As filed with the Securities and Exchange
Commission on March 10, 2011
No. 333-
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VISTEON CORPORATION
(Exact name of registrant as
specified in its charter)
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Delaware
(State or other jurisdiction
of
incorporation or organization)
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3714
(Primary Standard
Industrial
Classification Code Number)
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38-3519512
(I.R.S. Employer
Identification No.)
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One
Village Center Drive, Van Buren Township, Michigan 48111
(800) 847-8364
(Address,
including zip code, and telephone number, including area code,
of registrants principal executive
offices)
Michael
K. Sharnas
Vice President and General Counsel
Visteon Corporation
One Village Center Drive
Van Buren Township, MI 48111
(800) 847-8366
(Name, address, including
zip code, and telephone number, including area code, of agent
for service)
Copies of all communications,
including communications sent to agent for service, should be
sent to:
Jerry T.
Nowak, P.C.
Paul Zier
Kirkland & Ellis LLP
300 North LaSalle Street
Chicago,
Illinois 60654
(212) 862-2000
Approximate date of commencement of proposed sale to the
public
: As soon as practicable after this
Registration Statement becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box:
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box:
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
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If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
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Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated
filer
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Accelerated
filer
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Non-accelerated
filer
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(Do not check if a smaller reporting company)
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Smaller reporting
company
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CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title of Each Class of Securities
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Amount
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Offering Price
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Aggregate
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Amount of
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to be Registered
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to be Registered
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per Share(1)(2)
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Offering Price
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Registration Fee(3)
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Common stock, par value $0.01 per share
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26,000,000
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$68.10
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$1,770,470,000
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$205,551.57
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(1)
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Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(a)
under the Securities act of 1933, as amended (the
Securities Act).
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(2)
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Calculated pursuant to
Rule 457(c) under the Securities Act based on the average
of the high and low prices reported in the consolidated
reporting system as of March 9, 2011.
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(3)
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Visteon Corporation previously paid
a filing fee of $209,322.83 in connection with the registration
of 46,972,866 shares of common stock under Registration
Statement on
Form S-1
Registration
No. 333-170104
which was filed on October 22, 2010 (the Prior
Registration Statement). The offering of common stock
under the Prior Registration Statement was terminated with
25,692,244 shares of common stock remaining unsold. The
registrant is applying the $114,491.06 of the registration fee
previously paid in connection with the Prior Registration
Statement and associated with such unsold securities toward the
payment of the registration fee in respect of the common stock
registered hereunder pursuant to Rule 457(p) promulgated
under the Securities Act.
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Prospectus
Visteon Corporation
26,000,000 Shares Common
Stock
The selling stockholders are offering 26,000,000 shares of
common stock. We are not selling any shares of common stock
under this prospectus. We will not receive any proceeds from the
sale of shares to be offered by the selling stockholders.
The common stock offered by this prospectus is being registered
to permit the selling stockholders to sell the offered common
stock from time to time. The selling stockholders may offer and
sell the offered common stock at fixed prices, prevailing market
prices at the times of sale, prices related to the prevailing
market prices, varying prices determined at the times of sale or
negotiated prices. The shares of our common stock offered by
this prospectus and any prospectus supplement may be offered by
the selling stockholders directly to investors or to or through
underwriters, dealers or other agents. We do not know when or in
what amounts a selling stockholder may offer these shares of
common stock for sale. The selling stockholders may sell all,
some or none of the shares of common stock offered by this
prospectus. See Plan of Distribution on page 24
for a more complete description of how the offered common stock
may be sold.
Investing in our common stock involves risks. See Risk
Factors beginning on page 3.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
Our common stock is currently listed on the New York Stock
Exchange (the NYSE) under the trading symbol
VC. On March 9, 2011 the last traded price of
the common stock was $66.89 per share.
This prospectus is dated March 10, 2011.
TABLE OF
CONTENTS
You should rely only on the information contained in this
prospectus or to which we have referred you. We have not
authorized anyone to provide you with information that is
different. This prospectus may only be used where it is legal to
sell these securities. The information in this prospectus may
only be accurate on the date of this prospectus.
IF YOU ARE IN A JURISDICTION WHERE OFFERS TO EXCHANGE OR SELL,
OR SOLICITATIONS OF OFFERS TO EXCHANGE OR PURCHASE, THE
SECURITIES OFFERED BY THIS PROSPECTUS ARE UNLAWFUL, OR IF YOU
ARE A PERSON TO WHOM IT IS UNLAWFUL TO DIRECT THESE TYPES OF
ACTIVITIES, THEN THE OFFER PRESENTED IN THIS PROSPECTUS DOES NOT
EXTEND TO YOU.
YOU SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED IN THIS
PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE OF
THIS PROSPECTUS AND NEITHER THE MAILING OF THIS PROSPECTUS NOR
THE SALE OF OUR COMMON STOCK PURSUANT TO THIS OFFERING SHALL
CREATE AN IMPLICATION TO THE CONTRARY.
PROSPECTUS
SUMMARY
The following summary highlights information contained
elsewhere in this prospectus. It does not contain all the
information that may be important to you in making an investment
decision. You should read this entire prospectus carefully,
including the documents incorporated by reference, which are
described under Incorporation by Reference of Certain
Documents and Where You Can Find Additional
Information. You should also carefully consider, among
other things, the matters discussed in the section titled
Risk Factors. In this prospectus, unless the context
requires otherwise, references to Visteon, the
Company, the Issuer, we,
our, or us refer to Visteon Corporation
and its consolidated subsidiaries, and references to our
common stock refer to the common stock of Visteon
Corporation.
Our
Business
We are a leading global supplier of climate, interiors and
electronics systems, modules and components to global automotive
original equipment manufacturers (OEMs). We are
headquartered in Van Buren Township, Michigan. We have a
workforce of approximately 26,500 employees and a network
of manufacturing operations, technical centers, customer service
centers and joint ventures in every major geographic region of
the world. We were incorporated in Delaware on January 5,
2000 as a wholly-owned subsidiary of Ford Motor Company
(Ford). Subsequently, Ford transferred the assets
and liabilities comprising its automotive components and systems
business to us. We separated from Ford on June 28, 2000
when all of our common stock was distributed by Ford to its
stockholders.
Effective October 1, 2005, the Company transferred 23 of
its North American facilities and certain other related assets
and liabilities to Automotive Components Holdings, LLC
(ACH), an indirect, wholly-owned subsidiary of Ford
(the ACH Transactions). The transferred facilities
included all of the Companys plants that leased hourly
workers covered by Fords Master Agreement with the United
Auto Workers Union (UAW), and accounted for
approximately $6.1 billion of the Companys total
product sales for 2005, the majority being products sold to Ford.
In January 2006, the Company announced a multi-year improvement
plan that involved the restructuring of certain underperforming
and non-strategic plants and businesses to improve operating and
financial performance and to reduce costs. The multi-year
improvement plan, which was initially expected to affect up to
23 facilities, was completed during 2008 and addressed a total
of 30 facilities and businesses, including 7 divestitures and 14
closures. These activities resulted in sales declines of
$1 billion and $675 million during the years ended
December 31, 2008, and 2007, respectively.
During the latter part of 2008 and through 2009, weakened
economic conditions, largely attributable to the global credit
crisis, and erosion of consumer confidence, negatively impacted
the automotive sector.
On May 28, 2009, we filed voluntary petitions in the United
States Bankruptcy Court for the District of Delaware (the
Bankruptcy Court), to reorganize under
Chapter 11 of the United States Bankruptcy Code (the
Bankruptcy Code). The Chapter 11 cases were
jointly administered under the caption Visteon Corporation, et
al., Case
No. 09-11786.
We continued to operate our businesses as a
debtor-in-possession
under the jurisdiction of the Bankruptcy Court in accordance
with the applicable provisions of the Bankruptcy Code.
On August 31, 2010, we filed a Fifth Amended Joint Plan of
Reorganization (the Plan of Reorganization) with the
Bankruptcy Court. The Plan of Reorganization was confirmed by
the Bankruptcy Court on August 31, 2010 (the
Confirmation Order), and became effective on
October 1, 2010 (the Effective Date), the date
on which we emerged from protection under Chapter 11 of the
Bankruptcy Code.
Our
Corporate Information
Our principal executive offices are located at One Village
Center Drive, Van Buren Township, Michigan 48111. Our telephone
number is
(800) 847-8366
and we have a website accessible at www.visteon.com. The
information posted on our website is not incorporated into this
prospectus and is not part of this prospectus.
1
THE
OFFERING
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Issuer
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Visteon Corporation
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Shares of common stock offered by the selling stockholders
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26,000,000 shares of common stock
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Shares of common stock outstanding after this offering
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50,759,380 shares of common stock
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Use of Proceeds
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We will not receive any proceeds from the sale of shares of the
common stock by the selling stockholders.
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Risk Factors
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Investing in our common stock involves substantial risk. For a
discussion of risks relating to Visteon, our business and
investment in our common stock, see the section titled
Risk Factors on page 3 of this prospectus and
all other information set forth in this prospectus before
investing in our common stock.
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NYSE Symbol
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VC
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The number of shares to be outstanding after consummation of
this offering is based on 50,759,380 shares of common stock
outstanding as of March 4, 2011 including shares granted as
restricted stock under the Visteon Corporation 2010 Incentive
Plan regardless of whether such shares have vested, but does not
include 4,379,871 additional shares of common stock reserved for
issuance under the Visteon Corporation 2010 Incentive Plan,
1,549,545 shares issuable upon the exercise of warrants at
an exercise price of $58.80 per share that expire on
October 1, 2015 or 1,355,754 shares issuable upon the
exercise of warrants at an exercise price of $9.66 per share
that expire on October 1, 2020.
2
RISK
FACTORS
Investing in our common stock involves risk. If
any of the risks described below or in any document incorporated
by reference herein actually occurs, our business, financial
condition and results of operations would likely suffer. In that
event, the market price of our common stock could decline and an
investor in our common stock could lose all or part of their
investment. You should consider carefully all of the information
set forth in this prospectus and the documents incorporated by
reference herein, and, in particular, the risk factors described
in our Annual Report on
Form 10-K
for the year ended December 31, 2010 filed with the SEC,
which is incorporated by reference in this prospectus. The risks
described in any document incorporated by reference herein are
not the only ones we face, but are considered to be the most
material. There may be other unknown or unpredictable economic,
business, competitive, regulatory or other factors that could
have material adverse effects on our future results. Past
financial performance may not be a reliable indicator of future
performance and historical trends should not be used to
anticipate results or trends in future periods.
Risks
Related to Fresh Start Accounting
Information
contained in our historical financial statements will not be
comparable to the information contained in our financial
statements after the application of fresh start
accounting.
Our Annual Report on
Form 10-K
for the fiscal year ended December 31, 2010 reflects the
consummation of the Plan of Reorganization and the adoption of
fresh start accounting. As a result, our financial statements
from and after the Effective Date will not be comparable to our
financial statements for prior periods. This will make it
difficult for stockholders to assess our performance in relation
to prior periods.
Risks
Related to Ownership of Our Common Stock
The
resale of shares of our common stock offered may adversely
affect the market price of our common stock and substantial
sales of or trading in our new common stock could occur in
connection with our emergence from bankruptcy, which could cause
our stock price to be adversely affected.
At the time of our emergence from bankruptcy, we granted
registration rights to the selling stockholders. The shares of
our outstanding common stock held by the selling stockholders
and offered are registered for resale under the registration
statement of which this prospectus forms a part. The shares
offered hereby constitutes approximately 51.2% of our
outstanding common stock as of March 4, 2011, all of which
may be sold in the public markets from time to time pursuant to
the registration statement of which this prospectus forms a part.
Commencing on April 1, 2011, assuming we remain current in
our reporting obligations under the Exchange Act, and commencing
on October 1, 2011, if we do not, these shares of common
stock may also be sold under Rule 144 of the Securities
Act, subject in the case of holders that are affiliates to
restrictions on volume and manner of sale.
The sale of significant amounts of our new common stock or
substantial trading in our new common stock or the perception in
the market that substantial trading in our new common stock will
occur may adversely affect the market price of our new common
stock.
Future
sales of our common stock, or the perception in the public
markets that these sales may occur, could depress our stock
price.
Sales of substantial amounts of our common stock in the public
market, or the perception that these sales could occur, could
adversely affect the price of our common stock and could impair
our ability to raise capital through the sale of additional
shares. As of March 4, 2011, we had 50,759,380 shares
of common stock outstanding, of which 31,134,249 shares
constitute restricted securities as defined by
Rule 144 promulgated under the Securities Act of 1933. To
the extent sold in this offering, the shares of common stock
offered herby by will be freely tradable, without restriction in
the public market. Commencing on April 1, 2011, assuming we
remain current in our reporting obligations under the Exchange
Act, and commencing on October 1, 2011, if we do not,
shares constituting restricted securities may also
be sold under Rule 144 subject in the case of holders that
are affiliates to restrictions on volume and manner of sale.
3
The
market price of our common stock may be volatile, which could
cause the value of your investment to decline.
Numerous factors, including many over which we have no control,
may have a significant impact on the market price of our common
stock. These risks include those described or referred to in
this Risk Factors section and in the other documents
incorporated herein by reference as well as, among other things:
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our operating and financial performance and prospects;
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our ability to repay our debt;
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our access to financial and capital markets to refinance our
debt or replace the existing credit facilities;
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investor perceptions of us and the industry and markets in which
we operate;
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our dividend policy;
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future sales of equity or equity-related securities;
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changes in earnings estimates or buy/sell recommendations by
analysts; and
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general financial, domestic, economic and other market
conditions.
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Certain
provisions of our corporate documents and the laws of the State
of Delaware as well as change of control provisions in our debt
and other agreements could delay or prevent a change of control,
even if that change would be beneficial to stockholders, or
could have a material negative impact on our
business.
Certain provisions in our second amended and restated
certificate of incorporation and credit facility agreements may
have the effect of deterring transactions involving a change in
control of us, including transactions in which stockholders
might receive a premium for their shares.
Our second amended and restated certificate of incorporation
provides for the issuance of up to 50,000,000 shares of
preferred stock with such designations, rights and preferences
as may be determined from time to time by our board of
directors. The authorization of preferred shares empowers our
board of directors, without further stockholder approval, to
issue preferred shares with dividend, liquidation, conversion,
voting or other rights which could adversely affect the voting
power or other rights of the holders of the common stock. If
issued, the preferred stock could also dilute the holders of our
common stock and could be used to discourage, delay or prevent a
change of control.
If the common stock is listed on a national securities exchange
or held of record by more than 2,000 holders, we will be subject
to the anti-takeover provisions of the Delaware General
Corporation Law, which could have the effect of delaying or
preventing a change of control in some circumstances.
Our credit facility agreements contain provisions pursuant to
which it is an event of default if any person or
group of persons becomes the beneficial owner of
more than 51% of our common stock. This could deter certain
parties from seeking to acquire us and if any person
or group of persons were to become the beneficial
owner of more than 51% of our common stock, we would not be able
to repay such indebtedness.
All of these factors could materially adversely affect the price
of our common stock.
Our
operations may be restricted by the terms of our credit facility
agreements.
Our credit facility agreements include a number of significant
restrictive covenants. These covenants could impair our
financing and operational flexibility and make it difficult for
us to react to market conditions and satisfy our ongoing capital
needs and unanticipated cash requirements. Specifically, such
covenants may restrict our ability and, if applicable, the
ability of our subsidiaries to, among other things:
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incur additional debt;
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make certain investments;
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enter into certain types of transactions with affiliates;
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limit dividends or other payments by our restricted subsidiaries
to us;
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use assets as security in other transactions;
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pay dividends on our common stock or repurchase our equity
interests;
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sell certain assets or merge with or into other companies;
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guarantee the debts of others;
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enter into new lines of business;
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make capital expenditures;
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prepay, redeem or exchange our debt; and
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form any joint ventures or subsidiary investments.
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In addition, our credit facility agreements require us to
periodically meet various financial ratios and tests, including
maximum capital expenditure, maximum leverage, minimum excess
availability and minimum interest coverage levels. These
financial covenants and tests could limit our ability to react
to market conditions or satisfy extraordinary capital needs and
could otherwise restrict our financing and operations.
Our ability to comply with the covenants and other terms of our
credit facility agreements will depend on our future operating
performance. If we fail to comply with such covenants and terms,
we would be required to obtain waivers from our lenders to
maintain compliance under such agreements. If we are unable to
obtain any necessary waivers and the debt under our credit
facility agreements is accelerated, it would have a material
adverse effect on our financial condition and future operating
performance.
Risks
Related to Our Business and Industry
Please see Item 1A Risk
Factors contained in our Annual Report on
Form 10-K
for the year ended December 31, 2010, which is incorporated
by reference herein, for risk factors related to our business
and industry.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained or incorporated by reference in
this prospectus which are not statements of historical fact
constitute forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995.
Forward-looking statements give current expectations or
forecasts of future events. Words such as
anticipate, expect, intend,
plan, believe, seek,
estimate and other words and terms of similar
meaning in connection with discussions of future operating or
financial performance signify forward-looking statements. These
statements reflect our current views with respect to future
events and are based on assumptions and estimates, which are
subject to risks and uncertainties including those discussed
under the heading Risk Factors and elsewhere in this
prospectus. Accordingly, undue reliance should not be placed on
these forward-looking statements. Also, these forward-looking
statements represent our estimates and assumptions only as of
the date of this prospectus. We do not intend to update any of
these forward-looking statements to reflect circumstances or
events that occur after the date the statement is made and
qualify all of our forward-looking statements by these
cautionary statements.
You should understand that various factors, in addition to those
discussed elsewhere in this document, could affect our future
results and could cause results to differ materially from those
expressed in such forward-looking statements, including:
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our ability to satisfy future capital and liquidity
requirements; including our ability to access the credit and
capital markets at the times and in the amounts needed and on
terms acceptable to us; our ability to comply with applicable
covenants and the continuation of acceptable supplier payment
terms;
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our ability to satisfy pension and other postretirement employee
benefit obligations, and to retire outstanding debt and satisfy
other contractual commitments, all at the levels and times
planned by management;
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our ability to access funds generated by foreign subsidiaries
and joint ventures on a timely and cost effective basis;
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changes in the operations (including products, product planning
and part sourcing), financial condition, results of operations
or market share of our customers.
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changes in vehicle production volume of our customers in the
markets where we operate, and in particular changes in
Fords and Hyundai Kias vehicle production volumes
and platform mix;
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our ability to profitably win new business and to maintain
current business with, and win future business from, existing
customers, and, our ability to realize expected sales and
profits from new business;
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increases in commodity costs or disruptions in the supply of
commodities, including steel, resins, aluminum, copper, fuel and
natural gas;
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our ability to generate cost savings to offset or exceed agreed
upon price reductions or price reductions to win additional
business and, in general, improve operating performance; to
achieve the benefits of restructuring actions; and to recover
engineering and tooling costs and capital investments;
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our ability to compete favorably with automotive parts suppliers
with lower cost structures and greater ability to rationalize
operations; and to exit non-performing businesses on
satisfactory terms, particularly due to limited flexibility
under existing labor agreements;
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restrictions in labor contracts with unions that restrict our
ability to close plants, divest unprofitable, noncompetitive
businesses, change local work rules and practices at a number of
facilities and implement cost-saving measures;
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the costs and timing of facility closures or dispositions,
business or product realignments, or similar restructuring
actions, including potential asset impairment or other charges
related to the implementation of these actions or other adverse
industry conditions and contingent liabilities;
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significant changes in the competitive environment in the major
markets where we procure materials, components or supplies or
where our products are manufactured, distributed or sold;
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legal and administrative proceedings, investigations and claims,
including stockholder class actions, inquiries by regulatory
agencies, product liability, warranty, employee-related,
environmental and safety claims and any recalls of products
manufactured or sold by us;
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changes in economic conditions, currency exchange rates, changes
in foreign laws, regulations or trade policies or political
stability in foreign countries where we procure materials,
components or supplies or where products are manufactured,
distributed or sold;
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shortages of materials or interruptions in transportation
systems, labor strikes, work stoppages or other interruptions to
or difficulties in the employment of labor in the major markets
where we purchase materials, components or supplies to
manufacture our products or where our products are manufactured,
distributed or sold;
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changes in laws, regulations, policies or other activities of
governments, agencies and similar organizations, domestic and
foreign, that may tax or otherwise increase the cost of, or
otherwise affect, the manufacture, licensing, distribution,
sale, ownership or use of our products or assets.
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possible terrorist attacks or acts of war, which could
exacerbate other risks such as slowed vehicle production,
interruptions in the transportation system or fuel prices and
supply;
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the cyclical and seasonal nature of the automotive industry;
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our ability to comply with environmental, safety and other
applicable regulations and any increase in the requirements,
responsibilities and associated expenses and expenditures of
these regulations;
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our ability to protect our intellectual property rights, and to
respond to changes in technology and technological risks and to
claims by others that we have infringed their intellectual
property rights;
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our ability to quickly and adequately remediate control
deficiencies in internal control over financial
reporting; and
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other factors, risks and uncertainties detailed from time to
time in our Securities and Exchange Commission (SEC)
filings.
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USE OF
PROCEEDS
We will not receive any proceeds from the sale of our common
stock by the selling stockholders. We will pay estimated
transaction expenses of approximately $355,552 in connection
with this offering.
SELLING
STOCKHOLDERS
The following table sets forth the names of the selling
stockholders, the number of shares of common stock beneficially
owned by them, as of March 4, 2011, the number of shares of
common stock being offered by them, the number of shares of
common stock each selling stockholder will beneficially own if
the stockholder sells all of the common stock being registered
and each selling stockholders percentage beneficial
ownership of our total outstanding common stock if all of the
common stock in the offering is sold. As used in this
prospectus, selling stockholders includes the
successors-in-interest,
donees, transferees or others who may later hold the selling
stockholders interests. The selling stockholders may offer
the common stock for resale from time to time pursuant to this
prospectus. However, the selling stockholders are under no
obligation to sell any of the common stock offered pursuant to
this prospectus.
The common stock is being registered to permit public sales of
the common stock by the selling stockholders. The shares of
common stock being registered hereby were originally issued on
October 1, 2010 pursuant to our Plan of Reorganization in
connection with our emergence from bankruptcy.
All information with respect to common stock ownership has been
furnished by or on behalf of the selling stockholders. We
believe, based on information supplied by the selling
stockholders and subject to community property laws where
applicable, that, except as may otherwise be indicated in the
footnotes to the table below, each selling stockholder has sole
voting and dispositive power with respect to the common stock
reported as beneficially owned by it. Because the selling
stockholders may sell all, part or none of the common stock held
by them, no assurance can be given as to the number of shares of
common stock that a selling stockholder will hold upon
termination of any offering made hereby. In addition, the
selling stockholders may have sold, transferred or otherwise
disposed of, or may sell, transfer or otherwise dispose of, at
any time and from time to time, the common stock held by them in
transactions exempt from the registration requirements of the
Securities Act after the date on which it provided the
information set forth on the table below. For purposes of the
table below, however, we have assumed that after termination of
this offering, none of the shares of common stock offered by
this prospectus will be held by the selling stockholders.
Except as provided in the footnotes to the following table and
the section titled Related Party Transactions and Material
Relationships with Selling Stockholders, none of the
selling stockholders has had any position with, held any office
of or had any other material relationship with us or our
affiliates during the past three years.
Beneficial ownership for the purposes of this table is
determined in accordance with the rules and regulations of the
SEC. These rules generally provide that a person is the
beneficial owner of securities if such person has or shares the
power to vote or direct the voting thereof, or to dispose or
direct the disposition thereof or has the right to acquire such
powers within 60 days. Common stock subject to options that
are currently exercisable or exercisable within 60 days is
deemed to be outstanding and beneficially owned by the person
holding the options. These shares, however, are not deemed
outstanding for the purposes of computing the percentage
ownership of any other person.
7
All percentages and share amounts are approximate based on
current information available to us. The information available
to us may be incomplete.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
|
|
Shares of
|
|
Maximum
|
|
Shares of Common Stock
|
|
|
Common Stock
|
|
Number of Shares
|
|
Owned After Offering(2)
|
|
|
Owned Prior to
|
|
of Common Stock
|
|
|
|
Percent of All
|
Name
|
|
Offering(1)
|
|
Offered
|
|
Number
|
|
Common Stock
|
|
Alden Global Distressed Opportunities Master Fund, L.P.(3)
|
|
|
1,841,754
|
|
|
|
1,841,754
|
|
|
|
|
|
|
|
*
|
|
Andromeda Global Credit Fund(4)
|
|
|
40,956
|
|
|
|
40,008
|
|
|
|
948
|
|
|
|
*
|
|
Armory Master Fund, Ltd.(5)
|
|
|
462,603
|
|
|
|
462,603
|
|
|
|
|
|
|
|
*
|
|
Artio Global Credit Opportunities Fund, A series of Artio Alpha
Investment Funds(6)
|
|
|
10,000
|
|
|
|
10,000
|
|
|
|
|
|
|
|
*
|
|
Barclays Multi-Manager Fund PLC(7)
|
|
|
34,506
|
|
|
|
34,506
|
|
|
|
|
|
|
|
*
|
|
Battery Park High Yield Long Short Fund Ltd.(7)
|
|
|
5,402
|
|
|
|
5,402
|
|
|
|
|
|
|
|
*
|
|
Battery Park High Yield Opportunity Master Fund Ltd.(7)
|
|
|
9,183
|
|
|
|
9,183
|
|
|
|
|
|
|
|
*
|
|
Battery Park High Yield Opportunity Strategic Fund, Ltd.(7)
|
|
|
12,425
|
|
|
|
12,425
|
|
|
|
|
|
|
|
*
|
|
Black Diamond Offshore Ltd.(8)
|
|
|
1,250
|
|
|
|
1,250
|
|
|
|
|
|
|
|
*
|
|
Brigade Leveraged Capital Structures Fund Ltd.(9)
|
|
|
23,357
|
|
|
|
23,357
|
|
|
|
|
|
|
|
*
|
|
Bronson Point Master Fund, L.P.
|
|
|
32,500
|
|
|
|
32,500
|
|
|
|
|
|
|
|
*
|
|
CAI Distressed Debt Opportunity Master Fund Ltd
|
|
|
112,085
|
|
|
|
112,085
|
|
|
|
|
|
|
|
*
|
|
California Public Employees Retirement System(7)
|
|
|
44,569
|
|
|
|
44,569
|
|
|
|
|
|
|
|
*
|
|
Capital Ventures International(10)
|
|
|
1,216,622
|
|
|
|
1,216,622
|
|
|
|
|
|
|
|
*
|
|
Castlerigg Master Investments Ltd.(11)
|
|
|
225,000
|
|
|
|
225,000
|
|
|
|
|
|
|
|
*
|
|
Centerbridge Credit Partners Master, L.P.(12)
|
|
|
756,359
|
|
|
|
756,359
|
|
|
|
|
|
|
|
*
|
|
Centerbridge Credit Partners, L.P.(13)
|
|
|
443,420
|
|
|
|
443,420
|
|
|
|
|
|
|
|
*
|
|
Centerbridge Special Credit Partners, L.P.(14)
|
|
|
529,873
|
|
|
|
529,873
|
|
|
|
|
|
|
|
*
|
|
Citadel Securities LLC(15)
|
|
|
66,979
|
|
|
|
66,979
|
|
|
|
|
|
|
|
*
|
|
Concerto Credit Opportunity Master Fund I, LP(16)
|
|
|
40,500
|
|
|
|
10,500
|
|
|
|
30,000
|
|
|
|
*
|
|
CQS Directional Opportunities Master Fund Limited(17)
|
|
|
213,760
|
|
|
|
213,760
|
|
|
|
|
|
|
|
*
|
|
Crescent 1, L.P.(18)
|
|
|
585,899
|
|
|
|
585,899
|
|
|
|
|
|
|
|
*
|
|
CR Intrinsic Investments, LLC(19)
|
|
|
25,000
|
|
|
|
25,000
|
|
|
|
|
|
|
|
*
|
|
CRS Fund, Ltd.(18)
|
|
|
615,199
|
|
|
|
615,199
|
|
|
|
|
|
|
|
*
|
|
CSS LLC(20)
|
|
|
45,904
|
|
|
|
45,904
|
|
|
|
|
|
|
|
*
|
|
Cumber International S.A.(21)
|
|
|
27,705
|
|
|
|
24,705
|
|
|
|
3,000
|
|
|
|
*
|
|
Cumberland Benchmarked Partners, L.P.(21)
|
|
|
67,010
|
|
|
|
67,010
|
|
|
|
|
|
|
|
*
|
|
Cumberland Partners(21)
|
|
|
247,851
|
|
|
|
247,851
|
|
|
|
|
|
|
|
*
|
|
Cyrus Europe Master Fund, Ltd.(18)
|
|
|
24,807
|
|
|
|
24,807
|
|
|
|
|
|
|
|
*
|
|
Cyrus Opportunities Master Fund II, Ltd.(18)
|
|
|
1,315,687
|
|
|
|
1,315,687
|
|
|
|
|
|
|
|
*
|
|
Cyrus Select Opportunities Master Fund, Ltd.(18)
|
|
|
282,846
|
|
|
|
282,846
|
|
|
|
|
|
|
|
*
|
|
Davidson Kempner Capital Management, LLC, as investment
advisor(22)
|
|
|
1,061,517
|
|
|
|
1,061,517
|
|
|
|
|
|
|
|
*
|
|
Deutsche Bank Securities Inc.(23)
|
|
|
684,400
|
|
|
|
684,400
|
|
|
|
|
|
|
|
*
|
|
DG Value Partners, LP(24)
|
|
|
16,768
|
|
|
|
11,768
|
|
|
|
5,000
|
|
|
|
*
|
|
Double Black Diamond Offshore Ltd.(8)
|
|
|
23,750
|
|
|
|
23,750
|
|
|
|
|
|
|
|
*
|
|
Empyrean Capital Fund, LP
|
|
|
68,726
|
|
|
|
68,726
|
|
|
|
|
|
|
|
*
|
|
Empyrean Capital Overseas Fund, Ltd
|
|
|
94,274
|
|
|
|
94,274
|
|
|
|
|
|
|
|
*
|
|
Eos Mortar Rock LP(25)
|
|
|
50,000
|
|
|
|
50,000
|
|
|
|
|
|
|
|
*
|
|
ES Moore, Ltd.
|
|
|
115,000
|
|
|
|
115,000
|
|
|
|
|
|
|
|
*
|
|
Future Fund Board of Guardians(26)
|
|
|
35,645
|
|
|
|
35,645
|
|
|
|
|
|
|
|
*
|
|
8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
|
|
Shares of
|
|
Maximum
|
|
Shares of Common Stock
|
|
|
Common Stock
|
|
Number of Shares
|
|
Owned After Offering(2)
|
|
|
Owned Prior to
|
|
of Common Stock
|
|
|
|
Percent of All
|
Name
|
|
Offering(1)
|
|
Offered
|
|
Number
|
|
Common Stock
|
|
Galileo Partners Fund I, L.P.(27)
|
|
|
106,731
|
|
|
|
80,888
|
|
|
|
25,843
|
|
|
|
*
|
|
General American Investors Company, Inc.(28)
|
|
|
70,000
|
|
|
|
60,000
|
|
|
|
10,000
|
|
|
|
*
|
|
General Motors Hourly-Rate Employes Pension Trust(7)
|
|
|
96,282
|
|
|
|
93,430
|
|
|
|
2,852
|
|
|
|
*
|
|
General Motors Salaried Employes Pension Trust(7)
|
|
|
55,841
|
|
|
|
54,187
|
|
|
|
1,654
|
|
|
|
*
|
|
GLG North American Opportunity Fund
|
|
|
115,000
|
|
|
|
115,000
|
|
|
|
|
|
|
|
*
|
|
Goldman, Sachs & Co.(29)
|
|
|
61,468
|
|
|
|
61,468
|
|
|
|
|
|
|
|
*
|
|
Guggenheim Portfolio Company X, LLC(30)
|
|
|
13,616
|
|
|
|
13,616
|
|
|
|
|
|
|
|
*
|
|
HFR ED Pinebank Master Trust(31)
|
|
|
14,799
|
|
|
|
14,799
|
|
|
|
|
|
|
|
*
|
|
HFR ED Pinebank Plus Master Trust(31)
|
|
|
8,953
|
|
|
|
8,953
|
|
|
|
|
|
|
|
*
|
|
HFR RVA Constellation Master Trust(4)
|
|
|
21,930
|
|
|
|
17,002
|
|
|
|
4,928
|
|
|
|
*
|
|
IAM Mini-Fund 21 Limited
|
|
|
3,261
|
|
|
|
3,261
|
|
|
|
|
|
|
|
*
|
|
ING Investors Trust on behalf of its Series ING Janus
Contrarian Portfolio(32)
|
|
|
280,195
|
|
|
|
280,195
|
|
|
|
|
|
|
|
*
|
|
Institutional Benchmark Series (Master Feeder) Ltd, in Respect
of Pinebank Credit Opportunities Series(31)
|
|
|
23,751
|
|
|
|
23,751
|
|
|
|
|
|
|
|
*
|
|
Janus Capital Funds P.L.C. on behalf of its sub fund Janus
US High Yield Fund(33)
|
|
|
122,998
|
|
|
|
62,182
|
|
|
|
60,816
|
|
|
|
*
|
|
Janus Investment Fund on behalf of its series Janus
Contrarian Fund(34)
|
|
|
1,418,450
|
|
|
|
1,418,450
|
|
|
|
|
|
|
|
*
|
|
Janus Investment Fund on behalf of its series Janus
High-Yield Fund(33)
|
|
|
152,415
|
|
|
|
70,970
|
|
|
|
81,445
|
|
|
|
*
|
|
Janus Investment Fund on behalf of its series Janus
Long/Short Fund(34)
|
|
|
31,835
|
|
|
|
31,835
|
|
|
|
|
|
|
|
*
|
|
John Hancock Funds II Mid Cap Value Fund(35)
|
|
|
19,000
|
|
|
|
19,000
|
|
|
|
|
|
|
|
*
|
|
John Hancock Trust Mid Value Trust(35)
|
|
|
26,500
|
|
|
|
26,500
|
|
|
|
|
|
|
|
*
|
|
Khroma Special Situations Master SPC Ltd.(36)
|
|
|
157,695
|
|
|
|
157,695
|
|
|
|
|
|
|
|
*
|
|
Kivu Investment Fund Limited(17)
|
|
|
87,038
|
|
|
|
87,038
|
|
|
|
|
|
|
|
*
|
|
L-3 Communications Corporation Master Trust(7)
|
|
|
11,290
|
|
|
|
11,289
|
|
|
|
1
|
|
|
|
*
|
|
Laborers District Council & Contractors Pension
Fund of Ohio(35)
|
|
|
2,100
|
|
|
|
2,100
|
|
|
|
|
|
|
|
*
|
|
Locust Wood Capital L.P.
|
|
|
70,000
|
|
|
|
70,000
|
|
|
|
|
|
|
|
*
|
|
LongView Partners B, L.P.(21)
|
|
|
78,013
|
|
|
|
76,413
|
|
|
|
1,600
|
|
|
|
*
|
|
Louisiana State Employees Retirement System(7)
|
|
|
69,214
|
|
|
|
66,315
|
|
|
|
2,899
|
|
|
|
*
|
|
Lyxor Andromeda Global Credit Fund Limited(4)
|
|
|
60,500
|
|
|
|
53,000
|
|
|
|
7,500
|
|
|
|
*
|
|
Mariner-Tricadia Credit Strategies Master Fund Ltd(37)
|
|
|
114,750
|
|
|
|
85,000
|
|
|
|
29,750
|
|
|
|
*
|
|
Mason Capital L.P.(30)
|
|
|
438,928
|
|
|
|
438,928
|
|
|
|
|
|
|
|
*
|
|
Mason Capital Master Fund, L.P.(30)
|
|
|
1,226,854
|
|
|
|
1,226,854
|
|
|
|
|
|
|
|
*
|
|
Monarch Capital Master Partners II-A LP(38)
|
|
|
17,127
|
|
|
|
17,127
|
|
|
|
|
|
|
|
*
|
|
Monarch Capital Master Partners LP(38)
|
|
|
49,682
|
|
|
|
49,682
|
|
|
|
|
|
|
|
*
|
|
Monarch Cayman Fund Limited(38)
|
|
|
7,154
|
|
|
|
7,154
|
|
|
|
|
|
|
|
*
|
|
Monarch Debt Recovery Master Fund Ltd(38)
|
|
|
62,941
|
|
|
|
62,941
|
|
|
|
|
|
|
|
*
|
|
Monarch Master Funding Ltd(38)
|
|
|
1,942,673
|
|
|
|
1,942,673
|
|
|
|
|
|
|
|
*
|
|
Monarch Opportunities Master Fund Ltd(38)
|
|
|
34,026
|
|
|
|
34,026
|
|
|
|
|
|
|
|
*
|
|
Montgomery County Employees Retirement System(7)
|
|
|
7,902
|
|
|
|
7,902
|
|
|
|
|
|
|
|
*
|
|
Moore Macro Fund, LP
|
|
|
680,000
|
|
|
|
680,000
|
|
|
|
|
|
|
|
*
|
|
Morgan Stanley & Co. Incorporated(39)
|
|
|
654,603
|
|
|
|
608,982
|
|
|
|
45,621
|
|
|
|
*
|
|
MPAM Credit Master Fund L.P.
|
|
|
20,000
|
|
|
|
20,000
|
|
|
|
|
|
|
|
*
|
|
9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
|
|
Shares of
|
|
Maximum
|
|
Shares of Common Stock
|
|
|
Common Stock
|
|
Number of Shares
|
|
Owned After Offering(2)
|
|
|
Owned Prior to
|
|
of Common Stock
|
|
|
|
Percent of All
|
Name
|
|
Offering(1)
|
|
Offered
|
|
Number
|
|
Common Stock
|
|
NewFinance Alden SPV(3)
|
|
|
47,069
|
|
|
|
47,069
|
|
|
|
|
|
|
|
*
|
|
Nomura Corporate Research and Asset Management Inc.(40)
|
|
|
11,401
|
|
|
|
10,627
|
|
|
|
774
|
|
|
|
*
|
|
Nomura Funds Ireland US High Yield Bond Fund(7)
|
|
|
9,738
|
|
|
|
9,738
|
|
|
|
|
|
|
|
*
|
|
Nomura US Attractive Yield Corporate Bond Fund Mother
Fund(7)
|
|
|
134,396
|
|
|
|
131,994
|
|
|
|
2,402
|
|
|
|
*
|
|
Nomura Waterstone Market Neutral Fund
|
|
|
680
|
|
|
|
680
|
|
|
|
|
|
|
|
*
|
|
Oakford MF Limited(38)
|
|
|
5,933
|
|
|
|
5,933
|
|
|
|
|
|
|
|
*
|
|
OHA Strategic Credit Master Fund II, L.P.(26)
|
|
|
72,339
|
|
|
|
72,339
|
|
|
|
|
|
|
|
*
|
|
OHA Strategic Credit Master Fund, L.P.(26)
|
|
|
235,967
|
|
|
|
235,967
|
|
|
|
|
|
|
|
*
|
|
One East Partners Master LP(41)
|
|
|
30,000
|
|
|
|
30,000
|
|
|
|
|
|
|
|
*
|
|
Pandora Select Partners, L.P.(42)
|
|
|
160,145
|
|
|
|
105,750
|
|
|
|
54,395
|
|
|
|
*
|
|
Permal Stone Lion Fund Ltd.(43)
|
|
|
11,250
|
|
|
|
11,250
|
|
|
|
|
|
|
|
*
|
|
Pinebank Catalyst Master Fund, Ltd.(31)
|
|
|
62,497
|
|
|
|
62,497
|
|
|
|
|
|
|
|
*
|
|
PointState Fund(44)
|
|
|
22,900
|
|
|
|
22,900
|
|
|
|
|
|
|
|
*
|
|
Prime Capital Master SPC GOT WAT MAC Segregated
Portfolio
|
|
|
2,221
|
|
|
|
2,221
|
|
|
|
|
|
|
|
*
|
|
Sagittarius Fund(7)
|
|
|
3,476
|
|
|
|
3,476
|
|
|
|
|
|
|
|
*
|
|
Science Applications International Corporation Retirement Plans
Committee(35)
|
|
|
5,800
|
|
|
|
5,800
|
|
|
|
|
|
|
|
*
|
|
Seaport Group LLC Profit Sharing Plan
|
|
|
143,736
|
|
|
|
143,736
|
|
|
|
|
|
|
|
*
|
|
Seneca Capital, LP(45)
|
|
|
296,167
|
|
|
|
296,167
|
|
|
|
|
|
|
|
*
|
|
SIPI Master Ltd.(36)
|
|
|
257,293
|
|
|
|
257,293
|
|
|
|
|
|
|
|
*
|
|
Sola Ltd.(46)
|
|
|
1,444,631
|
|
|
|
1,216,418
|
|
|
|
228,213
|
|
|
|
*
|
|
Solus Core Opportunities Master Fund Ltd.(46)
|
|
|
223,528
|
|
|
|
223,528
|
|
|
|
|
|
|
|
*
|
|
Special Situations, LLC(24)
|
|
|
6,708
|
|
|
|
5,008
|
|
|
|
1,700
|
|
|
|
*
|
|
Special Situations X, LLC(24)
|
|
|
11,563
|
|
|
|
8,263
|
|
|
|
3,300
|
|
|
|
*
|
|
Stark Criterion Master Fund Ltd.(47)
|
|
|
35,979
|
|
|
|
35,979
|
|
|
|
|
|
|
|
*
|
|
Stark Master Fund Ltd.(48)
|
|
|
683,048
|
|
|
|
683,048
|
|
|
|
|
|
|
|
*
|
|
State of California(35)
|
|
|
9,600
|
|
|
|
9,600
|
|
|
|
|
|
|
|
*
|
|
SteelMill Master Fund LP(44)
|
|
|
37,100
|
|
|
|
37,100
|
|
|
|
|
|
|
|
*
|
|
Stichting Pensioenfonds Hoogovens(7)
|
|
|
14,234
|
|
|
|
13,982
|
|
|
|
252
|
|
|
|
*
|
|
Stone Lion Portfolio L.P.(43)
|
|
|
63,750
|
|
|
|
63,750
|
|
|
|
|
|
|
|
*
|
|
Stonehill Institutional Partners, L.P.(49)
|
|
|
109,672
|
|
|
|
106,315
|
|
|
|
3,357
|
|
|
|
*
|
|
Stonehill Master Fund Ltd.(50)
|
|
|
231,229
|
|
|
|
224,586
|
|
|
|
6,643
|
|
|
|
*
|
|
Structured Credit Opportunities Fund II, LP(37)
|
|
|
20,250
|
|
|
|
15,000
|
|
|
|
5,250
|
|
|
|
*
|
|
T. Rowe Price Mid-Cap Value Fund, Inc.(35)
|
|
|
358,000
|
|
|
|
358,000
|
|
|
|
|
|
|
|
*
|
|
T. Rowe Price U.S. Equities Trust(35)
|
|
|
2,700
|
|
|
|
2,700
|
|
|
|
|
|
|
|
*
|
|
The GM Canada Domestic Trust(7)
|
|
|
96,636
|
|
|
|
94,537
|
|
|
|
2,099
|
|
|
|
*
|
|
UBS Securities, LLC(51)
|
|
|
547,509
|
|
|
|
496,580
|
|
|
|
50,929
|
|
|
|
*
|
|
Venor Capital Master Fund Ltd.(52)
|
|
|
6,093
|
|
|
|
6,093
|
|
|
|
|
|
|
|
*
|
|
VSO Master Fund, Ltd.(53)
|
|
|
38,234
|
|
|
|
37,934
|
|
|
|
300
|
|
|
|
*
|
|
Waterstone Market Neutral MAC 51, Ltd.
|
|
|
9,582
|
|
|
|
9,582
|
|
|
|
|
|
|
|
*
|
|
Waterstone Market Neutral Master Fund, Ltd.
|
|
|
70,621
|
|
|
|
70,621
|
|
|
|
|
|
|
|
*
|
|
Waterstone MF Fund, Ltd.
|
|
|
16,223
|
|
|
|
16,223
|
|
|
|
|
|
|
|
*
|
|
Waterstone Offshore ER Fund, Ltd.
|
|
|
6,300
|
|
|
|
6,300
|
|
|
|
|
|
|
|
*
|
|
10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
|
|
|
Shares of
|
|
Maximum
|
|
Shares of Common Stock
|
|
|
Common Stock
|
|
Number of Shares
|
|
Owned After Offering(2)
|
|
|
Owned Prior to
|
|
of Common Stock
|
|
|
|
Percent of All
|
Name
|
|
Offering(1)
|
|
Offered
|
|
Number
|
|
Common Stock
|
|
Whitebox Credit Arbitrage Partners, LP(54)
|
|
|
66,452
|
|
|
|
66,452
|
|
|
|
|
|
|
|
*
|
|
Whitebox Multi-Strategy Partners, LP(55)
|
|
|
169,749
|
|
|
|
143,085
|
|
|
|
26,664
|
|
|
|
*
|
|
Whitebox Special Opportunities Fund LP, Series B(56)
|
|
|
21,766
|
|
|
|
17,500
|
|
|
|
4,266
|
|
|
|
*
|
|
YAM Investments LLC(57)
|
|
|
5,000
|
|
|
|
5,000
|
|
|
|
|
|
|
|
*
|
|
|
|
|
*
|
|
Less than 1%.
|
|
(1)
|
|
Shares shown in the table above include shares held in the
beneficial owners name or jointly with others, or in the
name of a bank, nominee or trustee for the beneficial
owners account.
|
|
(2)
|
|
Represents the amount of common stock that will be held by the
selling stockholders after completion of this offering based on
the assumptions that (a) all shares of common stock
registered for sale by the registration statement of which this
prospectus forms a part will be sold and (b) that no other
shares of common stock are acquired or sold by the selling
stockholders prior to completion of this offering. However, the
selling stockholders may sell all, some or none of the shares of
common stock offered pursuant to this prospectus and may sell
some or all of their shares of common stock pursuant to an
exemption from the registration provisions of the Securities
Act. Percentages based on number of shares of common stock
outstanding as of March 4, 2011.
|
|
(3)
|
|
Alden Global Capital Limited (Alden) is the
management company for Alden Global Distressed Opportunities
Master Fund, LP. (the Alden Master Fund) and
NewFinance Alden SPV (NewFinance and, together with
the Alden Master Fund, the Alden Clients). AGDOF
Master GP, Ltd. (Alden Master GP) is the general
partner of the Master Fund. Alden Global Capital, a division of
Smith Management, LLC (Alden NY) has been engaged to
provide certain services to Alden and the Alden Clients which
includes, among other things, investment research,
administrative, managerial and other services. Alden, Alden
Master GP and/or Alden NY may be deemed to beneficially own the
securities held by the Alden Clients through their ability to
either vote or direct the vote of the securities or dispose or
direct the disposition of the securities, either through
contract, understanding or otherwise. Alden, Alden Master GP and
Alden NY each disclaim beneficial ownership of such securities,
if any, except to the extent of their pecuniary interests
therein, as applicable.
|
|
(4)
|
|
Constellation Capital Management LLC is the investment advisor
for Lyxor Andromeda Global Credit Fund Limited, HFR RVA
Constellation Master Trust, Andromeda Global Credit
Fund Ltd, OCF Subsid 1, OFI Subsid 3 and Hartz Capital
Investments LLC (collectively, the Constellation
Funds). OCF Subsid 1 holds 250 shares of our common
stock, OFI Subsid 3 holds 800 shares of our common stock
and Hartz Capital Investments LLC holds 6,200 shares of our
common stock. The managing members of Constellation Capital
Management LLC are Varun Gosain and Shahriar Shahida
(collectively, the Constellation Managers).
Constellation Capital Management LLC and each of the
Constellation Managers may be deemed to beneficially own the
securities held by the Constellation Funds. Constellation
Capital Management LLC and each of the Constellation Managers
each disclaim beneficial ownership of such securities except to
the extent of their pecuniary interest therein.
|
|
(5)
|
|
Armory Advisors LLC is the investment manager of Armory Master
Fund, Ltd. and may be deemed to be the beneficial owner of the
securities held by Armory Master Fund, Ltd. Jay Burnham acts as
the Manager of Armory Advisors LLC.
|
|
(6)
|
|
The Artio Global Credit Opportunities Fund is a series of Artio
Alpha Investment Funds, LLC. The investment manager of the Artio
Global Credit Opportunities Fund is Artio Global Management LLC
(Artio Global, the Investment Manager or
the Managing Member). Artio is registered as an
investment adviser under the Investment Advisers Act of 1940, as
amended. Artio Alpha Investment Funds, LLC is a Delaware
multi-series limited liability company. The Artio Global Credit
Opportunities Fund currently is the sole existing series of
Artio Alpha Investment Funds, LLC.
|
|
(7)
|
|
Stephen Kotsen is the Portfolio Manager at Nomura Corporate
Research and Asset Management Inc. (NCRAM), which
serves as the investment advisor for Barclays Multi-Manager
Fund PLC, Battery Park High Yield Long Short
Fund Ltd., Battery Park High Yield Opportunity Master
Fund Ltd., Battery Park High
|
11
|
|
|
|
|
Yield Opportunity Strategic Fund, Ltd., California Public
Employees Retirement System, General Motors Hourly-Rate Employes
Pension Trust, General Motors Salaried Employes Pension Trust,
L-3 Communications Corporation Master Trust, Louisiana State
Employees Retirement System, Montgomery County
Employees Retirement System, Nomura Funds
Ireland US High Yield Bond Fund, Nomura US
Attractive Yield Corporate Bond Fund Mother Fund, Nomura
Waterstone Market Neutral Fund, Sagittarius Fund, Stichting
Pensioenfonds Hoogovens, The GM Canada Domestic Trust and The
Regents of the University of California and has the power to
vote or dispose of the shares of common stock held by such
funds. Consequently, NCRAM and Mr. Kotsen may be deemed to
be the beneficial owners of such shares; however, NCRAM and
Mr. Kotsen disclaim any beneficial ownership. Certain
affiliates of NCRAM are members of FINRA.
|
|
(8)
|
|
Carlson Capital, LP. (Carlson Capital) is the
investment adviser to Black Diamond Offshore Ltd. (Black
Diamond) and Double Black Diamond Offshore Ltd. (together
with Black Diamond, the Carlson Funds). Asgard
Investment Corp. II (Asgard II) is the general
partner of Carlson Capital, Asgard Investment Corp.
(Asgard) is the sole stockholder of Asgard II, and
Clint D. Carlson is the President of Carlson Capital,
Asgard II and Asgard. Carlson Capital, Asgard II, Asgard
and Mr. Carlson have the power to vote and direct the
disposition of securities held by the Carlson Funds.
|
|
(9)
|
|
Includes 23,357 shares underlying warrants to purchase
shares of our common stock. Brigade Capital Management, LLC
(Brigade Capital) is the investment manager for
Brigade Leveraged Capital Structures Fund Ltd.
(Brigade Fund). The managing member of Brigade
Capital is Donald E. Morgan, III. Brigade Capital and
Donald E. Morgan, III may be deemed to beneficially own the
securities held by Brigade Fund. Brigade Capital and Donald E.
Morgan, III each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
|
|
(10)
|
|
Susquehanna Advisors Group, Inc., the authorized agent of
Capital Ventures International, has discretionary authority to
vote and dispose of the shares held by Capital Ventures
International and may be deemed to be the beneficial owner of
these shares. Michael Ferry has the power to direct investments
and/or power to vote the shares through Susquehanna Advisors
Group, Inc., and may be deemed to beneficially own the shares
held by this entity. Michael Ferry expressly disclaims ownership
of such shares.
|
|
(11)
|
|
Sandell Asset Management Corp. (SAMC) is the
investment manager of Castlerigg Master Investments Ltd.
(Castlerigg). Thomas Sandell is the controlling
person of SAMC and may be deemed to share beneficial ownership
of the shares beneficially owned by Castlerigg. Castlerigg
International Ltd. (Castlerigg International) is the
controlling shareholder of Castlerigg International Holdings
Limited (International Holdings) and Castlerigg GS
Holdings, Ltd. (GS Holdings). International Holdings
and GS Holdings are the beneficial owners of Castlerigg Offshore
Holdings, Ltd. (Offshore Holdings). Offshore
Holdings is the controlling shareholder of Castlerigg. Each of
International Holdings, GS Holdings, Offshore Holdings and
Castlerigg International may be deemed to share beneficial
ownership of the shares beneficially owned by Castlerigg Master
Investments Ltd. The business address of each of these entities
is as follows:
c/o Sandell
Asset Management Corp. 40 W. 57th Street., 26th Floor,
New York, New York 10019. SAMC, Mr. Sandell, International
Holdings, GS Holdings, Offshore Holdings and Castlerigg
International each disclaims beneficial ownership of the
securities with respect to which indirect beneficial ownership
is described.
|
|
(12)
|
|
Centerbridge Credit Partners Offshore General Partner, L.L.C., a
Delaware limited liability company, is the general partner of
Centerbridge Credit Partners Master, L.P., a Cayman Islands
limited partnership. Mark T. Gallogly and Jeffery. H.
Aronson, managing members of Centerbridge Credit Partners
Offshore General Partner, L.L.C., share the power to vote
securities beneficially owned by the Centerbridge Credit
Partners Master, L.P. Each of Mr. Gallogly and
Mr. Aronson disclaims beneficial ownership of all of the
securities held by the Centerbridge Credit Partners Master, L.P.
|
|
(13)
|
|
Centerbridge Credit Partners General Partner, L.L.C., a Delaware
limited liability company, is the general partner of
Centerbridge Credit Partners, L.P., a Delaware limited
partnership. Mark T. Gallogly and Jeffery H. Aronson,
managing members of Centerbridge Credit Partners General
Partner, L.L.C., share the power to vote securities beneficially
owned by the Centerbridge Credit Partners, L.P. Each of
Mr. Gallogly and Mr. Aronson disclaims beneficial
ownership of all of the securities held by Centerbridge Credit
Partners, L.P.
|
12
|
|
|
(14)
|
|
Centerbridge Special Credit Partners General Partner, L.L.C., a
Delaware limited liability company, is the general partner of
Centerbridge Special Credit Partners, L.P., a Delaware limited
partnership. Mark T. Gallogly and Jeffery H. Aronson,
managing members of Centerbridge Special Credit Partners General
Partner, L.L.C., share the power to vote securities beneficially
owned by Centerbridge Special Credit Partners, L.P. Each of
Mr. Gallogly and Mr. Aronson disclaims beneficial
ownership of all of the securities held by Centerbridge Special
Credit Partners, L.P.
|
|
(15)
|
|
Consists of 66,979 shares of common stock held by Citadel
Securities LLC. Citadel Securities LLC is a registered-broker
dealer and, accordingly, may be deemed to be an underwriter. The
shares of common stock held by Citadel Securities LLC were
acquired in the ordinary course of its investment business and
not for the purpose of resale or distribution. Citadel
Securities LLC has not participated in the distribution of the
shares on behalf of the issuer.
|
|
(16)
|
|
Concerto Asset Management, LLC is the investment manager for
Concerto Credit Opportunity Master Fund I, LP.
|
|
(17)
|
|
CQS Directional Opportunities Master Fund Limited and Kivu
Investment Fund Limited are referred to as the CQS
Funds. CQS Cayman LP (the CQS Investment
Manager) is the investment manager of the CQS Funds. CQS
(US) LLC and CQS (UK) LLP (the Delegated Managers)
have been delegated discretionary portfolio management and
advisory functions for the CQS Funds. The portfolio manager is
Mark Unferth (the Portfolio Manager). The Portfolio
Manager may, under
Rule 13d-3
of the Exchange Act, be deemed to beneficially own the
securities held by the CQS Funds. The CQS Investment Manager,
the Delegated Managers and the Portfolio Manager disclaim
beneficial ownership of such securities except to the extent of
their respective pecuniary interests therein.
|
|
(18)
|
|
Cyrus Capital Partners, L.P. (CCP) is the investment
manager for Cyrus Opportunities Master Fund II, Ltd.
(COMFII), Cyrus Select Opportunities Master Fund,
Ltd. (CSOMF), Cyrus Europe Master Fund, Ltd.
(CEMF), CRS Fund, Ltd. (CRS) and
Crescent 1, L.P. (Crescent and, together with
COMFII, CSOMF, CEMF and CRS, collectively, the Cyrus
Funds). COMFIIs shares include 260,447 shares
underlying warrants to purchase shares of our common stock.
CSOMFs shares include 54,257 shares underlying
warrants to purchase shares of our common stock. CEMFs
shares include 5,420 shares underlying warrants to purchase
shares of our common stock. CRSs shares include
113,946 shares underlying warrants to purchase shares of
our common stock. Crescents shares include
108,514 shares underlying warrants to purchase shares of
our common stock. Cyrus Capital Partners GP, L.L.C.
(CCPGP) is the general partner of CCP.
Stephen C. Freidheim (SCF) is the managing
member of CCPGP and the Chief Investment Officer of CCP. CCP,
CCPGP and SCF may be deemed to beneficially own the securities
held by the Cyrus Funds. CCP, CCPGP and SCF each disclaim
beneficial ownership of such securities except to the extent of
their pecuniary interests therein.
|
|
(19)
|
|
Pursuant to an investment management agreement, CR Intrinsic
Investors, LLC, a Delaware limited liability company (CR
Investors), maintains investment and voting power with
respect to the securities held by CR Intrinsic Investments, LLC.
Mr. Steven A. Cohen controls CR Investors. CR Intrinsic
Investments, LLC is a wholly owned subsidiary of S.A.C. Capital
Associates, LLC. Each of CR Investors and Mr. Cohen
disclaim beneficial ownership of any of the securities covered
by this questionnaire, and S.A.C. Capital Associates, LLC
disclaims beneficial ownership of any securities held by CR
Intrinsic Investments, LLC.
|
|
(20)
|
|
CSS LLC is a registered broker-dealer and, accordingly, may be
deemed to be an underwriter. The shares of common stock held by
CSS LLC were acquired in the ordinary course of its investment
business and not for the purpose of resale or distribution of
the shares on behalf of its issuer.
|
|
(21)
|
|
Cumberland GP LLC, Cumberland Benchmarked GP LLC and LongView B
GP LLC (The GP LLC Entities) are the general
partners of Cumberland Partners, Cumberland Benchmarked
Partners, L.P. and LongView Partners B, L.P., respectively. Each
fund is the beneficial owner of our common stock. Cumberland
Associates is the investment manager of Cumber International
S.A., the beneficial owner of VCS. Gary G. Tynos,
Bruce G. Wilcox and Andrew M. Wallach are the managing members
of each GP LLC Entity and Cumberland Associates LLC.
|
|
(22)
|
|
Includes shares owned by M.H. Davidson & Co.
(Co), Davidson Kempner Institutional Partners, L.P.
(DKIP), Davidson Kempner Partners (DKP),
Davidson Kempner International, Ltd. (DKIL),
Davidson Kempner Distressed Opportunities Fund LP
(DKDOF) and Davidson Kempner Distressed
Opportunities
|
13
|
|
|
|
|
International Ltd. (DKDOI and, together with Co, DKIP,
DKP, DKIL and DKDOF, the DK Funds). Davidson Kempner
Capital Management LLC, acting through its affiliates pursuant
to various advisory agreements (DKCM), is the
ultimate investment manager (directly and indirectly) for each
of the DK Funds. DKCM has overall responsibility for investment
decisions made on behalf of the DK Funds.
Thomas L. Kempner, Jr. serves as the Executive
Managing Member of each investment manager entity. The other
partners of the investment managers are Stephen M. Dowicz, Scott
E. Davidson, Timothy I. Levart, Robert J. Brivio, Jr., Eric P.
Epstein, Anthony A. Yoseloff, Avram Z. Friedman, Conor Bastable
and Michael Herzog. Each such person disclaims ownership of any
securities of the DK Funds except to the extent of their
pecuniary interests therein.
|
|
(23)
|
|
Consists of 684,400 shares of common stock held by Deutsche
Bank Securities Inc. including 114,106 shares underlying
warrants to purchase shares of our common stock. Deutsche Bank
Securities Inc. is a registered-broker dealer and, accordingly,
may be deemed to be an underwriter. The shares of common stock
held by Deutsche Bank Securities Inc. were acquired in the
ordinary course of its investment business and not for the
purpose of resale or distribution. Deutsche Bank Securities Inc.
has not participated in the distribution of the shares on behalf
of the issuer. Deutsche Bank AG, of which Deutsche Bank
Securities Inc. is an indirect, wholly owned subsidiary, is a
widely held company.
|
|
(24)
|
|
DG Capital Management LLC (DGCM) is the investment
manager of DG Value Partners, LP, Special Situations, LLC and
Special Situations X, LLC (collectively, the DGCM
Funds). The managing member of DGCM is Dov Gertzulin. DGCM
and Dov Gertzulin may be deemed to beneficially own the
securities held by the DGCM Funds. DGCM and Dov Gertzulin each
disclaim beneficial ownership of such securities except to the
extent of their pecuniary interests therein.
|
|
(25)
|
|
Eos Mortar Rock Capital Management, LLC (EMR
Management) is the investment manager for Eos Mortar Rock
LP (Eos Mortar Rock). The managing members of EMR
Management are Steven M. Friedman, Brian D. Young and Randy
Saluck and the non-managing member is Broco Capital Corporation
(collectively, the EMR Managers). EMR Management and
each of the EMR Managers may be deemed to beneficially own the
securities held by Eos Mortar Rock. EMR Management and each of
the EMR Managers each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
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(26)
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Oak Hill Advisors, L.P. (OHA) is the investment
manager for Future Fund Board of Guardians, OHA Strategic
Credit Master Fund, L.P. and OHA Strategic Credit Master
Fund II, L.P. (the Oak Hill Funds). Oak Hill
Advisors GenPar, L.P. (GenPar) is the general
partner of OHA. GenPar is controlled by
Glenn R. August, William H. Bohnsack, Jr., Scott D.
Krase, Robert B. Okun, Alan Schrager and Carl Wernicke. OHA,
GenPar and Messrs. August, Bohnsack, Krase, Okun, Schrager
and Wernicke may be deemed to beneficially own the securities
held by the Oak Hill Funds. OHA, GenPar and Messrs. August,
Bohnsack, Krase, Okun, Schrager and Wernicke each disclaim
beneficial ownership of such securities except to the extent of
their pecuniary interests therein.
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(27)
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Includes 12,115 shares underlying warrants to purchase
shares of our common stock. Galileo Partners, LLC (Galileo
Partners) is the general partner of Galileo Partners
Fund I, L.P (GPFI). Mr. Howard Deshong is
the manager of Galileo Partners. Mr. Deshong and Galileo
Partners may be deemed to beneficially own the securities held
by GPFI. Galileo Partners and Mr. Deshong each disclaim
beneficial ownership of such securities except to the extent of
their pecuniary interests therein.
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(28)
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General American Investors Company, Inc. is an internally
managed closed-end investment company registered under the
Investment Company Act of 1940. General American Investors
Company, Inc. is the sole beneficial owner (without
qualification or exception) of 60,000 shares of Registrable
Securities and has full authority to vote and directly dispose
of such securities.
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(29)
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Includes 61,468 shares underlying warrants to purchase
shares of our common stock. Goldman, Sachs & Co.
(Goldman Sachs), a New York limited partnership, is
a member of the New York Stock Exchange and other national
exchanges. Goldman Sachs is a direct and indirect wholly-owned
subsidiary of The Goldman Sachs Group, Inc. (GS
Group). GS Group, a Delaware corporation, is a bank and
financial holding company that (directly or indirectly through
subsidiaries or affiliated companies or both) is a leading
global investment banking, securities and investment management
firm. Goldman Sachs is a registered-broker dealer and,
accordingly, may be deemed to be an underwriter. The shares of
common stock held by Goldman Sachs were
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14
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acquired in the ordinary course of its investment business and
not for the purpose of resale or distribution. Goldman Sachs has
not participated in the distribution of the shares on behalf of
the issuer. GS Group may be deemed to beneficially own the
securities held by Goldman Sachs. GS Group disclaims beneficial
ownership of such securities except to the extent of its
pecuniary interest therein.
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(30)
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Mason Capital Management LLC is the investment manager for Mason
Capital L.P., Mason Capital Master Fund, L.P. and Guggenheim
Portfolio Company X, LLC (collectively, the Mason
Funds). The managing members of Mason Capital Management
LLC are Kenneth Garschina and Michael Martino (collectively the
Mason Capital Managers). The Mason Funds and each of
the Mason Capital Managers may be deemed to beneficially own the
securities held by the Mason Funds. The Mason Funds and each of
the Mason Capital Managers each disclaim beneficial ownership of
such securities except to the extent of their pecuniary
interests therein.
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(31)
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Institutional Benchmark Series (Master Feeder) Ltd, in Respect
of Pinebank Credit Opportunities Series, HFR ED Pinebank Master
Trust, HFR ED Pinebank Plus Master Trust and Pinebank Catalyst
Master Fund, Ltd. are all beneficial owners in the sense that
they maintain voting power and have investment powers to dispose
of or direct disposition of the securities.
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(32)
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Directed Services LLC (DSL) and Janus Capital
Management LLC (JCM) act as the investment adviser
and
sub-adviser,
respectively, to the ING Janus Contrarian Portfolio (the
ING Portfolio) and each have discretionary
investment authority over the ING Portfolio, respectively,
including the power to dispose, or to direct the disposition of
securities. The managing member of JCM is Janus Capital Group
Inc. (JCG). JCM, JCG and DSL may be deemed to
beneficially own the securities held by the ING Portfolio. JCM,
JCG, and DSL each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
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(33)
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Janus US High Yield Funds shares include
48,780 shares underlying warrants to purchase shares of our
common stock. Janus High-Yield Funds shares include
65,326 shares underlying warrants to purchase shares of our
common stock. JCM acts as the investment adviser to the Janus
Investment Fund and as
sub-adviser
to Janus Capital Funds P.L.C. and has discretionary investment
authority over the Janus High-Yield Fund and Janus US High Yield
Fund (collectively, the Janus High Yield Funds),
respectively, including the power to dispose, or to direct the
disposition of securities. The managing member of JCM is JCG.
JCM and JCG may be deemed to beneficially own the securities
held by the Janus High Yield Funds. JCM and JCG each disclaim
beneficial ownership of such securities except to the extent of
their pecuniary interests therein.
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(34)
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JCM acts as the investment adviser to the Janus Investment Fund
and has discretionary investment authority over the Janus
Long/Short Fund and Janus Contrarian Fund (collectively, the
Janus Funds), including the power to dispose, or to
direct the disposition of securities. The managing member of JCM
is JCG. JCM and JCG may be deemed to beneficially own the
securities held by the Janus Funds. JCM and JCG each disclaim
beneficial ownership of such securities except to the extent of
their pecuniary interests therein.
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(35)
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T. Rowe Price Associates, Inc. (TRPA) serves as
investment adviser with power to direct investments and/or sole
power to vote the securities owned by John Hancock Funds
II MidCap Value Fund, John Hancock Trust
Mid Value Trust, Laborers District Council &
Contractors Pension Fund of Ohio, Science Applications
International Corporation Retirement Plans Committee, State of
California, T. Rowe Price Mid-Cap Value Fund, Inc. and T. Rowe
Price U.S. Equities Trust (the Accounts), as well as
securities owned by certain other individual and institutional
investors. For purposes of reporting requirements of the
Securities Exchange Act of 1934, TRPA may be deemed to be the
beneficial owner of all of the shares held by the Accounts;
however, TRPA expressly disclaims that it is, in fact, the
beneficial owner of such securities. TRPA is the wholly owned
subsidiary of T. Rowe Price Group, Inc., which is a publicly
traded financial services holding company. T. Rowe Price
Investment Services, Inc. (TRPIS), a registered
broker-dealer, is a subsidiary of T. Rowe Price Associates,
Inc., the investment adviser to the Accounts. TRPIS was formed
primarily for the limited purpose of acting as the principal
underwriter of shares of the funds in the T. Rowe Price fund
family. TRPIS does not engage in underwriting or market-making
activities involving individual securities. The securities were
purchased in the normal course of business for investment
purposes and not for the purpose of distribution.
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(36)
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Spectrum Group Management LLC (SGM) is the
investment manager for SIPI Master Ltd. (SIPI
Master) and Khroma Special Situations Master SPC Ltd.
(Khroma Master and together with SIPI Master, the
Spectrum Funds). The Managing Member of SGM is
Jeffrey Schaffer. SGM and Jeffrey Schaffer may be deemed to
beneficially own the securities held by the Spectrum Funds. SGM
and Jeffrey Schaffer each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
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(37)
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Tricadia Capital Management, LLC (TCM) is the
Investment Manager for Mariner-Tricadia Credit Strategies Master
Fund, Ltd. (MTCS) and Structured Credit
Opportunities Fund II, LP (SCOPESII). Tricadia
Holdings, L.P. (Tricadia Holdings) wholly owns TCM.
Tricadia Holdings GP, LLC (Holdings GP) is the
general partner of Tricadia Holdings. Michael Barnes and Arif
Inayatullah are the managing members of Holdings GP.
Accordingly, TCM, Tricadia Holdings, Holdings GP,
Mr. Barnes and Mr. Inayatullah may be deemed to
beneficially own the securities held by MTCS and SCOPESII. TCM,
Tricadia Holdings, Holdings GP, Mr. Barnes and
Mr. Inayatullah each disclaim beneficial ownership of such
securities, except to the extent of their respective pecuniary
interests therein.
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(38)
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Includes 17,127 shares underlying warrants to purchase
shares of our common stock held by Monarch Capital Master
Partners II-A LP, 49,682 shares underlying warrants to
purchase shares of our common stock held by Monarch Capital
Master Partners LP, 7,154 shares underlying warrants to
purchase shares of our common stock held by Monarch Cayman
Fund Limited, 62,941 shares underlying warrants to
purchase shares of our common stock held by Monarch Debt
Recovery Master Fund Ltd, 34,026 shares underlying
warrants to purchase shares of our common stock held by Monarch
Opportunities Master Fund Ltd and 5,933 shares
underlying warrants to purchase shares of our common stock held
by Oakford MF Limited. Monarch Alternative Capital LP
(MAC) serves as advisor to Monarch Master Funding
Ltd, Monarch Debt Recovery Master Fund Ltd, Oakford MF
Limited, Monarch Cayman Fund Limited, Monarch Opportunities
Master Fund Ltd, Monarch Capital Master Partners LP and
Monarch Capital Master Partners II-A LP. MDRA GP LP (MDRA
GP) is the general partner of MAC and Monarch GP LLC
(Monarch GP, together with MDRA GP and MAC,
Monarch Management) is the general partner of MDRA
GP. Each of Monarch Management may be deemed to beneficially own
the registrable securities by virtue of their positions. Each of
Monarch Management disclaims beneficial ownership of such
securities except to the extent of its pecuniary interests
therein.
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(39)
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Does not include 42,951 shares held by Morgan Stanley Smith
Barney and 20,402 shares held by Morgan Stanley Capital
Services, Inc. Shares to be registered consist of
608,982 shares of our common stock held by Morgan
Stanley & Co. Incorporated, including
13,898 shares underlying warrants to purchase shares of our
common stock. Morgan Stanley & Co. Incorporated is a
registered-broker dealer and, accordingly, may be deemed to be
an underwriter with respect to the securities it sells pursuant
to the prospectus. The shares of common stock held by Morgan
Stanley & Co. Incorporated were acquired in the
ordinary course of its investment business and not for the
purpose of resale or distribution. Morgan Stanley &
Co. Incorporated has not participated in the distribution of the
shares on behalf of the issuer.
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(40)
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Stephen Kotsen is the Portfolio Manager at NCRAM and has the
power to vote or dispose of the shares of common stock held by
such selling stockholder. Consequently, Mr. Kotsen may be
deemed to be the beneficial owner of such shares, however,
Mr. Kotsen disclaims any beneficial ownership. Certain
affiliates of NCRAM are members of FINRA.
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(41)
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Does not include 25,000 shares held by James Cacioppo. One
East Partners Capital Management LLC is the general partner of
One East Partners Master LP. The managing member of One East
Partners Capital Management LLC is James Cacioppo. One East
Partners Capital Management LLC and James Cacioppo may be deemed
to beneficially own the securities held by the One East Partners
Master LP. One East Partners Capital Management LLC and James
Cacioppo each disclaim beneficial ownership of such securities
except to the extent of their pecuniary interests therein.
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(42)
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Pandora Select Partners, LP (PSP) is the registered
holder of the registrable securities. Pandora Select Advisors,
LLC (PSA) is the General Partner to PSP. AJR
Financial, LLC (AJR) is the Managing Member of PSA,
and Whitebox Advisors, LLC (WBA) is the sole member
of AJR. AJR, WBA, and PSA each disclaim beneficial ownership of
such securities except to the extent of their pecuniary
interests therein.
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(43)
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Stone Lion Capital Partners L.P. (Stone Lion
Capital) is the investment manager for Stone Lion
Portfolio L.P. (Stone Lion Portfolio) and Permal
Stone Lion Fund Ltd. (collectively with Stone Lion
Portfolio, the Stone Lion Funds). Stone Lion Capital
may be deemed to beneficially own the securities held by the
Stone Lion Funds.
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(44)
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PointState Capital LP may be deemed to beneficially own such
securities by virtue of its position as investment manager to
PointState Fund LP and SteelMill Master Fund LP. Sean
E. Cullinan may be deemed to be the beneficial owner of the
securities by virtue of his role as managing member of
PointState Capital GP LLC, the general partner of PointState
Capital LP. Each of PointState Capital LP, PointState Capital GP
LLC and Mr. Cullinan each disclaim beneficial ownership of
the securities except to the extent of their pecuniary interest
therein.
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(45)
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Seneca Capital Investments, L.P. (Seneca LP) is the
investment manager for Seneca Capital, L.P.
(Seneca). Seneca Capital Investments, L.L.C.
(Seneca LLC) is the general partner of Seneca LP.
Seneca Capital Advisors, L.L.C. (Seneca Advisors) is
the general partner of Seneca. Douglas Hirsch is the managing
member of each of Seneca LLC and Seneca Advisors. Each of Seneca
LP, Seneca LLC, Seneca Advisors and Mr. Hirsch disclaims
beneficial ownership of such securities except to the extent of
its or his pecuniary interest therein.
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(46)
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Sola Ltd.s shares include 228,213 shares underlying
warrants to purchase shares of our common stock. Solus
Alternative Asset Management LP (Solus) is the
investment advisor for Sola Ltd (Sola Master) and
Solus Core Opportunities Master Fund Ltd (Core
Master and, together with Sola Master, the Solus
Funds). Sola Masters shares include
228,213 shares underlying warrants to purchase shares of
our common stock. Solus GP LLC (Solus GP) is the
general partner of Solus. The Managing Member of Solus GP is
Christopher Pucillo (the Managing Member). Solus,
Solus GP and the Managing Member may be deemed to beneficially
own the securities held by the Solus Funds. Solus, Solus GP and
the Managing Member each disclaim beneficial ownership of such
securities except to the extent of their pecuniary interests
therein.
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(47)
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Stark Criterion Management LLC (Stark Criterion) is
the investment manager of Stark Criterion Master Fund Ltd.
(Criterion Master). The managing members of Stark
Criterion are Michael Roth and Brian Stark (collectively, the
Stark Managers). Stark Criterion and the Stark
Managers may be deemed to beneficially own the securities held
by Criterion Master. Stark Criterion and the Stark Managers each
disclaim beneficial ownership of such securities except to the
extent of their pecuniary interests therein.
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(48)
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Stark Offshore Management LLC (Stark Offshore) is
the investment manager of Stark Master Fund Ltd.
(Stark Master). The managing members of Stark
Offshore are the Stark Managers. Stark Offshore and the Stark
Managers may be deemed to beneficially own the securities held
by Stark Master. Stark Offshore and the Stark Managers each
disclaim beneficial ownership of such securities except to the
extent of their pecuniary interests therein.
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(49)
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Includes 9,440 shares underlying warrants to purchase
shares of our common stock. Stonehill Capital Management LLC, a
Delaware limited liability company (SCM), is the
investment adviser of Stonehill Institutional Partners, L.P.
(Stonehill Institutional). Stonehill General
Partner, LLC, a Delaware limited liability company
(Stonehill GP), is the general partner of Stonehill
Institutional. By virtue of such relationships, SCM and
Stonehill GP may be deemed to have voting and dispositive power
over the shares of common stock owned by Stonehill
Institutional. SCM and Stonehill GP disclaim beneficial
ownership of such shares of common stock. Mr. John
Motulsky, Mr. Christopher Wilson, Mr. Wayne Teetsel,
Mr. Thomas Varkey, Mr. Jonathan Sacks, Mr. Peter
Sisitsky and Mr. Michael Thoyer (collectively, the
Stonehill Members) are the managing members of SCM
and Stonehill GP, and may be deemed to have shared voting and
dispositive power over the shares of common stock owned by
Stonehill Institutional. The Stonehill Members disclaim
beneficial ownership of such securities.
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(50)
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Includes 19,352 shares underlying warrants to purchase
shares of our common stock. SCM is the investment adviser and a
director of Stonehill Master Fund Ltd. (Stonehill
Master). By virtue of such relationships, SCM may be
deemed to have voting and dispositive power over the shares of
common stock owned by Stonehill Master. SCM disclaims beneficial
ownership of such shares of common stock. The Stonehill Members
are the managing members of SCM, and may be deemed to have
shared voting and dispositive
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power over the shares of common stock owned by Stonehill Master.
The Stonehill Members disclaim beneficial ownership of such
securities.
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(51)
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Consists of 547,509 shares of common stock held by UBS
Securities, LLC including 279,234 shares underlying
warrants to purchase shares of our common stock. UBS Securities
LLC is a registered-broker dealer and, accordingly, may be
deemed to be an underwriter. The shares of common stock held by
UBS Securities, LLC were acquired in the ordinary course of its
investment business and not for the purpose of resale or
distribution. UBS Securities, LLC has not participated in the
distribution of the shares on behalf of the issuer.
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(52)
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Includes 6,093 shares underlying warrants to purchase
shares of our common stock. Venor Capital Management LP is the
investment manager for Venor Capital Master Fund Ltd. Venor
Capital Management GP LLC is the general partner of Venor
Capital Management LP. The managing members of Venor Capital
Management GP LLC are Jeffrey Bersh and Michael Wartell. Venor
Capital Management LP, Venor Capital Management GP LLC, Jeffrey
Bersh, and Michael Wartell may be deemed to beneficially own the
securities held by Venor Capital Master Fund Ltd. Venor
Capital Management LP, Venor Capital Management GP LLC, Jeffrey
Bersh and Michael Wartell each disclaim beneficial ownership of
such securities except to the extent of their pecuniary
interests therein.
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(53)
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Includes 1,605 shares underlying warrants to purchase
shares of our common stock. Includes 20,003 shares
registered by Morgan Stanley & Co. Incorporated on
behalf of VSO Master Fund Ltd. (VSO Master
Fund). VSO Capital Management, LLC (VSO
Management) is the investment manager for VSO Master Fund,
VSO Fund, Ltd. (VSO Fund) and VSO Partners, LP
(VSO Partners and, collectively, the VSO
Funds). VSO Capital GP, LLC (VSO Capital) is
the general partner of VSO Partners. The managing member of VSO
Management and VSO Capital is Alex Lagetko (the VSO
Manager). VSO Management, VSO Capital and the VSO Manager
may be deemed to beneficially own the securities held by the VSO
Funds. VSO Management, VSO Capital and the VSO Manager each
disclaim beneficial ownership of such securities except to the
extent of their pecuniary interests therein.
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(54)
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Whitebox Advisors, LLC (WA) is the investment
advisor to, and the managing member of, Whitebox Credit
Arbitrage Advisors, LLC (WCAA). WCAA is the general
partner of Whitebox Credit Arbitrage Partners, LP
(WCAP). WA and WCAA may be deemed to beneficially
own the securities held by WCAP. WA and WCAA each disclaim
beneficial ownership of such securities except to the extent of
their pecuniary interests therein.
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(55)
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WA is the investment advisor to, and the managing member of,
Whitebox Multi-Strategy Advisors, LLC (WMSA). WMSA
is the general partner of Whitebox Multi-Strategy Partners, LP
(WMSP). WA and WMSA may be deemed to beneficially
own the securities held by WMSP. WA and WMSA each disclaim
beneficial ownership of such securities except to the extent of
their pecuniary interests therein.
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(56)
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Whitebox Special Opportunities Fund LP, Series B
(PSP) is the registered holder of the registrable
securities. Whitebox Special Opportunities Advisors, LLC
(PSA) is the general partner to PSP. AJR Financial,
LLC (AJR) is the managing member of PSA, and WA is
the sole member of AJR. AJR, WA and PSA each disclaim beneficial
ownership of such securities except to the extent of their
pecuniary interests therein.
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(57)
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YAM Investments LLC is a single member LLC whose sole member is
Pamela Yee.
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MATERIAL
RELATIONSHIPS WITH SELLING STOCKHOLDERS
Registration Rights Agreement.
We entered into
a Registration Rights Agreement (the Registration Rights
Agreement) with the selling stockholders party thereto.
Pursuant to the Registration Rights Agreement, among other
things, we were required to use our reasonable best efforts to
file within fourteen business days after the effective date of
the Plan of Reorganization a registration statement on any
permitted form that qualifies, and is available for, the resale
of registrable securities, as defined in the
Registration Rights Agreement, with the SEC in accordance with
and pursuant to Rule 415 promulgated under the Securities
Act. Registrable securities are shares of our common stock, par
value $0.01, issued or issuable on or after the Effective Date
to any of the original parties to the Registration Rights
Agreement, including, without limitation, upon the conversion of
our outstanding warrants,
18
and any securities paid, issued or distributed in respect of any
such common stock, but excluding shares of common stock acquired
in the open market after such date. In addition, upon our
becoming a well-known seasoned issuer, we are required to
promptly register the sale of all of the registrable securities
under an automatic shelf registration statement, and to cause
such registration statement to remain effective thereafter until
there are no longer registrable securities.
At any time and from time to time after such a registration
statement has been declared effective by the SEC, any one or
more holders of registrable securities may request to sell all
or any portion of their registrable securities in an
underwritten offering, provided that such holder or holders will
be entitled to make such demand only if the total offering price
of the registrable securities to be sold in such offering is
reasonably expected to exceed, in the aggregate,
$75 million. We are not obligated to effect more than three
such underwritten offerings during any period of twelve
consecutive months during the first two-year period after the
effective date of the Plan of Reorganization, and two such
underwritten offerings during any period of twelve consecutive
months following the first two-year period after such effective
date. In either case, we are not obligated to effect such an
underwritten offering within 120 days after the pricing of
a previous underwritten offering.
If we propose to offer shares in an underwritten offering
whether for our own account or the account of others, holders of
registrable securities will be entitled to request that their
registrable securities be included in such offering, subject to
specific exceptions.
The registration rights granted in the Registration Rights
Agreement are subject to customary indemnification and
contribution provisions, as well as customary restrictions such
as minimums, blackout periods and, if a registration is for an
underwritten offering, limitations on the number of shares to be
included in the underwritten offering may be imposed by the
managing underwriter.
The foregoing description of the Registration Rights Agreement
does not purport to be complete and is qualified in its entirety
by reference to the full text of the Registration Rights
Agreement.
Equity Commitment Agreement.
Pursuant to an
Equity Commitment Agreement, dated as of May 6, 2010, among
Visteon and the selling stockholders party thereto (together,
the Investors) (as amended by that certain First
Amendment to the Equity Commitment Agreement, dated as of
June 13, 2010, among Visteon and the Investors, and the
Second Amendment to the Equity Commitment Agreement, dated as of
June 20, 2010, among Visteon and the Investors, the Third
Amendment to the Equity Commitment Agreement, dated as of
August 9, 2010, among Visteon, the Investors, and the other
selling stockholders party thereto (the Additional
Purchasers), and the Fourth Amendment to the Equity
Commitment Agreement, dated as of October 1, 2010, among
Visteon, the Investors, and the Additional Purchasers, the
ECA), (i) we conducted a rights offering (the
Rights Offering) whereby certain holders of our then
existing unsecured notes elected to purchase on the Effective
Date 34,310,200 shares of our new common stock for $27.69
per share (the Share Price) and (ii) the
Investors and the Additional Purchasers purchased on the
Effective Date, respectively, 10,690,344 shares of our
common stock (the Direct Subscription Shares) and
144,456 shares of our new common stock at the Share Price.
In addition, in accordance with the ECA, we paid: (i) a
$43,750,000 fee to the Investors as compensation for their
agreement to purchase the Direct Subscription Shares and any
shares of our new common stock included, but not subscribed for,
in the Rights Offering, 25% of which was paid upon entry of the
order approving the ECA and the remaining portion of which was
paid on the Effective Date; (ii) a $16,625,000 fee on the
Effective Date to certain of the Investors as compensation for
arranging the transactions contemplated by the ECA; and
(iii) certain out of pocket costs and expenses reasonably
incurred by the Investors and the Additional Purchasers in
connection with the ECA. The shares of our new common stock
discussed above were offered and sold pursuant to exemptions
from the registration requirements of Section 5 of the
Securities Act, as set forth in section 4(2) of the
Securities Act and Regulation D promulgated thereunder.
Credit Facilities.
On October 1, 2010,
the Company entered into a new term loan credit agreement, by
and among the Company as borrower, certain of the Companys
subsidiaries as guarantors, the lenders party thereto and Morgan
Stanley Senior Funding, Inc., as lead arranger, sole bookrunner,
collateral agent and administrative agent, which provides for a
$500 million secured term loan facility. Additionally, on
October 1, 2010, the Company entered into a new revolving
loan credit agreement, by and among the Company and certain of
the Companys subsidiaries, as borrowers, the lenders party
thereto and Morgan Stanley Senior Funding, Inc., as
administrative
19
agent, co-collateral agent, syndication agent, joint lead
arranger and joint bookrunner, Bank of America, N.A., as joint
lead arranger, co-collateral agent and co-documentation agent,
and Barclays Capital, as joint bookrunner and co-documentation
agent, which provides for a $200 million asset-based
revolving credit facility. Certain of the selling stockholders
are parties to (or are affiliates of parties to) the term loan
facility
and/or
the
asset-based revolving credit facility.
DESCRIPTION
OF CAPITAL STOCK
The following summary of the terms of our capital stock is not
meant to be complete and is qualified in its entirety by
reference to our second amended and restated certificate of
incorporation, our second amended and restated bylaws and the
provisions of applicable law. Copies of our second amended and
restated certificate of incorporation and our second amended and
restated bylaws are filed as exhibits to the Registration
Statement on
Form 8-A
filed with the SEC on September 30, 2010 and are
incorporated herein by reference.
Authorized
Capital Stock upon Emergence
Visteon has the authority to issue a total of
300,000,000 shares of capital stock, consisting of:
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250,000,000 shares of common stock, par value $0.01 per
share; and
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50,000,000 shares of preferred stock, par value $0.01 per
share.
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Common
Stock
The rights, preferences and privileges of holders of our common
stock are subject to, and may be adversely affected by, the
rights of the holders of shares of any series of our preferred
stock which we may designate and issue in the future.
Dividend Rights.
Subject to limitations under
Delaware law, preferences that may apply to any outstanding
shares of preferred stock, and contractual restrictions, holders
of our common stock are entitled to receive ratably dividends or
other distributions when and if declared by the board of
directors. In addition to such restrictions, whether any future
dividends are paid will depend on decisions that will be made by
the board of directors and will depend on then existing
conditions, including our financial condition, contractual
restrictions, corporate law restrictions, capital requirements
and business prospects. The ability of the board of directors to
declare dividends also will be subject to the rights of any
holders of outstanding shares of our preferred stock and the
availability of sufficient funds under the Delaware General
Corporation Law (DGCL) to pay dividends.
Liquidation Rights.
In the event of any
liquidation, dissolution or winding up of Visteon, the holders
of our common stock will be entitled to share in the net assets
of Visteon available after the payment of all debts and other
liabilities and subject to the prior rights of any outstanding
class of our preferred stock.
Preemptive Rights.
Pursuant to our second
amended and restated certificate of incorporation, the holders
of our common stock have no preemptive rights.
Conversion Rights.
Shares of our common stock
are not convertible.
Voting Rights.
Subject to the rights of the
holders of any series of our preferred stock, each outstanding
share of our common stock is entitled to one vote on all matters
submitted to a vote of stockholders. The holders of our common
stock will not have cumulative voting rights.
Warrants
to Purchase Common Stock
Pursuant to the Plan of Reorganization, we issued warrants to
purchase 2,355,000 shares of our common stock to holders of
our 12.25% senior notes issued (the Ten Year
Warrants). The Ten Year Warrants have an exercise price of
$9.66 per share of common stock. Each of the Ten Year Warrants
expires ten years after the date of issuance. The warrants
provide for a cashless exercise by the warrant holder. The
warrant exercise price and the number of shares issuable upon
exercise of the warrants are subject to adjustment upon certain
events including: stock subdivisions, combinations, splits,
stock dividends, capital reorganizations, or capital
reclassifications of common
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stock and in connection with certain distributions of cash,
assets or securities. The Ten Year Warrants are not redeemable.
Pursuant to the Plan of Reorganization, we issued 1,552,774
warrants to purchase shares of our common stock to holders of
shares of our previously outstanding common stock, which were
cancelled pursuant to the Plan of Reorganization (the Five
Year Warrants). The Five Year Warrants have an exercise
price of $58.80 per share. Each of the Five Year Warrants
expires five years after the date of issuance. The Five Year
Warrants provide for a cashless exercise by the warrant holder.
The warrant exercise price and the number of shares issuable
upon exercise of the warrants are subject to adjustment upon
certain events including: stock subdivisions, combinations,
splits, stock dividends, capital reorganizations, or capital
reclassifications of common stock and in connection with certain
distributions of cash, assets or securities. The Five Year
Warrants are not redeemable.
Preferred
Stock
Under the terms of our second amended and restated certificate
of incorporation, the board of directors is authorized to issue
from time to time up to an aggregate of 50,000,000 shares
of preferred stock and to fix or alter the designations,
preferences, rights and any qualifications, limitations or
restrictions of the shares of each series, including the
dividend rights, dividend rates, conversion rights, voting
rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, liquidation preferences
and the number of shares constituting any series. These
additional shares may be used for a variety of corporate
purposes, including future public offerings, to raise additional
capital or to facilitate acquisitions. If the board of directors
decides to issue shares of preferred stock to persons supportive
of current management, this could render it more difficult or
discourage an attempt to obtain control of Visteon by means of a
merger, tender offer, proxy contest or otherwise. Authorized but
unissued shares of preferred stock also could be used to dilute
the stock ownership of persons seeking to obtain control of
Visteon. To the extent required by 11 U.S.C.
§ 1123(a)(6), Visteon is prohibited from issuing
shares of nonvoting equity securities (within the meaning of
such statute).
Certain
Anti-Takeover Effects of our Certificate of Incorporation, our
Bylaws and Delaware Law
Provisions of Delaware Law.
Visteon is a
Delaware corporation subject to Section 203 of the DGCL.
Section 203 provides that, subject to certain exceptions
specified in the law, a Delaware corporation shall not engage in
certain business combinations with any
interested stockholder for a three-year period after
the date of the transaction in which the person became an
interested stockholder unless:
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prior to such time, the board of directors of the corporation
approved either the business combination or the transaction that
resulted in the stockholder becoming an interested stockholder;
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upon consummation of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding certain shares; or
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at or subsequent to that time, the business combination is
approved by the board of directors of the corporation and
authorized by the affirmative vote of holders of at least
66
2
/
3
%
of the outstanding voting stock that is not owned by the
interested stockholder.
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Generally, a business combination includes a merger,
asset or stock sale or other transaction resulting in a
financial benefit to the interested stockholder. Subject to
certain exceptions, an interested stockholder is a
person who, together with that persons affiliates and
associates, owns, or within the previous three years did own,
15% or more of the voting stock of the corporation.
Under certain circumstances, Section 203 makes it more
difficult for a person who would be an interested
stockholder to effect various business combinations with a
corporation for a three-year period. The provisions of
Section 203 may encourage companies interested in acquiring
Visteon to negotiate in advance with our board of directors
because the stockholder approval requirement would be avoided if
our board of directors approves either the business combination
or the transaction that results in the stockholder becoming an
interested stockholder. These provisions also may make it more
difficult to accomplish transactions that stockholders may
otherwise deem to be in their best interests.
21
Board of Directors.
Our second amended and
restated certificate of incorporation and our second amended and
restated bylaws provide that the number of directors shall be
fixed by the board of directors from time to time. The board of
directors shall initially consist of the nine members identified
in the Plan of Reorganization and shall always consist of not
less than 3 nor more than 15 members. Under our second amended
and restated bylaws, at all meetings of stockholders for the
election of directors at which a quorum is present, a plurality
of the votes cast shall be sufficient to elect a director. Under
our second amended and restated certificate of incorporation and
our second amended and restated bylaws, a vote of a majority of
all then outstanding capital stock entitled to vote at an
election of directors is required to remove a director with or
without cause and fill the resulting vacancy, except that any
director elected separately by the holders of any class or
series of stock shall be subject to removal with or without
cause at any time by such stockholders, who will fill the
resulting vacancy. Vacancies resulting from newly created
directorships by reason of an increase in the size of the board
of directors shall be filled by a majority vote of the board of
directors, provided a quorum is present. Further, vacancies
resulting from reasons other than removal or an increase in the
size of the board of directors shall be filled by a majority
vote of the board of directors, even if less than a quorum.
These provisions may deter a stockholder from removing incumbent
directors and simultaneously gaining control of the board of
directors by filling the vacancies created by this removal with
its own nominees.
Advance Notice Procedures.
Our second amended
and restated bylaws establish an advance notice procedure for
stockholder proposals to be brought before a meeting of
stockholders, including proposed nominations of persons for
election to the board of directors. Stockholders at a meeting
will only be able to consider proposals or nominations specified
in the notice of meeting or brought before the meeting by or at
the direction of the board of directors or by a stockholder who
was a stockholder of record on the record date for the meeting,
who is entitled to vote at the meeting and who has given our
corporate secretary timely written notice, in proper form, of
the stockholders intention to bring that business before
the meeting. Although our second amended and restated bylaws
will not give the board of directors the power to approve or
disapprove stockholder nominations of candidates or proposals
regarding other business to be conducted at a special or annual
meeting, our second amended and restated bylaws may have the
effect of precluding the conduct of certain business at a
meeting if the proper procedures are not followed or may
discourage or deter a potential acquirer from conducting a
solicitation of proxies to elect its own slate of directors or
otherwise attempting to obtain control of the company.
Action by Written Consent; Special Meetings of
Stockholders.
Our second amended and restated
certificate of incorporation provides that stockholder action
can be taken only at an annual or special meeting of
stockholders and cannot be taken by written consent in lieu of a
meeting. Our second amended and restated certificate of
incorporation and our second amended and restated bylaws provide
that, except as otherwise required by law, special meetings of
the stockholders can only be called by our chairman of the
board, our chief executive officer, pursuant to a resolution
adopted by a majority of our board of directors or by our
secretary following receipt of one or more demands to call a
special meeting of the stockholders, in accordance with the
provisions of our second amended and restated bylaws, from
stockholders who hold, in the aggregate, at least twenty percent
of the voting power of all shares entitled generally to on the
election of directors (without reference to any terms of any
preferred stock).
Authorized but Unissued Shares.
Our authorized
but unissued shares of common stock and preferred stock will be
available for future issuance without stockholder approval,
subject to the rules and regulations of any applicable stock
exchange or similar rules. These additional shares may be
utilized for a variety of corporate purposes, including future
public offerings to raise additional capital, corporate
acquisitions and employee benefit plans. The existence of
authorized but unissued shares of common stock and preferred
stock could render more difficult or discourage an attempt to
obtain control of a majority of our common stock by means of a
proxy contest, tender offer, merger or otherwise.
Limitations on Directors and Officers
Liability.
Our second amended and restated
certificate of incorporation contains a provision eliminating
the personal liability of our directors to Visteon or any of its
stockholders for monetary damages for breach of fiduciary duty
to the fullest extent permitted by applicable law. Our second
amended and restated certificate of incorporation and our second
amended and restated bylaws also contain provisions generally
providing for indemnification and prepayment of expenses to our
directors and officers to the fullest extent permitted by
applicable law.
22
Amendment of Certificate of Incorporation and
Bylaws.
Our second amended and restated
certificate of incorporation expressly authorizes the board of
directors to adopt, amend, alter or repeal most provisions of
our second amended and restated bylaws by a majority vote. The
stockholders may also adopt, amend, alter or repeal our second
amended and restated bylaws. Stockholder approval is also
required to amend, alter, change or repeal any provision of our
second amended and restated certificate of incorporation or our
second amended and restated bylaws inconsistent with any
provision in our second amended and restated certificate of
incorporation or our second amended and restated bylaws that
requires a particular vote of stockholders in order to take the
action specified in such provision.
Tax Benefit Preservation.
Our second amended
and restated certificate of incorporation provides, subject to
certain exceptions therein, that any attempted transfer of
Visteons securities prior to the earliest of:
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December 31, 2019,
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the repeal, amendment or modification of Section 382 of the
Internal Revenue Code of 1986, as amended
(Section 382) in such a way as to render the
restrictions imposed by Section 382 no longer applicable to
Visteon,
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the beginning of a taxable year of Visteon in which no net
operating loss carryovers, capital loss carryovers, alternative
minimum tax credit carryovers and foreign tax credit carryovers
or any loss or deduction attributable to a net realized
built-in loss within the meaning of Section 382
of Visteon or any of its direct or indirect subsidiaries
(Tax Benefits) are available, and
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the date on which the limitation amount imposed by
Section 382 in the event of an ownership change of Visteon
would not be materially less than the net operating loss carry
forward or net unrealized built-in loss of Visteon (the earliest
of such dates being the Restriction Release
Date), or
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any attempted transfer of Visteons securities pursuant to
an agreement entered into prior to the Restriction Release Date,
shall be prohibited and void ab initio insofar as it purports to
transfer ownership or rights in respect of such stock to the
purported transferee:
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if the transferor is a person or group of persons that is
identified as a 5-percent shareholder of Visteon
pursuant to Treasury Regulation § 1.382-2T(g) other
than a direct public group as defined in such
regulation (a Five-Percent Stockholder), or
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to the extent that, as a result of such transfer, either any
person or group of persons shall become a Five-Percent
Stockholder or the percentage stock ownership interest in
Visteon of any Five-Percent Stockholder shall be increased.
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These restrictions could prohibit or delay the accomplishment of
an ownership change with respect to Visteon by
(i) discouraging any person or group from being a
Five-Percent Stockholder and (ii) discouraging any existing
Five-Percent Stockholder from acquiring more than a minimal
number of additional shares of Visteons stock.
Business Opportunities.
In recognition that
our investors and their officers, directors, agents,
stockholders, members, partners, affiliates and subsidiaries may
serve as our directors
and/or
officers and that our investors may engage in similar activities
or lines of business that we do, our second amended and restated
certificate of incorporation provides for the allocation of
certain business opportunities between us and our investors.
Specifically, none of our investors or any officer, director,
agent, stockholder, member, partner or affiliate of an investor
has any duty to refrain from engaging directly or indirectly in
the same or similar business activities or lines of business
that we do. In the event that any investor acquires knowledge of
a potential transaction or matter which may be a business
opportunity for itself and us, we will not have any expectancy
in such business opportunity, and the investor will not have any
duty to communicate or offer such business opportunity to us and
may pursue or acquire such business opportunity for itself or
direct such opportunity to another person. In addition, if a
director or officer of us who is also an officer, director,
agent, stockholder, member, partner or affiliate of any investor
acquires knowledge of a potential transaction or matter which
may be a business opportunity for us and an investor, we will
not have any expectancy in such business opportunity unless such
business opportunity is expressly offered to such person solely
in his or her capacity as a director or officer of us.
23
No such person shall be liable to Visteon 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 Visteon or its subsidiaries.
These provisions of our certificate of incorporation are
permitted by Section 122 of the DGCL, and, accordingly, we
and all of our stockholders will be subject to them.
Transactions with Interested Directors or
Officers.
In recognition that we may engage in
material business transactions with one or more of our directors
or officers, an entity in which one or more of our directors or
officers are its directors or officers or have a financial
interest, our second amended and restated bylaws provide that
such a contract or transaction will not be void or voidable
solely because a director or officer is interested, or solely
because the director or officer is present at or participates in
the meeting which authorizes the contract or transaction, or
solely because such persons votes are counted for such
purpose if:
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the material facts as to such persons or persons
relations or interest 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 vote
of a majority of disinterested directors, even though the number
of disinterested directors may be less than a quorum; or
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the material facts as to such persons or persons
relationship or interest 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
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the contract or transaction is fair as to us as of the time it
is authorized, approved or ratified by the board of directors, a
committee thereof or the stockholders.
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Transfer
Agent and Registrar
Mellon Investor Services LLC is the transfer agent and registrar
for our common stock.
Listing
of Our Common Stock
Currently, our common stock is listed on the NYSE under the
trading symbol VC.
PLAN OF
DISTRIBUTION
We are registering shares of our common stock for possible sale
by the selling stockholders. Unless the context otherwise
requires, as used in this prospectus, selling
stockholders includes the selling stockholders named in
the table above and donees, pledgees, transferees or other
successors-in-interest
selling shares received from the selling stockholders as a gift,
pledge, partnership distribution or other transfer after the
date of this prospectus.
The selling stockholders may offer and sell all or a portion of
the shares covered by this prospectus from time to time, in one
or more or any combination of the following transactions:
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in the
over-the-counter
market or on any national securities exchange on which our
shares are listed or traded, if any;
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in privately negotiated transactions;
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in underwritten transactions;
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in a block trade in which a broker-dealer will attempt to sell
the offered shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction;
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through purchases by a broker-dealer as principal and resale by
the broker-dealer for its account pursuant to this prospectus;
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in ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
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through the writing of options (including put or call options),
whether the options are listed on an options exchange or
otherwise;
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through loans or pledges of the securities to a broker-dealer or
an affiliate thereof;
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by entering into transactions with third parties who may (or may
cause others to) issue securities convertible or exchangeable
into, or the return of which is derived in whole or in part from
the value of, our common stock;
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a combination of any such methods; or
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any other method permitted pursuant to applicable law.
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The selling stockholders may sell the shares at prices then
prevailing or related to the then current market price or at
negotiated prices. The offering price of the shares from time to
time will be determined by the selling stockholders and, at the
time of the determination, may be higher or lower than the
market price of our common stock on the NYSE or any other
exchange or market.
The shares may be sold directly or through broker-dealers acting
as principal or agent, or pursuant to a distribution by one or
more underwriters on a firm commitment or best-efforts basis.
The selling stockholders may also enter into hedging
transactions with broker-dealers. In connection with such
transactions, broker-dealers of other financial institutions may
engage in short sales of our common stock in the course of
hedging the positions they assume with the selling stockholders.
The selling stockholders may also enter into options or other
transactions with broker-dealers or other financial institutions
which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus,
which shares such broker-dealer or other financial institution
may resell pursuant to this prospectus (as supplemented or
amended to reflect such transaction). In connection with an
underwritten offering, underwriters or agents may receive
compensation in the form of discounts, concessions or
commissions from the selling stockholders or from purchasers of
the offered shares for whom they may act as agents. In addition,
underwriters may sell the shares to or through dealers, and
those dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters
and/or
commissions from the purchasers for whom they may act as agents.
The selling stockholders and any underwriters, dealers or agents
participating in a distribution of the shares may be deemed to
be underwriters within the meaning of the Securities
Act, and any profit on the sale of the shares by the selling
stockholders and any commissions received by broker-dealers may
be deemed to be underwriting commissions under the Securities
Act.
The selling stockholders may agree to indemnify an underwriter,
broker-dealer or agent against certain liabilities related to
the selling of the common stock, including liabilities arising
under the Securities Act. Under the registration rights
agreement, we have agreed to indemnify the selling stockholders
against certain liabilities related to the sale of the common
stock, including certain liabilities arising under the
Securities Act. Under the registration rights agreement, we have
also agreed to pay the costs, expenses and fees of registering
the shares of common stock; however, the selling stockholders
will pay any underwriting discounts or commissions relating to
the sale of the shares of common stock in any underwritten
offering.
The selling stockholders have advised us that they have not
entered into any agreements, understandings or arrangements with
any underwriters or broker-dealers regarding the sale of its
shares. Upon our notification by the selling stockholders that
any material arrangement has been entered into with an
underwriter or broker-dealer for the sale of shares through a
block trade, special offering, exchange distribution, secondary
distribution or a purchase by an underwriter or broker-dealer,
we will file a supplement to this prospectus, if required,
pursuant to Rule 424(b) under the Securities Act,
disclosing certain material information, including:
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the name of the selling stockholders;
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the number of shares being offered;
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the terms of the offering;
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the names of the participating underwriters, broker-dealers or
agents;
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any discounts, commissions or other compensation paid to
underwriters or broker-dealers and any discounts, commissions or
concessions allowed or reallowed or paid by any underwriters to
dealers;
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the public offering price; and
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other material terms of the offering.
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In addition, upon being notified by the selling stockholders
that a donee, pledgee, transferee, other
successor-in-interest
intends to sell more than 500 shares, we will, to the
extent required, promptly file a supplement to this prospectus
to name specifically such person as a selling stockholders.
The selling stockholders are subject to the applicable
provisions of the Securities Exchange Act of 1934, as amended
(the Exchange Act), and the rules and regulations
under the Exchange Act, including Regulation M. This
regulation may limit the timing of purchases and sales of any of
the shares of common stock offered in this prospectus by the
selling stockholders. The anti-manipulation rules under the
Exchange Act may apply to sales of shares in the market and to
the activities of the selling stockholders and its affiliates.
Furthermore, Regulation M may restrict the ability of any
person engaged in the distribution of the shares to engage in
market-making activities for the particular securities being
distributed for a period of up to five business days before the
distribution. The restrictions may affect the marketability of
the shares and the ability of any person or entity to engage in
market-making activities for the shares.
To the extent required, this prospectus may be amended
and/or
supplemented from time to time to describe a specific plan of
distribution. Instead of selling the shares of common stock
under this prospectus, the selling stockholders may sell the
shares of common stock in compliance with the provisions of
Rule 144 under the Securities Act, if available, or
pursuant to other available exemptions from the registration
requirements of the Securities Act.
This offering will terminate on the date that all shares offered
by this prospectus have been sold by the selling stockholders.
EXPERTS
The consolidated financial statements as of December 31,
2010 and for the three-months ended December 31, 2010 and
managements assessment of the effectiveness of internal
control over financial reporting (which is included in
Managements Report on Internal Control over Financial
Reporting) as of December 31, 2010 of Visteon Corporation
(Successor) and the consolidated financial
statements as of December 31, 2009 and for the nine-months
ended October 1, 2010 and for each of the two years ended
December 31, 2009 of Visteon Corporation
(Predecessor) incorporated in this Prospectus by
reference to the Annual Report on
Form 10-K
for the year ended December 31, 2010, have been so
incorporated in reliance on the reports of
PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of said firm as experts
in auditing and accounting.
LEGAL
MATTERS
Kirkland & Ellis LLP, Chicago, Illinois, will pass
upon the validity of the common stock offered in this offering.
WHERE YOU
CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statement on
Form S-3
under the Securities Act of 1933, as amended (the
Securities Act) to register with the SEC the shares
of our common stock being offered in this prospectus. This
prospectus, which constitutes a part of the registration
statement, does not contain all of the information set forth in
the registration statement or the exhibits and schedules filed
with it. For further information about us and our common stock,
reference is made to the registration statement and the exhibits
and schedules filed with it. Statements contained in this
prospectus regarding the contents of any contract or any other
document that is filed as an exhibit to the registration
statement are not necessarily complete, and each such statement
is qualified in all
26
respects by reference to the full text of such contract or other
document filed as an exhibit to the registration statement.
We file annual, quarterly and current reports, proxy and
registration statements and other information with the SEC. You
may read and copy any reports, statements, or other information
that we file, including the registration statement, of which
this prospectus forms a part, the exhibits and schedules filed
with it, and the information incorporated by reference herein,
without charge at the public reference room maintained by the
SEC, located at 100 F Street, NE,
Washington, D.C. 20549, and copies of all or any part of
the registration statement may be obtained from the SEC on the
payment of the fees prescribed by the SEC. Please call the SEC
at
1-800-SEC-0330
for further information about the public reference room. The SEC
also maintains an Internet website that contains reports, proxy
and information statements and other information regarding
registrants that file electronically with the SEC. The address
of the website is www.sec.gov.
INCORPORATION
BY REFERENCE OF CERTAIN DOCUMENTS
We are incorporating by reference specified documents that we
file with the SEC, which means that we can disclose important
information to you by referring you to those documents that are
considered part of this prospectus. We incorporate by reference
into this prospectus the documents listed below and any future
filings we make with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the Exchange Act) other than portions of these documents
that are either (1) described in paragraph (e) of
Item 201 of Registration S-K or paragraphs (d)(1)-(3) and
(e)(5) of Item 407 of
Regulation S-K
promulgated by the SEC or (2) furnished under
Item 2.02 or Item 7.01 of a Current Report on
Form 8-K:
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Our Annual Report on
Form 10-K
for the year ended December 31, 2010; and
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Our registration statement on
Form 8-A
filed with the SEC on September 30, 2010.
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Any statement contained in a document incorporated or deemed to
be incorporated by reference into this prospectus will be deemed
to be modified or superseded for purposes of this prospectus to
the extent that a statement contained in this prospectus or any
other subsequently filed document that is deemed to be
incorporated by reference into this prospectus modifies or
supersedes the statement. Any statement so modified or
superseded will not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
Our filings with the SEC, including our Annual Report on
Form 10-K,
Quarterly Reports on
Form 10-Q,
Current Reports on
Form 8-K
and amendments to those reports, are available free of charge on
our website (www.visteon.com) as soon as reasonably practicable
after they are filed with, or furnished to, the SEC. Our website
and the information contained on that site, or connected to that
site, are not incorporated into and are not a part of this
prospectus except for the documents specifically incorporated by
reference as noted above. You may also obtain a copy of these
filings at no cost by writing or telephoning us at the following
address:
Investor
Relations Department
Visteon Corporation
One Village Center Drive
Van Buren Township, MI 48111
Tel. No.
(734) 710-5800
27
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 13.
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Other
Expenses of Issuance and Distribution.
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The following table shows the costs and expenses payable in
connection with the sale and distribution of the securities
being registered. All amounts except the SEC registration fee
are estimated.
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Amount of SEC registration fee
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$
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205,552
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Accounting fees and expenses
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Legal fees and expenses
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100,000
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Printing fees and expenses
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50,000
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|
Total
|
|
$
|
355,552
|
|
|
|
|
|
|
|
|
Item 14.
|
Indemnification
of Directors and Officers.
|
Visteon is incorporated under the laws of the State of Delaware.
Section 145 (Section 145) of the Delaware
General Corporation Law, as the same exists or may hereafter be
amended (the DGCL), provides that a Delaware
corporation may indemnify any persons who were, are or are
threatened to be made, parties to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of such corporation), by reason of the fact that such
person is or was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses
(including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding,
provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the
corporations best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe that his conduct was illegal. Section 145(b) of the
DGCL provides that a Delaware corporation may indemnify officers
and directors in an action by or in the right of the corporation
under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director
is adjudged to be liable to the corporation. Where an officer,
director, employee or agent is successful on the merits or
otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such
officer or director has actually and reasonably incurred.
Section 145(g) of the DGCL provides that a corporation
shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director or officer of the
corporation against any liability asserted against the person in
any such capacity, or arising out of the persons status as
such, whether or not the corporation would have the power to
indemnify the person against such liability under the provisions
of the DGCL.
Article Ninth of Visteons second amended and restated
certificate of incorporation provides that a director of Visteon
shall not be personally liable to Visteon or its stockholders
for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation
thereof is not permitted under Delaware law. Article Tenth
of Visteons second amended and restated certificate of
incorporation and Article VIII of Visteons amended
and restated bylaws provide for indemnification of the officers
and directors of Visteon to the fullest extent permitted by the
DGCL.
The foregoing is only a general summary of certain aspects of
Delaware law and the registrants organizational documents
dealing with indemnification of directors and officers and does
not purport to be complete. It is qualified in its entirety by
reference to the applicable provisions of the DGCL and of the
registrants second amended and restated certificate of
incorporation and bylaws.
Visteon has obtained directors and officers
liability insurance, which insures against liabilities that its
directors or officers may incur in such capacities.
|
|
Item 15.
|
Recent
Sales of Unregistered Securities.
|
On the Effective Date, all existing shares of old common stock
were cancelled pursuant to the Plan of Reorganization.
II-1
Pursuant to the Plan of Reorganization, on the Effective Date,
Visteon issued (i) 3,520,408 shares of common stock,
(ii) 2,355,000 Ten Year Warrants; and (iii) 1,552,774
Five Year Warrants, which, in each case (including shares of
common stock issuable upon exercise such warrants), based on the
Plan of Reorganization and Confirmation Order entered by the
Bankruptcy Court on August 31, 2010, are exempt from
registration requirements of the Securities Act, in reliance on
Section 1145 of the Bankruptcy Code.
Pursuant to the Plan of Reorganization, on the Effective Date,
Visteon issued 45,145,000 shares of common stock in
connection with the rights offering provided for in the Plan of
Reorganization. Such shares are exempt from registration
requirements of the Securities Act in reliance on
Section 4(2) of the Securities Act.
|
|
Item 16.
|
Exhibits
and Financial Statement Schedules.
|
Reference is made to the Exhibit Index filed as part of
this Registration Statement.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set
forth in the Calculation of Registration Fee table
in the effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
Provided, however,
that paragraphs (a)(1)(i), (a)(1)(ii)
and (a)(1)(iii) of this section do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
II-2
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Provided, however,
that no
statement made in a registration statement or prospectus that is
part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities
of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser: if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-3
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)
(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time
it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in Van Buren Township, State of Michigan on
March 10, 2011.
VISTEON CORPORATION
|
|
|
|
By:
|
/s/ William
G. Quigley III
|
Name: William G. Quigley III
|
|
|
|
Title:
|
Executive Vice President and Chief
|
Financial Officer
POWER OF
ATTORNEY
Each person whose signature appears below constitutes and
appoints William G. Quigley III, Michael K. Sharnas, Heidi A.
Sepanik and Peter M. Ziparo, and each of them singly, his or her
true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to
this registration statement and any and all additional
registration statements pursuant to Rule 462(b) of the
Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and all other documents in connection
therewith, with the SEC, granting unto each said
attorney-in-fact and agents full power and authority to do and
perform each and every act in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or either
of them or their or his or her substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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|
|
|
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|
Signature/Name
|
|
Position
|
|
Date
|
|
|
|
|
|
|
/s/ Donald
J. Stebbins
Donald
J. Stebbins
|
|
Chairman, President and Chief Executive Officer (Principal
Executive Officer)
|
|
March 10, 2011
|
|
|
|
|
|
/s/ William
G. Quigley III
William
G. Quigley III
|
|
Executive Vice President and Chief Financial Officer (Principal
Financial Officer)
|
|
March 10, 2011
|
|
|
|
|
|
/s/ Michael
J. Widgren
Michael
J. Widgren
|
|
Vice President, Corporate Controller and Chief Accounting
Officer (Principal Accounting Officer)
|
|
March 10, 2011
|
|
|
|
|
|
/s/ Duncan
H. Cocroft
Duncan
H. Cocroft
|
|
Director
|
|
March 10, 2011
|
|
|
|
|
|
/s/ Philippe
Guillemot
Philippe
Guillemot
|
|
Director
|
|
March 10, 2011
|
|
|
|
|
|
/s/ Herbert
L. Henkel
Herbert
L. Henkel
|
|
Director
|
|
March 10, 2011
|
II-5
|
|
|
|
|
|
|
Signature/Name
|
|
Position
|
|
Date
|
|
|
|
|
|
|
/s/ Mark
T. Hogan
Mark
T. Hogan
|
|
Director
|
|
March 10, 2011
|
|
|
|
|
|
/s/ Jeffrey
D. Jones
Jeffrey
D. Jones
|
|
Director
|
|
March 10, 2011
|
|
|
|
|
|
/s/ Karl
J. Krapek
Karl
J. Krapek
|
|
Director
|
|
March 10, 2011
|
|
|
|
|
|
/s/ Timothy
D. Leuliette
Timothy
D. Leuliette
|
|
Director
|
|
March 10, 2011
|
|
|
|
|
|
/s/ William
E. Redmond, Jr.
William
E. Redmond, Jr.
|
|
Director
|
|
March 10, 2011
|
II-6
Exhibit Index
|
|
|
|
|
Exhibit
|
|
|
No.
|
|
Description
|
|
|
2
|
.1
|
|
Fifth Amended Joint Plan of Reorganization, filed
August 31, 2010 (incorporated by reference to
Exhibit 2.1 to the Current Report on
Form 8-K
of Visteon Corporation filed on September 7, 2010
(File No. 001-15827)).
|
|
2
|
.2
|
|
Fourth Amended Disclosure Statement, filed June 30, 2010
(incorporated by reference to Exhibit 2.2 to the Current
Report on
Form 8-K
of Visteon Corporation filed on September 7, 2010
(File No. 001-15827)).
|
|
3
|
.1
|
|
Second Amended and Restated Certificate of Incorporation of
Visteon Corporation (incorporated by reference to
Exhibit 3.1 to the Registration Statement on
Form 8-A
of Visteon Corporation filed on September 30, 2010 (File
No. 000-54138)).
|
|
3
|
.2
|
|
Second Amended and Restated Bylaws of Visteon Corporation
(incorporated by reference to Exhibit 3.2 to the
Registration Statement on
Form 8-A
of Visteon Corporation filed on September 30, 2010
(File No. 000-54138)).
|
|
4
|
.1
|
|
Warrant Agreement, dated as of October 1, 2010, by and
between Visteon Corporation and Mellon Investor Services LLC
(incorporated by reference to Exhibit 10.1 to the
Registration Statement on
Form 8-A
of Visteon Corporation filed on September 30, 2010 (File
No. 000-54138)).
|
|
4
|
.2
|
|
Warrant Agreement, dated as of October 1, 2010, by and
between Visteon Corporation and Mellon Investor Services LLC
(incorporated by reference to Exhibit 10.2 to the
Registration Statement on
Form 8-A
of Visteon Corporation filed on September 30, 2010 (File
No. 000-54138)).
|
|
4
|
.3
|
|
Form of Common Stock Certificate of Visteon Corporation
(incorporated by reference to Exhibit 4.4 to the Current
Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15827))
|
|
5
|
.1
|
|
Legal Opinion of Kirkland & Ellis LLP.*
|
|
10
|
.1
|
|
Registration Rights Agreement, dated as of October 1, 2010,
by and among Visteon Corporation and certain investors listed
therein (incorporated by reference to Exhibit 4.3 to the
Current Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15827)).
|
|
10
|
.2
|
|
Equity Commitment Agreement, dated as of May 6, 2010, by
and among Visteon Corporation, Alden Global Distressed
Opportunities Fund, L.P., Allen Arbitrage, L.P., Allen Arbitrage
Offshore, Armory Master Fund Ltd., Capital Ventures
International, Caspian Capital Partners, L.P., Caspian Select
Credit Master Fund, Ltd., Citadel Securities LLC, CQS
Convertible and Quantitative Strategies Master
Fund Limited, CQS Directional Opportunities Master
Fund Limited, Crescent 1 L.P., CRS Fund Ltd., CSS,
LLC, Cumber International S.A., Cumberland Benchmarked Partners,
L.P., Cumberland Partners, Cyrus Europe Master Fund Ltd.,
Cyrus Opportunities Master Fund II, Ltd., Cyrus Select
Opportunities Master Fund, Ltd., Deutsche Bank Securities Inc.
(solely with respect to the Distressed Products Group), Elliott
International, L.P., Goldman, Sachs & Co. (solely with
respect to the High Yield Distressed Investing Group), Halbis
Distressed Opportunities Master Fund Ltd., Kivu Investment
Fund Limited, LongView Partners B, L.P., Mariner LDC
(Caspian), Mariner LDC (Riva Ridge), Merced Partners II, L.P.,
Merced Partners Limited Partnership, Monarch Master Funding
Ltd., NewFinance Alden SPV, Oak Hill Advisors, L.P.,
Quintessence Fund L.P., QVT Fund LP, Riva Ridge Master
Fund, Ltd., Seneca Capital LP, Silver Point Capital, L.P., SIPI
Master Ltd., Solus Alternative Asset Management LP, Spectrum
Investment Partners, L.P., Stark Criterion Master
Fund Ltd., Stark Master Fund Ltd., The Liverpool
Limited Partnership, The Seaport Group LLC Profit Sharing Plan,
UBS Securities LLC, Venor Capital Management, Whitebox Combined
Partners, L.P., and Whitebox Hedged High Yield Partners, L.P.
(incorporated by reference to Exhibit 2.1 to the Quarterly
Report on
Form 10-Q
of Visteon Corporation filed on August 9, 2010 (File
No. 001-15827)).
|
|
|
|
|
|
Exhibit
|
|
|
No.
|
|
Description
|
|
|
10
|
.3
|
|
First Amendment, dated as of June 13, 2010, to the Equity
Commitment Agreement, by and among Visteon Corporation, Alden
Global Distressed Opportunities Fund, L.P., Allen Arbitrage,
L.P., Allen Arbitrage Offshore, Armory Master Fund Ltd.,
Capital Ventures International, Caspian Capital Partners, L.P.,
Caspian Select Credit Master Fund, Ltd., Citadel Securities LLC,
CQS Convertible and Quantitative Strategies Master
Fund Limited, CQS Directional Opportunities Master
Fund Limited, Crescent 1 L.P., CRS Fund Ltd., CSS,
LLC, Cumber International S.A., Cumberland Benchmarked Partners,
L.P., Cumberland Partners, Cyrus Europe Master Fund Ltd.,
Cyrus Opportunities Master Fund II, Ltd., Cyrus Select
Opportunities Master Fund, Ltd., Deutsche Bank Securities Inc.
(solely with respect to the Distressed Products Group), Elliott
International, L.P., Goldman, Sachs & Co. (solely with
respect to the High Yield Distressed Investing Group), Halbis
Distressed Opportunities Master Fund Ltd., Kivu Investment
Fund Limited, LongView Partners B, L.P., Mariner LDC
(Caspian), Mariner LDC (Riva Ridge), Merced Partners II, L.P.,
Merced Partners Limited Partnership, Monarch Master Funding
Ltd., NewFinance Alden SPV, Oak Hill Advisors, L.P.,
Quintessence Fund L.P., QVT Fund LP, Riva Ridge Master
Fund, Ltd., Seneca Capital LP, Silver Point Capital, L.P., SIPI
Master Ltd., Solus Alternative Asset Management LP, Spectrum
Investment Partners, L.P., Stark Criterion Master
Fund Ltd., Stark Master Fund Ltd., The Liverpool
Limited Partnership, The Seaport Group LLC Profit Sharing Plan,
UBS Securities LLC, Venor Capital Management, Whitebox Combined
Partners, L.P., and Whitebox Hedged High Yield Partners, L.P.
(incorporated by reference to Exhibit 2.2 to the Quarterly
Report on
Form 10-Q
of Visteon Corporation filed on August 9, 2010 (File
No. 001-15827)).
|
|
10
|
.4
|
|
Term Loan Agreement, dated October 1, 2010 by and among
Visteon Corporation, certain of its subsidiaries, the lenders
party thereto and Morgan Stanley Senior Funding Inc. as the Term
Administrative Agent, (incorporated by reference to
Exhibit 4.2 to the Current Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15827)).
|
|
10
|
.5
|
|
Revolving Loan Credit Agreement, dated October 1, 2010 by
and among Visteon Corporation, certain of its subsidiaries, the
lenders party thereto and Morgan Stanley Senior Funding, Inc.,
as the Revolver Administrative Agent (incorporated by reference
to Exhibit 10.2 to the Current Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15877)).
|
|
10
|
.6
|
|
Employment Agreement, dated October 1, 2010, by and between
Visteon Corporation and Donald J. Stebbins
(incorporated by reference to Exhibit 10.5 to the current
report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15827)).
|
|
10
|
.7
|
|
Form of Executive Officer Change in Control Agreement
(incorporated by reference to Exhibit 10.6 to the Current
Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15827)).
|
|
10
|
.7.1
|
|
Schedule identifying substantially identical agreements to
Executive Officer Change in Control Agreement constituting
Exhibit 10.7 hereto entered into by Visteon Corporation
with Messrs. Stebbins and Quigley (incorporated by
reference to Exhibit 10.8.1 to the Annual Report on
Form 10-K
of Visteon Corporation for the period ended December 31,
2010 (File
No. 001-15827)).
|
|
10
|
.8
|
|
Form of Officer Change In Control Agreement (incorporated by
reference to Exhibit 10.7 to the Current Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15827)).
|
|
10
|
.8.1
|
|
Schedule identifying substantially identical agreements to
Officer Change in Control Agreement constituting
Exhibit 10.8 hereto entered into by Visteon Corporation
with Messrs. Pallash, Meszaros, Sharnas, Sistek and Widgren
and Mses. Stephenson, Fream and Greenway (incorporated by
reference to Exhibit 10.9.1 to the Annual Report on
Form 10-K
of Visteon Corporation for the period ended December 31,
2010 (File
No. 001-15827)).
|
|
10
|
.9
|
|
Global Settlement and Release Agreement, dated
September 29, 2010, by and among Visteon Corporation, Ford
Motor Company and Automotive Components Holdings, LLC
(incorporated by reference to Exhibit 10.4 to the Current
Report on
Form 8-K
of Visteon Corporation filed on October 1, 2010 (File
No. 001-15827)).
|
|
10
|
.10
|
|
Visteon Corporation 2010 Incentive Plan (incorporated by
reference to Exhibit 10.1 to the Registration Statement on
Form S-8
of Visteon Corporation filed on September 30, 2010 (File
No. 333-169695)).
|
|
10
|
.10.1
|
|
Form of Terms and Conditions of Initial Restricted Stock Grants
under the Visteon Corporation 2010 Incentive Plan (incorporated
by reference to Exhibit 10.2 to the Registration Statement
on
Form S-8
of Visteon Corporation filed on September 30, 2010 (File
No. 333-169695)).
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|
|
|
|
|
Exhibit
|
|
|
No.
|
|
Description
|
|
|
10
|
.10.2
|
|
Form of Terms and Conditions of Initial Restricted Stock Unit
Grants under the Visteon Corporation 2010 Incentive Plan
(incorporated by reference to Exhibit 10.3 to the
Registration Statement on
Form S-8
of Visteon Corporation filed on September 30, 2010 (File
No. 333-169695)).
|
|
10
|
.11
|
|
Visteon Corporation Amended and Restated Deferred Compensation
Plan for Non-Employee Directors (incorporated by reference to
Exhibit 10.11 to the Registration Statement on
Form S-1
of Visteon Corporation filed on October 22, 2010 (File
No. 333-170104)).
|
|
10
|
.10.3
|
|
Form of Terms and Conditions of Nonqualified Stock Options under
the Visteon Corporation 2010 Incentive Plan (incorporated by
reference to Exhibit 10.10.3 to the Annual Report on
Form 10-K
of Visteon for the period ended December 31, 2010).
|
|
10
|
.10.4
|
|
Form of Terms and Conditions of Stock Appreciation Rights under
the Visteon Corporation 2010 Incentive Plan (incorporated by
reference to Exhibit 10.10.4 to the Annual Report on
Form 10-K
of Visteon for the period ended December 31, 2010).
|
|
10
|
.10.5
|
|
Form of Terms and Conditions of Restricted Stock Grants under
the Visteon Corporation 2010 Incentive Plan (incorporated by
reference to Exhibit 10.10.5 to the Annual Report on
Form 10-K
of Visteon for the period ended December 31, 2010).
|
|
10
|
.10.6
|
|
Form of Terms and Conditions of Restricted Stock Unit Grants
under the Visteon Corporation 2010 Incentive Plan (incorporated
by reference to Exhibit 10.10.6 to the Annual Report on
Form 10-K
of Visteon for the period ended December 31, 2010).
|
|
10
|
.10.7
|
|
Form of Terms and Conditions of Performance Unit Grants under
the Visteon Corporation 2010 Incentive Plan (incorporated by
reference to Exhibit 10.10.7 to the Annual Report on
Form 10-K
of Visteon for the period ended December 31, 2010).
|
|
10
|
.12
|
|
Visteon Corporation 2010 Supplemental Executive Retirement Plan
(incorporated by reference to Exhibit 11.12 to the
Registration Statement on
Form S-1
of Visteon Corporation filed on October 22, 2010 (File
No. 333-170104)).
|
|
10
|
.13
|
|
Visteon Corporation 2010 Pension Parity Plan (incorporated by
reference to Exhibit 10.13 to the Registration Statement on
Form S-1
of Visteon Corporation filed on October 22, 2010
(File No. 333-170104)).
|
|
10
|
.14
|
|
2010 Visteon Executive Severance Plan (incorporated by reference
to Exhibit 10.14 to the Registration Statement on
Form S-1
of Visteon Corporation filed on October 22, 2010 (File
No. 333-170104)).
|
|
10
|
.15
|
|
Visteon Corporation Non-Employee Director Stock Unit Plan
(incorporated by reference to Exhibit 10.15 to the
Registration Statement on
Form S-1
of Visteon Corporation filed on October 22, 2010
(File No. 333-170104)).
|
|
10
|
.16
|
|
Form of Executive Retiree Health Care Agreement (incorporated by
reference to Exhibit 10.23 to the Annual Report on
Form 10-K
of Visteon for the period ended December 31, 2009).
|
|
10
|
.16.1
|
|
Schedule identifying substantially identical agreements to
Executive Retiree Health Care Agreement constituting
Exhibit 10.16 hereto entered into by Visteon with
Mr. Stebbins and Ms. D. Stephenson (incorporated by
reference to Exhibit 10.23.1 to the Annual Report on
Form 10-K
of Visteon for the period ended December 31, 2009).
|
|
21
|
.1
|
|
Subsidiaries of Visteon Corporation (incorporated by reference
to Exhibit 21.1 to the Annual Report on
Form 10-K
of Visteon Corporation for the period ended December 31,
2010 (File
No. 001-15827)).
|
|
23
|
.1
|
|
Consent of Independent Registered Public Accounting Firm,
PricewaterhouseCoopers LLP.*
|
|
23
|
.2
|
|
Consent of Kirkland & Ellis LLP (included as part of
Exhibit 5.1).*
|
|
24
|
.1
|
|
Power of Attorney (included on the signature page).*
|
|
|
|
*
|
|
Filed herewith.
|
|
|
|
Management compensatory plan or arrangement.
|
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