Document/ExhibitDescriptionPagesSize 1: 8-A12G Registration of a Class of Securities HTML 53K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 57K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 123K
4: EX-10.1 Material Contract HTML 164K
5: EX-10.2 Material Contract HTML 164K
Securities to be registered pursuant to Section 12(b) of the Act: None
If this form relates to the registration of a class of securities pursuant to Section 12(b) of the
Exchange Act and is effective pursuant to General Instruction A.(c), check the following box. o
If this form relates to the registration of a class of securities pursuant to Section 12(g) of the
Exchange Act and is effective pursuant to General Instruction A.(d), check the following box. þ
Securities Act registration statement file number to which this form relates: N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Title of each class
to be so registered
Common Stock, par value $0.01 per share
Warrants, each exercisable for one share of Common Stock at an
exercise price of $58.80 (expiring October 15, 2015)
Warrants, each exercisable for one share of Common Stock at an
exercise price of $9.66 (expiring October 15, 2020)
As previously disclosed, on May 28, 2009, Visteon Corporation and certain of its domestic
subsidiaries (collectively, the “Debtors”) filed voluntary petitions seeking relief pursuant to
Chapter 11 of Title 11 of the United States Code in the United States Bankruptcy Court for the
District of Delaware (the “Court”) (Consolidated Case No. 09-11786). On August 31, 2010, the Court
entered an order confirming the Debtors’ joint plan of reorganization (as amended and supplemented,
the “Plan”).
Unless the context requires otherwise, references herein to “Visteon,”“the Company,”“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.
Item 1. Description of Registrant’s Securities to be Registered
The following description of our capital stock assumes that the Plan, our second amended and
restated certificate of incorporation and our second amended and restated bylaws have become
effective. 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 this registration statement.
Authorized Capital Stock upon Emergence
Visteon has the authority to issue a total of 300,000,000 shares of capital stock,
consisting of:
•
250,000,000 shares of common stock, par value $0.01 per share; and
•
50,000,000 shares of preferred stock, par value $0.01 per share.
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, we issued warrants to purchase 2,355,000 shares of our common stock
to holders of our 12.25% senior notes issued (the “Noteholder Warrants”). The Noteholder Warrants
have an exercise price of $9.66 per share of common stock. Each of the Noteholder 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 stock and
in connection with certain distributions of cash, assets or securities.
Pursuant to the Plan, we issued warrants to purchase shares of our common stock to holders of
shares of our previously outstanding common stock, which were cancelled pursuant to Plan (the “Old
Equity Warrants”). The Old Equity Warrants have an exercise price of $58.80 per share. Each of
the Old Equity Warrants expires five years after the date of issuance. The Old Equity 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 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 series 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 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).
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:
•
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;
•
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
•
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.
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 person’s 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.
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 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 cash 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 an annual meeting of stockholders,
including proposed nominations of persons for election to the board of directors. Stockholders at
an annual 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 stockholder’s 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 acquiror 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 on 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.
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 any provision of our second amended and restated certificate of incorporation or 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 Visteon’s
securities prior to the earliest of:
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,
•
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
•
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 “Restriction Release
Date”), or
•
any attempted transfer of Visteon’s 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:
•
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
•
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.
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 Visteon’s 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.
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 person’s votes are counted for such purpose if:
•
the material facts as to such person’s 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
•
the material facts as to such person’s or person’s 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
•
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.
Transfer Agent and Registrar
Mellon Investor Services LLC is the transfer agent and registrar for our common stock.
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the
Registrant has duly caused this registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
