. If any
Appropriate Officer who shall have signed any of the Global Warrant Certificates shall cease to be
such Appropriate Officer before the Global Warrant Certificates so signed shall have been
countersigned by the Warrant Agent or delivered by the Company, such Global Warrant Certificates
nevertheless may be countersigned and delivered as though such Appropriate Officer had not ceased
to be such Appropriate Officer of the Company; and any Global Warrant Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of such Global Warrant
Certificate, shall be a proper Appropriate Officer of the Company to sign such Global Warrant
Certificate, although at the date of the execution of this Warrant Agreement any such person was
not such Appropriate Officer.
Global Warrant Certificates shall be dated the date of countersignature by the Warrant Agent
and shall represent one or more whole Warrants.
SECTION 5
Registration and Countersignature
.
Upon receipt of a written order of the
Company, the Warrant Agent, on behalf of the Company, shall (i) register in the Warrant Register
(as defined below) the Book-Entry Warrants as well as any Global Warrant Certificates and exchanges
and transfers of outstanding Warrants in accordance with the procedures set forth in this Warrant
Agreement and (ii) upon receipt of the Global Warrant Certificates duly executed on behalf of the
Company, countersign one or more Global Warrant Certificates evidencing Warrants and shall deliver
such Global Warrant Certificates
2
to or upon the written order of the Company. Such written order of the Company shall
specifically state the number of Warrants that are to be issued as Book-Entry Warrants and the
number of Warrants that are to be issued as one or more Global Warrant Certificates. Each Warrant
(including the Book Entry Warrants and each Global Warrant Certificate) shall be, and shall remain,
subject to the provisions of this Warrant Agreement until such time as all of the Warrants
evidenced thereby shall have been duly exercised or shall have expired or been canceled in
accordance with the terms hereof. Each holder of Warrants shall be bound by all of the terms and
provisions of this Warrant Agreement (a copy of which is available on request to the Secretary of
the Company) as fully and effectively as if such holder had signed the same.
No Global Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby
shall be exercisable, until such Global Warrant Certificate has been countersigned by the manual or
facsimile signature of the Warrant Agent. Such signature by the Warrant Agent upon any Global
Warrant Certificate executed by the Company shall be conclusive evidence that such Global Warrant
Certificate so countersigned has been duly issued hereunder.
The Warrant Agent shall keep, at an office designated for such purpose, books (the
Warrant Register
) in which, subject to such reasonable regulations as it may prescribe,
it shall register the Book-Entry Warrants as well as any Global Warrant Certificates and exchanges
and transfers of outstanding Warrants in accordance with the procedures set forth in
Section
6
hereof, all in form satisfactory to the Company and the Warrant Agent. The Company may
require payment of a sum sufficient to cover any stamp or other tax or charge that may be imposed
on the holder of a Warrant in connection with any such exchange or registration of transfer. The
Warrant Agent shall have no obligation to effect an exchange or register a transfer unless and
until any payments required by the immediately preceding sentence have been made.
Prior to due presentment for registration of transfer or exchange of any Warrant in accordance
with the procedures set forth in this Warrant Agreement, the Warrant Agent and the Company may deem
and treat the person in whose name any Warrant is registered as the absolute owner of such Warrant
(notwithstanding any notation of ownership or other writing made in a Global Warrant Certificate by
anyone), for the purpose of any exercise thereof, any distribution to the holder of the Warrant
thereof and for all other purposes, and neither the Warrant Agent nor the Company shall be affected
by notice to the contrary.
SECTION 6
Registration of Transfers and Exchanges
.
(a)
Transfer and Exchange of Global Warrant Certificates or Beneficial Interests
Therein
. The transfer and exchange of Global Warrant Certificates or beneficial interests
therein shall be effected through the Depository, in accordance with this Warrant Agreement and the
procedures of the Depository therefor.
(b)
Exchange of a Beneficial Interest in a Global Warrant Certificate for a Book-Entry
Warrant
.
(i) Any holder of a beneficial interest in a Global Warrant Certificate may, upon request,
exchange such beneficial interest for a Book-Entry Warrant. Upon receipt by the Warrant Agent from
the Depository or its nominee of written instructions or such other form of instructions as is
customary for the Depository on behalf of any person having a beneficial interest in a Global
Warrant Certificate, the Warrant Agent shall cause, in accordance with the standing instructions
and procedures existing between the Depository and the Warrant Agent, the number of Warrants
represented by the Global Warrant Certificate to be reduced by the number of Warrants to be
represented by the Book-Entry Warrants to be issued in exchange for the beneficial interest of such
person in the Global Warrant Certificate and, following such reduction, the Warrant Agent shall
register in the name of the holder a Book-Entry Warrant and deliver to said Warrant holder a
Warrant Statement.
3
(ii) Book-Entry Warrants issued in exchange for a beneficial interest in a Global Warrant
Certificate pursuant to this
Section 6(b
) shall be registered in such names as the
Depository, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Warrant Agent. The Warrant Agent shall deliver such Warrant Statements to the persons
in whose names such Warrants are so registered.
(c)
Transfer and Exchange of Book-Entry Warrants
. Book-Entry Warrants surrendered for
exchange or for registration of transfer shall be cancelled by the Warrant Agent. Such cancelled
Book-Entry Warrants shall then be disposed of by or at the direction of the Company in accordance
with applicable law. When Book-Entry Warrants are presented to or deposited with the Warrant Agent
with a written request:
(i) to register the transfer of the Book-Entry Warrants; or
(ii) to exchange such Book-Entry Warrants for an equal number of Book-Entry Warrants of other
authorized denominations,
then in each case the Warrant Agent shall register the transfer or make the exchange as requested
if its requirements for such transactions are met;
provided
,
however
, that the Warrant Agent has
received a written instruction of transfer in form satisfactory to the Warrant Agent, duly executed
by the holder thereof or by the duly appointed legal representative thereof or by his attorney,
duly authorized in writing.
(d)
Exchange or Transfer of a Book-Entry Warrant for a Beneficial Interest in a Global
Warrant Certificate
. Upon receipt by the Warrant Agent of appropriate written instruments of
transfer with respect to a Book-Entry Warrant, in form satisfactory to the Warrant Agent, together
with written instructions directing the Warrant Agent to make, or to direct the Depository to make,
an endorsement on the Global Warrant Certificate to reflect an increase in the number of Warrants
represented by the Global Warrant Certificate equal to the number of Warrants represented by such
Book-Entry Warrant (such instruments of transfer and instructions to be duly executed by the holder
thereof or the duly appointed legal representative thereof or by his attorney, duly authorized in
writing, such signatures to be guaranteed by an eligible guarantor institution to the extent
required by the Warrant Agent or the Depositary), then the Warrant Agent shall cancel such
Book-Entry Warrant on the Warrant Register and cause, or direct the Depository to cause, in
accordance with the standing instructions and procedures existing between the Depository and the
Warrant Agent, the number of Warrants represented by the Global Warrant Certificate to be increased
accordingly. If no Global Warrant Certificates are then outstanding, the Company shall issue, and
the Warrant Agent shall countersign, a new Global Warrant Certificate representing the appropriate
number of Warrants.
(e)
Restrictions on Transfer and Exchange of Global Warrant Certificates
.
Notwithstanding any other provisions of this Warrant Agreement (other than the provisions set forth
in
Section 6(f
) hereof), unless and until it is exchanged in whole for a Book-Entry
Warrant, a Global Warrant Certificate may not be transferred as a whole except by the Depository to
a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee
of the Depository or by the Depository or any such nominee to a successor Depository or a nominee
of such successor Depository.
(f)
Book-Entry Warrants
. If at any time:
(i) the Depository for the Global Warrant Certificates notifies the Company that the
Depository is unwilling or unable to continue as Depository for the Global Warrant Certificates and
a successor Depository for the Global Warrant Certificates is not appointed by the Company within
90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Warrant Agent in writing that all
Warrants shall be exclusively in the form of Book-Entry Warrants, then the Warrant Agent, upon
receipt of written instructions signed by an Appropriate Officer of the Company and all other
necessary information, shall
4
register Book-Entry Warrants, in an aggregate number equal to the number of Warrants
represented by the Global Warrant Certificates, in exchange for such Global Warrant Certificates,
in such names and in such amounts as directed by the Depository or, in the absence of instructions
from the Depository, the Company.
(g)
Cancellation of Global Warrant Certificate
. At such time as all beneficial
interests in Global Warrant Certificates have either been exchanged for Book-Entry Warrants,
redeemed, exercised, repurchased or cancelled, all Global Warrant Certificates shall be returned
to, or cancelled and retained pursuant to applicable law by, the Warrant Agent, upon written
instructions from the Company reasonably satisfactory to the Warrant Agent.
(h)
Obligations with Respect to Transfers and Exchanges of Warrants
.
(i) To permit registrations of transfers and exchanges, the Company shall execute and the
Warrant Agent is hereby authorized to countersign Global Warrant Certificates and the Warrant Agent
is hereby authorized to register Book-Entry Warrants, in accordance with the provisions of
Sections 3
and
4
hereof and this
Section 6
and for the purpose of any
distribution of additional Global Warrant Certificates contemplated by
Section 12
hereof.
(ii) All Book-Entry Warrants and Global Warrant Certificates issued upon any registration of
transfer or exchange of Book-Entry Warrants or Global Warrant Certificates shall be the valid
obligations of the Company, entitled to the same benefits under this Warrant Agreement as the
Book-Entry Warrants or Global Warrant Certificates surrendered upon such registration of transfer
or exchange.
(iii) So long as the Depository, or its nominee, is the registered owner of a Global Warrant
Certificate, the Depository or such nominee, as the case may be, may be treated by the Company, the
Warrant Agent and any agent of the Company or the Warrant Agent as the sole owner or holder of the
Warrants represented by such Global Warrant Certificate for all purposes under this Warrant
Agreement. Except as provided in
Sections 6(b
) and
6(f
) hereof upon the exchange of
a beneficial interest in a Global Warrant Certificate for a Book-Entry Warrant, owners of
beneficial interests in a Global Warrant Certificate will not be entitled to have any Warrants
registered in their names, and will not receive or be entitled to receive physical delivery of any
such Warrants and will not be considered the owners or holders thereof under the Warrants or this
Warrant Agreement. Neither the Company nor the Warrant Agent, in its capacity as registrar for such
Warrants, will have any responsibility or liability for any aspect of the records relating to
beneficial interests in a Global Warrant Certificate or for maintaining, supervising or reviewing
any records relating to such beneficial interests. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Warrant Agent or any agent of the Company or the Warrant Agent from
giving effect to any written certification, proxy or other authorization furnished by the
Depository or impair the operation of customary practices of the Depository governing the exercise
of the rights of a holder of a beneficial interest in a Global Warrant Certificate.
(iv) Subject to
Sections 6(b
),
(c)
and
(d)
hereof and this
Section
6(h
), the Warrant Agent shall, upon receipt of all information required to be delivered
hereunder, from time to time register the transfer of any Book-Entry Warrants in the Warrant
Register and the transfer of any Global Warrant Certificates in the Warrant Register, upon
surrender of the Global Warrant Certificates representing such Warrants at the Warrant Agent office
designated for such purpose, which shall be located at 480 Washington Boulevard, 29
th
Floor, Jersey City, NJ 07310 or such other location in the United States as the Warrant Agent shall
determine; provided that the Warrant Agent provides written notice of such determination to the
Company and the Warrant holders (the
Warrant Agent Office
), duly endorsed, and
accompanied by a completed form of assignment (or with respect to a Book-Entry Warrant, only such
completed form of assignment), duly signed by the holder thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be guaranteed by an
eligible guarantor institution to the extent required by the Warrant Agent or the Depositary.
5
Upon any such registration of transfer, a new Global Warrant Certificate or a Warrant
Statement, as the case may be, shall be issued to the transferee.
SECTION 7
Acknowledgment
;
Securities Law Compliance
.
Each Warrant holder, by
its acceptance of any Warrant under this Warrant Agreement, acknowledges and agrees that the
Warrants were issued, and the Warrant Shares issuable upon exercise thereof shall be issued,
pursuant to an exemption from the registration requirement of Section 5 of the Securities Act
provided by Section 1145 of the Bankruptcy Code, and to the extent that a Warrant holder (or holder
of Warrant Shares) is an underwriter as defined in Section 1145(b)(1) of the Bankruptcy Code,
such holder may not be able to sell or transfer any Warrants or Warrant Shares in the absence of an
effective registration statement under the Securities Act or an exemption from registration
thereunder. Notwithstanding anything contained herein (but without limiting or modifying any
express obligation of the Warrant Agent hereunder), the Warrant Agent shall not be under any duty
or responsibility to ensure compliance by the Company, any Warrant holder (or holder of Warrant
Shares) or any other person with any applicable federal or state securities or bankruptcy laws.
SECTION 8
Terms of Warrants
;
Exercise of Warrants
.
(a) Subject to the terms of this Warrant Agreement, each Warrant holder shall have the right,
which may be exercised at any time, and from time to time, in whole or in part, during the period
commencing on the date of original issuance of the Warrant Certificates pursuant to the terms of
this Warrant Agreement and ending at 5:00 p.m. New York City time, on October 1, 2015 (the
Expiration Date
), to exercise each Warrant and receive from the Company the number of
fully paid and nonassessable Warrant Shares which the holder may at the time be entitled to receive
on exercise of such Warrants and payment of the aggregate Exercise Price then in effect for such
Warrant Shares. The Company shall, promptly after the Expiration Date, provide the Warrant Agent
with written notice of the Expiration Date. In addition, prior to the delivery of any Warrant
Shares that the Company shall be obligated to deliver upon proper exercise of the Warrants, the
Company shall comply with all applicable federal and state laws, rules and regulations which
require action to be taken by the Company.
(b) Subject to the adjustments set forth in
Section 12,
each Warrant, when exercised,
will entitle the holder thereof to purchase one share of Common Stock at the Exercise Price then in
effect for such share of Common Stock. Each Warrant not exercised pursuant to this Warrant
Agreement prior to the Expiration Date shall become void and all rights thereunder and all rights
in respect thereof under this Warrant Agreement shall cease as of 5:00 p.m., New York City time, on
the Expiration Date.
(c) Subject to the terms and conditions set forth herein, the holder of Warrants may, until
5:00 p.m. New York City time, on the Expiration Date, exercise, in whole or in part, at any time
or from time to time, such holders right to purchase Warrant Shares by:
(i) providing written notice of such election (a
Warrant Exercise Notice
) to
exercise the Warrants to the Company and Warrant Agent at the Warrant Agent Office, by overnight
courier no later than 5:00 p.m. New York City time, on the Expiration Date, which Warrant Exercise
Notice shall be in the form of an election to purchase Warrant Shares substantially in the form set
forth either (x) in
Exhibit B-1
hereto, properly completed and duly executed by the holder,
provided that such written notice may only be submitted by a holder with respect to Book-Entry
Warrants; or (y) in
Exhibit B-2
hereto, properly completed and duly executed by the holder,
provided that such written notice may only be submitted with respect to Warrants held through the
book-entry facilities of the Depositary, by or through persons that are direct participants in the
Depositary;
(ii) delivering no later than 5:00 p.m., New York City time, on the business day immediately
prior to the applicable Settlement Date (as defined below), such Warrants to the Warrant Agent by
book-entry transfer through the facilities of the Depository, if such Warrants are represented by a
Global Warrant Certificate; and
6
(iii) subject to
Section 8(h)
below, paying the applicable aggregate Exercise Price
for all Warrants being exercised (the
Exercise Amount
), together with all applicable
taxes and charges. The date three business days after a Warrant Exercise Notice is delivered is
referred to for all purposes under this Warrant Agreement as the
Settlement Date
.
(d) For purposes of this
Section 8
, the following terms shall have the meanings set
forth below:
Closing Price
means on any particular date (a) if the Warrant Shares are then listed
or quoted on a Trading Market, (i) the closing price per share of Warrant Shares on such date on
the principal Trading Market (as reported by Bloomberg L.P. or a similar organization or agency
succeeding to its functions of reporting prices) or (ii) if there shall have been no sales of
Warrant Shares on such principal Trading Market on such day, the average of the reported closing
bid and asked prices per share of Warrant Shares on such principal Trading Market (as reported by
Bloomberg L.P. or a similar organization or agency succeeding to its functions of reporting
prices), (b) if the Warrant Shares are not then listed or quoted on a Trading Market and if prices
for the Warrant Shares are then reported in the pink sheets published by Pink OTC Markets, Inc.
(or a similar organization or agency succeeding to its functions of reporting prices), the average
of the reported closing bid and asked prices per share of Warrant Shares so reported or (c) if the
shares of Warrant Shares are not then publicly traded the fair market value as of such date of a
share of Warrant Shares as reasonably determined in good faith by the Board of Directors of the
Company.
Trading Day
means (a) if the Warrant Shares are listed or quoted on a Trading
Market, a day on which the principal Trading Market is open for business or (b) if the Warrant
Shares are not listed or quoted on a Trading Market, a business day.
Trading Market
means any of the following markets or exchanges on which the Warrant
Shares are listed or quoted for trading on the date in question: the NYSE Amex Equities, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange or the OTC Bulletin Board.
(e) To the extent a Warrant Exercise Notice is delivered in respect of a Warrant prior to 5:00
p.m., New York City time, on the Expiration Date, but the deliveries and payments specified in
Sections 8(a)(ii
) and
8(a)(iii
) above are effected thereafter but no later than
5:00 p.m., New York City time, on the Settlement Date, the Warrants shall be nonetheless deemed
exercised prior to the Expiration Date for the purposes of this Warrant Agreement.
(f) Subject to the adjustments set forth in
Section 12
hereof, each Warrant, when
exercised, will entitle the holder thereof to purchase one share of Common Stock at the Exercise
Price then in effect. Each Warrant not exercised pursuant to this Warrant Agreement prior to 5:00
p.m., New York City time, on the Expiration Date shall become void and all rights thereunder and
all rights in respect thereof under this Warrant Agreement shall cease as of such time.
(g) Subject to
Section 8(h
)
,
the Exercise Amount shall be payable in lawful
money of the United States of America either (i) by certified or official bank check made payable
to the order of the Company or (ii) by wire transfer in immediately available funds to an account
arranged with the Company prior to exercise.
(h) In connection with the exercise of Warrants by the holder thereof, such holder shall have
the right, in lieu of paying the Exercise Amount for such Warrants in cash (a
Cashless
Exercise
), subject to the provisions of this Warrant Agreement, to instruct the Company to
reduce the number of Warrant Shares issuable to such holder upon exercise of such Warrants by
delivering to such holder a number of Warrant Shares determined in accordance with the following
formula:
|
|
|
|
|
|
|
|
|
Warrant Shares
|
|
=
|
|
(C P)
|
|
x
|
|
W
|
|
|
|
|
|
|
|
|
|
Issuable Following a
Cashless Exercise
|
|
|
|
C
|
|
|
|
|
7
For purposes this
Section 8(h
), the above symbols shall have the following meanings
with respect to an exercise of Warrants by a holder thereof:
W means the aggregate number of Warrant Shares issuable to such holder upon exercise of such
Warrants prior to any reduction pursuant to this
Section 8(h
);
P means the Exercise Price applicable to the exercise of such Warrants; and
C means the Closing Price on the date of exercise of such Warrants.
For purposes of Rule 144 under the Securities Act (17 CFR §230.144), the Company agrees that
the exercise of Warrants in accordance with the Cashless Exercise option shall be deemed to be a
conversion of such Warrants, pursuant to the terms hereof, into Warrant Shares.
(i) Any exercise of a Warrant pursuant to the terms of this Warrant Agreement shall be
irrevocable and shall constitute a binding agreement between the holder and the Company,
enforceable in accordance with its terms; provided that a holder may condition its exercise of a
Warrant on the consummation of a Reorganization Event (as defined below).
(j) The Warrant Agent shall:
(i) Examine all Warrant Exercise Notices and all other documents delivered to it by or on
behalf of holders as contemplated hereunder to ascertain whether, on their face, such Warrant
Exercise Notices and any such other documents have been executed and completed in accordance with
their terms;
(ii) where a Warrant Exercise Notice or other document appears on its face, in the Warrant
Agents reasonable judgment, to have been improperly completed or executed or some other
irregularity in connection with the exercise of the Warrant exists, the Warrant Agent shall
endeavor to inform the appropriate parties (including the person submitting such instrument) of the
need for fulfillment of all requirements, specifying those requirements which appear to be
unfulfilled;
(iii) inform the Company of and cooperate with and assist the Company in resolving any
reconciliation problems relating to the Warrant Exercise Notices received and delivery of Warrants
to the Warrant Agents account;
(iv) advise the Company, no later than three business days after receipt of a Warrant Exercise
Notice, of (x) the receipt of such Warrant Exercise Notice and the number of Warrants exercised in
accordance with the terms and conditions of this Warrant Agreement, (y) the instructions with
respect to delivery of the Warrant Shares, subject to the timely receipt from the Depository of the
necessary information, and (z) such other information as the Company shall reasonably require; and
(v) subject to the Warrant Shares being made available to the Warrant Agent by or on behalf of
the Company for delivery to the Depository, liaise with the Depository and endeavor to effect such
delivery to the relevant accounts at the Depository in accordance with its requirements.
(k) All questions as to the validity, form and sufficiency (including time of receipt) of a
Warrant exercise shall be reasonably determined by the Company in good faith, which determination
shall be final and binding. The Warrant Agent shall incur no liability for or in respect of and,
except to the extent such liability arises from the Warrant Agents gross negligence, willful
misconduct or bad faith (each as determined by a final, non appealable order of a court of
competent jurisdiction), shall be indemnified and held harmless by the Company for acting or
refraining from acting upon, or as a result of such determination by the Company. The Company
reserves the right to reject any and all Warrant Exercise Notices not in proper form. Such
determination by the Company shall be final and binding on the holders,
8
absent manifest error. Moreover, the Company reserves the absolute right to waive any of the
conditions to the exercise of Warrants or defects in Warrant Exercise Notices with regard to any
particular exercise of Warrants. Neither the Company nor, subject to
Section 8(j)
above,
the Warrant Agent shall be under any duty to give notice to the holders of the Warrants of any
irregularities in any exercise of Warrants, nor shall it incur any liability for the failure to
give such notice.
(l) As soon as reasonably practicable after the exercise of any Warrant, the Company shall
issue, or otherwise deliver, in authorized denominations to or upon the order of the holder of such
Warrant either:
(i) if such holder holds the Warrants being exercised through the Depositorys book-entry
transfer facilities, by same-day or next-day credit to the Depository for the account of such
holder or for the account of a participant in the Depository the number of Warrant Shares to which
such holder is entitled, in each case registered in such name and delivered to such account as
directed in the Warrant Exercise Notice by such holder or by the direct participant in the
Depository through which such holder is acting; or
(ii) if such holder holds the Warrants being exercised in the form of Book-Entry Warrants, a
book-entry interest in the Warrant Shares registered on the books of the transfer agent for the
Companys Common Stock (such agent, in such capacity, as may from time to time be appointed by the
Company, the
Transfer Agent
) or, at the Companys option, by delivery to the address
designated by such holder in its Warrant Exercise Notice of a physical certificate or certificates
representing the number of Warrant Shares to which such holder is entitled, in fully registered
form, registered in such name or names as may be directed by such holder. Such Warrant Shares shall
be deemed to have been issued and any person so designated to be named therein shall be deemed to
have become a holder of record of such Warrant Shares as of the close of business on the date of
the delivery thereof.
Warrants shall be exercisable during the period provided for in
Section 8(a
) at the
election of the holder thereof, either as an entirety or from time to time for a portion of the
number of Warrant Shares issuable upon exercise of such Warrants. If less than all of the Warrants
evidenced by a Global Warrant Certificate surrendered upon the exercise of Warrants are exercised
at any time prior to 5:00 p.m., New York City time, on the Expiration Date, a new Global Warrant
Certificate or Certificates shall be issued for the remaining number of Warrants evidenced by the
Global Warrant Certificate so surrendered, and the Warrant Agent is hereby authorized to
countersign the new Global Warrant Certificate(s) pursuant to the provisions of
Section 5
hereof and this
Section 8.
The person in whose name any certificate or certificates for the
Warrant Shares are to be issued (or such Warrant Shares are to be registered, in the case of a
book-entry transfer) upon exercise of a Warrant shall be deemed to have become the holder of record
of such Warrant Shares on the date such Warrant Exercise Notice is delivered.
(m) For purposes of this Warrant Agreement, a
business day
means any day other than
a Saturday, Sunday or a day on which banking institutions in the State of New York or New Jersey
are authorized or obligated by law, regulation or executive order to close or remain closed. In
accordance with
Section 14
hereof, no fractional shares shall be issued upon exercise of
any Warrants.
(n) All Global Warrant Certificates surrendered upon exercise of Warrants shall be cancelled
by the Warrant Agent. Such cancelled Global Warrant Certificates shall then be disposed of by or at
the direction of the Company in accordance with applicable law. The Warrant Agent shall (x) advise
an authorized representative of the Company as directed by the Company by the end of each day or on
the next business day following each day on which Warrants were exercised, of (i) the number of
shares of Warrant Shares issued upon exercise of a Warrant, (ii) the delivery of Global Warrant
Certificates evidencing the balance, if any, of the shares of Common Stock issuable after such
exercise of the Warrant and (iii) such other information as the Company shall reasonably require
and (y) concurrently pay to the Company all funds received by the Warrant Agent in payment of the
aggregate Exercise Price. The Warrant Agent shall confirm such information to the Company in
writing.
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(o) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or
received hereunder, and, if requested, provide, at the Companys expense, copies thereof to any
registered holder of the Warrants requesting, in writing, such copy prior to 5:00 p.m., New York
City time, on the Expiration Date. The Company shall supply the Warrant Agent from time to time
with such numbers of copies of this Warrant Agreement as the Warrant Agent may reasonably request.
SECTION 9
Payment of Taxes
.
No service charge shall be made to any holder of a Warrant
for any exercise, exchange or registration of transfer of Warrants, and the Company will pay all
documentary stamp taxes attributable to the initial issuance of Warrant Shares upon the exercise of
Warrants;
provided
,
however
, that neither the Company nor the Warrant Agent shall be required to
pay any tax or taxes which may be payable in respect of any transfer involved in the issuance of
Warrant Shares or any certificates for Warrant Shares in a name other than that of the registered
holder of a Warrant surrendered upon the exercise of a Warrant, and the Company and the Warrant
Agent shall not be required to issue or deliver such Warrant Shares or the certificates
representing the Warrant Shares unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company and the Warrant Agent that such tax has been paid. The Warrant Agent
shall have no duty to deliver such Warrants Shares or the certificates representing such Warrant
Shares unless and until the Warrant Agent is reasonably satisfied that all such taxes and charges
have been paid.
SECTION 10
Mutilated or Missing Warrant Certificates
.
The Company may issue and the
Warrant Agent shall countersign, upon receipt of evidence satisfactory to the Company and the
Warrant Agent of the loss, theft, mutilation or destruction of the Global Warrant Certificate in
lieu of the Global Warrant Certificate, a new warrant certificate of like tenor and amount in the
place of any Global Warrant Certificate theretofore issued by it, alleged to have been lost,
stolen, mutilated or destroyed, and the Company and the Warrant Agent may require the owner of the
lost, stolen, mutilated or destroyed certificate, or such owners legal representative, to give the
Company and the Warrant Agent an executed affidavit or indemnity agreement reasonably satisfactory
in form and substance to the Company and the Warrant Agent and a bond sufficient to indemnify them
against any claim that may be made against it on account of the alleged loss, theft or destruction
of any such Global Warrant Certificate or the issuance of such new certificate.
SECTION 11
Reservation of Shares of Common Stock
.
(a) The Company will at all times reserve and keep available out of the aggregate of its
authorized but unissued shares of Common Stock, for the purpose of enabling it to satisfy any
obligation to issue shares of Common Stock upon exercise of Warrants, the maximum number of shares
of Common Stock that may then be deliverable upon the exercise of all outstanding Warrants, and the
Transfer Agent is hereby irrevocably authorized and directed at all times to reserve such number of
authorized and unissued or treasury shares of Common Stock as shall be required for such purpose.
The Company will keep a copy of this Warrant Agreement on file with the Transfer Agent and with
every transfer agent for any securities issuable upon exercise of Warrants. The Warrant Agent is
hereby irrevocably authorized and directed to requisition from time to time from the Transfer Agent
stock certificates issuable upon exercise of outstanding Warrants. The Company will supply the
Transfer Agent with duly executed stock certificates for such purpose and will, when necessary to
comply with this Warrant Agreement, upon request, provide or otherwise make available any cash that
may be payable as provided in
Section 14
. The Company will furnish the Transfer Agent with
a copy of all notices of adjustments and certificates related thereto, transmitted by the Company
to the Warrant Agent and each holder. The Warrant Agent shall have no duty or obligation to
investigate or confirm the accuracy of the information or the genuineness of the signatures
contained in such notices or certificates.
(b) The Company covenants that all shares of Common Stock that may be issued upon exercise of
Warrants will be, upon payment of the aggregate Exercise Price and issuance thereof, duly
authorized,
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validly issued, fully paid, nonassessable, free of preemptive rights and free from all taxes,
liens, charges and security interests with respect to the issue thereof (other than any liens,
charges and security interests created by the Warrant holder or the person to which the shares of
Common Stock are to be issued).
SECTION 12
Adjustments
.
The number of shares of Common Stock for which a Warrant is
exercisable and the Exercise Price shall be subject to adjustment from time to time as set forth in
this
Section 12.
(a)
Stock Dividends, Subdivisions, Combinations, Recapitalizations and
Reclassification
.
(i) If at any time the Company shall: (A) pay a dividend on its Common Stock (or make some
other distribution on its Common Stock) consisting of shares of Common Stock, (B) subdivide its
outstanding shares of Common Stock into a larger number of shares of Common Stock, or (C) combine
its outstanding shares of Common Stock into a smaller number of shares of Common Stock, then the
number of shares of Common Stock or other shares of capital stock for which a Warrant is
exercisable shall be adjusted so that the holder of each Warrant shall be entitled upon exercise to
receive the number of shares of Common Stock or other shares of capital stock that such Warrant
holder would have owned or have been entitled to receive after the happening of any of the events
described above, had such Warrant been exercised immediately prior to the happening of such event
(or, in the case of a dividend or distribution of Common Stock, immediately prior to the record
date therefor). An adjustment made pursuant to this
Section 12(a
) shall become effective
immediately upon and contemporaneously with the effectiveness of such event.
(ii) Whenever the number of shares of Common Stock purchasable upon the exercise of any
Warrant is adjusted as herein provided in
Section 12(a
)
,
the Exercise Price shall
be adjusted to equal (A) the Exercise Price immediately prior to such adjustment multiplied by the
number of shares of Common Stock for which a Warrant is exercisable immediately prior to such
adjustment divided by (B) the number of shares of Common Stock for which a Warrant is exercisable
immediately after such adjustment.
(b)
Extraordinary Dividends or Distributions
. If the Company, at any time after the
date of this Warrant Agreement, pays a dividend or makes a distribution in securities or other
non-cash assets to the holders of Common Stock (in their capacity as such) or other shares of
capital stock into which the Warrants are convertible, other than (i) a dividend or distribution
described in
Section 12(a
)
(i
)
(A
), or (ii) distributions made to the holders
of Common Stock upon the consummation of a Reorganization Event (any such non-excluded dividends or
distributions, an
Extraordinary Dividend
), then the Exercise Price shall be decreased,
effective immediately after the effective date of such Extraordinary Dividend, dollar-for-dollar by
the fair market value (as reasonably determined in good faith by the Board of Directors of the
Company, without regard to any illiquidity or minority discounts) of any securities or other assets
paid or distributed on each share of Common Stock in respect of such Extraordinary Dividend.
(c)
Other Provisions Applicable to Adjustments under this Section
. The following
provisions shall be applicable to the making of adjustments of the number of shares of Warrant
Shares for which a Warrant is exercisable and the Exercise Price provided for in this
Section
12
:
(i)
When Adjustments to Be Made
. The adjustments required by this
Section 12
shall be made whenever and as often as any specified event requiring an adjustment shall occur. For
the purpose of any adjustment, any specified event shall be deemed to have occurred at the close of
business on the date of its occurrence. All calculations shall be made to the nearest cent and to
the nearest one-thousandth of a share, as the case may be.
(ii)
Fractional Interests
. In computing adjustments pursuant to this
Section
12
(but subject to
Section 14
)
,
fractional interests in Common Stock shall be
taken into account to the nearest 1/1000th of a share.
11
(iii)
Adjustments Not Made as of Settlement Date
. If the adjustments required by this
Section 12
have not been made by the Settlement Date, and the shares to be received by a
Warrant holder on settlement are not entitled to participate in the relevant distribution or
transaction (because they were not held on a related record date or otherwise), then the Company
will adjust the number of shares that the Company will deliver to such Warrant holder in respect of
the relevant Trading Day to reflect the relevant distribution or transaction.
(iv)
When No Adjustment Required
. No adjustment need be made under this
Section
12
for any issuance of options, equity or equity-based grants or other securities pursuant to
the Companys Management Equity Incentive Program (as defined in the Plan).
(d)
Reorganization, Reclassification, Merger or Consolidation of the Company
.
(i) If a Reorganization Event shall occur, as a condition to the consummation of such
Reorganization Event, effective provisions shall be made in the certificate of incorporation or
articles of incorporation of the continuing or surviving or acquiring or resulting entity, or in
any contract or agreement providing for such Reorganization Event, so that so long as any Warrant
remains outstanding, each Warrant, upon the exercise thereof at any time after the consummation of
such Reorganization Event, shall be exercisable into (at an initial Exercise Price equal to the
Exercise Price in effect immediately prior to such Reorganization Event), in lieu of the Warrant
Shares issuable upon such exercise prior to such consummation, solely the amount of cash,
securities or other property
(
Substituted Property
) receivable pursuant to such
Reorganization Event by a holder of the number of shares of Warrant Shares for which a Warrant is
exercisable immediately prior to the effective time of such Reorganization Event assuming such
holder of Warrant Shares did not exercise its rights of election, if any, as to the kind or amount
of Substituted Property receivable upon such Reorganization Event (provided that, if the kind or
amount of Substituted Property receivable upon such Reorganization Event is not the same for each
share of Warrant Shares in respect of which such rights of election shall not have been exercised
(
nonelecting share
), then for the purposes of this
Section 12(d)(i
) the kind and
amount of Substituted Property receivable upon such Reorganization Event for each nonelecting share
shall be deemed to be the kind and amount so receivable per share by a plurality of the electing
shares). The provisions set forth herein providing for adjustments and otherwise for the protection
of the holders of Warrants shall thereafter continue to be applicable on an as nearly equivalent
basis as may be practicable and any such continuing or surviving or acquiring or resulting entity
shall expressly assume all of the obligations of the Company set forth herein to the extent
applicable.
(ii) For purposes hereof, a
Reorganization Event
shall mean any transaction which
the Company enters into constituting (i) a consolidation, merger, share exchange or similar
transaction of the Company with or into another person pursuant to which the Common Stock is
changed into, converted into or exchanged for cash, securities or other property (whether of the
Company or another person); (ii) a reorganization, recapitalization or reclassification or similar
transaction in which the Common Stock is exchanged for securities other than Common Stock (other
than in circumstances covered by
Section 12(a
)); or (iii) a statutory exchange of the
outstanding shares of Common Stock for securities of another person (other than in connection with
a consolidation, merger, share exchange or other similar transaction).
(e)
Certain Limitations
. Notwithstanding anything herein to the contrary, the Company
agrees not to enter into any transaction which, by reason of any adjustment hereunder, would cause
the Exercise Price to be less than the par value per share of Common Stock (if any) unless the
Company shall take such corporate action in order that the Company may validly and legally issue
fully paid and nonassessable shares of such Common Stock at such adjusted Exercise Price.
(f)
Notice to Warrant Agent
. All adjustments made pursuant to this Section 12 shall
be made solely by the Company, and the Company shall promptly provide the Warrant Agent with
written notice of any such adjustment. The Warrant Agent shall be fully protected in relying on
such written notice and
12
on any adjustment or statement contained therein. The Warrant Agent has no duty to determine
when an adjustment under this Section 12 should be made (if at all) or how any such adjustment
should be made. The Warrant Agent makes no representation as to the validity or value of any
securities or assets issued upon exercise of Warrants. The Warrant Agent shall not be responsible
for any failure by the Company to comply with this Section 12. The Warrant Agent shall have no
duty or liability with respect to, and shall not be deemed to have knowledge of, any adjustment
under this Section 12 until it has received written notice thereof from the Company.
SECTION 13
Priority Adjustments, Further Actions
.
If any single action would require
adjustment of the Exercise Price pursuant to more than one subsection of
Section 12
hereof,
only one adjustment shall be made and such adjustment shall be the amount of adjustment that has
the highest, relative to the rights and interests of the holders of the Warrants then outstanding,
absolute value.
SECTION 14
Fractional Shares
.
The Company shall not be required to issue fractional
shares of Common Stock upon the exercise of the Warrants if it elects, if otherwise permitted, to
make a cash payment in respect of any final fraction of a share upon such exercise (after
aggregating all fractional shares of each holder). If more than one Warrant shall be presented for
exercise at the same time by the same holder, the number of full shares of Common Stock that shall
be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of
shares of Common Stock purchasable on exercise of all of the Warrants so presented. If any fraction
of a share of Common Stock would, except for the provisions of this
Section 14,
be issuable
on the exercise of any Warrants (or specified portion thereof), the Company shall notify the
Warrant Agent in writing of the amount to be paid in lieu of the fraction of a share of Common
Stock and concurrently pay or provide to the Warrant Agent for payment to the Warrant holder an
amount in cash equal to the product of (i) such fraction of a share of Common Stock and (ii) the
Closing Price of a share of Common Stock for the Trading Day immediately preceding the date the
Warrant was presented for exercise pursuant to
Section 8
hereof. The Warrant Agent shall be
fully protected in relying on such notice and shall have no duty with respect to, and shall not be
deemed to have knowledge of, any payment for Warrant Shares under any Section of this Warrant
Agreement relating to the payment of fractional Warrant Shares unless and until the Warrant Agent
shall have received such notice and sufficient monies.
SECTION 15
Warrant Holders not Stockholders
.
Nothing contained in this Warrant
Agreement or in any of the Global Warrant Certificates shall be construed as conferring upon the
holders of any Warrant (solely in its capacity as a holder of a Warrant) (i) the right to vote or
to consent or to receive notice as stockholders in respect of the meetings of stockholders or the
election of directors of the Company or any other matter for which stockholders are entitled to
vote or to attend any such meetings or any other proceedings of the holders of Common Stock; (ii)
without limiting the provisions of
Section 12
hereof, the right to receive any cash
dividends, stock dividends, allotments or rights or other distributions paid, allotted or
distributed or distributable to the holders of Common Stock prior to, or for which the relevant
record date precedes, the date of the exercise of such Warrant; or (iii) any other rights
whatsoever as stockholders of the Company. The Warrant Agent shall have no duty to monitor or
enforce compliance with this provision.
SECTION 16
No Redemption
.
The Company shall not have any right to redeem any of the
Warrants evidenced hereby.
SECTION 17
Merger, Consolidation or Change of Name of Warrant Agent
.
Any person into
which the Warrant Agent may be merged or converted or with which it may be consolidated, or any
person resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a
party, or any person succeeding to all or substantially all of the shareowner services, corporate
trust or agency business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act on the part of any of the
parties hereto. If, at the time such successor to the Warrant Agent by merger or consolidation
succeeds to the agency created by this
13
Warrant Agreement, any of the Global Warrant Certificates shall have been countersigned but
not delivered, any such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent; and if, at that time any of the Global Warrant Certificates shall not have
been countersigned, any such successor to the Warrant Agent may countersign such Global Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name of the successor
Warrant Agent; and in all such cases such Global Warrant Certificates shall have the full force and
effect provided in the Global Warrant Certificates in this Warrant Agreement. If at any time the
name of the Warrant Agent shall be changed and at such time any of the Global Warrant Certificates
shall have been countersigned but not delivered, the Warrant Agent whose name has changed may adopt
the countersignature under its prior name; and if at that time any of the Global Warrant
Certificates shall not have been countersigned, the Warrant Agent may countersign such Global
Warrant Certificates either in its prior name or in its changed name; and in all such cases such
Global Warrant Certificates shall have the full force provided in the Global Warrant Certificates
and in this Warrant Agreement.
SECTION 18
Warrant Agent
.
The Warrant Agent undertakes only the duties and obligations
expressly imposed by this Warrant Agreement upon the following terms and conditions, by all of
which the Company and the holders of Warrants, by their acceptance thereof, shall be bound:
(a) The Warrant Agent may rely conclusively and shall be protected in acting upon any order,
judgment, instruction, notice, demand, certificate, opinion or advice of counsel (including counsel
chosen by or who may be an employee of the Warrant Agent or one of its affiliates), statement,
instrument, report or other paper or document (not only as to its due execution and the validity
and effectiveness of its provisions, but also as to the truth and acceptability and of information
therein contained) which is believed by the Warrant Agent, in the absence of bad faith, to be
genuine and to be signed or presented by the proper person or persons as set forth in
Section
18(d)
.
(b) The Warrant Agent shall have no duties, responsibilities or obligations as the Warrant
Agent except those which are expressly set forth herein, and in any modification or amendment
hereof to which the Warrant Agent has consented in writing, and no duties, responsibilities or
obligations shall be implied or inferred. Without limiting the foregoing, unless otherwise
expressly provided in this Warrant Agreement, the Warrant Agent shall not be subject to, nor be
required to comply with, or determine if any Person has complied with, the Warrants or any other
agreement between or among the parties hereto, even though reference thereto may be made in this
Warrant Agreement, or to comply with any notice, instruction, direction, request or other
communication, paper or document other than as expressly set forth in this Warrant Agreement.
(c) The statements contained herein and in the Global Warrant Certificates shall be deemed to
be statements of the Company only. The Warrant Agent assumes no responsibility for the accuracy or
correctness of any of the same and shall not be required to verify the same.
(d) Whenever in the performance of its duties under this Warrant Agreement the Warrant Agent
deems it necessary or desirable that any fact or matter be proved or established by the Company
prior to taking, suffering or omitting to take any action hereunder, the Warrant Agent is hereby
authorized and directed to accept written instructions with respect to the performance of its
duties hereunder from an Appropriate Officer and to apply to the Appropriate Officers for advice or
instructions in connection with its duties, and such instructions shall be full authorization to
the Warrant Agent and, absent gross negligence, bad faith or willful misconduct (each as determined
by a final, non-appealable judgment of a court of competent jurisdiction), the Warrant Agent shall
not be liable for any action taken, suffered, or omitted to be taken by it in accordance with the
instructions of any such Appropriate Officer or in reliance upon any statement signed by any one of
such Appropriate Officers with respect to any fact or matter which may be deemed to be conclusively
proved and established by such signed statement. In the event the Warrant Agent reasonably
believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction,
request or other communication, paper or document received by the Warrant Agent
14
hereunder, or is uncertain of any action to take hereunder, the Warrant Agent, may,
following prior written notice to the Company, in its discretion, refrain from taking any action,
and shall be fully protected and shall not be liable in any way to the Company or any other person
or entity for refraining from taking such action, unless the Warrant Agent receives written
instructions signed by the Company which eliminates such ambiguity or uncertainty to the reasonable
satisfaction of the Warrant Agent.
(e) The Warrant Agent shall not be responsible for any failure of the Company to comply with
any of the covenants contained in this Warrant Agreement (including, without limitation, any
adjustment of the Exercise Price pursuant to
Section 12
hereof, the authorization or
reservation of shares of Common Stock pursuant to
Section 11
hereof, and the due execution
and delivery by the Company of this Warrant Agreement or any Global Warrant Certificate) or in the
Global Warrant Certificates to be complied with by the Company.
(f) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be
counsel for the Company or an employee of the Warrant Agent), and the advice and opinion of such
counsel will be, when relied upon without bad faith by the Warrant Agent, full and complete
authorization to the Warrant Agent as to, and the Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant in respect of, any action taken,
suffered or omitted by it hereunder and in accordance with such opinion or the advice of such
counsel and in the absence of bad faith.
(g) The Warrant Agent shall incur no liability or responsibility to the Company or to any
holder of any Warrant or to any other person for any action taken in reliance on any Global Warrant
Certificate, Warrant Statement, certificate representing shares of Common Stock, notice,
resolution, waiver, consent, order, certificate, or other paper, document or instrument believed by
it to be genuine and to have been signed, sent or presented by the proper party or parties. The
Warrant Agent shall not be bound by any notice or demand, or any waiver, modification, termination
or revision of this Warrant Agreement or any of the terms hereof, unless evidenced by a writing
between and signed by, the Company and the Warrant Agent. The Warrant Agent shall not be required
to take instructions or directions except those given in accordance with this Warrant Agreement.
(h) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or
other experts, and the Warrant Agent will not be answerable or accountable for any act, default,
neglect or unintentional misconduct of any such attorneys or agents or for any loss to the Company
or the holders of the Warrants resulting from any such act, default, neglect or unintentional
misconduct, absent gross negligence, willful misconduct or bad faith (as each is determined by a
final non-appealable order of a court of competent jurisdiction) in the selection and continued
employment or engagement thereof.
(i) The Warrant Agent will not be under any duty or responsibility to insure compliance with
any applicable federal or state securities laws in connection with the issuance, transfer or
exchange of Global Warrant Certificates.
(j) Notwithstanding anything to the contrary contained herein, the Warrant Agent shall not
incur any liability for not performing, or a delay in the performance of, any act, duty, obligation
or responsibility by reason of any occurrence beyond the control of the Warrant Agent (including,
without limitation, any act or provision of any present or future law or regulation or governmental
authority, any act of God, war, civil or military disobedience or disorder, riot, rebellion,
terrorism, insurrection, fire, earthquake, storm, flood, strike, work stoppage, labor dispute or
failure of any utilities or means of communication or computer (software or hardware) services).
(k) The Company agrees to pay to the Warrant Agent reasonable compensation for all services
rendered by the Warrant Agent in the negotiation, preparation, delivery, administration, amendment
and execution of this Warrant Agreement and the exercise and performance of its duties hereunder,
to reimburse the Warrant Agent for all reasonable expenses (including reasonable counsel fees and
15
disbursements), taxes (including withholding taxes) and charges and other charges of any kind
and nature actually incurred by the Warrant Agent in the negotiation, preparation, administration,
amendment, execution, delivery and performance of its duties and responsibilities under this
Warrant Agreement, in each case in accordance with and subject to that certain schedule of fees,
dated August 30, 2010, delivered by the Warrant Agent to the Company, and to indemnify the Warrant
Agent and save it harmless against any and all losses, liabilities and expenses, including
judgments, damages, fines, penalties, claims, demands, costs and counsel fees and expenses, for any
action taken or omitted to be taken by the Warrant Agent, or any person acting on behalf of the
Warrant Agent, arising out of or in connection with this Warrant Agreement except as a result of
its gross negligence, bad faith or willful misconduct (each as determined by a final,
non-appealable order of a court of competent jurisdiction). The costs and expenses incurred by the
Warrant Agent in successfully enforcing this right to indemnification shall be paid by the Company
except to the extent that it is determined by a final, non-appealable order of a court of competent
jurisdiction that the Warrant Agent is not entitled to indemnification hereunder.
(l) The Warrant Agent, shall be under no obligation to institute any action, suit or legal
proceeding or to take any other action likely to involve expense or liability unless the Company or
one or more holders of Global Warrant Certificates shall furnish the Warrant Agent with reasonable
security and indemnity for any costs and expenses which may be incurred, but this provision shall
not affect the power of the Warrant Agent to take such action as it may consider proper, whether
with or without any such security or indemnity. All rights of action under this Warrant Agreement
or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of
the Warrants or the production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent and any recovery of judgment shall be for the ratable benefit of the holders of the
Warrants, as their respective rights or interests may appear.
(m) Except as otherwise prohibited by applicable law, the Warrant Agent, and any member,
stockholder, affiliate, director, officer or employee of the Warrant Agent, may buy, sell or deal
in any of the Warrants or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were not Warrant Agent under this Warrant
Agreement, or a member, stockholder, affiliate, director, officer or employee of the Warrant Agent,
as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
(n) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties
shall be determined solely by the express provisions hereof. The Warrant Agent shall not be liable
for anything which it may do or refrain from doing in connection with this Warrant Agreement,
except for its own gross negligence, bad faith or willful misconduct (each as determined by a
final, non-appealable order of a court of competent jurisdiction); provided that notwithstanding
anything in this Warrant Agreement to the contrary, in no event shall the Warrant Agent be liable
for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever
(including, without limitation, lost profits). Notwithstanding anything contained herein to the
contrary, the Warrant Agents aggregate liability during any term of this Warrant Agreement with
respect to, arising from, or arising in connection with this Warrant Agreement, or from all
services provided or omitted to be provided under this Warrant Agreement, whether in contract, or
in tort, or otherwise (in each case, other than any liability arising from or arising in connection
with willful misconduct (as determined by a final, non appealable order of a court of competent
jurisdiction) on the part of the Warrant Agent), is limited to, and shall not exceed, an amount
equal to 3x the amounts paid hereunder by the Company to the Warrant Agent as fees and charges, but
not including reimbursable expenses.
(o) The Warrant Agent shall not at any time be under any duty or responsibility to any holder
of any Warrant to make or cause to be made any adjustment of the Exercise Price or number of the
shares of
16
Common Stock or other securities or property deliverable as provided in this Warrant
Agreement, or to determine whether any facts exist which may require any of such adjustments, or
with respect to the nature or extent of any such adjustments, when made, or with respect to the
method employed in making the same. The Warrant Agent shall not be accountable with respect to the
validity or value or the kind or amount of any shares of Common Stock or of any securities or
property which may at any time be issued or delivered upon the exercise of any Warrant or with
respect to whether any such shares of Common Stock or other securities will when issued be validly
issued and fully paid and nonassessable, and makes no representation with respect thereto. The
Warrant Agent shall not be accountable to confirm or verify the accuracy or necessity of any
calculation.
(p) The Company agrees to perform, execute and acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other acts, instruments, and
assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of
the provisions of this Warrant Agreement.
(q) The Warrant Agent shall have no responsibility or liability with respect to the validity
of this Warrant Agreement or the execution and delivery hereof (except its countersignature hereof)
or with respect to the validity or execution of any Warrant (except its countersignature thereof);
nor shall it be responsible for any breach by the Company of any covenant or condition contained in
this Warrant Agreement or in any Warrant; nor shall it be responsible to make or be liable for any
adjustments required under any provision hereof, including but not limited to
Section 11
hereof, or responsible for the manner, method or amount of any such adjustment or the ascertaining
of the existence of facts that would require any such adjustment; nor shall it by any act hereunder
be deemed to make any representation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this Warrant Agreement or any Warrant or as to
whether any shares of Common Stock will, when issued, be validly issued and fully paid and
nonassessable or as to the Exercise Price or the number of Warrant Shares issuable upon exercise of
any warrant.
(r) Notwithstanding anything to the contrary contained herein, the Company shall make all
determinations with respect to Cashless Exercises, and the Warrant Agent shall have no duty or
obligation to investigate or confirm whether the Companys determination regarding the number of
Shares to be issued in the event of a Cashless Exercise is accurate or correct. Notwithstanding
anything to the contrary contained herein, the Warrant Agent shall also have no duty or obligation
to investigate or confirm whether any determination of the Exercise Amount under
Section 8
is correct or accurate.
(s) No provision of this Warrant Agreement shall require the Warrant Agent to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its duties
hereunder or in the exercise of its rights.
(t) All rights and obligations contained in this
Section 18
and
Section 19
hereof shall survive the termination of this Warrant Agreement and the resignation, replacement or
removal of the Warrant Agent.
SECTION 19
Expenses
.
All expenses incident to the Companys performance of or
compliance with this Warrant Agreement will be borne by the Company, including, without limitation:
(i) all expenses of printing Global Warrant Certificates; (ii) messenger and delivery services and
telephone calls; (iii) all fees and disbursements of counsel for the Company; (iv) all fees and
disbursements of independent certified public accountants or knowledgeable experts selected by the
Company; and (v) the Companys internal expenses (including, without limitation, all salaries and
expenses of their officers and employees performing legal or accounting duties).
SECTION 20
Change of Warrant Agent
.
(a) If the Company terminates the Warrant Agent or the Warrant Agent shall become incapable of
acting as Warrant Agent or shall resign as provided below, the Company shall appoint a successor to
such Warrant Agent. If the Company shall fail to make such appointment within a period of thirty
(30) days
17
after it has terminated the Warrant Agent or it has been notified in writing of a resignation
or incapacity by the Warrant Agent, then any holder of a Warrant may apply to any court of
competent jurisdiction for the appointment of a successor to the Warrant Agent. Pending appointment
of a successor to the Warrant Agent, either by the Company or by such a court, the duties of the
Warrant Agent shall be carried out by the Company. Any successor Warrant Agent, whether appointed
by the Company or by such a court, shall be in good standing, incorporated under the laws of any
state or of the United States of America. As soon as practicable after appointment of the successor
Warrant Agent, the Company shall cause written notice of the change in the Warrant Agent to be
given to each of the holders of the Warrants at such holders address appearing on the Warrant
Register. After appointment, the successor to the Warrant Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named as Warrant Agent
without further act or deed. The former Warrant Agent shall deliver and transfer to the successor
to the Warrant Agent any property at the time held by it hereunder and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Failure to give any notice
provided for in this
Section 20,
however, or any defect therein, shall not affect the
legality or validity of the appointment of a successor to the Warrant Agent.
(b) The Warrant Agent may resign at any time and be discharged from the obligations hereby
created by so notifying the Company in writing at least thirty (30) days in advance of the proposed
effective date of its resignation. If no successor Warrant Agent accepts the engagement hereunder
by such time, the Company shall act as Warrant Agent.
SECTION 21
Notices to the Company and Warrant Agent
.
Any notice or demand authorized or
permitted by this Warrant Agreement to be given or made by the Warrant Agent or by any holder of
the Warrants to or on the Company to be effective shall be in writing (including by facsimile), and
shall be deemed to have been duly given or made when delivered by hand, or two (2) business days
after being delivered to a recognized courier (whose stated terms of delivery are two (2) business
days or less to the destination of such notice), or five (5) days after being deposited in the
mail, first class and postage prepaid or, in the case of facsimile notice, when received, addressed
as follows (until another address or facsimile number is filed in writing by the Company with the
Warrant Agent):
Visteon Corporation
One Village Center Drive
Van Buren Township, Michigan 48111
Facsimile: (734) 710-7112
Attention: Chief Financial Officer
with a copy (which shall not constitute notice) to:
Pachulski Stang Ziehl & Jones LLP
919 North Market Street, 17th Floor
Wilmington, Delaware 19899-8705
Facsimile: (302) 652-4400
Attention: Laura Davis Jones
James E. ONeill
Mark M. Billion
and
Kirkland & Ellis LLP
300 North LaSalle
Chicago, Illinois 60654
Facsimile: (312) 862-2200
Attention: James H. M. Sprayregen, P.C.
18
James J. Mazza, Jr.
Gerald T. Nowak, P.C.
Howard Norber
and
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Facsimile: (212) 446-4900
Attention: Marc Kieselstein, P.C.
Brian S. Lennon
Any notice or demand pursuant to this Warrant Agreement to be given by the Company or by any
holder(s) of the Warrants to the Warrant Agent shall be sufficiently given if sent in the same
manner as notices or demands are to be given or made to or on the Company (as set forth above) to
the Warrant Agent as follows (until another address is filed in writing by the Warrant Agent with
the Company):
Mellon Investor Services LLC
200 W. Monroe Street, Suite 1590
Chicago, IL 60606
Attention: Peter Sablich, Vice President
with a copy to:
Mellon Investor Services LLC
480 Washington Boulevard 29th Floor
Jersey City, NJ 07310
Attention: Legal Department
SECTION 22
Supplements and Amendments
.
The Company and the Warrant Agent may from time
to time supplement or amend this Warrant Agreement (a) without the approval of any holders of
Warrants in order to cure any ambiguity, manifest error or other mistake in this Warrant Agreement
or to correct or supplement any provision contained herein that may be defective or inconsistent
with any other provision herein, or to make any other provisions in regard to matters or questions
arising hereunder that the Company may deem necessary or desirable and that shall not adversely
affect the rights or interests of the holders of Warrants or (b) with the prior written consent of
holders of the Warrants exercisable for a majority of the shares of Common Stock then issuable upon
exercise of the Warrants then outstanding; provided, however, that the consent of each holder of a
Warrant affected shall be required for any amendment of this Warrant Agreement that would (i)
increase the Exercise Price or decrease the number of shares of Common Stock purchasable upon
exercise of the Warrants, except that such consent shall not be required for any adjustment to the
Exercise Price or the number of shares of Common Stock purchasable if made pursuant to the
provisions of
Section 12
hereof, (ii) alter the Companys obligation to issue Warrant
Shares upon exercise of the underlying Warrant (other than pursuant to adjustments otherwise
provided for in this Warrant Agreement, including the adjustments provided for in
Section
12
hereof), (iii) change the Expiration Date of the Warrants to an earlier date, (iv) waive the
application of the adjustment provisions contained in
Section 12
in connection with any
events to which such provisions apply or otherwise modify the adjustment provisions contained in
Section 12
in a manner that would have an adverse economic impact on the holders of
Warrants, or (v) treat such holder differently in an adverse way from any other holder of Warrants.
The Warrant Agent may, but shall not be obligated to, execute
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any amendment or supplement which affects the rights or changes or increases the duties or
obligations of the Warrant Agent.
SECTION 23
Successors
.
All the covenants and provisions of this Warrant Agreement by or
for the benefit of the Company, the holders of the Warrants or the Warrant Agent shall bind and
inure to the benefit of their respective successors and assigns hereunder.
SECTION 24
Termination
.
This Warrant Agreement shall terminate at 5:00 p.m., New York
City time, on the Expiration Date (or, at 5:00 p.m., New York City time, on the Settlement Date
with respect to any Warrant Exercise Notice delivered prior to 5:00 p.m., New York City time, on
the Expiration Date). Notwithstanding the foregoing, this Warrant Agreement will terminate on such
earlier date on which all outstanding Warrants have been exercised. The provisions of Section 18
and Section 19 shall survive such termination and the resignation or removal of the Warrant Agent.
Termination of this Warrant Agreement shall not relieve the Company or the Warrant Agent of any of
their obligations arising prior to the date of such termination or in connection with the
settlement of any Warrant exercised prior to 5:00 p.m., New York City time, on the Expiration Date.
SECTION 25
Governing Law
.
This Warrant Agreement and each Warrant issued hereunder
shall be deemed to be a contract made under the laws of the State of New York and for all purposes
shall be governed by and construed in accordance with the laws of the State of New York without
giving effect to conflict of laws principles. The parties hereto irrevocably consent to the
jurisdiction of the courts of the State of New York and any federal court located in such state in
connection with any action, suit or proceeding arising out of or relating to this Warrant
Agreement.
SECTION 26
Benefits of this Warrant Agreement
.
This Warrant Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent and the holders of the Warrants, and
nothing in this Warrant Agreement shall be construed to give to any person other than the Company,
the Warrant Agent and the holders of the Warrants any legal or equitable right, remedy or claim
under this Warrant Agreement. Each holder, by acceptance of a Warrant, agrees to all of the terms
and provisions of this Warrant Agreement applicable thereto.
SECTION 27
Counterparts
.
This Warrant Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same instrument.
SECTION 28
Further Assurances
.
From time to time on and after the date hereof, the
Company shall deliver or cause to be delivered to the Warrant Agent such further documents and
instruments and shall do and cause to be done such further acts as the Warrant Agent shall
reasonably request (it being understood that the Warrant Agent shall have no obligation to make
such request) to carry out more effectively the provisions and purposes of this Warrant Agreement,
to evidence compliance herewith or to assure itself that it is protected hereunder.
SECTION 29
Entire Agreement
.
This Warrant Agreement and the Global Warrant
Certificates constitute the entire agreement of the Company, the Warrant Agent and the holders of
the Warrants with respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, among the Company, the Warrant Agent and the holders of the
Warrants with respect to the subject matter hereof. Except as expressly made herein, the Company
makes no representation, warranty, covenant or agreement with respect to the Warrants.
SECTION 30
Severability
.
Wherever possible, each provision of this Warrant Agreement
shall be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Warrant Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Warrant Agreement;
provided, however, that if such excluded or added provision shall affect the rights, immunities,
duties or obligations of the Warrant
20
Agent, the Warrant Agent shall be entitled to resign immediately upon notification in writing
to the Company.
SECTION 31
Force Majeure
.
In no event shall the Warrant Agent be responsible or liable
for any failure or delay in the performance of its obligations under this Warrant Agreement arising
out of or caused by, directly or indirectly, forces beyond its reasonable control, including
without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software or hardware) services.
SECTION 32
Customer Identification Program
.
Each person that is a party hereto
acknowledges that the Warrant Agent is subject to the customer identification program (Customer
Identification Program) requirements under the USA PATRIOT Act and its implementing regulations
(collectively, the
Patriot Act
), and that the Warrant Agent must, whenever required under
the Patriot Act, obtain, verify and record information that allows the Warrant Agent to identify
each such person. Accordingly, the Warrant Agent may request information from any such person that
will help the Warrant Agent to identify such person, including without limitation, as applicable,
such persons physical address, tax identification number, organizational documents, certificate of
good standing or license to do business. Each person that is a party hereto agrees that, to the
extent required under the Patriot Act, the Warrant Agent cannot take certain actions under this
Warrant Agreement until the Warrant Agent verifies each such persons identity in accordance with
the Customer Identification Program requirements (it being understood that the Warrant Agent will
use its reasonable best efforts to complete such verification as promptly as practicable).
SECTION 33
Disclosure Regarding Incentive Compensation Program
.
The Company
acknowledges that The Bank of New York Mellon Corporation (BNYM) has adopted an incentive
compensation program designed (i) to facilitate clients gaining access to and being provided with
explanations about the full range of products and services offered by BNYM and its subsidiaries and
(ii) to expand and develop client relationships. This program may lead to the payment of referral
fees and/or bonuses by BNYM or it affiliates to employees of BNYM or its subsidiaries who may have
been involved in a referral that resulted in the execution of this Warrant Agreement, obtaining
products or services covered by this Warrant Agreement or products or services that may be
ancillary or supplemental to such products or services. Any such referral fees or bonuses are
funded solely out of fees and commissions paid under this Warrant Agreement or with respect to such
ancillary or supplemental products or services. For the avoidance of doubt, this Section 33 is
solely for disclosure purposes, and nothing contained in this
Section 33
shall or shall be
deemed to require the payment of any amounts by the Company and neither the Company nor any other
person (other than BNYM and its affiliates) shall have any obligations or liabilities under or in
connection with this
Section 33
or the incentive compensation program described herein.
* * * * *
21
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to be duly executed,
as of the day and year first above written.
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VISTEON CORPORATION
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By:
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Name:
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Title:
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MELLON INVESTOR SERVICES LLC,
as Warrant Agent
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By:
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Name:
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Title:
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22
EXHIBIT A
FORM OF GLOBAL WARRANT CERTIFICATE
FORM OF FACE OF GLOBAL WARRANT CERTIFICATE
VOID AFTER 5:00 P.M., NEW YORK CITY TIME, ON OCTOBER 1, 2015
THE SALE, ASSIGNMENT, PLEDGE, ENCUMBRANCE, EXCHANGE OR OTHER TRANSFER OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE IS SUBJECT TO THE TERMS OF THE WARRANT AGREEMENT, DATED AS OF OCTOBER 1, 2010
(THE
WARRANT AGREEMENT
), BETWEEN THE ISSUER OF THIS CERTIFICATE AND THE WARRANT AGENT
NAMED THEREIN. BY ACCEPTING ANY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE, THE
RECIPIENT OF SUCH SECURITIES SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL OF THE
PROVISIONS OF THE WARRANT AGREEMENT. A COPY OF THE WARRANT AGREEMENT MAY BE OBTAINED UPON WRITTEN
REQUEST TO THE CORPORATE SECRETARY OF THE ISSUER OF THIS CERTIFICATE.
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NO. W-1
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WARRANT TO PURCHASE
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___SHARES OF COMMON
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STOCK
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VISTEON CORPORATION
WARRANT TO PURCHASE COMMON STOCK, PAR VALUE $0.01 PER SHARE
CUSIP # [_____]
DISTRIBUTION DATE: [_____], 2010
This Global Warrant Certificate certifies that Cede & Co., or its registered assigns, is the
registered holder of a Warrant (this
Warrant
) of
VISTEON CORPORATION
, a Delaware
corporation (the
Company
), to purchase the number of shares of common stock, par value
$0.01 per share (
Common Stock
), of the Company set forth above (as adjusted from time to
time in accordance with the terms of the Warrant Agreement). This Global Warrant expires at 5:00
p.m., New York City time on October 1, 2015 (the
Expiration Date
) and entitles the holder
upon exercise at any time, and from time to time, in whole or in part, on or after the date of this
Warrant Certificate and prior to the Expiration Date to purchase from the Company up to the number
of fully paid and nonassessable shares of Common Stock set forth above at an exercise price of
$58.80 per share of Common Stock (as adjusted from time to time in accordance with the terms of the
Warrant Agreement, the
Exercise Price
). The Exercise Price and the number of shares of
Common Stock purchasable upon exercise of this Warrant are subject to adjustment upon the
occurrence of certain events as set forth in the Warrant Agreement.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS GLOBAL WARRANT CERTIFICATE SET
FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH AT THIS PLACE.
This Global Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
All capitalized terms used herein and not defined herein shall have the meanings assigned to
them in the Warrant Agreement.
IN WITNESS WHEREOF
, the Company has caused this Global Warrant Certificate to be executed by
its duly authorized officers as of the date below set forth.
Dated:
_____
, 2010
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VISTEON CORPORATION
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By:
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Name:
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Title:
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Countersigned:
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MELLON INVESTOR SERVICES LLC
,
as Warrant Agent
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By:
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Name:
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Title:
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Address of Registered Holder for Notices (until changed in accordance with the Warrant Agreement):
[Signature Page to Global Warrant Certificate]
FORM OF REVERSE OF GLOBAL WARRANT CERTIFICATE
The Warrant evidenced by this Global Warrant Certificate is a part of a duly authorized issue
of Warrants to purchase up to
shares of Common Stock issued pursuant to the Warrant Agreement. The
Warrant Agreement is hereby incorporated by reference herein and made a part of this instrument and
is hereby referred to for a description of the rights, limitation of rights, obligations, duties
and immunities thereunder of the Warrant Agent, the Company and the registered holders of the
Warrants. All capitalized terms used but not defined herein shall have the meanings assigned to
them in the Warrant Agreement.
Upon due presentment for registration of transfer of the Warrant and surrender of this Global
Warrant Certificate at the office of the Warrant Agent designated for such purpose, a new Global
Warrant Certificate or Global Warrant Certificates of like tenor and evidencing in the aggregate a
like number of Warrants shall be issued to the transferee in exchange for this Global Warrant
Certificate, subject to the limitations set forth in the Warrant Agreement, without charge except
for any applicable tax or other charge.
Subject to Section 14 of the Warrant Agreement, the Company shall not be required to issue
fractional shares of Common Stock.
No Warrants may be sold, exchanged or otherwise transferred in violation of the Securities Act
state securities laws or other applicable law. The Warrant does not entitle the registered holder
thereof to any of the rights of a stockholder of the Company.
The Company and Warrant Agent may deem and treat the registered holder hereof as the absolute
owner of this Global Warrant Certificate (notwithstanding any notation of ownership or other
writing hereon made by anyone other than the Company or the Warrant Agent) for the purpose of any
exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
This Global Warrant Certificate is held by The Depository Trust Company (the
Depository
) or its nominee in custody for the benefit of the beneficial owners hereof,
and is not transferable to any Person under any circumstances except that (i) this Global Warrant
Certificate may be transferred in whole pursuant to Section 6(e) of the Warrant Agreement (as
hereinafter defined) and (ii) this Global Warrant Certificate may be delivered to the Warrant Agent
for cancellation pursuant to Sections 6(g) and 8(n) of the Warrant Agreement.
Unless this Global Warrant Certificate is presented by an authorized representative of the
Depository to the Company or the Warrant Agent for registration of transfer, exchange or payment
and any certificate issued is registered in the name of Cede & Co., or such other entity as is
requested by an authorized representative of the Depository (and any payment hereon is made to Cede
& Co. or to such other entity as is requested by an authorized representative of the Depository),
any transfer, pledge or other use hereof for value or otherwise by or to any Person is wrongful
because the registered owner hereof, Cede & Co., has an interest herein.
No registration or transfer of the securities issuable pursuant to the Warrant will be
recorded on the books and records of the Company or the Warrant Agent until the provisions set
forth in the Warrant Agreement have been complied with.
In the event of any conflict or inconsistency between this Global Warrant Certificate and the
Warrant Agreement, the Warrant Agreement shall control.
EXHIBIT B-1
EXERCISE FORM FOR HOLDERS
HOLDING BOOK-ENTRY WARRANTS
(To be executed upon exercise of the Warrant(s))
The undersigned hereby irrevocably elects to exercise the right, represented by the Book-Entry
Warrant(s), to purchase shares of Common Stock of Visteon Corporation and (check one or both):
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herewith tenders in payment for
shares of Common Stock an amount
of $
by certified or official bank check made payable to the order
of Visteon Corporation or by wire transfer in immediately
available funds to an account arranged with Visteon Corporation;
and/or
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herewith tenders the Warrant(s) for
shares of Common Stock
pursuant to the cashless exercise provision of Section 8 (h) of
the Warrant Agreement.
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Please check below if this exercise is contingent upon the consummation of a Reorganization Event
as
provided
in Sections 8(i) and 12(d) of the Warrant Agreement:
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This exercise is being made in connection with a Reorganization
Event; provided, that in the event the Reorganization Event shall
not be consummated, then this exercise shall be deemed to be
revoked.
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The undersigned requests that a statement representing the shares of Common Stock issued upon
exercise of the Warrant(s) be delivered in accordance with the instructions set forth below.
Dated: ________, 20____
THIS EXERCISE NOTICE MUST BE DELIVERED TO THE WARRANT AGENT, PRIOR TO 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE.
ALL CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS ASSIGNED TO THEM
IN THE WARRANT AGREEMENT.
THE UNDERSIGNED REQUESTS THAT A STATEMENT REPRESENTING THE SHARES OF COMMON STOCK BE DELIVERED AS
FOLLOWS:
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Name:
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(Please Print)
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Address:
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Telephone:
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Fax:
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Social Security Number or Other Taxpayer Identification Number (if applicable):
________
IF SAID NUMBER OF SHARES SHALL NOT BE ALL THE SHARES PURCHASABLE UNDER THE WARRANT(S), THE
UNDERSIGNED REQUESTS THAT NEW BOOK-ENTRY WARRANT(S) REPRESENTING THE BALANCE OF SUCH WARRANT(S)
SHALL BE REGISTERED AS FOLLOWS:
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Name:
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(Please Print)
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Address:
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Telephone:
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Fax:
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Social Security Number or Other Taxpayer Identification Number (if applicable):
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Capacity in which Signing:
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SIGNATURE GUARANTEED BY:
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Signatures must be guaranteed by a participant in a Medallion Signature Guarantee Program at a
guarantee level acceptable to the Companys Rights Agent.
EXHIBIT B-2
EXERCISE FORM FOR HOLDERS
HOLDING WARRANTS THROUGH THE DEPOSITORY TRUST COMPANY
TO BE COMPLETED BY DIRECT PARTICIPANT
IN THE DEPOSITORY TRUST COMPANY
(To be executed upon exercise of the Warrant(s))
The undersigned hereby irrevocably elects to exercise the right, represented by Global Warrant
Certificate No. ___ held for its benefit through the book-entry facilities of The Depository Trust
Company (the Depository), to purchase
shares of Common Stock of Visteon Corporation and (check
one or both):
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herewith tenders in payment for such shares an amount of $
by
certified or official bank check made payable to the order of
Visteon Corporation or by wire transfer in immediately available
funds to an account arranged with Visteon Corporation; and/or
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herewith tenders the Warrant(s) for
shares of Common Stock
pursuant to the cashless exercise provision of Section 8 (h) of
the Warrant Agreement.
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Please check below if this exercise is contingent upon the consummation of a Reorganization Event
as provided in Sections 8(i) and 12(d) of the Warrant Agreement:
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This exercise is being made in connection with a Reorganization
Event; provided, that in the event the Reorganization Event shall
not be consummated, then this exercise shall be deemed to be
revoked.
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The undersigned requests that the shares of Common Stock issuable upon exercise of the Warrant(s)
be in registered form in the authorized denominations, registered in such names and delivered, all
as specified in accordance with the instructions set forth below;
provided,
that if the
shares of Common Stock are evidenced by global securities, the shares of Common Stock shall be
registered in the name of the Depository or its nominee.
Dated: _________, 20___
THIS EXERCISE NOTICE MUST BE DELIVERED TO THE WARRANT AGENT, PRIOR TO 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE. THE WARRANT AGENT SHALL NOTIFY YOU OF (1) THE WARRANT AGENTS ACCOUNT
AT THE DEPOSITORY TO WHICH YOU MUST DELIVER YOUR WARRANT(S) ON THE EXERCISE DATE AND (2) THE
ADDRESS, PHONE NUMBER AND FACSIMILE NUMBER WHERE YOU CAN CONTACT THE WARRANT AGENT AND TO WHICH
WARRANT EXERCISE NOTICES ARE TO BE SUBMITTED.
ALL CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS ASSIGNED TO THEM
IN THE WARRANT AGREEMENT.
NAME OF DIRECT PARTICIPANT IN THE DEPOSITORY:
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Account Name
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(Please Print)
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Address:
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Social Security Number or Other Taxpayer Identification Number (if applicable): ___________________
Account from which Warrant(s) are Being Delivered: ___________________
Depository Account Number: ___________________
WARRANT HOLDER DELIVERING WARRANT(S), IF OTHER THAN THE DIRECT PARTICIPANT: Name:
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Address:
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Account from which the Shares of Common Stock are to be Credited: ___________________
Depository Account Number:
___________________
FILL IN FOR DELIVERY OF THE COMMON STOCK, IF OTHER THAN TO THE PERSON DELIVERING THIS WARRANT
EXERCISE NOTICE:
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Name:
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(Please Print)
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Social Security Number or Other Taxpayer Identification Number (if applicable):
___________________
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Capacity in which Signing:
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Signature Guaranteed By:
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EXHIBIT 10.2
FORM OF
WARRANT AGREEMENT
by and between
VISTEON CORPORATION
and
MELLON INVESTOR SERVICES LLC,
as Warrant Agent
Dated as of October 1, 2010
FORM OF
WARRANT AGREEMENT
This WARRANT AGREEMENT (as amended, supplemented, amended and restated or otherwise modified
from time to time, this
Warrant Agreement
), is entered into as of October 1, 2010, by and
between VISTEON CORPORATION, a Delaware corporation (the
Company
), and Mellon Investor
Services LLC, a New Jersey limited liability company (operating with the service name BNY Mellon
Shareowner Services), as warrant agent (together with any successor appointed pursuant to
Section 20
hereof, the
Warrant Agent
).
WHEREAS
, pursuant to the terms and conditions of the Fifth Amended Joint Plan of
Reorganization of Visteon Corporation and its debtor affiliates pursuant to chapter 11 of title 11
of the United States Code (the
Bankruptcy Code
) filed on August 31, 2010 in the United
States Bankruptcy Court for the District of Delaware, Case No. 09-11786 (CSS) (as may be amended,
supplemented or otherwise modified from time to time, the
Plan
), the Company proposes to
issue Warrants (the
Warrants
) entitling the holders thereof to purchase up to 2,355,000
shares of common stock, par value $0.01 per share, of the Company (
Common Stock
) together
with any other securities, cash or other property that may be issuable upon exercise of a Warrant
as shall result from the adjustments specified in
Section 12
hereof at an exercise price of
$9.66 per share of Common Stock, as may be adjusted pursuant to
Section 12
hereof (the
Exercise Price
);
WHEREAS
, the Warrants are being issued pursuant to, and upon the terms and conditions set
forth in, the Plan in an offering in reliance on the exemption from the registration requirements
of the Securities Act of 1933, as amended (the
Securities Act
) afforded by section 1145
of the Bankruptcy Code or Section 4(2) of the Securities Act, and of any applicable state
securities or blue sky laws;
WHEREAS
, the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing so to act, in connection with the issuance of Warrants and other matters
as expressly provided herein; and
WHEREAS
, for purposes of this Warrant Agreement, person shall be interpreted broadly to
include an individual, firm, corporation, partnership, joint venture, association, joint stock
company, limited liability company, limited liability partnership, national banking association,
trust, trustee, estate, unincorporated organization, government, governmental unit, agency, or
political subdivision thereof, or other entity and shall include any successor (by merger or
otherwise) of such person.
NOW, THEREFORE
, in consideration of the premises and the mutual agreements herein set forth,
the parties hereto agree as follows:
SECTION 1
Appointment of Warrant Agent
.
The Company hereby appoints the Warrant Agent
to act as warrant agent for the Company in respect of the Warrants upon the express terms and
subject to the express conditions herein set forth (and no implied terms or conditions), and the
Warrant Agent hereby accepts such appointment, upon the express terms and express conditions
hereinafter set forth.
SECTION 2
Issuance of Warrants
.
In accordance with
Section 5
hereof and the
Plan and subject to the next sentence, the Company will cause to be issued to the Depository (as
defined below), one or more Global Warrant Certificates (as defined below) evidencing the Warrants.
At the election of a holder of Warrants and in lieu of holding Warrants through the Depository,
such holder may elect to be issued Warrants by book-entry registration on the books and records of
the Warrant Agent (
Book-Entry Warrants
) and such Warrants shall be evidenced by
statements issued by the Warrant Agent from time to time to the registered holder of book-entry
Warrants reflecting such book-entry position (the
Warrant Statement
). Each Warrant
entitles the holder, upon proper exercise and payment of the applicable Exercise Price, to receive
from the Company, one share of Common Stock (as may be adjusted pursuant to
Section 12
hereof). The shares of Common Stock or (as provided pursuant to
Section 12
hereof) other
shares of capital stock deliverable upon proper exercise of the Warrants are referred to
herein as the
Warrant Shares
. The words
holder
or
holders
as used
herein in respect of any Warrants or Warrant Shares, shall mean the registered holder or registered
holders thereof.
SECTION 3
Warrant Certificates
.
Subject to
Section 6
hereof, the Warrants
shall be issued (1) via book-entry registration on the books and records of the Warrant Agent and
evidenced by a Warrant Statement, and/or (2) in the form of one or more global certificates (the
Global Warrant Certificates
), the forms of election to exercise and of assignment to be
printed on the reverse thereof, in substantially the form set forth in
Exhibit A
attached
hereto. The Warrant Statements and Global Warrant Certificates may bear such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this
Warrant Agreement, and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules and regulations
of the Depository (as hereinafter defined), any law or with any rules made pursuant thereto or with
any rules of any securities exchange or as may, consistently herewith, be determined by (i) in the
case of Global Warrant Certificates, the Appropriate Officers (as hereinafter defined) executing
such Global Warrant Certificates, as evidenced by their execution of the Global Warrant
Certificates, or (ii) in the case of a Warrant Statement, any Appropriate Officer, and all of which
shall be reasonably acceptable to the Warrant Agent. The Global Warrant Certificates shall be
deposited on or after the date hereof with, or, so long as the Warrant Agent is Mellon Investor
Services LLC, with The Bank of New York Mellon as custodian for, The Depository Trust Company (the
Depository
) and registered in the name of Cede & Co., as the Depositorys nominee. Each
Global Warrant Certificate shall represent such number of the outstanding Warrants as specified
therein, and each shall provide that it shall represent the aggregate amount of outstanding
Warrants from time to time endorsed thereon and that the aggregate amount of outstanding Warrants
represented thereby may from time to time be reduced or increased, as appropriate, in accordance
with the terms of this Warrant Agreement.
SECTION 4
Execution of Warrant Certificates
.
Global Warrant Certificates shall be
signed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, any Vice
President, its Secretary or any Assistant Secretary (each, an
Appropriate Officer
). Each
such signature upon the Global Warrant Certificates may be in the form of a facsimile or other
electronically transmitted signature (including, without limitation, electronic transmission in
portable document format (.pdf)) of any such Appropriate Officer and may be imprinted or otherwise
reproduced on the Global Warrant Certificates and for that purpose the Company may adopt and use
the facsimile or other electronically transmitted signature of any Appropriate Officer who shall
have been an Appropriate Officer at the time of entering into this Warrant Agreement. If any
Appropriate Officer who shall have signed any of the Global Warrant Certificates shall cease to be
such Appropriate Officer before the Global Warrant Certificates so signed shall have been
countersigned by the Warrant Agent or delivered by the Company, such Global Warrant Certificates
nevertheless may be countersigned and delivered as though such Appropriate Officer had not ceased
to be such Appropriate Officer of the Company; and any Global Warrant Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of such Global Warrant
Certificate, shall be a proper Appropriate Officer of the Company to sign such Global Warrant
Certificate, although at the date of the execution of this Warrant Agreement any such person was
not such Appropriate Officer.
Global Warrant Certificates shall be dated the date of countersignature by the Warrant Agent
and shall represent one or more whole Warrants.
SECTION 5
Registration and Countersignature
.
Upon receipt of a written order of the
Company, the Warrant Agent, on behalf of the Company, shall (i) register in the Warrant Register
(as defined below) the Book-Entry Warrants as well as any Global Warrant Certificates and exchanges
and transfers of outstanding Warrants in accordance with the procedures set forth in this Warrant
Agreement and (ii) upon receipt of the Global Warrant Certificates duly executed on behalf of the
Company, countersign one or more Global Warrant Certificates evidencing Warrants and shall deliver
such Global Warrant Certificates
2
to or upon the written order of the Company. Such written order of the Company shall
specifically state the number of Warrants that are to be issued as Book-Entry Warrants and the
number of Warrants that are to be issued as one or more Global Warrant Certificates. Each Warrant
(including the Book Entry Warrants and each Global Warrant Certificate) shall be, and shall remain,
subject to the provisions of this Warrant Agreement until such time as all of the Warrants
evidenced thereby shall have been duly exercised or shall have expired or been canceled in
accordance with the terms hereof. Each holder of Warrants shall be bound by all of the terms and
provisions of this Warrant Agreement (a copy of which is available on request to the Secretary of
the Company) as fully and effectively as if such holder had signed the same.
No Global Warrant Certificate shall be valid for any purpose, and no Warrant evidenced thereby
shall be exercisable, until such Global Warrant Certificate has been countersigned by the manual or
facsimile signature of the Warrant Agent. Such signature by the Warrant Agent upon any Global
Warrant Certificate executed by the Company shall be conclusive evidence that such Global Warrant
Certificate so countersigned has been duly issued hereunder.
The Warrant Agent shall keep, at an office designated for such purpose, books (the
Warrant Register
) in which, subject to such reasonable regulations as it may prescribe,
it shall register the Book-Entry Warrants as well as any Global Warrant Certificates and exchanges
and transfers of outstanding Warrants in accordance with the procedures set forth in
Section
6
hereof, all in form satisfactory to the Company and the Warrant Agent. The Company may
require payment of a sum sufficient to cover any stamp or other tax or charge that may be imposed
on the holder of a Warrant in connection with any such exchange or registration of transfer. The
Warrant Agent shall have no obligation to effect an exchange or register a transfer unless and
until any payments required by the immediately preceding sentence have been made.
Prior to due presentment for registration of transfer or exchange of any Warrant in accordance
with the procedures set forth in this Warrant Agreement, the Warrant Agent and the Company may deem
and treat the person in whose name any Warrant is registered as the absolute owner of such Warrant
(notwithstanding any notation of ownership or other writing made in a Global Warrant Certificate by
anyone), for the purpose of any exercise thereof, any distribution to the holder of the Warrant
thereof and for all other purposes, and neither the Warrant Agent nor the Company shall be affected
by notice to the contrary.
SECTION 6
Registration of Transfers and Exchanges
.
(a)
Transfer and Exchange of Global Warrant Certificates or Beneficial Interests
Therein
. The transfer and exchange of Global Warrant Certificates or beneficial interests
therein shall be effected through the Depository, in accordance with this Warrant Agreement and the
procedures of the Depository therefor.
(b)
Exchange of a Beneficial Interest in a Global Warrant Certificate for a Book-Entry
Warrant
.
(i) Any holder of a beneficial interest in a Global Warrant Certificate may, upon request,
exchange such beneficial interest for a Book-Entry Warrant. Upon receipt by the Warrant Agent from
the Depository or its nominee of written instructions or such other form of instructions as is
customary for the Depository on behalf of any person having a beneficial interest in a Global
Warrant Certificate, the Warrant Agent shall cause, in accordance with the standing instructions
and procedures existing between the Depository and the Warrant Agent, the number of Warrants
represented by the Global Warrant Certificate to be reduced by the number of Warrants to be
represented by the Book-Entry Warrants to be issued in exchange for the beneficial interest of such
person in the Global Warrant Certificate and, following such reduction, the Warrant Agent shall
register in the name of the holder a Book-Entry Warrant and deliver to said Warrant holder a
Warrant Statement.
3
(ii) Book-Entry Warrants issued in exchange for a beneficial interest in a Global Warrant
Certificate pursuant to this
Section 6(b
) shall be registered in such names as the
Depository, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Warrant Agent. The Warrant Agent shall deliver such Warrant Statements to the persons
in whose names such Warrants are so registered.
(c)
Transfer and Exchange of Book-Entry Warrants
. Book-Entry Warrants surrendered for
exchange or for registration of transfer shall be cancelled by the Warrant Agent. Such cancelled
Book-Entry Warrants shall then be disposed of by or at the direction of the Company in accordance
with applicable law. When Book-Entry Warrants are presented to or deposited with the Warrant Agent
with a written request:
(i) to register the transfer of the Book-Entry Warrants; or
(ii) to exchange such Book-Entry Warrants for an equal number of Book-Entry Warrants of other
authorized denominations,
then in each case the Warrant Agent shall register the transfer or make the exchange as requested
if its requirements for such transactions are met;
provided
,
however
, that the Warrant Agent has
received a written instruction of transfer in form satisfactory to the Warrant Agent, duly executed
by the holder thereof or by the duly appointed legal representative thereof or by his attorney,
duly authorized in writing.
(d)
Exchange or Transfer of a Book-Entry Warrant for a Beneficial Interest in a Global
Warrant Certificate
. Upon receipt by the Warrant Agent of appropriate written instruments of
transfer with respect to a Book-Entry Warrant, in form satisfactory to the Warrant Agent, together
with written instructions directing the Warrant Agent to make, or to direct the Depository to make,
an endorsement on the Global Warrant Certificate to reflect an increase in the number of Warrants
represented by the Global Warrant Certificate equal to the number of Warrants represented by such
Book-Entry Warrant (such instruments of transfer and instructions to be duly executed by the holder
thereof or the duly appointed legal representative thereof or by his attorney, duly authorized in
writing, such signatures to be guaranteed by an eligible guarantor institution to the extent
required by the Warrant Agent or the Depositary), then the Warrant Agent shall cancel such
Book-Entry Warrant on the Warrant Register and cause, or direct the Depository to cause, in
accordance with the standing instructions and procedures existing between the Depository and the
Warrant Agent, the number of Warrants represented by the Global Warrant Certificate to be increased
accordingly. If no Global Warrant Certificates are then outstanding, the Company shall issue, and
the Warrant Agent shall countersign, a new Global Warrant Certificate representing the appropriate
number of Warrants.
(e)
Restrictions on Transfer and Exchange of Global Warrant Certificates
.
Notwithstanding any other provisions of this Warrant Agreement (other than the provisions set forth
in
Section 6(f
) hereof), unless and until it is exchanged in whole for a Book-Entry
Warrant, a Global Warrant Certificate may not be transferred as a whole except by the Depository to
a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee
of the Depository or by the Depository or any such nominee to a successor Depository or a nominee
of such successor Depository.
(f)
Book-Entry Warrants
. If at any time:
(i) the Depository for the Global Warrant Certificates notifies the Company that the
Depository is unwilling or unable to continue as Depository for the Global Warrant Certificates and
a successor Depository for the Global Warrant Certificates is not appointed by the Company within
90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Warrant Agent in writing that all
Warrants shall be exclusively in the form of Book-Entry Warrants, then the Warrant Agent, upon
receipt of written instructions signed by an Appropriate Officer of the Company and all other
necessary information, shall
4
register Book-Entry Warrants, in an aggregate number equal to the number of Warrants
represented by the Global Warrant Certificates, in exchange for such Global Warrant Certificates,
in such names and in such amounts as directed by the Depository or, in the absence of instructions
from the Depository, the Company.
(g)
Cancellation of Global Warrant Certificate
. At such time as all beneficial
interests in Global Warrant Certificates have either been exchanged for Book-Entry Warrants,
redeemed, exercised, repurchased or cancelled, all Global Warrant Certificates shall be returned
to, or cancelled and retained pursuant to applicable law by, the Warrant Agent, upon written
instructions from the Company reasonably satisfactory to the Warrant Agent.
(h)
Obligations with Respect to Transfers and Exchanges of Warrants
.
(i) To permit registrations of transfers and exchanges, the Company shall execute and the
Warrant Agent is hereby authorized to countersign Global Warrant Certificates and the Warrant Agent
is hereby authorized to register Book-Entry Warrants, in accordance with the provisions of
Sections 3
and
4
hereof and this
Section 6
and for the purpose of any
distribution of additional Global Warrant Certificates contemplated by
Section 12
hereof.
(ii) All Book-Entry Warrants and Global Warrant Certificates issued upon any registration of
transfer or exchange of Book-Entry Warrants or Global Warrant Certificates shall be the valid
obligations of the Company, entitled to the same benefits under this Warrant Agreement as the
Book-Entry Warrants or Global Warrant Certificates surrendered upon such registration of transfer
or exchange.
(iii) So long as the Depository, or its nominee, is the registered owner of a Global Warrant
Certificate, the Depository or such nominee, as the case may be, may be treated by the Company, the
Warrant Agent and any agent of the Company or the Warrant Agent as the sole owner or holder of the
Warrants represented by such Global Warrant Certificate for all purposes under this Warrant
Agreement. Except as provided in
Sections 6(b
) and
6(f
) hereof upon the exchange of
a beneficial interest in a Global Warrant Certificate for a Book-Entry Warrant, owners of
beneficial interests in a Global Warrant Certificate will not be entitled to have any Warrants
registered in their names, and will not receive or be entitled to receive physical delivery of any
such Warrants and will not be considered the owners or holders thereof under the Warrants or this
Warrant Agreement. Neither the Company nor the Warrant Agent, in its capacity as registrar for such
Warrants, will have any responsibility or liability for any aspect of the records relating to
beneficial interests in a Global Warrant Certificate or for maintaining, supervising or reviewing
any records relating to such beneficial interests. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Warrant Agent or any agent of the Company or the Warrant Agent from
giving effect to any written certification, proxy or other authorization furnished by the
Depository or impair the operation of customary practices of the Depository governing the exercise
of the rights of a holder of a beneficial interest in a Global Warrant Certificate.
(iv) Subject to
Sections 6(b
),
(c)
and
(d)
hereof and this
Section
6(h
), the Warrant Agent shall, upon receipt of all information required to be delivered
hereunder, from time to time register the transfer of any Book-Entry Warrants in the Warrant
Register and the transfer of any Global Warrant Certificates in the Warrant Register, upon
surrender of the Global Warrant Certificates representing such Warrants at the Warrant Agent office
designated for such purpose, which shall be located at 480 Washington Boulevard, 29
th
Floor, Jersey City, NJ 07310 or such other location in the United States as the Warrant Agent shall
determine; provided that the Warrant Agent provides written notice of such determination to the
Company and the Warrant holders (the
Warrant Agent Office
), duly endorsed, and
accompanied by a completed form of assignment (or with respect to a Book-Entry Warrant, only such
completed form of assignment), duly signed by the holder thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be guaranteed by an
eligible guarantor institution to the extent required by the Warrant Agent or the Depositary.
5
Upon any such registration of transfer, a new Global Warrant Certificate or a Warrant
Statement, as the case may be, shall be issued to the transferee.
SECTION 7
Acknowledgment
;
Securities Law Compliance
.
Each Warrant holder, by
its acceptance of any Warrant under this Warrant Agreement, acknowledges and agrees that the
Warrants were issued, and the Warrant Shares issuable upon exercise thereof shall be issued,
pursuant to an exemption from the registration requirement of Section 5 of the Securities Act
provided by Section 1145 of the Bankruptcy Code, and to the extent that a Warrant holder (or holder
of Warrant Shares) is an underwriter as defined in Section 1145(b)(1) of the Bankruptcy Code,
such holder may not be able to sell or transfer any Warrants or Warrant Shares in the absence of an
effective registration statement under the Securities Act or an exemption from registration
thereunder. Notwithstanding anything contained herein (but without limiting or modifying any
express obligation of the Warrant Agent hereunder), the Warrant Agent shall not be under any duty
or responsibility to ensure compliance by the Company, any Warrant holder (or holder of Warrant
Shares) or any other person with any applicable federal or state securities or bankruptcy laws.
SECTION 8
Terms of Warrants
;
Exercise of Warrants
.
(a) Subject to the terms of this Warrant Agreement, each Warrant holder shall have the right,
which may be exercised at any time, and from time to time, in whole or in part, during the period
commencing on the date of original issuance of the Warrant Certificates pursuant to the terms of
this Warrant Agreement and ending at 5:00 p.m. New York City time, on October 1, 2020 (the
Expiration Date
), to exercise each Warrant and receive from the Company the number of
fully paid and nonassessable Warrant Shares which the holder may at the time be entitled to receive
on exercise of such Warrants and payment of the aggregate Exercise Price then in effect for such
Warrant Shares. The Company shall, promptly after the Expiration Date, provide the Warrant Agent
with written notice of the Expiration Date. In addition, prior to the delivery of any Warrant
Shares that the Company shall be obligated to deliver upon proper exercise of the Warrants, the
Company shall comply with all applicable federal and state laws, rules and regulations which
require action to be taken by the Company.
(b) Subject to the adjustments set forth in
Section 12,
each Warrant, when exercised,
will entitle the holder thereof to purchase one share of Common Stock at the Exercise Price then in
effect for such share of Common Stock. Each Warrant not exercised pursuant to this Warrant
Agreement prior to the Expiration Date shall become void and all rights thereunder and all rights
in respect thereof under this Warrant Agreement shall cease as of 5:00 p.m., New York City time, on
the Expiration Date.
(c) Subject to the terms and conditions set forth herein, the holder of Warrants may, until
5:00 p.m. New York City time, on the Expiration Date, exercise, in whole or in part, at any time
or from time to time, such holders right to purchase Warrant Shares by:
(i) providing written notice of such election (a
Warrant Exercise Notice
) to
exercise the Warrants to the Company and Warrant Agent at the Warrant Agent Office, by overnight
courier no later than 5:00 p.m. New York City time, on the Expiration Date, which Warrant Exercise
Notice shall be in the form of an election to purchase Warrant Shares substantially in the form set
forth either (x) in
Exhibit B-1
hereto, properly completed and duly executed by the holder,
provided that such written notice may only be submitted by a holder with respect to Book-Entry
Warrants; or (y) in
Exhibit B-2
hereto, properly completed and duly executed by the holder,
provided that such written notice may only be submitted with respect to Warrants held through the
book-entry facilities of the Depositary, by or through persons that are direct participants in the
Depositary;
(ii) delivering no later than 5:00 p.m., New York City time, on the business day immediately
prior to the applicable Settlement Date (as defined below), such Warrants to the Warrant Agent by
book-entry transfer through the facilities of the Depository, if such Warrants are represented by a
Global Warrant Certificate; and
6
(iii) subject to
Section 8(h)
below, paying the applicable aggregate Exercise Price
for all Warrants being exercised (the
Exercise Amount
), together with all applicable
taxes and charges. The date three business days after a Warrant Exercise Notice is delivered is
referred to for all purposes under this Warrant Agreement as the
Settlement Date
.
(d) For purposes of this
Section 8
, the following terms shall have the meanings set
forth below:
Closing Price
means on any particular date (a) if the Warrant Shares are then listed
or quoted on a Trading Market, (i) the closing price per share of Warrant Shares on such date on
the principal Trading Market (as reported by Bloomberg L.P. or a similar organization or agency
succeeding to its functions of reporting prices) or (ii) if there shall have been no sales of
Warrant Shares on such principal Trading Market on such day, the average of the reported closing
bid and asked prices per share of Warrant Shares on such principal Trading Market (as reported by
Bloomberg L.P. or a similar organization or agency succeeding to its functions of reporting
prices), (b) if the Warrant Shares are not then listed or quoted on a Trading Market and if prices
for the Warrant Shares are then reported in the pink sheets published by Pink OTC Markets, Inc.
(or a similar organization or agency succeeding to its functions of reporting prices), the average
of the reported closing bid and asked prices per share of Warrant Shares so reported or (c) if the
shares of Warrant Shares are not then publicly traded the fair market value as of such date of a
share of Warrant Shares as reasonably determined in good faith by the Board of Directors of the
Company.
Trading Day
means (a) if the Warrant Shares are listed or quoted on a Trading
Market, a day on which the principal Trading Market is open for business or (b) if the Warrant
Shares are not listed or quoted on a Trading Market, a business day.
Trading Market
means any of the following markets or exchanges on which the Warrant
Shares are listed or quoted for trading on the date in question: the NYSE Amex Equities, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange or the OTC Bulletin Board.
(e) To the extent a Warrant Exercise Notice is delivered in respect of a Warrant prior to 5:00
p.m., New York City time, on the Expiration Date, but the deliveries and payments specified in
Sections 8(a)(ii
) and
8(a)(iii
) above are effected thereafter but no later than
5:00 p.m., New York City time, on the Settlement Date, the Warrants shall be nonetheless deemed
exercised prior to the Expiration Date for the purposes of this Warrant Agreement.
(f) Subject to the adjustments set forth in
Section 12
hereof, each Warrant, when
exercised, will entitle the holder thereof to purchase one share of Common Stock at the Exercise
Price then in effect. Each Warrant not exercised pursuant to this Warrant Agreement prior to 5:00
p.m., New York City time, on the Expiration Date shall become void and all rights thereunder and
all rights in respect thereof under this Warrant Agreement shall cease as of such time.
(g) Subject to
Section 8(h
)
,
the Exercise Amount shall be payable in lawful
money of the United States of America either (i) by certified or official bank check made payable
to the order of the Company or (ii) by wire transfer in immediately available funds to an account
arranged with the Company prior to exercise.
(h) In connection with the exercise of Warrants by the holder thereof, such holder shall have
the right, in lieu of paying the Exercise Amount for such Warrants in cash (a
Cashless
Exercise
), subject to the provisions of this Warrant Agreement, to instruct the Company to
reduce the number of Warrant Shares issuable to such holder upon exercise of such Warrants by
delivering to such holder a number of Warrant Shares determined in accordance with the following
formula:
|
|
|
|
|
|
|
|
|
Warrant Shares
|
|
=
|
|
(C P)
|
|
x
|
|
W
|
|
|
|
|
|
|
|
|
|
Issuable Following a
Cashless Exercise
|
|
|
|
C
|
|
|
|
|
7
For purposes this
Section 8(h
), the above symbols shall have the following meanings
with respect to an exercise of Warrants by a holder thereof:
W means the aggregate number of Warrant Shares issuable to such holder upon exercise of such
Warrants prior to any reduction pursuant to this
Section 8(h
);
P means the Exercise Price applicable to the exercise of such Warrants; and
C means the Closing Price on the date of exercise of such Warrants.
For purposes of Rule 144 under the Securities Act (17 CFR §230.144), the Company agrees that
the exercise of Warrants in accordance with the Cashless Exercise option shall be deemed to be a
conversion of such Warrants, pursuant to the terms hereof, into Warrant Shares.
(i) Any exercise of a Warrant pursuant to the terms of this Warrant Agreement shall be
irrevocable and shall constitute a binding agreement between the holder and the Company,
enforceable in accordance with its terms; provided that a holder may condition its exercise of a
Warrant on the consummation of a Reorganization Event (as defined below).
(j) The Warrant Agent shall:
(i) Examine all Warrant Exercise Notices and all other documents delivered to it by or on
behalf of holders as contemplated hereunder to ascertain whether, on their face, such Warrant
Exercise Notices and any such other documents have been executed and completed in accordance with
their terms;
(ii) where a Warrant Exercise Notice or other document appears on its face, in the Warrant
Agents reasonable judgment, to have been improperly completed or executed or some other
irregularity in connection with the exercise of the Warrant exists, the Warrant Agent shall
endeavor to inform the appropriate parties (including the person submitting such instrument) of the
need for fulfillment of all requirements, specifying those requirements which appear to be
unfulfilled;
(iii) inform the Company of and cooperate with and assist the Company in resolving any
reconciliation problems relating to the Warrant Exercise Notices received and delivery of Warrants
to the Warrant Agents account;
(iv) advise the Company, no later than three business days after receipt of a Warrant Exercise
Notice, of (x) the receipt of such Warrant Exercise Notice and the number of Warrants exercised in
accordance with the terms and conditions of this Warrant Agreement, (y) the instructions with
respect to delivery of the Warrant Shares, subject to the timely receipt from the Depository of the
necessary information, and (z) such other information as the Company shall reasonably require; and
(v) subject to the Warrant Shares being made available to the Warrant Agent by or on behalf of
the Company for delivery to the Depository, liaise with the Depository and endeavor to effect such
delivery to the relevant accounts at the Depository in accordance with its requirements.
(k) All questions as to the validity, form and sufficiency (including time of receipt) of a
Warrant exercise shall be reasonably determined by the Company in good faith, which determination
shall be final and binding. The Warrant Agent shall incur no liability for or in respect of and,
except to the extent such liability arises from the Warrant Agents gross negligence, willful
misconduct or bad faith (each as determined by a final, non appealable order of a court of
competent jurisdiction), shall be indemnified and held harmless by the Company for acting or
refraining from acting upon, or as a result of such determination by the Company. The Company
reserves the right to reject any and all Warrant Exercise Notices not in proper form. Such
determination by the Company shall be final and binding on the holders,
8
absent manifest error. Moreover, the Company reserves the absolute right to waive any of the
conditions to the exercise of Warrants or defects in Warrant Exercise Notices with regard to any
particular exercise of Warrants. Neither the Company nor, subject to
Section 8(j)
above,
the Warrant Agent shall be under any duty to give notice to the holders of the Warrants of any
irregularities in any exercise of Warrants, nor shall it incur any liability for the failure to
give such notice.
(l) As soon as reasonably practicable after the exercise of any Warrant, the Company shall
issue, or otherwise deliver, in authorized denominations to or upon the order of the holder of such
Warrant either:
(i) if such holder holds the Warrants being exercised through the Depositorys book-entry
transfer facilities, by same-day or next-day credit to the Depository for the account of such
holder or for the account of a participant in the Depository the number of Warrant Shares to which
such holder is entitled, in each case registered in such name and delivered to such account as
directed in the Warrant Exercise Notice by such holder or by the direct participant in the
Depository through which such holder is acting; or
(ii) if such holder holds the Warrants being exercised in the form of Book-Entry Warrants, a
book-entry interest in the Warrant Shares registered on the books of the transfer agent for the
Companys Common Stock (such agent, in such capacity, as may from time to time be appointed by the
Company, the
Transfer Agent
) or, at the Companys option, by delivery to the address
designated by such holder in its Warrant Exercise Notice of a physical certificate or certificates
representing the number of Warrant Shares to which such holder is entitled, in fully registered
form, registered in such name or names as may be directed by such holder. Such Warrant Shares shall
be deemed to have been issued and any person so designated to be named therein shall be deemed to
have become a holder of record of such Warrant Shares as of the close of business on the date of
the delivery thereof.
Warrants shall be exercisable during the period provided for in
Section 8(a
) at the
election of the holder thereof, either as an entirety or from time to time for a portion of the
number of Warrant Shares issuable upon exercise of such Warrants. If less than all of the Warrants
evidenced by a Global Warrant Certificate surrendered upon the exercise of Warrants are exercised
at any time prior to 5:00 p.m., New York City time, on the Expiration Date, a new Global Warrant
Certificate or Certificates shall be issued for the remaining number of Warrants evidenced by the
Global Warrant Certificate so surrendered, and the Warrant Agent is hereby authorized to
countersign the new Global Warrant Certificate(s) pursuant to the provisions of
Section 5
hereof and this
Section 8.
The person in whose name any certificate or certificates for the
Warrant Shares are to be issued (or such Warrant Shares are to be registered, in the case of a
book-entry transfer) upon exercise of a Warrant shall be deemed to have become the holder of record
of such Warrant Shares on the date such Warrant Exercise Notice is delivered.
(m) For purposes of this Warrant Agreement, a
business day
means any day other than
a Saturday, Sunday or a day on which banking institutions in the State of New York or New Jersey
are authorized or obligated by law, regulation or executive order to close or remain closed. In
accordance with
Section 14
hereof, no fractional shares shall be issued upon exercise of
any Warrants.
(n) All Global Warrant Certificates surrendered upon exercise of Warrants shall be cancelled
by the Warrant Agent. Such cancelled Global Warrant Certificates shall then be disposed of by or at
the direction of the Company in accordance with applicable law. The Warrant Agent shall (x) advise
an authorized representative of the Company as directed by the Company by the end of each day or on
the next business day following each day on which Warrants were exercised, of (i) the number of
shares of Warrant Shares issued upon exercise of a Warrant, (ii) the delivery of Global Warrant
Certificates evidencing the balance, if any, of the shares of Common Stock issuable after such
exercise of the Warrant and (iii) such other information as the Company shall reasonably require
and (y) concurrently pay to the Company all funds received by the Warrant Agent in payment of the
aggregate Exercise Price. The Warrant Agent shall confirm such information to the Company in
writing.
9
(o) The Warrant Agent shall keep copies of this Warrant Agreement and any notices given or
received hereunder, and, if requested, provide, at the Companys expense, copies thereof to any
registered holder of the Warrants requesting, in writing, such copy prior to 5:00 p.m., New York
City time, on the Expiration Date. The Company shall supply the Warrant Agent from time to time
with such numbers of copies of this Warrant Agreement as the Warrant Agent may reasonably request.
SECTION 9
Payment of Taxes
.
No service charge shall be made to any holder of a Warrant
for any exercise, exchange or registration of transfer of Warrants, and the Company will pay all
documentary stamp taxes attributable to the initial issuance of Warrant Shares upon the exercise of
Warrants;
provided
,
however
, that neither the Company nor the Warrant Agent shall be required to
pay any tax or taxes which may be payable in respect of any transfer involved in the issuance of
Warrant Shares or any certificates for Warrant Shares in a name other than that of the registered
holder of a Warrant surrendered upon the exercise of a Warrant, and the Company and the Warrant
Agent shall not be required to issue or deliver such Warrant Shares or the certificates
representing the Warrant Shares unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company and the Warrant Agent that such tax has been paid. The Warrant Agent
shall have no duty to deliver such Warrants Shares or the certificates representing such Warrant
Shares unless and until the Warrant Agent is reasonably satisfied that all such taxes and charges
have been paid.
SECTION 10
Mutilated or Missing Warrant Certificates
.
The Company may issue and the
Warrant Agent shall countersign, upon receipt of evidence satisfactory to the Company and the
Warrant Agent of the loss, theft, mutilation or destruction of the Global Warrant Certificate in
lieu of the Global Warrant Certificate, a new warrant certificate of like tenor and amount in the
place of any Global Warrant Certificate theretofore issued by it, alleged to have been lost,
stolen, mutilated or destroyed, and the Company and the Warrant Agent may require the owner of the
lost, stolen, mutilated or destroyed certificate, or such owners legal representative, to give the
Company and the Warrant Agent an executed affidavit or indemnity agreement reasonably satisfactory
in form and substance to the Company and the Warrant Agent and a bond sufficient to indemnify them
against any claim that may be made against it on account of the alleged loss, theft or destruction
of any such Global Warrant Certificate or the issuance of such new certificate.
SECTION 11
Reservation of Shares of Common Stock
.
(a) The Company will at all times reserve and keep available out of the aggregate of its
authorized but unissued shares of Common Stock, for the purpose of enabling it to satisfy any
obligation to issue shares of Common Stock upon exercise of Warrants, the maximum number of shares
of Common Stock that may then be deliverable upon the exercise of all outstanding Warrants, and the
Transfer Agent is hereby irrevocably authorized and directed at all times to reserve such number of
authorized and unissued or treasury shares of Common Stock as shall be required for such purpose.
The Company will keep a copy of this Warrant Agreement on file with the Transfer Agent and with
every transfer agent for any securities issuable upon exercise of Warrants. The Warrant Agent is
hereby irrevocably authorized and directed to requisition from time to time from the Transfer Agent
stock certificates issuable upon exercise of outstanding Warrants. The Company will supply the
Transfer Agent with duly executed stock certificates for such purpose and will, when necessary to
comply with this Warrant Agreement, upon request, provide or otherwise make available any cash that
may be payable as provided in
Section 14
. The Company will furnish the Transfer Agent with
a copy of all notices of adjustments and certificates related thereto, transmitted by the Company
to the Warrant Agent and each holder. The Warrant Agent shall have no duty or obligation to
investigate or confirm the accuracy of the information or the genuineness of the signatures
contained in such notices or certificates.
(b) The Company covenants that all shares of Common Stock that may be issued upon exercise of
Warrants will be, upon payment of the aggregate Exercise Price and issuance thereof, duly
authorized,
10
validly issued, fully paid, nonassessable, free of preemptive rights and free from all taxes,
liens, charges and security interests with respect to the issue thereof (other than any liens,
charges and security interests created by the Warrant holder or the person to which the shares of
Common Stock are to be issued).
SECTION 12
Adjustments
.
The number of shares of Common Stock for which a Warrant is
exercisable and the Exercise Price shall be subject to adjustment from time to time as set forth in
this
Section 12.
(a)
Stock Dividends, Subdivisions, Combinations, Recapitalizations and
Reclassification
.
(i) If at any time the Company shall: (A) pay a dividend on its Common Stock (or make some
other distribution on its Common Stock) consisting of shares of Common Stock, (B) subdivide its
outstanding shares of Common Stock into a larger number of shares of Common Stock, or (C) combine
its outstanding shares of Common Stock into a smaller number of shares of Common Stock, then the
number of shares of Common Stock or other shares of capital stock for which a Warrant is
exercisable shall be adjusted so that the holder of each Warrant shall be entitled upon exercise to
receive the number of shares of Common Stock or other shares of capital stock that such Warrant
holder would have owned or have been entitled to receive after the happening of any of the events
described above, had such Warrant been exercised immediately prior to the happening of such event
(or, in the case of a dividend or distribution of Common Stock, immediately prior to the record
date therefor). An adjustment made pursuant to this
Section 12(a
) shall become effective
immediately upon and contemporaneously with the effectiveness of such event.
(ii) Whenever the number of shares of Common Stock purchasable upon the exercise of any
Warrant is adjusted as herein provided in
Section 12(a
)
,
the Exercise Price shall
be adjusted to equal (A) the Exercise Price immediately prior to such adjustment multiplied by the
number of shares of Common Stock for which a Warrant is exercisable immediately prior to such
adjustment divided by (B) the number of shares of Common Stock for which a Warrant is exercisable
immediately after such adjustment.
(b)
Extraordinary Dividends or Distributions
. If the Company, at any time after the
date of this Warrant Agreement, pays a dividend or makes a distribution in securities or other
non-cash assets to the holders of Common Stock (in their capacity as such) or other shares of
capital stock into which the Warrants are convertible, other than (i) a dividend or distribution
described in
Section 12(a
)
(i
)
(A
), or (ii) distributions made to the holders
of Common Stock upon the consummation of a Reorganization Event (any such non-excluded dividends or
distributions, an
Extraordinary Dividend
), then the Exercise Price shall be decreased,
effective immediately after the effective date of such Extraordinary Dividend, dollar-for-dollar by
the fair market value (as reasonably determined in good faith by the Board of Directors of the
Company, without regard to any illiquidity or minority discounts) of any securities or other assets
paid or distributed on each share of Common Stock in respect of such Extraordinary Dividend.
(c)
Other Provisions Applicable to Adjustments under this Section
. The following
provisions shall be applicable to the making of adjustments of the number of shares of Warrant
Shares for which a Warrant is exercisable and the Exercise Price provided for in this
Section
12
:
(i)
When Adjustments to Be Made
. The adjustments required by this
Section 12
shall be made whenever and as often as any specified event requiring an adjustment shall occur. For
the purpose of any adjustment, any specified event shall be deemed to have occurred at the close of
business on the date of its occurrence. All calculations shall be made to the nearest cent and to
the nearest one-thousandth of a share, as the case may be.
(ii)
Fractional Interests
. In computing adjustments pursuant to this
Section
12
(but subject to
Section 14
)
,
fractional interests in Common Stock shall be
taken into account to the nearest 1/1000th of a share.
11
(iii)
Adjustments Not Made as of Settlement Date
. If the adjustments required by this
Section 12
have not been made by the Settlement Date, and the shares to be received by a
Warrant holder on settlement are not entitled to participate in the relevant distribution or
transaction (because they were not held on a related record date or otherwise), then the Company
will adjust the number of shares that the Company will deliver to such Warrant holder in respect of
the relevant Trading Day to reflect the relevant distribution or transaction.
(iv)
When No Adjustment Required
. No adjustment need be made under this
Section
12
for any issuance of options, equity or equity-based grants or other securities pursuant to
the Companys Management Equity Incentive Program (as defined in the Plan).
(d)
Reorganization, Reclassification, Merger or Consolidation of the Company
.
(i) If a Reorganization Event shall occur, as a condition to the consummation of such
Reorganization Event, effective provisions shall be made in the certificate of incorporation or
articles of incorporation of the continuing or surviving or acquiring or resulting entity, or in
any contract or agreement providing for such Reorganization Event, so that so long as any Warrant
remains outstanding, each Warrant, upon the exercise thereof at any time after the consummation of
such Reorganization Event, shall be exercisable into (at an initial Exercise Price equal to the
Exercise Price in effect immediately prior to such Reorganization Event), in lieu of the Warrant
Shares issuable upon such exercise prior to such consummation, solely the amount of cash,
securities or other property
(
Substituted Property
) receivable pursuant to such
Reorganization Event by a holder of the number of shares of Warrant Shares for which a Warrant is
exercisable immediately prior to the effective time of such Reorganization Event assuming such
holder of Warrant Shares did not exercise its rights of election, if any, as to the kind or amount
of Substituted Property receivable upon such Reorganization Event (provided that, if the kind or
amount of Substituted Property receivable upon such Reorganization Event is not the same for each
share of Warrant Shares in respect of which such rights of election shall not have been exercised
(
nonelecting share
), then for the purposes of this
Section 12(d)(i
) the kind and
amount of Substituted Property receivable upon such Reorganization Event for each nonelecting share
shall be deemed to be the kind and amount so receivable per share by a plurality of the electing
shares). The provisions set forth herein providing for adjustments and otherwise for the protection
of the holders of Warrants shall thereafter continue to be applicable on an as nearly equivalent
basis as may be practicable and any such continuing or surviving or acquiring or resulting entity
shall expressly assume all of the obligations of the Company set forth herein to the extent
applicable.
(ii) For purposes hereof, a
Reorganization Event
shall mean any transaction which
the Company enters into constituting (i) a consolidation, merger, share exchange or similar
transaction of the Company with or into another person pursuant to which the Common Stock is
changed into, converted into or exchanged for cash, securities or other property (whether of the
Company or another person); (ii) a reorganization, recapitalization or reclassification or similar
transaction in which the Common Stock is exchanged for securities other than Common Stock (other
than in circumstances covered by
Section 12(a
)); or (iii) a statutory exchange of the
outstanding shares of Common Stock for securities of another person (other than in connection with
a consolidation, merger, share exchange or other similar transaction).
(e)
Certain Limitations
. Notwithstanding anything herein to the contrary, the Company
agrees not to enter into any transaction which, by reason of any adjustment hereunder, would cause
the Exercise Price to be less than the par value per share of Common Stock (if any) unless the
Company shall take such corporate action in order that the Company may validly and legally issue
fully paid and nonassessable shares of such Common Stock at such adjusted Exercise Price.
(f)
Notice to Warrant Agent
. All adjustments made pursuant to this Section 12 shall
be made solely by the Company, and the Company shall promptly provide the Warrant Agent with
written notice of any such adjustment. The Warrant Agent shall be fully protected in relying on
such written notice and
12
on any adjustment or statement contained therein. The Warrant Agent has no duty to determine
when an adjustment under this Section 12 should be made (if at all) or how any such adjustment
should be made. The Warrant Agent makes no representation as to the validity or value of any
securities or assets issued upon exercise of Warrants. The Warrant Agent shall not be responsible
for any failure by the Company to comply with this Section 12. The Warrant Agent shall have no
duty or liability with respect to, and shall not be deemed to have knowledge of, any adjustment
under this Section 12 until it has received written notice thereof from the Company.
SECTION 13
Priority Adjustments, Further Actions
.
If any single action would require
adjustment of the Exercise Price pursuant to more than one subsection of
Section 12
hereof,
only one adjustment shall be made and such adjustment shall be the amount of adjustment that has
the highest, relative to the rights and interests of the holders of the Warrants then outstanding,
absolute value.
SECTION 14
Fractional Shares
.
The Company shall not be required to issue fractional
shares of Common Stock upon the exercise of the Warrants if it elects, if otherwise permitted, to
make a cash payment in respect of any final fraction of a share upon such exercise (after
aggregating all fractional shares of each holder). If more than one Warrant shall be presented for
exercise at the same time by the same holder, the number of full shares of Common Stock that shall
be issuable upon the exercise thereof shall be computed on the basis of the aggregate number of
shares of Common Stock purchasable on exercise of all of the Warrants so presented. If any fraction
of a share of Common Stock would, except for the provisions of this
Section 14,
be issuable
on the exercise of any Warrants (or specified portion thereof), the Company shall notify the
Warrant Agent in writing of the amount to be paid in lieu of the fraction of a share of Common
Stock and concurrently pay or provide to the Warrant Agent for payment to the Warrant holder an
amount in cash equal to the product of (i) such fraction of a share of Common Stock and (ii) the
Closing Price of a share of Common Stock for the Trading Day immediately preceding the date the
Warrant was presented for exercise pursuant to
Section 8
hereof. The Warrant Agent shall be
fully protected in relying on such notice and shall have no duty with respect to, and shall not be
deemed to have knowledge of, any payment for Warrant Shares under any Section of this Warrant
Agreement relating to the payment of fractional Warrant Shares unless and until the Warrant Agent
shall have received such notice and sufficient monies.
SECTION 15
Warrant Holders not Stockholders
.
Nothing contained in this Warrant
Agreement or in any of the Global Warrant Certificates shall be construed as conferring upon the
holders of any Warrant (solely in its capacity as a holder of a Warrant) (i) the right to vote or
to consent or to receive notice as stockholders in respect of the meetings of stockholders or the
election of directors of the Company or any other matter for which stockholders are entitled to
vote or to attend any such meetings or any other proceedings of the holders of Common Stock; (ii)
without limiting the provisions of
Section 12
hereof, the right to receive any cash
dividends, stock dividends, allotments or rights or other distributions paid, allotted or
distributed or distributable to the holders of Common Stock prior to, or for which the relevant
record date precedes, the date of the exercise of such Warrant; or (iii) any other rights
whatsoever as stockholders of the Company. The Warrant Agent shall have no duty to monitor or
enforce compliance with this provision.
SECTION 16
No Redemption
.
The Company shall not have any right to redeem any of the
Warrants evidenced hereby.
SECTION 17
Merger, Consolidation or Change of Name of Warrant Agent
.
Any person into
which the Warrant Agent may be merged or converted or with which it may be consolidated, or any
person resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a
party, or any person succeeding to all or substantially all of the shareowner services, corporate
trust or agency business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act on the part of any of the
parties hereto. If, at the time such successor to the Warrant Agent by merger or consolidation
succeeds to the agency created by this
13
Warrant Agreement, any of the Global Warrant Certificates shall have been countersigned but
not delivered, any such successor to the Warrant Agent may adopt the countersignature of the
original Warrant Agent; and if, at that time any of the Global Warrant Certificates shall not have
been countersigned, any such successor to the Warrant Agent may countersign such Global Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name of the successor
Warrant Agent; and in all such cases such Global Warrant Certificates shall have the full force and
effect provided in the Global Warrant Certificates in this Warrant Agreement. If at any time the
name of the Warrant Agent shall be changed and at such time any of the Global Warrant Certificates
shall have been countersigned but not delivered, the Warrant Agent whose name has changed may adopt
the countersignature under its prior name; and if at that time any of the Global Warrant
Certificates shall not have been countersigned, the Warrant Agent may countersign such Global
Warrant Certificates either in its prior name or in its changed name; and in all such cases such
Global Warrant Certificates shall have the full force provided in the Global Warrant Certificates
and in this Warrant Agreement.
SECTION 18
Warrant Agent
.
The Warrant Agent undertakes only the duties and obligations
expressly imposed by this Warrant Agreement upon the following terms and conditions, by all of
which the Company and the holders of Warrants, by their acceptance thereof, shall be bound:
(a) The Warrant Agent may rely conclusively and shall be protected in acting upon any order,
judgment, instruction, notice, demand, certificate, opinion or advice of counsel (including counsel
chosen by or who may be an employee of the Warrant Agent or one of its affiliates), statement,
instrument, report or other paper or document (not only as to its due execution and the validity
and effectiveness of its provisions, but also as to the truth and acceptability and of information
therein contained) which is believed by the Warrant Agent, in the absence of bad faith, to be
genuine and to be signed or presented by the proper person or persons as set forth in
Section
18(d)
.
(b) The Warrant Agent shall have no duties, responsibilities or obligations as the Warrant
Agent except those which are expressly set forth herein, and in any modification or amendment
hereof to which the Warrant Agent has consented in writing, and no duties, responsibilities or
obligations shall be implied or inferred. Without limiting the foregoing, unless otherwise
expressly provided in this Warrant Agreement, the Warrant Agent shall not be subject to, nor be
required to comply with, or determine if any Person has complied with, the Warrants or any other
agreement between or among the parties hereto, even though reference thereto may be made in this
Warrant Agreement, or to comply with any notice, instruction, direction, request or other
communication, paper or document other than as expressly set forth in this Warrant Agreement.
(c) The statements contained herein and in the Global Warrant Certificates shall be deemed to
be statements of the Company only. The Warrant Agent assumes no responsibility for the accuracy or
correctness of any of the same and shall not be required to verify the same.
(d) Whenever in the performance of its duties under this Warrant Agreement the Warrant Agent
deems it necessary or desirable that any fact or matter be proved or established by the Company
prior to taking, suffering or omitting to take any action hereunder, the Warrant Agent is hereby
authorized and directed to accept written instructions with respect to the performance of its
duties hereunder from an Appropriate Officer and to apply to the Appropriate Officers for advice or
instructions in connection with its duties, and such instructions shall be full authorization to
the Warrant Agent and, absent gross negligence, bad faith or willful misconduct (each as determined
by a final, non-appealable judgment of a court of competent jurisdiction), the Warrant Agent shall
not be liable for any action taken, suffered, or omitted to be taken by it in accordance with the
instructions of any such Appropriate Officer or in reliance upon any statement signed by any one of
such Appropriate Officers with respect to any fact or matter which may be deemed to be conclusively
proved and established by such signed statement. In the event the Warrant Agent reasonably
believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction,
request or other communication, paper or document received by the Warrant Agent
14
hereunder, or is uncertain of any action to take hereunder, the Warrant Agent, may, following
prior written notice to the Company, in its discretion, refrain from taking any action, and shall
be fully protected and shall not be liable in any way to the Company or any other person or entity
for refraining from taking such action, unless the Warrant Agent receives written instructions
signed by the Company which eliminates such ambiguity or uncertainty to the reasonable satisfaction
of the Warrant Agent.
(e) The Warrant Agent shall not be responsible for any failure of the Company to comply with
any of the covenants contained in this Warrant Agreement (including, without limitation, any
adjustment of the Exercise Price pursuant to
Section 12
hereof, the authorization or
reservation of shares of Common Stock pursuant to
Section 11
hereof, and the due execution
and delivery by the Company of this Warrant Agreement or any Global Warrant Certificate) or in the
Global Warrant Certificates to be complied with by the Company.
(f) The Warrant Agent may consult at any time with counsel satisfactory to it (who may be
counsel for the Company or an employee of the Warrant Agent), and the advice and opinion of such
counsel will be, when relied upon without bad faith by the Warrant Agent, full and complete
authorization to the Warrant Agent as to, and the Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant in respect of, any action taken,
suffered or omitted by it hereunder and in accordance with such opinion or the advice of such
counsel and in the absence of bad faith.
(g) The Warrant Agent shall incur no liability or responsibility to the Company or to any
holder of any Warrant or to any other person for any action taken in reliance on any Global Warrant
Certificate, Warrant Statement, certificate representing shares of Common Stock, notice,
resolution, waiver, consent, order, certificate, or other paper, document or instrument believed by
it to be genuine and to have been signed, sent or presented by the proper party or parties. The
Warrant Agent shall not be bound by any notice or demand, or any waiver, modification, termination
or revision of this Warrant Agreement or any of the terms hereof, unless evidenced by a writing
between and signed by, the Company and the Warrant Agent. The Warrant Agent shall not be required
to take instructions or directions except those given in accordance with this Warrant Agreement.
(h) The Warrant Agent may execute and exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or through its attorneys, accountants, agents or
other experts, and the Warrant Agent will not be answerable or accountable for any act, default,
neglect or unintentional misconduct of any such attorneys or agents or for any loss to the Company
or the holders of the Warrants resulting from any such act, default, neglect or unintentional
misconduct, absent gross negligence, willful misconduct or bad faith (as each is determined by a
final non-appealable order of a court of competent jurisdiction) in the selection and continued
employment or engagement thereof.
(i) The Warrant Agent will not be under any duty or responsibility to insure compliance with
any applicable federal or state securities laws in connection with the issuance, transfer or
exchange of Global Warrant Certificates.
(j) Notwithstanding anything to the contrary contained herein, the Warrant Agent shall not
incur any liability for not performing, or a delay in the performance of, any act, duty, obligation
or responsibility by reason of any occurrence beyond the control of the Warrant Agent (including,
without limitation, any act or provision of any present or future law or regulation or governmental
authority, any act of God, war, civil or military disobedience or disorder, riot, rebellion,
terrorism, insurrection, fire, earthquake, storm, flood, strike, work stoppage, labor dispute or
failure of any utilities or means of communication or computer (software or hardware) services).
(k) The Company agrees to pay to the Warrant Agent reasonable compensation for all services
rendered by the Warrant Agent in the negotiation, preparation, delivery, administration, amendment
and execution of this Warrant Agreement and the exercise and performance of its duties hereunder,
to reimburse the Warrant Agent for all reasonable expenses (including reasonable counsel fees and
15
disbursements), taxes (including withholding taxes) and charges and other charges of any kind
and nature actually incurred by the Warrant Agent in the negotiation, preparation, administration,
amendment, execution, delivery and performance of its duties and responsibilities under this
Warrant Agreement, in each case in accordance with and subject to that certain schedule of fees,
dated August 30, 2010, delivered by the Warrant Agent to the Company, and to indemnify the Warrant
Agent and save it harmless against any and all losses, liabilities and expenses, including
judgments, damages, fines, penalties, claims, demands, costs and counsel fees and expenses, for any
action taken or omitted to be taken by the Warrant Agent, or any person acting on behalf of the
Warrant Agent, arising out of or in connection with this Warrant Agreement except as a result of
its gross negligence, bad faith or willful misconduct (each as determined by a final,
non-appealable order of a court of competent jurisdiction). The costs and expenses incurred by the
Warrant Agent in successfully enforcing this right to indemnification shall be paid by the Company
except to the extent that it is determined by a final, non-appealable order of a court of competent
jurisdiction that the Warrant Agent is not entitled to indemnification hereunder.
(l) The Warrant Agent, shall be under no obligation to institute any action, suit or legal
proceeding or to take any other action likely to involve expense or liability unless the Company or
one or more holders of Global Warrant Certificates shall furnish the Warrant Agent with reasonable
security and indemnity for any costs and expenses which may be incurred, but this provision shall
not affect the power of the Warrant Agent to take such action as it may consider proper, whether
with or without any such security or indemnity. All rights of action under this Warrant Agreement
or under any of the Warrants may be enforced by the Warrant Agent without the possession of any of
the Warrants or the production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent and any recovery of judgment shall be for the ratable benefit of the holders of the
Warrants, as their respective rights or interests may appear.
(m) Except as otherwise prohibited by applicable law, the Warrant Agent, and any member,
stockholder, affiliate, director, officer or employee of the Warrant Agent, may buy, sell or deal
in any of the Warrants or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were not Warrant Agent under this Warrant
Agreement, or a member, stockholder, affiliate, director, officer or employee of the Warrant Agent,
as the case may be. Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
(n) The Warrant Agent shall act hereunder solely as agent for the Company, and its duties
shall be determined solely by the express provisions hereof. The Warrant Agent shall not be liable
for anything which it may do or refrain from doing in connection with this Warrant Agreement,
except for its own gross negligence, bad faith or willful misconduct (each as determined by a
final, non-appealable order of a court of competent jurisdiction); provided that notwithstanding
anything in this Warrant Agreement to the contrary, in no event shall the Warrant Agent be liable
for special, incidental, punitive, indirect or consequential loss or damage of any kind whatsoever
(including, without limitation, lost profits). Notwithstanding anything contained herein to the
contrary, the Warrant Agents aggregate liability during any term of this Warrant Agreement with
respect to, arising from, or arising in connection with this Warrant Agreement, or from all
services provided or omitted to be provided under this Warrant Agreement, whether in contract, or
in tort, or otherwise (in each case, other than any liability arising from or arising in connection
with willful misconduct (as determined by a final, non appealable order of a court of competent
jurisdiction) on the part of the Warrant Agent), is limited to, and shall not exceed, an amount
equal to 3x the amounts paid hereunder by the Company to the Warrant Agent as fees and charges, but
not including reimbursable expenses.
(o) The Warrant Agent shall not at any time be under any duty or responsibility to any holder
of any Warrant to make or cause to be made any adjustment of the Exercise Price or number of the
shares of
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Common Stock or other securities or property deliverable as provided in this Warrant
Agreement, or to determine whether any facts exist which may require any of such adjustments, or
with respect to the nature or extent of any such adjustments, when made, or with respect to the
method employed in making the same. The Warrant Agent shall not be accountable with respect to the
validity or value or the kind or amount of any shares of Common Stock or of any securities or
property which may at any time be issued or delivered upon the exercise of any Warrant or with
respect to whether any such shares of Common Stock or other securities will when issued be validly
issued and fully paid and nonassessable, and makes no representation with respect thereto. The
Warrant Agent shall not be accountable to confirm or verify the accuracy or necessity of any
calculation.
(p) The Company agrees to perform, execute and acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other acts, instruments, and
assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of
the provisions of this Warrant Agreement.
(q) The Warrant Agent shall have no responsibility or liability with respect to the validity
of this Warrant Agreement or the execution and delivery hereof (except its countersignature hereof)
or with respect to the validity or execution of any Warrant (except its countersignature thereof);
nor shall it be responsible for any breach by the Company of any covenant or condition contained in
this Warrant Agreement or in any Warrant; nor shall it be responsible to make or be liable for any
adjustments required under any provision hereof, including but not limited to
Section 11
hereof, or responsible for the manner, method or amount of any such adjustment or the ascertaining
of the existence of facts that would require any such adjustment; nor shall it by any act hereunder
be deemed to make any representation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this Warrant Agreement or any Warrant or as to
whether any shares of Common Stock will, when issued, be validly issued and fully paid and
nonassessable or as to the Exercise Price or the number of Warrant Shares issuable upon exercise of
any warrant.
(r) Notwithstanding anything to the contrary contained herein, the Company shall make all
determinations with respect to Cashless Exercises, and the Warrant Agent shall have no duty or
obligation to investigate or confirm whether the Companys determination regarding the number of
Shares to be issued in the event of a Cashless Exercise is accurate or correct. Notwithstanding
anything to the contrary contained herein, the Warrant Agent shall also have no duty or obligation
to investigate or confirm whether any determination of the Exercise Amount under
Section 8
is correct or accurate.
(s) No provision of this Warrant Agreement shall require the Warrant Agent to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its duties
hereunder or in the exercise of its rights.
(t) All rights and obligations contained in this
Section 18
and
Section 19
hereof shall survive the termination of this Warrant Agreement and the resignation, replacement or
removal of the Warrant Agent.
SECTION 19
Expenses
.
All expenses incident to the Companys performance of or
compliance with this Warrant Agreement will be borne by the Company, including, without limitation:
(i) all expenses of printing Global Warrant Certificates; (ii) messenger and delivery services and
telephone calls; (iii) all fees and disbursements of counsel for the Company; (iv) all fees and
disbursements of independent certified public accountants or knowledgeable experts selected by the
Company; and (v) the Companys internal expenses (including, without limitation, all salaries and
expenses of their officers and employees performing legal or accounting duties).
SECTION 20
Change of Warrant Agent
.
(a) If the Company terminates the Warrant Agent or the Warrant Agent shall become incapable of
acting as Warrant Agent or shall resign as provided below, the Company shall appoint a successor to
such Warrant Agent. If the Company shall fail to make such appointment within a period of thirty
(30) days
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after it has terminated the Warrant Agent or it has been notified in writing of a resignation
or incapacity by the Warrant Agent, then any holder of a Warrant may apply to any court of
competent jurisdiction for the appointment of a successor to the Warrant Agent. Pending appointment
of a successor to the Warrant Agent, either by the Company or by such a court, the duties of the
Warrant Agent shall be carried out by the Company. Any successor Warrant Agent, whether appointed
by the Company or by such a court, shall be in good standing, incorporated under the laws of any
state or of the United States of America. As soon as practicable after appointment of the successor
Warrant Agent, the Company shall cause written notice of the change in the Warrant Agent to be
given to each of the holders of the Warrants at such holders address appearing on the Warrant
Register. After appointment, the successor to the Warrant Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named as Warrant Agent
without further act or deed. The former Warrant Agent shall deliver and transfer to the successor
to the Warrant Agent any property at the time held by it hereunder and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Failure to give any notice
provided for in this
Section 20,
however, or any defect therein, shall not affect the
legality or validity of the appointment of a successor to the Warrant Agent.
(b) The Warrant Agent may resign at any time and be discharged from the obligations hereby
created by so notifying the Company in writing at least thirty (30) days in advance of the proposed
effective date of its resignation. If no successor Warrant Agent accepts the engagement hereunder
by such time, the Company shall act as Warrant Agent.
SECTION 21
Notices to the Company and Warrant Agent
.
Any notice or demand authorized
or permitted by this Warrant Agreement to be given or made by the Warrant Agent or by any holder of
the Warrants to or on the Company to be effective shall be in writing (including by facsimile), and
shall be deemed to have been duly given or made when delivered by hand, or two (2) business days
after being delivered to a recognized courier (whose stated terms of delivery are two (2) business
days or less to the destination of such notice), or five (5) days after being deposited in the
mail, first class and postage prepaid or, in the case of facsimile notice, when received, addressed
as follows (until another address or facsimile number is filed in writing by the Company with the
Warrant Agent):
Visteon Corporation
One Village Center Drive
Van Buren Township, Michigan 48111
Facsimile: (734) 710-7112
Attention: Chief Financial Officer
with a copy (which shall not constitute notice) to:
Pachulski Stang Ziehl & Jones LLP
919 North Market Street, 17th Floor
Wilmington, Delaware 19899-8705
Facsimile: (302) 652-4400
Attention: Laura Davis Jones
James E. ONeill
Mark M. Billion
and
Kirkland & Ellis LLP
300 North LaSalle
Chicago, Illinois 60654
Facsimile: (312) 862-2200
Attention: James H. M. Sprayregen, P.C.
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James J. Mazza, Jr.
Gerald T. Nowak, P.C.
Howard Norber
and
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Facsimile: (212) 446-4900
Attention: Marc Kieselstein, P.C.
Brian S. Lennon
Any notice or demand pursuant to this Warrant Agreement to be given by the Company or by any
holder(s) of the Warrants to the Warrant Agent shall be sufficiently given if sent in the same
manner as notices or demands are to be given or made to or on the Company (as set forth above) to
the Warrant Agent as follows (until another address is filed in writing by the Warrant Agent with
the Company):
Mellon Investor Services LLC
200 W. Monroe Street, Suite 1590
Chicago, IL 60606
Attention: Peter Sablich, Vice President
with a copy to:
Mellon Investor Services LLC
480 Washington Boulevard 29th Floor
Jersey City, NJ 07310
Attention: Legal Department
SECTION 22
Supplements and Amendments
.
The Company and the Warrant Agent may from time
to time supplement or amend this Warrant Agreement (a) without the approval of any holders of
Warrants in order to cure any ambiguity, manifest error or other mistake in this Warrant Agreement
or to correct or supplement any provision contained herein that may be defective or inconsistent
with any other provision herein, or to make any other provisions in regard to matters or questions
arising hereunder that the Company may deem necessary or desirable and that shall not adversely
affect the rights or interests of the holders of Warrants or (b) with the prior written consent of
holders of the Warrants exercisable for a majority of the shares of Common Stock then issuable upon
exercise of the Warrants then outstanding; provided, however, that the consent of each holder of a
Warrant affected shall be required for any amendment of this Warrant Agreement that would (i)
increase the Exercise Price or decrease the number of shares of Common Stock purchasable upon
exercise of the Warrants, except that such consent shall not be required for any adjustment to the
Exercise Price or the number of shares of Common Stock purchasable if made pursuant to the
provisions of
Section 12
hereof, (ii) alter the Companys obligation to issue Warrant
Shares upon exercise of the underlying Warrant (other than pursuant to adjustments otherwise
provided for in this Warrant Agreement, including the adjustments provided for in
Section
12
hereof), (iii) change the Expiration Date of the Warrants to an earlier date, (iv) waive the
application of the adjustment provisions contained in
Section 12
in connection with any
events to which such provisions apply or otherwise modify the adjustment provisions contained in
Section 12
in a manner that would have an adverse economic impact on the holders of
Warrants, or (v) treat such holder differently in an adverse way from any other holder of Warrants.
The Warrant Agent may, but shall not be obligated to, execute
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any amendment or supplement which affects the rights or changes or increases the duties or
obligations of the Warrant Agent.
SECTION 23
Successors
.
All the covenants and provisions of this Warrant Agreement by
or for the benefit of the Company, the holders of the Warrants or the Warrant Agent shall bind and
inure to the benefit of their respective successors and assigns hereunder.
SECTION 24
Termination
.
This Warrant Agreement shall terminate at 5:00 p.m., New York
City time, on the Expiration Date (or, at 5:00 p.m., New York City time, on the Settlement Date
with respect to any Warrant Exercise Notice delivered prior to 5:00 p.m., New York City time, on
the Expiration Date). Notwithstanding the foregoing, this Warrant Agreement will terminate on such
earlier date on which all outstanding Warrants have been exercised. The provisions of Section 18
and Section 19 shall survive such termination and the resignation or removal of the Warrant Agent.
Termination of this Warrant Agreement shall not relieve the Company or the Warrant Agent of any of
their obligations arising prior to the date of such termination or in connection with the
settlement of any Warrant exercised prior to 5:00 p.m., New York City time, on the Expiration Date.
SECTION 25
Governing Law
.
This Warrant Agreement and each Warrant issued hereunder
shall be deemed to be a contract made under the laws of the State of New York and for all purposes
shall be governed by and construed in accordance with the laws of the State of New York without
giving effect to conflict of laws principles. The parties hereto irrevocably consent to the
jurisdiction of the courts of the State of New York and any federal court located in such state in
connection with any action, suit or proceeding arising out of or relating to this Warrant
Agreement.
SECTION 26
Benefits of this Warrant Agreement
.
This Warrant Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent and the holders of the Warrants, and
nothing in this Warrant Agreement shall be construed to give to any person other than the Company,
the Warrant Agent and the holders of the Warrants any legal or equitable right, remedy or claim
under this Warrant Agreement. Each holder, by acceptance of a Warrant, agrees to all of the terms
and provisions of this Warrant Agreement applicable thereto.
SECTION 27
Counterparts
.
This Warrant Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same instrument.
SECTION 28
Further Assurances
.
From time to time on and after the date hereof, the
Company shall deliver or cause to be delivered to the Warrant Agent such further documents and
instruments and shall do and cause to be done such further acts as the Warrant Agent shall
reasonably request (it being understood that the Warrant Agent shall have no obligation to make
such request) to carry out more effectively the provisions and purposes of this Warrant Agreement,
to evidence compliance herewith or to assure itself that it is protected hereunder.
SECTION 29
Entire Agreement
.
This Warrant Agreement and the Global Warrant
Certificates constitute the entire agreement of the Company, the Warrant Agent and the holders of
the Warrants with respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, among the Company, the Warrant Agent and the holders of the
Warrants with respect to the subject matter hereof. Except as expressly made herein, the Company
makes no representation, warranty, covenant or agreement with respect to the Warrants.
SECTION 30
Severability
.
Wherever possible, each provision of this Warrant Agreement
shall be interpreted in such manner as to be effective and valid under applicable law, but if any
provision of this Warrant Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Warrant Agreement;
provided, however, that if such excluded or added provision shall affect the rights, immunities,
duties or obligations of the Warrant
20
Agent, the Warrant Agent shall be entitled to resign immediately upon notification in writing
to the Company.
SECTION 31
Force Majeure
.
In no event shall the Warrant Agent be responsible or liable
for any failure or delay in the performance of its obligations under this Warrant Agreement arising
out of or caused by, directly or indirectly, forces beyond its reasonable control, including
without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software or hardware) services.
SECTION 32
Customer Identification Program
.
Each person that is a party hereto
acknowledges that the Warrant Agent is subject to the customer identification program (Customer
Identification Program) requirements under the USA PATRIOT Act and its implementing regulations
(collectively, the
Patriot Act
), and that the Warrant Agent must, whenever required under
the Patriot Act, obtain, verify and record information that allows the Warrant Agent to identify
each such person. Accordingly, the Warrant Agent may request information from any such person that
will help the Warrant Agent to identify such person, including without limitation, as applicable,
such persons physical address, tax identification number, organizational documents, certificate of
good standing or license to do business. Each person that is a party hereto agrees that, to the
extent required under the Patriot Act, the Warrant Agent cannot take certain actions under this
Warrant Agreement until the Warrant Agent verifies each such persons identity in accordance with
the Customer Identification Program requirements (it being understood that the Warrant Agent will
use its reasonable best efforts to complete such verification as promptly as practicable).
SECTION 33
Disclosure Regarding Incentive Compensation Program
.
The Company
acknowledges that The Bank of New York Mellon Corporation (BNYM) has adopted an incentive
compensation program designed (i) to facilitate clients gaining access to and being provided with
explanations about the full range of products and services offered by BNYM and its subsidiaries and
(ii) to expand and develop client relationships. This program may lead to the payment of referral
fees and/or bonuses by BNYM or it affiliates to employees of BNYM or its subsidiaries who may have
been involved in a referral that resulted in the execution of this Warrant Agreement, obtaining
products or services covered by this Warrant Agreement or products or services that may be
ancillary or supplemental to such products or services. Any such referral fees or bonuses are
funded solely out of fees and commissions paid under this Warrant Agreement or with respect to such
ancillary or supplemental products or services. For the avoidance of doubt, this Section 33 is
solely for disclosure purposes, and nothing contained in this
Section 33
shall or shall be
deemed to require the payment of any amounts by the Company and neither the Company nor any other
person (other than BNYM and its affiliates) shall have any obligations or liabilities under or in
connection with this
Section 33
or the incentive compensation program described herein.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to be duly executed,
as of the day and year first above written.
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VISTEON CORPORATION
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By:
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Name:
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Title:
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MELLON INVESTOR SERVICES LLC,
as Warrant Agent
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By:
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Name:
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Title:
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EXHIBIT A
FORM OF GLOBAL WARRANT CERTIFICATE
FORM OF FACE OF GLOBAL WARRANT CERTIFICATE
VOID AFTER 5:00 P.M., NEW YORK CITY TIME, ON OCTOBER 1, 2020
THE SALE, ASSIGNMENT, PLEDGE, ENCUMBRANCE, EXCHANGE OR OTHER TRANSFER OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE IS SUBJECT TO THE TERMS OF THE WARRANT AGREEMENT, DATED AS OF OCTOBER 1, 2010
(THE
WARRANT AGREEMENT
), BETWEEN THE ISSUER OF THIS CERTIFICATE AND THE WARRANT AGENT
NAMED THEREIN. BY ACCEPTING ANY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE, THE
RECIPIENT OF SUCH SECURITIES SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL OF THE
PROVISIONS OF THE WARRANT AGREEMENT. A COPY OF THE WARRANT AGREEMENT MAY BE OBTAINED UPON WRITTEN
REQUEST TO THE CORPORATE SECRETARY OF THE ISSUER OF THIS CERTIFICATE.
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NO. W-1
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WARRANT TO PURCHASE
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___SHARES OF COMMON
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STOCK
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VISTEON CORPORATION
WARRANT TO PURCHASE COMMON STOCK, PAR VALUE $0.01 PER SHARE
CUSIP # [_____]
DISTRIBUTION DATE: [_____], 2010
This Global Warrant Certificate certifies that Cede & Co., or its registered assigns, is the
registered holder of a Warrant (this
Warrant
) of
VISTEON CORPORATION
, a Delaware
corporation (the
Company
), to purchase the number of shares of common stock, par value
$0.01 per share (
Common Stock
), of the Company set forth above (as adjusted from time to
time in accordance with the terms of the Warrant Agreement). This Global Warrant expires at 5:00
p.m., New York City time on October 1, 2020 (the
Expiration Date
) and entitles the holder
upon exercise at any time, and from time to time, in whole or in part, on or after the date of this
Warrant Certificate and prior to the Expiration Date to purchase from the Company up to the number
of fully paid and nonassessable shares of Common Stock set forth above at an exercise price of
$9.66 per share of Common Stock (as adjusted from time to time in accordance with the terms of the
Warrant Agreement, the
Exercise Price
). The Exercise Price and the number of shares of
Common Stock purchasable upon exercise of this Warrant are subject to adjustment upon the
occurrence of certain events as set forth in the Warrant Agreement.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS GLOBAL WARRANT CERTIFICATE SET
FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH AT THIS PLACE.
This Global Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
All capitalized terms used herein and not defined herein shall have the meanings assigned to
them in the Warrant Agreement.
IN WITNESS WHEREOF
, the Company has caused this Global Warrant Certificate to be executed by
its duly authorized officers as of the date below set forth.
Dated:
, 2010
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VISTEON CORPORATION
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By:
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Name:
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Title:
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Countersigned:
MELLON INVESTOR SERVICES LLC
,
as Warrant Agent
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By:
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Name:
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Title:
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Address of Registered Holder for Notices (until changed in accordance with the Warrant Agreement):
[Signature Page to Global Warrant Certificate]
FORM OF REVERSE OF GLOBAL WARRANT CERTIFICATE
The Warrant evidenced by this Global Warrant Certificate is a part of a duly authorized issue
of Warrants to purchase up to
shares of Common Stock issued pursuant to the Warrant Agreement. The
Warrant Agreement is hereby incorporated by reference herein and made a part of this instrument and
is hereby referred to for a description of the rights, limitation of rights, obligations, duties
and immunities thereunder of the Warrant Agent, the Company and the registered holders of the
Warrants. All capitalized terms used but not defined herein shall have the meanings assigned to
them in the Warrant Agreement.
Upon due presentment for registration of transfer of the Warrant and surrender of this Global
Warrant Certificate at the office of the Warrant Agent designated for such purpose, a new Global
Warrant Certificate or Global Warrant Certificates of like tenor and evidencing in the aggregate a
like number of Warrants shall be issued to the transferee in exchange for this Global Warrant
Certificate, subject to the limitations set forth in the Warrant Agreement, without charge except
for any applicable tax or other charge.
Subject to Section 14 of the Warrant Agreement, the Company shall not be required to issue
fractional shares of Common Stock.
No Warrants may be sold, exchanged or otherwise transferred in violation of the Securities Act
state securities laws or other applicable law. The Warrant does not entitle the registered holder
thereof to any of the rights of a stockholder of the Company.
The Company and Warrant Agent may deem and treat the registered holder hereof as the absolute
owner of this Global Warrant Certificate (notwithstanding any notation of ownership or other
writing hereon made by anyone other than the Company or the Warrant Agent) for the purpose of any
exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
This Global Warrant Certificate is held by The Depository Trust Company (the
Depository
) or its nominee in custody for the benefit of the beneficial owners hereof,
and is not transferable to any Person under any circumstances except that (i) this Global Warrant
Certificate may be transferred in whole pursuant to Section 6(e) of the Warrant Agreement (as
hereinafter defined) and (ii) this Global Warrant Certificate may be delivered to the Warrant Agent
for cancellation pursuant to Sections 6(g) and 8(n) of the Warrant Agreement.
Unless this Global Warrant Certificate is presented by an authorized representative of the
Depository to the Company or the Warrant Agent for registration of transfer, exchange or payment
and any certificate issued is registered in the name of Cede & Co., or such other entity as is
requested by an authorized representative of the Depository (and any payment hereon is made to Cede
& Co. or to such other entity as is requested by an authorized representative of the Depository),
any transfer, pledge or other use hereof for value or otherwise by or to any Person is wrongful
because the registered owner hereof, Cede & Co., has an interest herein.
No registration or transfer of the securities issuable pursuant to the Warrant will be
recorded on the books and records of the Company or the Warrant Agent until the provisions set
forth in the Warrant Agreement have been complied with.
In the event of any conflict or inconsistency between this Global Warrant Certificate and the
Warrant Agreement, the Warrant Agreement shall control.
EXHIBIT B-1
EXERCISE FORM FOR HOLDERS
HOLDING BOOK-ENTRY WARRANTS
(To be executed upon exercise of the Warrant(s))
The undersigned hereby irrevocably elects to exercise the right, represented by the Book-Entry
Warrant(s), to purchase shares of Common Stock of Visteon Corporation and (check one or both):
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herewith tenders in payment for
shares of Common Stock an amount
of $
by certified or official bank check made payable to the order
of Visteon Corporation or by wire transfer in immediately
available funds to an account arranged with Visteon Corporation;
and/or
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herewith tenders the Warrant(s) for
shares of Common Stock
pursuant to the cashless exercise provision of Section 8 (h) of
the Warrant Agreement.
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Please check below if this exercise is contingent upon the consummation of a Reorganization Event
as provided in Sections 8(i) and 12(d) of the Warrant Agreement:
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This exercise is being made in connection with a Reorganization
Event; provided, that in the event the Reorganization Event shall
not be consummated, then this exercise shall be deemed to be
revoked.
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The undersigned requests that a statement representing the shares of Common Stock issued upon
exercise of the Warrant(s) be delivered in accordance with the instructions set forth below.
Dated:
, 20____
THIS EXERCISE NOTICE MUST BE DELIVERED TO THE WARRANT AGENT, PRIOR TO 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE.
ALL CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS ASSIGNED TO THEM
IN THE WARRANT AGREEMENT.
THE UNDERSIGNED REQUESTS THAT A STATEMENT REPRESENTING THE SHARES OF COMMON STOCK BE DELIVERED AS
FOLLOWS:
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Name:
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(Please Print)
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Address:
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Telephone:
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Fax:
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Social Security Number or Other Taxpayer Identification Number (if applicable):
IF SAID NUMBER OF SHARES SHALL NOT BE ALL THE SHARES PURCHASABLE UNDER THE WARRANT(S), THE
UNDERSIGNED REQUESTS THAT NEW BOOK-ENTRY WARRANT(S) REPRESENTING THE BALANCE OF SUCH WARRANT(S)
SHALL BE REGISTERED AS FOLLOWS:
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Name:
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(Please Print)
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Address:
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Telephone:
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Fax:
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Social Security Number or Other Taxpayer Identification Number (if applicable):
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Signature:
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Name:
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Capacity in which Signing:
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SIGNATURE GUARANTEED BY:
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Signatures must be guaranteed by a participant in a Medallion Signature Guarantee Program at a
guarantee level acceptable to the Companys Rights Agent.
EXHIBIT B-2
EXERCISE FORM FOR HOLDERS
HOLDING WARRANTS THROUGH THE DEPOSITORY TRUST COMPANY
TO BE COMPLETED BY DIRECT PARTICIPANT
IN THE DEPOSITORY TRUST COMPANY
(To be executed upon exercise of the Warrant(s))
The undersigned hereby irrevocably elects to exercise the right, represented by Global Warrant
Certificate No. ___ held for its benefit through the book-entry facilities of The Depository Trust
Company (the Depository), to purchase shares of Common Stock of Visteon Corporation and (check
one or both):
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herewith tenders in payment for such shares an amount of $
by
certified or official bank check made payable to the order of
Visteon Corporation or by wire transfer in immediately available
funds to an account arranged with Visteon Corporation; and/or
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herewith tenders the Warrant(s) for
shares of Common Stock
pursuant to the cashless exercise provision of Section 8 (h) of
the Warrant Agreement.
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Please check below if this exercise is contingent upon the consummation of a Reorganization Event
as provided in Sections 8(i) and 12(d) of the Warrant Agreement:
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This exercise is being made in connection with a Reorganization
Event; provided, that in the event the Reorganization Event shall
not be consummated, then this exercise shall be deemed to be
revoked.
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The undersigned requests that the shares of Common Stock issuable upon exercise of the Warrant(s)
be in registered form in the authorized denominations, registered in such names and delivered, all
as specified in accordance with the instructions set forth below;
provided,
that if the
shares of Common Stock are evidenced by global securities, the shares of Common Stock shall be
registered in the name of the Depository or its nominee.
Dated:
, 20___
THIS EXERCISE NOTICE MUST BE DELIVERED TO THE WARRANT AGENT, PRIOR TO 5:00 P.M., NEW YORK CITY
TIME, ON THE EXPIRATION DATE. THE WARRANT AGENT SHALL NOTIFY YOU OF (1) THE WARRANT AGENTS ACCOUNT
AT THE DEPOSITORY TO WHICH YOU MUST DELIVER YOUR WARRANT(S) ON THE EXERCISE DATE AND (2) THE
ADDRESS, PHONE NUMBER AND FACSIMILE NUMBER WHERE YOU CAN CONTACT THE WARRANT AGENT AND TO WHICH
WARRANT EXERCISE NOTICES ARE TO BE SUBMITTED.
ALL CAPITALIZED TERMS USED HEREIN BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS ASSIGNED TO THEM
IN THE WARRANT AGREEMENT.
NAME OF DIRECT PARTICIPANT IN THE DEPOSITORY:
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Account
Name
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(Please Print)
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Address:
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Contact Name:
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Telephone:
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Fax:
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Social Security Number or Other Taxpayer Identification Number (if applicable):
Account from which Warrant(s) are Being Delivered:
Depository Account Number:
WARRANT HOLDER DELIVERING WARRANT(S), IF OTHER THAN THE DIRECT PARTICIPANT: Name:
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Name
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Contact Name:
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Address:
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Telephone:
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Fax:
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Account from which the Shares of Common Stock are to be Credited:
Depository Account Number:
FILL IN FOR DELIVERY OF THE COMMON STOCK, IF OTHER THAN TO THE PERSON DELIVERING THIS WARRANT
EXERCISE NOTICE:
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Name:
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(Please Print)
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Address:
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Contact Name:
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Telephone:
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Fax:
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Social Security Number or Other Taxpayer Identification Number (if applicable):
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Signature:
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Name:
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Capacity in which Signing:
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Signature Guaranteed By:
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